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HomeMy WebLinkAbout2015_0427_Minutes Open_APPROVEDCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as amended 5/18/15 Board/Committee: I CHARTER REVIEW COMMISSION =MeetingDate lAprfl27,2015 Location Mo'ikeha Building, Meeting Room 2A/213 I Start of Meeting: 4:04 pm I End of Meeting: 5:38 pm Present Chair Jan TenBruggencate; Vice Chair Joel Guy. Members: Ed Justus; Allan Parachini; Patrick Stack; Cheryl Stiglmeier Also: Deputy County Attorney Philip Dureza; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrator Paula Morikami Excused Absent SUBJECT DISCUSSION ACTION Prior to the start of the meeting, Council Administrative Assistant Eddie To enio gave the Oath of Office to new Board member Cheryl Sti lmeier Call To Order Chair TenBruggencate called the meeting to order at 4:04 prn with 6 Commissioners present Approval of Regular Open Session Minutes of February 23, 2015 Minutes Mr. Parachini stated that on Page 5, 6" line from the bottom Commissioner Justice should be corrected to Commissioner Justus. Mr. Parachini also stated that he did not know what was meant by booting process on page 7, line 13 from the top; it was determined to eliminate the sentence since it was not relevant. Mr. Parachini moved to approve the minutes as amended. Mr. Justus seconded the motion. Motion carried 6:0 Business 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 2/23/15) Chair TenBruggencate explained that this was a little known section of the Charter which was designed to help transfer departments from the old Board of Supervisors system to the Mayor - Council form of government. Someone reading it today, and not being aware of that transition, might be a Charter Review Commission Open Session April 27, 2015 Page 2 SUBJECT DISCUSSION ACTION little confused that it transfers departments that now exist to places where they are not and also disbands a couple of departments. The question Mr. Justus raised is whether we should include a footnote at the bottom to clarify this and to ease the confusion. Mr. Justus added that the footnote the Chair suggested was these provisions applied to the transfer from the Board of Supervisors to a Mayor- Council form of government. Chair TenBruggencate said the question is do we need a full blown Charter amendment for that or can the County (Boards & Commissions Office, Attorney's Office or County Council) simply add that clarification without going through that process. Attorney Dureza stated his research did not produce anything that directly addresses this. What case law is out there does indicate that a footnote has precedential value in legal opinions, which is not exactly the same as in a constitution or charter. Basically most of the controversy out there that is being addressed is in that arena. Whether or not a footnote in a legal opinion has precedential value the U.S. Supreme Court has weighed and indicated it does have precedential value, and there are some other federal circuit courts that have agreed with the Supreme Court. It seems like the overwhelming, at least federal appellate courts, indicate that a footnote does have precedential value in a legal opinion. There is no such controversy that involves a charter or constitution, but by considering that a footnote in a legal opinion carries precedential weight, and if we apply that here, to be on the safe side we would probably need approval from the people to allow for that footnote. It seems they are interpreting the footnote to carry some legal force behind it. Asked to define precedential value, Attorney Dureza said in this case he thinks precedential value means legal authority, legal force. The cases specifically talk about this famous footnote on one case Charter Review Commission Open Session April 27, 2015 Page 3 SUBJECT DISCUSSION ACTION that has been cited multiple times in determining controversy, so it has legal force. If you apply it here a footnote in a charter would carry legal force as well depending on what it says. To be safe it would be more prudent to have the approval of the people if you are going to put a footnote there because it seems like it will carry legal force. Mr. Guy questioned a prior conversation about the preamble and asked if that was the same situation as a footnote. Attorney Dureza said no, it is opposite. Ms. Morikami said if Section B and C were footnoted it need a charter amendment and asked if it would be easier to have a charter amendment removing those sections because they no longer apply. Chair TenBruggencate said it would have the same effect in his mind. Attorney Dureza thought this was addressed in one of his memorandums and while some of these provisions have no operative legal effect today there is still some value to keeping them in, especially when you talk about the historical context and the fact that the original authors intended for that effect to survive the transitional period even though realistically it has no effect, but they did intend for that legal force to survive that transitional period. Ms. Morikami said when the Charter Review Commission makes other amendments and they are passed by the voters we change the language based on what the voters have said. We just note the year it was changed but we don't show all the different changes that occurred in one particular section; would that be different from what the Attorney is saying here. Attorney Dureza thought it was slightly different because there is a record Charter Review Commission Open Session April 27, 2015 Page 4 SUBJECT DISCUSSION ACTION of when the effective date is supposed to start. Technically that piece of information does not necessarily have operative effect