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HomeMy WebLinkAbout2015_0223_Minutes Open_APPROVEDCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as amended 4/27/15 Board/Committee: CHARTER REVIEW COMMISSION =MeetingDate February 23, 2015 Location Mo'ikeha Building, Meeting Room 2A/213 I Start of Meeting: 4:04 pm I End of Meeting: 5:44 pm Present Chair Jan TenBruggencate. Members: Ed Justus; James Nishida (in 4:41 pm); Allan Parachini; Patrick Stack (out 5:31 pm) Also: Deputy County Attorney Philip Dureza; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrator Paula Morikami Excused Vice Chair Joel Guy Absent SUBJECT DISCUSSION ACTION Call To Order Chair TenBruggencate called the meeting to order at 4:04 pin with 4 Commissioners present Approval of Regular Open Session Minutes of January 26, 2015 Mr. Parachini moved to approve the minutes as Minutes circulated. Mr. Justus seconded the motion. Motion carried 4:0 Business CRC 2013 -03 Review of Recommendations in Ramsever form from legral analyst Curtis Shiramizu on identifying and proposing grammar, punctuation, revisions and to bring in line the previous amendments approved by the voters to the Kauai County Charter (Defer to September 2015 Deputy Attorney Dureza explained this item has been deferred to September subsequent to a meeting with Council Services Staff, County Attorney Mauna Kea Trask and Boards and Commissions Staff in which it was determined that the 2014 unofficial Codified Charter would be sent to Council Services Staff to compare with the official document for discrepancies. Once that process has been completed the County Clerk will certify it as the official version which incorporates all charter amendments to date. That certified version will be given to this Commission for incorporation of gender neutral, grammatical, punctuation, etc., changes for possible placement on the 2016 ballot for adoption of all changes by the voters. Mr. Stack moved to receive the item. Mr. Justus Charter Review Commission Open Session February 23, 2015 Page 2 SUBJECT DISCUSSION ACTION seconded the motion. Motion carried 4:0 CRC 2014 -05 Discussion and possible decision - making on whether a footnote is required to clarify subsections B. and C. of Section 26.04. Status of Departments and Transfer of Funds (Deferred 1/26/15) Deputy Attorney Dureza noted most of the information had been covered in the previous month's executive session and asked the Commission if it would be appropriate to go into executive session now in case there are overlapping questions. Chair TenBruggencate said this can be moved into the executive session agenda and be taken up when the Commission goes into executive session. Mr. Stack questioned if a footnote would be considered as a substantive change to the Charter. Deputy Attorney Dureza said without having done any legal research, he thought a footnote that explained a provision would not be considered as a substantive change, but more research would need to be done to be sure. Mr. Justus asked if instead of a footnote it would be possible to change the title of the article to clarify what that transitional provision is, perhaps using the dates it was in effect? Mr. Justus was informed that changing a title would be a substantive change. Chair TenBruggencate asked for a motion to move this to the executive session agenda. Mr. Justus so moved. Mr. Parachini seconded the motion. Motion carried 4:0 CRC 2014 -06 Discussion and possible decision - making on whether there is a need to define what a charter amendment is a. Add a preamble or an additional paragraph to section 1.01; Charter Amendment Proposal for Section 24.01, Initiation of Amendments b. Charter Amendment Proposal for Section 24.04, Clarification of What Constitutes a Charter Amendment C. Charter Amendment Petition Guidelines & Exhibits; Instructions for Voter Amendments (On- going) (Items deferred 1/26/15) Charter Review Commission Open Session February 23, 2015 Page 3 SUBJECT DISCUSSION ACTION Deputy Attorney Dureza noted this was covered in the minutes and asked if it needed to go into Executive Session. Chair TenBruggencate said it was not clear there were issues that justified an Executive Session and would hate to get in the habit of easing things into an Executive Session without good cause, and would not be sure this fulfills the legal requirements to take items into Executive Session. Deputy Attorney Dureza thought it did because it overlaps with the legal opinion request which is covered. Chair TenBruggencate agreed the legal opinion certainly did but he was not sure the whole issue needed to be taken into Executive Session. Mr. Justus said he did read the Executive Session minutes and there were things he would like to talk with the Commission about, but feels barred since it was Mr. Justus moved that these items be taken into discussed in Executive Session. Executive Session. Motion died for lack of a second. Chair TenBruggencate asked that they proceed on this item, but to avoid references to the Attorney's opinion. Mr. Justus asked to address the preamble first and stated the question he proposed to the County Attorney's Office for an opinion is not the actual