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HomeMy WebLinkAbout2015_0518_Minutes Open_APPROVEDCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 6/22/15 Board /Committee: CHARTER REVIEW COMMISSION Meeting Date May 18, 2015 Location Mo'ikeha Building, Meeting Room 2A /213 Start of Meeting: 4:00 p.m. End of Meeting: 5:40 p.m. Present Chair Jan TenBruggencate; Vice Chair Joel Guy. Members: Ed Justus; Allan Parachini; Patrick Stack Also: Deputy County Attorney Philip Dureza; Boards & Commissions Office Staff. Support Clerk Barbara Davis; Administrator Jay Furfaro (exit at 4:30 p.m.) Excused Absent Member Cheryl Stiglmeier SUBJECT DISCUSSION ACTION Call To Order Chair TenBruggencate called the meeting to order at 4:00 p.m. with 5 Commissioners resent Approval of Regular Open Session Minutes of April 27, 2015 Mr. Justus moved to approve the minutes as Minutes circulated. Mr. Stack seconded the motion. Mr. Parachini noted on page 4, Is' full paragraph line 7 "in tact" should be one word: intact Page 4, 1st full paragraph line 11 change "supervisions" to: provisions Attorney Dureza noted on page 10, last paragraph line 4 change "onerous" to: on your own. Mr. Justus suggested adding "was" following the words "Attorney Dureza" in the first line of the last paragraph. Motion carried 5:0 as amended during discussion. Agenda Chair TenBruggencate asked if there were any additions or changes to the agenda. Chair TenBruggencate requested an addition to the agenda for an update from the Boards and Commissions Administrator on filling the 7th seat on the Commission. Mr. Stack moved to amend the agenda to include Charter Review Commission Open Session May 18, 2015 Page 2 SUBJECT DISCUSSION ACTION the update. Mr. Justus seconded the motion. Mr. Furfaro said he expected to submit a name to the Mayor within two Motion carried 5:0 weeks. Those names and the application are subject to the Mayor's review. Subsequently 6 days after that hopefully the interview can be put on a Council agenda or included as a special agenda item on a Committee meeting. Business 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- oin Staff reported that an email had been received confirming that the County Clerk would be available at the June 22 meeting. Ms. Fountain - Tanigawa has been the County Clerk for only a week so they need time to review and research the request. Chair TenBruggencate said he had also spoken with her about an hour ago and she will know more by the June meeting. Mr. Parachini moved to defer this item to the June 22 meeting. Mr. Justus seconded the Mr. Justus stated he would be off island for the June 22 meeting. motion. Motion carried 5:0 b. Charter Amendment Proposal for Article XXIV clarifying what constitutes a Charter amendment, revised 5/4/15 (On- going) Mr. Parachini said after receiving valuable feedback from the Commission and Ms. Morikami he made a couple of minor changes in the text of the amended version of section 24.01. He is still concerned about empowering the county attorney with the ability to conclude whether something is appropriately called a charter amendment. In the second paragraph of 24.01 B, he is recommending striking the words county attorney in the second line and then inserting somewhere in there the clerk shall call upon a panel of three attorneys admitted to practice in the State of Hawai `i to determine the Charter Review Commission Open Session May 18, 2015 Page 3 SUBJECT DISCUSSION ACTION proposal's validity as a charter amendment under this section. Two of the panel members would be appointed by the county attorney and one by the initiative's proponents. Chair TenBruggencate asked if that was a motion to which Mr. Parachini said he supposed it was. The Chair asked if there were other changes they should deal with at the same time. Mr. Parachini said in the following paragraph Mr. Parachini moved that in the second paragraph county attorney would be changed to panel. of 24.01 B, to strike the words county attorney in the second line and then inserting somewhere in there the clerk shall call upon a panel of three attorneys admitted to practice in the State of Hawai `i to determine the proposal's validity as a charter amendment under this section. Two of the panel members would be appointed by the county attorney and one by the initiative's proponents. Mr. Parachini continued on the issue of what the signature percentage is that needs to be sorted out and whether it should considered as a completely separate item or fold it into this discussion. Staff stated it is listed as a separate Mr. Justus seconded the motion. item on the agenda. Mr. Justus asked who would pay for the cost of the panel or would it be a volunteer panel. Mr. Parachini said he had not considered that but supposed it would be a volunteer panel just as the boards and commissions are volunteers. Mr. Justus said he could easily see a petitioner committee say this is not fair — you have two people from the county who could just say no. Also what happens if the panel concludes it is not a charter amendment? Mr. Parachini said you are back to the dilemma he described at the last meeting of whether this provision should spell out that if they disagree they can get a declaratory judgment from the court. He did think it was unnecessary to include that because it goes without saying that the proponents can get a declaratory judgment. Mr. Justus said with it being a county entity, whether the county Charter Review Commission Open Session May 18, 2015 SUBJECT DISCUSSION ACTION attorney or the attorney panel, if the language Mr. Parachini was proposing puts the power of approval in the hands of the county attorney or an attorney board. His concern is if the proposed amendment put forth by the petitioners in which the language is valid but the county attorney or the panel disagrees the burden of the cost of challenging the county in court is now put onto the petitioners. That has the dangerous potential of discouraging them from challenging the county as with the recent GMO amendment. Not saying they were right or wrong, but they had the option of going to court but they didn't because they were concerned about the