today, but for historical significance things like that should be kept in place. In the other provisions the amendments were specific to changing certain things and in this case it was not touched. The general rule of charter or constitutional interpretation is you try to keep the entire thing as much 'n� tact as-Rossible including where there are provisions that may be hard to reconcile, but as long as you can reconcile them in some way the general rules of interpretation favors keeping them together. The only time where it favors that one provision needs to be abolished is when provisions can't be reconciled at all. Chair TenBruggencate said as an example there may still be documents existing that have force that involved the office of the county auditor and/or the office of the county treasurer, and if you were dealing with those documents today you may have to look back to see what the successor organization was to those departments, when they disappeared, and you would find in this situation that it was the county finance department. If you took this out you would be in the situation where it would be very difficult to figure out what happened to those organizations, and in particular this Commission has had one example in the case of the issue involving the police chief and whether the mayor had the power to suspend him. There was a situation where the county attorney's office was unable to find the minutes of the Charter Commission that would have answered those questions. That argues for leaving the language so you can see how the County was created and see some of that tradition, but just clarifying that it only applied to that situation. Mr. Justus said now that they know footnotes are charter amendment worthy this goes back to what if there is a way to change either the article title or the section title to reflect a non - substantive change that explains Deleted: in tact Deleted: supervisions Charter Review Commission Open Session April 27, 2015 Page 5 SUBJECT DISCUSSION ACTION what we are trying to explain in the footnote. Then it can be rolled into the pack of non - substantive changes. Chair TenBruggencate asked if there was an opinion on whether a footnote of this sort would be considered a substantive change. Attorney Dureza said he did not think that was a specific inquiry, but based on the fact it has precedential value and anything that has legal force needs to go through the voting process. Mr. Justus said the reason this came up in the first place is the Commission was doing non - substantive changes and he had pointed out that maybe they could just do a footnote like they do for the amendments. Obviously if they do a footnote they would have to go through the amendment process. Could, instead of doing a footnote, they just change a section title or extend Article XXVI to read Transitional Provisions from the Board of Supervisors to 1968 Charter; would that be a substantive change or non - substantive considering we are just explaining what it is. Attorney Dureza thought it was very dangerous. He knows previously there was a lot of discussion of substantive versus non - substantive change, and he does not feel it is the proper way to analyze a lot of these things as a lot of them will not fall cleanly into that. Even changing the title Attorney Dureza thought it would require going through the voting process. He thought the substantive and non - substantive changes were on hold until the County Clerk figures out what is the actual language that was approved. Attorney Dureza urged caution saying even changing a comma or a semi -colon where one might think it is a non - substantive change really is a substantive change. When you do look at undertaking that endeavor you will find a lot of these things, such as punctuation, may be considered a substantive change because it does make a difference in many cases. Charter Review Commission Open Session April 27, 2015 Page 6 SUBJECT DISCUSSION ACTION Chair TenBruggencate clarified for Ms. Stiglmeier that one of the projects for this Commission is going through the entire charter and correcting spelling errors, looking for commas which are out of place, and remove gender specific language. The Commission had the assistance of an attorney who has gone through everything with us, and the document is now with the County Clerk for their review and recommendations to us. Mr. Parachini understood from previous meetings that the only reason this issue of terminating the abolished offices arises is there was some confusion in the public about what had occurred. Rumors started circulating that these departments had been eliminated not taking note of the fact that modern day versions of those departments are elsewhere described in the charter. If we are past that misunderstanding and know we have a rational, entirely persuasive explanation if it arises again he does not see a need to tinker with this at all and would leave it alone. Mr. Justus said that was where he was getting to as well. He does not see the point of hassling the voters on a footnote for something that is not that big of a deal. Chair TenBruggencate noted there was no motion on the floor and one would be to approve a footnote and another motion might be to receive this and remove it from the agenda. Mr. Justus moved to receive this item. Mr. Parachini and Mr. Stack seconded the motion. Motion carried 6:0 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; (On- going) b. Charter Amendment Proposal for Article XXIV (On- ,going) Chair TenBruggencate explained this involves a discussion in the Charter Review Commission Open Session April 27, 2015 Page 7 SUBJECT DISCUSSION ACTION community over the last ten years where folks