question that he wanted an answer to. His actual question should have been was the preamble that was printed in the Garden Island Newspaper after the charter was approved presented to the voting public at the 1968 election, and if so was it approved by the voters? If it was in the original language of the charter, why was it not in any of the other versions of the charter and can it be included now. If it was not part of the original language presented in 1968 would it be worthwhile for this Commission to include that preamble as part of the actual charter. Deputy Attorney Dureza said he is not sure how much of a legal question this is, but he would have to assume the preamble did not make it in the 1968 charter. Based on the focus of this Commission to improve Charter Review Commission Open Session February 23, 2015 Page 4 SUBJECT DISCUSSION ACTION government operations, does it improve government operations by adding a preamble and would it be prudent to add that language going forward? Deputy Attorney Dureza said he was not sure how much weight the preamble would add to the efficacy of our government. Mr. Justus said if he were to do the research and find the preamble that was printed in the newspaper is part of the original language of the charter that was voted on would it automatically be folded into the charter or would it have to be presented again. Deputy Attorney Dureza said the issue was addressed in his opinion. Mr. Parachini asked if this was important to Mr. Justus for historical accuracy or is there some other level of meaning. Mr. Justus said neither; it is more about making sure if the people voted to have it included in the charter that the charter is not incomplete. Mr. Justus said he would do further research on the preamble. Chair TenBruggencate said the preamble does not change the function of County government in any way so whether it is officially a part of the charter it is not a law in the sense that it directs anyone to do anything. Based on Mr. Justus doing further research Chair TenBruggencate asked that the preamble be listed as a separate agenda item next month. Section 24.01, Initiation of Amendments. Mr. Justus explained that in observing how the last charter amendment that was presented to the Council and how the Council chose to deny the charter amendment he did some research in which it seemed fairly obvious that the people who framed the charter designed the voter initiation process to circumvent the other branches from squashing something put out by the people; this would help in preventing measures from not being put on the ballot. Routing it through the County Clerk's Office keeps it all in one package and helps avoid confusion. Chair TenBruggencate stated the 3 ways of getting something on the ballot is through the Council, the Commission or the public through a petition drive. Mr. Justus added that the Council had an opinion that said Charter Review Commission Open Session February 23, 2015 Page 5 SUBJECT DISCUSSION ACTION they had the power to veto it because it was not a valid charter amendment, but the 2004 court opinion from the `Ohana amendment stated very clearly that only the courts had the power to decide what is valid or invalid with charter amendments; not any other branch of government. With that in mind the language of the proposed amendment clarifies that issue and brings it in line with case law. Mr. Parachini was not sure it brought it in line with case law. Two of the cases cited, both of which had identical language, was in turn taken from the decision by another court who had an obligation not to allow something that was clearly not a charter amendment. Mr. Stack asked to revisit the item on the preamble noting a preamble is very definitely necessary. It is the headline, the introduction, the abstract for the document itself. The seventeenth word of the United States Constitution speaks to "We the people of the United States in order to form a more perfect union, establish justice....." That is why the preamble for the United States Constitution works because it electrifies the Justice Department to a justice process. For us to do away with this preamble would be wrong as it states what our goals are and is the shining light on what we are trying to do. Chair TenBruggencate said that Commissioner ustus has volunteered to study whether in fact the preamble is part of the document that the voters voted on back in 1968. When he comes back with an answer the Commission can then decide on whether they want to do something about it or not. Mr. Justus said the only way they will find out is what was printed in the newspaper of that time because there is nothing in the County records. Returning to the proposal for initiation of amendments, Mr. Justus referred to the language that was in the County of Kauai vs. Baptiste. The final decision says "initially we acknowledge that oral argument the County Deleted: Justice Charter Review Commission Open Session February 23, 2015 Page 6 SUBJECT DISCUSSION ACTION through its attorney conceded that the charter amendment was valid however the validity or invalidity of the charter amendment is a question of law for this court to