cost; that was their major issue. The burden of cost in challenging voter petition amendments should be on the county, and not the burden of the people because the voter petition is the purest, most direct form of democracy the charter has and it should remain that way. Mr. Justus proposed that instead of giving a county body the ability to decide yes or no on whether it is a charter amendment it could simply say that if the county concludes that the measure is not an appropriate charter amendment the county may seek a declaratory ruling, although they have that power already. Then it would follow that the county has no power to prevent a petition initiated charter amendment that comports with the definition of §24.01 from being placed on the ballot and the new language would say except for the method described in this article. Mr. Parachini asked the Attorney in simply referring to the county in that context is ambiguous or not. Mr. Justus was asked to repeat the language which he said was the fifth paragraph of the proposal and reads: If the county - and you can substitute council or clerk or whatever — concludes the measure is not an appropriate charter amendment the county make seek a declaratory ruling. Chair TenBruggencate asked if Mr. Justus meant from the circuit court. Mr. Justus said from whatever judicial — whether it is the circuit court or whatever. The next sentence would say the county has no power to prevent the petition initiated proposed charter amendment that comports the definition in 24.01 from being placed on the ballot except for the method described in this article. Mr. Parachini had no problem with the language if count is Charter Review Commission Open Session May 18, 2015 I, SUBJECT DISCUSSION ACTION sufficiently unambiguous. Mr. Furfaro brought it to the Commission's attention that article VIII, page 15, defines the county attorney and their powers as exactly that in defending the county; not to be a negotiator and /or used in arbitration for third parties. The powers, duties, and functions of the county attorney shall be the chief legal adviser and legal representative of all agencies, including the council, and of all officers and employees in matters relating to their official powers and duties, and he shall represent the county in all legal proceedings. He shall perform all other services incident to his office as may be required by law. Mr. Furfaro said he is having a hard time that there is an amendment now making the county attorney's office part of a negotiating piece on resolving what is right and wrong. His job is to defend the county and those departments mentioned in 8.04. Mr. Justus said in that context if we say the county concludes a measure that could mean the county could be the mayor's office, the clerk, or the council. Mr. Furfaro said this was the piece they got in trouble with last time because the petitioners were told, through the county chair twice, that they could not use the county attorney to be their defender of policy based on article VIII. His sole responsibility is to be the legal representative of the county — all parts of the county. Deputy Attorney Dureza said he was working on the original question and did not follow this line of thought completely. Whether or not just saying "the county" could be ambiguous, considering there are many interpretations of what the county is, it could be somewhat problematic because it does not clearly spell out who gets to decides whether or not it goes to court. Mr. Justus asked if it would be less ambiguous to say the county clerk. Attorney Dureza said that would be less ambiguous, but it is something the Commission needs to consider because new powers are being given to the county clerk. Charter Review Commission Open Session May 18, 2015 WI • SUBJECT DISCUSSION ACTION Chair TenBruggencate wished to summarize where the Commission was at this point. The suggested language from Mr. Parachini is that a petition comes in a three attorney panel is empanelled to look at whether it meets the requirements for a charter amendment, and if it does not the process stops right there. Mr. Justus was asked how his suggestion was different from that to which he said it is completely different. It would proceed in that the petition committee files their papers with the county clerk. The county clerk then examines if it has enough signatures, and if the county clerk feels this is not a valid charter amendment he can then seek a declaratory ruling, but he does not have the power to prevent it from going onto the ballot. Chair TenBruggencate asked if he was recognizing that the court has that authority to which Mr. Justus said yes. Mr. Stack said they should go back to the very basis of what the Commission does. Mr. Stack said it was wonderful to have a county attorney to help guide the Commission through these times, but in his history an attorney is a counselor, an advisor — not a decision maker. Mr. Stack again noted he was glad the attorney was there to help guide them through this process, but fears initiating a new committee is wrong. Mr. Parachini recalled the council debate about the Kauai Rising proposal where there was a point at which a suggestion was made that the county seek a declaratory judgment on its own. That obviously never happened. The county attorney was then tasked with providing an opinion, but there was some consideration at the council level of having the county take the initiative and seek a declaratory judgment. Mr. Furfaro added that the biggest issue was the legal representative that the third party wanted to get to that point they felt should be the county attorney to give them legal advice, which is not what article VIII reads. Mr. Justus also thought a correction to the proposal is in the fourth paragraph Charter Review Commission Open Session May 18, 2015 Page 7 SUBJECT DISCUSSION ACTION which reads upon filing of such petition with the council and yet the paragraph before that says by petition filed with the county clerk. Mr. Parachim said that was an oversight and should have been changed to upon filing of such a petition with the county clerk. Mr. Furfaro exited the meeting at 4:30 p.m. to