raising petitions are in fact trying to pass laws, and are using the charter amendment process because it takes fewer signatures. The question raised by Commissioner Justus was should we make it crystal clear by putting language into the article for charter amendments that says amending the charter involves the structure of county government as opposed to passing local legislation. That is the language before us. Mr. Justus said this proposed language is from Mr. Parachini. Mr. Justus' only thing was case law from the ` Ohana amendment from the final court opinion that said the proposed `Ghana amendment did not violate the Kauai County Charter; it did violate Hawaii State Constitution and other things, but our own charter currently allows any amendment to be put up as a charter amendment. Mr. Parachini believed that was language from the Appellate Court that was subsequently reversed by the Supreme Court. The case law he is aware of goes back to 1950, and every case since then has come down on language very much like the proposed new language in section 24.01. At one point this new language was being discussed to be added, almost like a footnote, further down in the text and since the process of initiative ordinances is somewhat defined in article XXII, article XXIV ought to likewise incorporate a definition of what a charter amendment is almost in the introductory part of the section. Knowing how controversial some of these issues have been Mr. Parachini referred to the second paragraph in subsection B that reads upon filing ofsuch petition with the council where he added language that says a timely county attorney opinion on whether the measure is a charter amendment will be sought by the clerk. A number of people suggested there ought to be a time limit in that language and he did include that language when he originally wrote this, but on further reflection it seemed like that would be distorting the purpose of a charter amendment by being too specific in having language in the charter amendment that would overly prescribe what the clerk is supposed Charter Review Commission Open Session April 27, 2015 Page 8 SUBJECT DISCUSSION ACTION to do. And does the county attorney have ten, twenty days so it was left as timely since there are conceivably circumstances when the time factor of the county attorney would need to render such an opinion could be different under different circumstances. Last year when the Kauai Rising measure was being discussed at the Council, the Chair questioned whether making a determination of the status of that proposal would collide with some statutory deadlines for when ballots have to be printed. The new language in section 24.01 needs to describe a process: seeking a county attorney opinion on whether the proposed amendment comports with the definition of a charter amendment in section 24.01, and if the county attorney concludes the measure is not appropriately called a charter amendment the county clerk shall so notify the proponents and the clerk shall not undertake signature validation. He toyed with another sentence that would have said if the proponents disagree they may seek a declaratory judgement from the court, but that seemed like we would be using a charter amendment to provide direction that was too specific, and which would be more appropriate to an ordinance than a charter amendment. Plus we do not need to tell people they have the option to go to court; they always have that option. The last sentence is The county council shall take no action to prevent a petition- initiated proposed charter amendment and add the word "that" comports with the definition in 24.01 from being placed on the ballot. That language appears in deference to Commissioner Justus who felt very strongly that we needed to avoid leaving the impression that the Council could somehow at the last minute interfere with an initiative charter amendment. Mr. Parachini had thought that was a fair criticism and a fair suggestion. The last thing, after a great deal of reflection, Mr. Parachini said he changed the five percent (of the required voters) to reflect an unspecified number out of the feeling that if the Commission is going to propose an amendment it might as well all be done at once, but was reluctant to offer his own percentage for what that proportion of the electorate signing the petition would need to be. Changing to fifteen and Charter Review Commission Open Session April 27, 2015 Page 9 SUBJECT DISCUSSION ACTION twenty percent have been figures that arose in this Commission last year, but he is not strongly invested in what the number is, but a number higher than five percent would accomplish the objective of forcing a process of consensus building and deliberation by the proponents of an initiative charter amendment. If the process requires proponents to engage in community consensus building and community education to get a suitable number of people to sign the petition it accomplishes something in that an initiative charter amendment would represent more of a consensus than that of a very small number of people who decided among themselves without any consultation with anyone else and without determining from the rest of the electorate that this might be a good idea. Mr. Parachini said he is unaware of any bill at any level of government that has ever passed in exactly the same form in which it was introduced. If the process for charter amendments require no consensus building, require no compromise then proponents can refuse to accept suggestions made by the clerk or the county attorney; there needs to be something in play that requires that if the electorate is going to be asked in a general election to vote on