decide" and then it states a case. Mr. Justus thought that statement alone said that any decision on validity or invalidity is for the courts. Chair TenBruggencate said he was hearing that the courts establish that they have the authority, but that line did not establish that the County Council didn't. Mr. Justus said it clarifies that the County Council was wrong in saying whether it was a valid charter amendment or not because the final conclusion in the case says "based on the foregoing we reverse that portion of the circuit courts May 20, 2005 final judgment wherein the circuit court ruled that the Charter Amendment violated the revised County of Kauai charter. In all other respects, we affirm." In reality anything that is presented as an amendment to our charter and is passed is a valid charter amendment. This simple proposal changes it from being presented to Council to being presented to the Clerk and eliminates the question of someone else having to decide whether it is valid. While Mr. Justus did not support the petition itself, he does support the reality that it was a violation of the process. Chair TenBruggencate pointed out that Mr. Justus said that if a charter amendment is presented with sufficient signatures that says chickens are ducks, no one can take that off the ballot — it has to go to the voters. That is not what the County Council did but what Mr. Justus is arguing, and the intention of this amendment is that any language no matter what it is which has a petitioners committee and enough signatures must go to the voters. Mr. Justus said no, not at all; that is what the court states. The court ruling stated that the amendment that was passed in 2004 did violate the County charter; the reason why is because there is nothing in our Charter that defines what a Charter amendment is. That is a problem that is worthwhile for the Commission to fix. The other issue was about Council believing they have the authority to decide what a valid or invalid charter amendment is even though the court language says otherwise. Mr. Parachini said there is different language in the Nakazawa case and the Charter Review Commission Open Session February 23, 2015 Page 7 SUBJECT DISCUSSION ACTION sense he got was when the charter is ambiguous as it is currently, case law takes over which was what the County Attorney was seeking to articulate. There were two sites that concurred with what was in that County Council opinion. What did not happen was that the creators of that initiative were certainly free to ask for a declaratory judgment of the circuit court to tell the County Council or the County Attorney that they were wrong. They did not challenge the County Attorney's opinion. �Mr. Justus noted his concern is with abuse and the easiest way to remove that abuse is to have voter initiated charter amendments that go directly to the County Clerk. Chair TenBruggencate asked who would have the authority to say something was bogus. Mr. Justus said the County Clerk. Mr. Parachini asked if the County Clerk by definition does not serve at the pleasure of the Council and is essentially an employee of the Council. The Clerk could be given Mr. Nishida entered the meeting at 4:41 p.m. direction by the Council to do something and would be compelled to do so. Mr. Parachini was not sure the proposal achieved what Mr. Justus would like for it to achieve and was not sure the County Clerk is any different than the County Council. Mr. Justus thought it important to find a way to make it absolutely clear that voter initiated amendments are designed to circumvent the approval from the legislative function. Mr. Parachini did not know if switching it from the County Council receiving it to the County Clerk receiving it solves the problem. Mr. Justus said the Council is not defined to have any clearly stated instructions, but what is clearly stated is the County Clerk's actions. Mr. Justus said his understanding is when you present something to the County Clerk for a charter amendment it is their responsibility to make sure it gets on the ballot at the proper time, and more in line with the elections division rather than acting on behalf of the Council. Chair TenBruggencate felt that if there was anyone in the County with the authority to say an amendment is invalid then that power should be clearly conveyed. If that Deleted: Mr. Parachini agreed that Mr. Justus' booting process has something to be said. Charter Review Commission Open Session February 23, 2015 Page 8 SUBJECT DISCUSSION ACTION authority is to be conveyed to the County Clerk then perhaps the fifth paragraph of Section 24.01 should say: Upon [filing] presentation of such petition .......... the clerk shall examine it both to see if it has sufficient signatures but also whether it constitutes a valid charter amendment......... Mr. Parachini referred to Section 22 for the Initiative and Referendum process which begins with what an Initiative is. If the Commission is considering how to define a charter amendment then making it the final paragraph of Section 24 makes it look like an afterthought. Mr. Parachini suggested moving the language to the first paragraph, 24.01, and use the language