whether proposed charter amendments should go into effect that should be the result of a process in which more than five percent of the people have been involved. There is something to be said for having the initiative ordinance and charter amendment signature requirements be the same. It would be pointless to have one ballot measure on the changes introducing an agenda and defining a process involving the county attorney and another ballot measure on what the signature requirement is. Mr. Guy cautioned that it may have to be because he does not know how much you can lump into one charter amendment. Attorney Dureza said for purposes of the notice it does indicate that there is a charter amendment proposal. Charter Review Commission Open Session April 27, 2015 Page 10 SUBJECT DISCUSSION ACTION Mr. Guy said that was pretty broad wording. Chair TenBruggencate said anyone in the public that saw we were changing this section of the charter and had an interest in this had the opportunity to look at the language and the language clearly involves a change in that number. We can legitimately defer it and seek other people. Mr. Guy said all he was saying is it possible to have a charter amendment that cleans everything up in one fell swoop. We have been advised to break it down in different questions. Attorney Dureza was asked if it was one charter amendment to address the definition of what the charter amendments should be plus the process. Attorney Dureza did not think the charter necessarily mandates you to divide it up in a certain way but you run that pn your own risk. So if you try to clean that up with a charter amendment the chance of that passing may be higher versus you have a charter amendment plus you raise the percentage to a higher figure. If the voters reject that they reject both of it. It is a question of how you want to pursue it. Chair TenBruggencate said his recollection of this was when Jennifer Winn was then the county attorney assigned to us. We were advised you can fix a little thing or you can fix a whole section as this is proposing to do, or we can present an entirely rewritten charter, but what we can't do is take a piece from this section and a piece from that section, unrelated pieces, and put them into one charter amendment. Mr. Stack said what is being presented in an earmark and we do not need more earmarks; we don't need to lump unrelated issues under the guise of saying we are cleaning up the charter. For us to initiate some number we make up, that is not within the scope of our responsibility. That is a Deleted: onerous Charter Review Commission Open Session April 27, 2015 Page 11 SUBJECT DISCUSSION ACTION discussion that should be had but this is not the time or place. Chair TenBruggencate said it is on the agenda for the charter amendment provision. Mr. Parachini agreed it might be in the sound interest of the public to table this issue for now, put it on the next agenda and do outreach to make sure appropriate members of the public are aware that this matter is going to be discussed. Ms. Stiglmeier asked if they want to clarify as to whether or not they are going to defer the clarification of the charter amendment and revisiting the percentage of signatures needed and separating the two issues. It is a very valid point because it is a controversial issue that we can clean up the language and perhaps allow some public testimony to be able to be heard relating to the percentage. Attorney Dureza said he thought he was wrong with the comment he made earlier and that Commissioner Guy was right in that we do need a much more detailed notice if we are going to talk about raising the percentage. Mr. Guy said after much reflection he has thought about the percentage and it is something they definitely should talk about. Mr. Justus said he would like to see changes to all of the items being presented. His sense is he would like to see them presented as individual items since they deal with different aspects and different issues. He would like to see a separate agenda item to discuss the percentage and the same with defining what a charter amendment is. Also whether it is a valid charter amendment could also be a separate agenda item since these are separate issues which may ive us a better chance of passing them as Charter Review Commission Open Session April 27, 2015 Page 12 SUBJECT DISCUSSION ACTION individual items as opposed to one block sum. Ms. Stiglmeier asked if they need to do history on how they came up with the five percent. Chair TenBruggencate said the reason the numbers are different is they come into the Charter at different times. The five percent was in the original charter that was passed in the 1968 election; initiative and referendum were not in that Charter and when it was added during the 1970's they used the twenty percent figure. We have had initiatives that passed for which people got the twenty percent signatures such as Nukoli`i of which there was one initiative and one referendum; in both cases different sides of an issue managed to get twenty percent of the signatures. Most of the issues going through as charter amendments have been reversed in the courts because they were determined not to be charter amendments. Mr. Justus asked if they would be willing to present these as separate agenda items next month. Mr. Parachini stated he had no problem with doing so. Chair TenBruggencate indicated that was a structural thing they can deal with at the end of the discussion. If they break it up the discussion is limited to the little pieces instead of the larger thing and suggested keeping them together until such time as they get near their discussions. Mr. Justus asked if Mr. Parachini would be willing