as presented to become 24.04. He further distributed his suggestion for Section 24.01 in which language was added to the second paragraph in Subsection B which should take care of what Chair TenBruggencate articulated on regarding presentation: Upon [filing] presentation of such petition with the council, the county clerk shall secure from the County Attorney an opinion on whether the measure proposed is appropriately classified as a charter amendment. Proponents may challenge the classification by petition to the Circuit Court. ff the County Attorney concludes the measure is properly called a charter amendment, the clerk shall see whether it contains a sufficient number of valid signatures of registered voters. It also has the advantage of taking note specifically that the proponents of a charter amendment are not powerless in the face of an opinion by the County Attorney. Mr. Nishida said the County Attorney has said they did not want to issue opinions on petition amendments because it was not clear who the client was. It was not their client who was presenting the charter amendment. It was the Council who sent the request to the Attorney for an opinion. Chair TenBruggencate suggested that one of the benefits of this proposal is it solves a problem in each of the previous charter amendments in that there was no clear mechanism for deciding if something was or was not an Charter Review Commission Open Session February 23, 2015 Page 9 SUBJECT DISCUSSION ACTION amendment. If the mechanism is there it will not be an issue. Chair TenBruggencate said if they combined Mr. Justus' proposal with Mr. Parachini's proposal to put it into the hands of the clerk subject to an opinion from the County Attorney it takes the Council out of the picture. Mr. Nishida did not think the public was being served by not having the Council look at these questions which is why he thinks the process works. Ms. Morikami pointed out that Section 24.01 B the first concern or question was "petition presented ". It was not clear what the term presented meant. Also the last line says "which may be made by the county attorney" which was also non -clear language. Does that mean the Council can look at and evaluate it or is it just submitting it? Chair TenBruggencate said he had that conversation at the time with the Council because they were arguing that they needed to put it on their agenda and approve it. Looking at the language of the charter Chair TenBruggencate did not think Council had that authority; all they have to do is accept it. Mr. Justus asked if the Commission felt it was warranted to separate the issue of process from the issue of defining what a charter amendment is so there are two separate issues that are presented to the voters. Chair TenBruggencate said he was thinking the opposite in that it is important to craft a really good charter amendment section that has all the pieces we want to fix including what has been proposed and the definition so that we Mr. Stack moved to defer this item for further present a bullet proof charter. discussion. Mr. Parachini seconded the motion. Chair TenBruggencate asked if a member would draft a proposal for the Motion carried 5:0 next meeting incorporating both proposals presented today. Mr. Parachini agreed to take this project on. c. Charter Amendment Petition Guidelines & Exhibits; Instructions for Charter Review Commission Open Session February 23, 2015 Page 10 SUBJECT DISCUSSION ACTION Voter Amendments (On-going) Staff explained that the County Clerk has requested that any questions the Commission has be put in writing to allow them time to research the information. Mr. Justus said if they are going to do a massive charter amendment for Article 24 the process also has to be clarified. Mr. Justus questioned if any of the information provided needs to be included in the charter. The process is really clear in Article 22 but it is not clear in Article 24. Chair TenBruggencate agreed with Mr. Nishida in that the system works and was not sure they needed to burden the charter with a lot of procedural language if there already is a system that is functioning. The areas that are not functioning have been identified and we are dealing with Mr. Justus moved to receive this item. Mr. those. Parachini seconded the motion. Motion carried 5:0 Executive Mr. Stack moved to go into Executive Session at Session 5:11 p.m. Mr. Justus seconded the motion. Motion carried 5:0 Deputy Attorney Dureza read the Hawaii Revised Statutes to take the meeting into Executive Session as fully described on the posted agenda. Return to Open Ratify Commission actions taken in Executive Session Mr. Justus moved to ratify the Commission's Session actions. Mr. Parachini seconded the motion. Motion carried 4:0 Announcements Next Meeting: Monday, March 23, 2015 at 4:00 p.m. Adjournment Mr. Parachini moved to adjourn the meeting at 5:44 p.m. Mr. Nishida seconded the motion. Motion carried 4:0 Charter Review Commission Open Session February 23, 2015 Submitted by: Page 11 Barbara Davis, Support Clerk Reviewed and Approved by: ( ) Approved as circulated. (X) Approved with amendments. See minutes of 4/27/15 meeting. Jan TenBruggencate, Chair