to present an alternative proposal, presented as separate things but still under the general discussion. Mr. Parachini asked for clarification. Mr. Parachini said Article XXIV's track record is abysmal — it is 0 and 2 in the courts and the unfortunate episode last year involving an attempt to qualify something as a charter amendment, which was clearly not a charter amendment. This is not in the "if it's not broke don't fix it" category; it's broke and we need to fix it. The question is what is the most responsible and responsive way to fix it. Mr. Guy thought it was a good idea to break it up so they can support portions because he has reservations with the paragraph adding seek a Charter Review Commission Open Session April 27, 2015 Page 13 SUBJECT DISCUSSION ACTION timely county attorney opinion on whether the measure is a charter amendment and would want to remove that portion although he does support other portions. Chair TenBruggencate said they can handle that procedurally among themselves and still create a unified document. Mr. Guy said he would amend the percentage out of the proposal to which Mr. Parachini suggested leaving the percentage alone for the moment. As to the issue of the county attorney opinion what concerned him with the insertion of the new language in the first paragraph is it leaves the problem of who is to determine, and how is it to be determined, whether a proposed charter amendment meets this definition. He was attempting to create a process by which that could be accomplished. Mr. Guy thought that was up to the percentage of people that signed the petition and if the courts want to oppose it, great. Mr. Guy said he would also take out It is not a vehicle through which to adopt local legislation because he did not think they needed to say what it was not. He would support the statement Any amendment to this charter is limited in substance to amending the form or structure of county government. He also does not like it being the decision of one person, county attorney, at the end of the day. Mr. Parachini said last year's episode in a way created a charter crisis, which was ultimately resolved by the county attorney opinion that was produced. It became clear from that county attorney opinion that Article XXIV was and still is ambiguous. The ambiguity created circumstances that invite abuse and furthermore the attorney concluded that when ambiguity controls the charter case law takes over. Case law rules in any situation where there is a dispute over what the meaning of the charter language actually is. Mr. Guy thought there was question in that process whether the county attorney was the one that was supposed to make that decision. The proposal solidifies that it is that person and he wants to Charter Review Commission Open Session April 27, 2015 Page 14 SUBJECT DISCUSSION ACTION caution the Commission that they need to determine if this body wants to put that on the ballot. If you raise the percentage a little bit and clarify what it is in the beginning you could correct this without giving so much more power to one part of this puzzle, which would be the administration. Chair TenBruggencate said the county attorney's client is the county government; it is different from a private agency's client. At some point you have to pick someone to make an opinion, and we could defer it to the courts so no one makes an opinion; the courts make the decisions for us. We are trying to see if there is a cleaner and less expensive way to accomplish that. Mr. Guy said he thought they were trying to help people put things on the ballot, and allow public participation in this process through a petition at its most organic form. If we clarify what it is by bumping the percentage up so it gets people a little more real with their amendments and makes the other one look like we can put it into the right grouping because we are not so motivated by this five percent /twenty percent. Mr. Parachini noted in a previous meeting that Mr. Justus had observed even if the signature percentages were equal that would not resolve the matter completely. Mr. Justus said that is correct if they do not define what a charter amendment is because if you just look at the regulations in Article XXII as compared to Article XXIV just changing the percentage won't solve the issue. Chair TenBruggencate said an example was that Bill 2491 actually involved the creation of a county department under the auspices of the county clerk's office. You could argue that meets the qualifications of this language because it would be a charter amendment amending the form and structure of county government. So this language does not solve that problem. Mr. Charter Review Commission Open Session April 27, 2015 Page 15 SUBJECT DISCUSSION ACTION Justus said it does with the line It is not a vehicle through which to adopt local legislation because they had legislative language. Mr. Guy said you would whittle it down to that so it is the charter language; you are creating a body there. You will not get to do all the other stuff you wanted in this so that one little part of 2491 would affect the charter, and that would be the only part that would get onto the ballot. Mr. Guy was not sure who would make that determination, but he would be hesitant to give more power to or take away; you alleviate the suspicion of one -sided processes. Mr. Justus said it sounded like Mr. Guy was describing his concern about the county attorney abusing his or her power to say that a proposed charter amendment is not a valid charter amendment. Mr. Guy said this is the community's opportunity to participate in the process. Mr. Justus asked if Mr. Guy was saying he would support defining what a charter amendment is, but not necessarily who determines what that it is. Mr. Guy said maybe after more reflection he would consider it, but at this time he would absolutely support the first paragraph of the proposal. He would be cautious in giving the decision making, and maybe that needs to be clarified because there was the problem of who makes the decision. It was the Council who stopped the last one from moving forward based on the county attorney. If it is already being done like that why do we put it in? Mr. Parachini said there are those in the community who would argue that process is not defined in the charter and is open to question. The objective Mr. Parachini moved to defer the Charter here is to define a process. Amendment Proposal to the next meeting to give further opportunity to reflect individually on the issues at hand and to provide every opportunity for members of the public who are concerned to come talk to us. Mr. Justus seconded the motion. Motion carried 6:0 Mr. Justus noted the distribution of a copy of what he found at the KCC Charter Review Commission Open Session April 27, 2015 Page 16 SUBJECT DISCUSSION ACTION (Kaua`i Community College) library, which are images from a special insert in the Garden Island Newspaper dated May 6, 1968. It is from the 1968 Charter Commission's language that was approved by the Board of Supervisors, and the preamble was included in that insert. Mr. Justus said they have proof that the preamble was presented to the voters when they voted on and passed it; does that mean the preamble is something that the county clerk can just insert into the existing language of the charter. Since there was an attorney - client privilege opinion on this Mr. Justus asked if they have to go into executive session to talk about this. Deputy Attorney Dureza said they should go to executive session because the end result will allow Mr. Justus to speak about what he wants in open session. Executive Mr. Parachini moved to go into Executive Session Session at 5:05 p.m. Mr. Justus seconded the motion. Motion carried 6:0 Deputy Attorney Dureza read the Hawaii Revised Statutes as fully described on the posted agenda to o into Executive Session. Return to Open The meeting resumed in Open Session at 5:16 p.m. Session Ratify Commission Actions taken in Executive Session for items: ES -005 and ES -006 Mr. Justus moved to ratify the actions taken in Executive Session. Ms. Stiglmeier seconded the motion. Motion carried 6:0 Charter Review Commission Open Session April 27, 2015 Page 17 SUBJECT DISCUSSION ACTION (Continuation of the discussion on the preamble) Chair TenBruggencate said it is their understanding that a preamble is not law. Mr. Justus said they learned that preambles in Hawaii are not part of the official legal language, and they don't have teeth although footnotes do. If the preamble that was presented to the voters in 1968 and passed as part of the entire charter does not hold any legal authority are we able to include it in the charter directly, or does it have to be put as a charter amendment even though it doesn't have substantive value. Mr. Justus asked if he should give this information to the County Attorney's Office and they can look it up and determine for certain that the preamble was part of the language that was presented to the voters. Deputy Attorney Dureza said from his understanding there is no requirement that the preamble should be included in the charter. He also was not sure this Commission has the authority in regards to that as well. Chair TenBruggencate, as a point of order, asked what Mr. Justus' intent is; is he trying to reattach the existing preamble to the charter as a legal part of the charter, or does he have another preamble that he is thinking of Mr. Justus said he is just trying to put the preamble that was presented to the voters back into the charter. Deputy Attorney Dureza again said he was not sure if the Commission has the authority to make that happen. Mr. Justus asked if that would be the authority of the county clerk. Attorney Dureza said yes. Mr. Justus asked if it would be worthwhile to ask the county clerk. Attorney Dureza thought in his official capacity it was improper; as a private citizen he could plead with them saying it might be beneficial for the public citizen to have the preamble printed, but ultimately it is their call. Charter Review Commission Open Session April 27, 2015 Page 18 SUBJECT DISCUSSION ACTION Mr. Parachini wanted to congratulate Mr. Justus on his tenacity in pursuing this issue but asked why this is so important. Mr. Justus said he answered that question at the last meeting and if the voters voted on it, it should be in there. It is as simple as that; that would be like voting on any other piece of the charter and it is not there. For historical accuracy if this is what was presented it should be there. Mr. Guy asked if it was there in 1968 and then removed in 1969 or 1970 by some action. The question to the county clerk would be is there history as to when this came out of the charter. Mr. Justus said he does not want to have to represent this as a charter amendment if it was already supposed to be in there and the clerk can make a fix and put it back in. Chair TenBruggencate said he might have a copy of the 1968 Charter to which Staff said they have an electronic copy sent by the County Clerk and there is no preamble; a copy will be transmitted to all Commissioners electronically. Chair TenBruggencate said they were in the situation where Mr. Justus wanted to attach the preamble and the Deputy County Attorney says it may not be possible to attach that preamble. Deputy Attorney Dureza said hypothetically if the preamble was revoked and the Commission reintroduces it as a charter amendment as a preamble you are still not required to put it on there. Chair TenBruggencate said if they wanted to tweak the system they could create a section of the charter that makes reference to the preamble. Deputy Attorney Dureza said the purpose of the Commission is to improve government efficiency. Chair TenBruggencate said the purpose of the commission is to make recommendations of charter amendments that we believe are necessary and desirable. Deputy Attorney Dureza said they are missing the government efficiency language. Charter Review Commission Open Session April 27, 2015 Page 19 SUBJECT DISCUSSION ACTION Mr. Stack said a preamble is unique and common to many forms of government. Our United States Constitution describes what the Constitution does so it is a descriptive device; it does not hold any legal weight. None - the -less there is nothing wrong with giving the voters as much information as we can. We are here to make desirable and necessary changes, which is in the charter as our task. Deputy Attorney Dureza said he knows that language is there, but looking at the entire paragraph the desirable and necessary changes have to do with improving government efficiency. Your authority to suggest things is not unfettered. Chair TenBruggencate suggested to Mr. Justus that this might be a subject in which an extraordinary solution might be for (two) members to sit with the County Clerk and ask him and he just might do it. Maybe that should be done before there is any more discussion on attaching a preamble that our attorney says you can't attach. Deputy Attorney Dureza said the Commissioners really need to consider whether or not you want to do this acting upon your capacity as Commissioners. As private citizens you have the right to do that but if you imply to the County Clerk, because you are members of the Charter Commission, that you have some special authority or whether or not the preamble should get printed is probably not appropriate. Mr. Guy asked if it was within their authority to send a communication asking what their thoughts on preambles are because we are tasked with the charter. Chair TenBruggencate suggested inviting the County Clerk to this meeting and ask whether this is something he would consider. Deputy Attorney Dureza said they have disagreements on what the charter enables the Commission to do, but from his perspective the case law does not require Charter Review Commission Open Session April 27, 2015 Page 20 SUBJECT DISCUSSION ACTION the preamble to be published with a larger body of law. The other principle is whether or not something like that will improve government efficiency. He does not see it doing much in regard to that and from his perspective is beyond what this Commission is supposed to do. Mr. Justus then cited from the charter the Commission's duties in proposing amendments. Chair TenBruggencate called a recess at 5:29 p.m. Meeting called back to order at 5:31 p.m. Mr. Justus cited section 24.03 regarding reviewing the operation of government and changes that are necessary or desirable. The Attorney is saying these two lines are inter - linked and anything we propose that is necessary or desirable has to do with the operation of government. Deputy Attorney Dureza referred the Commissioners to his client - attorney privileged memorandum regarding this and said there is other statutory authority that supports his position regarding structure, operation and efficiency of government. Mr. Justus said even if they wanted to insert a preamble as an amendment, legally they would not have that authority to present that. Deputy Attorney Dureza thought it was beyond their authority if they do not find that amendment will improve the operations of the government because it certainly does not change the structure of the government. If that is not there they are going beyond what they are supposed to do but he cannot say if it is or is not legal. Chair TenBruggencate noted they were not getting new information and called for a motion. Mr. Justus moved to send a communication to the County Clerk's Office asking them to come to the next meeting regarding the preamble with a copy of his submittal to the Commission attached for review and comment. Mr. Parachini amended the motion that the letter pose that when the charter was originally passed by voters it included preamble language and in Charter Review Commission Open Session April 27, 2015 Page 21 SUBJECT DISCUSSION ACTION their opinion do they know what happened or would they be willing to reinsert this preamble language in printed versions of the charter. Mr. Justus seconded the amended motion. Ms. Stiglmeier felt if the Commission asks the Clerk for the history on what happened to the preamble and if they have that information they can provide it, and if there was a specific reason why it was never included they can provide that information. Otherwise we can say if they don't have any information on this would they consider reattaching it. Chair TenBruggencate summed up that a letter will go out asking about the history of the attachment or non - attachment of the preamble and the Clerk's views on whether it should attach or not. Roll Call Vote carried 4:2 ( Aye - Parachini; Aye - Justus; Aye -Guy; Nay- Stack; Aye - Stiglmeier; Nay- TenBruggencate) Announcements Next Meeting: Monday, May 18, 2015 — 4:00 p.m. Adjournment Chair TenBruggencate adjourned the meeting at 5:38 p.m. Charter Review Commission Open Session April 27, 2015 Submitted by: Page 22 Barbara Davis, Support Clerk O Approved as circulated. O Approved with amendments. See minutes of Reviewed and Approved by: meeting. Jan TenBruggencate, Chair