attend another meeting. Mr. Justus suggested scratching out with the council from that language so it reads upon filing of such petition... Mr. Parachini said that was just an oversight, he intended to delete that, but failed to do so. Chair TenBruggencate said his view is different from both Mr. Justus' and Mr. Parachini's views. That is why you have a county attorney. When there is an issue before the county they are to represent the county, but you ask them how it looks. That is what we do with charter amendments; we send them to the county attorney's office to see if it is in the correct form, is it appropriate — it is a normal rational thing to do. Chair TenBruggencate said he would give the county clerk the authority to take it to the county's attorney and say is this what it purports to be. So that makes three suggestions: one is the panel, another is the declaratory judgment kicking it up to the courts to decide, but the county would pick up the tab for that. Realistically it might not make a difference because the other side will have to file an answer to defend their decision. Mr. Justus said it would not prevent the amendment from appearing on the ballot and that is what concerns him. The way the proposal is currently worded it gives someone the ability to deny voter petition amendments even if they are absolutely one hundred percent okay. Chair TenBruggencate said he starts from the presumption that our county attorney is a rational representative of the community so the secondary presumption is if the county attorney says this isn't what it purports to be then it is not perfectly okay. Chair TenBruggencate thought Mr. Justus was saying nobody in the county can get in the way of this steamroller; it has to go on the ballot unless a court stops it. Mr. Justus said his concern is about potential abuse. When the Constitution was written it was written under the assumption that people aren't necessarily going to do the Charter Review Commission Open Session May 18, 2015 ws SUBJECT DISCUSSION ACTION right thing. If that was the case we would not have the Bill of Rights. Chair TenBruggencate said the Bill of Rights was not there when they wrote the Constitution. Mr. Justus said that was what he was saying, and his point is they need to make it absolutely clear so they can eliminate potential abuses. Mr. Justus said if you get an absolutely accurate amendment that is going to make good change but it challenges the administration or the council, and the county attorney can say he does not like it - there is a potential there. Mr. Parachini said if they did that then the hazards that exist now of which the county has run afoul of in the past would remain because if the measure goes on the ballot no matter what the legal opinion is then what is the point of trying to define a charter amendment if people could still put forward anything as a charter amendment. If a legal opinion was sought they can ignore it; that is what we have now. Mr. Justus agreed with that point, and was one of the things he had proposed in trying to deal with the fact that nobody is saying whether it is or isn't a valid amendment. He had earlier proposed the idea that the petitioners would provide their own legal review when they submitted the document to show that it is in line with what is in the charter. That did not pass this Commission, but he is still open to that being a possibility. We also had a conversation before in which the petitioners present it to the county attorney and ask they check to see if it is a valid charter amendment. If they did not want to do that they could have their own Hawaii approved attorneys to do that, but at least there would be some legal review attached to it to justify it. Mr. Parachim said the Kauai Rising organization had a lawyer working with them who subsequently admitted at a County Council meeting that he was not licensed in Hawaii. Never the less he presented what amounted to what Mr. Justus is talking about. It is hard to imagine an attorney for the proponents delivering an opinion that what his clients seek to present is at odds with section 24.01. Mr. Justus agreed saying it was a conflict of interest because they are being paid by the petitioners or volunteering their time. Chair TenBruggencate said speaking for the option he supports, his sense is if they are go in to assume the county attorney's office is so subject to the perils of Charter Review Commission Open Session May 18, 2015 zwom SUBJECT DISCUSSION ACTION politics that they will misrepresent what they are actually seeing in a document, and he personally does not assume that, then we should also assume that if they did the panel then they would pick two people who would have the same view and the same result would come about. Mr. Justus said there is another option if they decide to go the panel route, which would be to have one attorney picked by the petitioner, one by the council and those two agree on a third attorney. This would eliminate the potential for bias. Mr. Guy said he thinks it needs to be defined as he can't put it together as to how that panel would work. There is a lot of conversation needed as to how that panel would operate, what would be its guiding rules. Mr. Guy want to know if it would be rule making process or would it be spelled out in the charter on what governs the panel. Trying to explain all of that in a charter amendment, is there another way around that? Do you put in the charter who selects whom and who is the deciding factor, who is the tie breaker on this vote? There is a lot to be flushed out. Mr. Guy said he would love to have it move away from coming down to one guy, and is not under the assumption that he has any malicious intent at all. If the petitioners get a high percentage of the public's vote, and it comes down to this one guy who is looking out for the best interest of the county when it is an opposing position to what the county is operating at and in the best interest of the county to keep it the way it was, but this petition changes that so there are a lot of questions on how that works. Mr. Parachini said he would be happy to accept what the Chair's concept is. Mr. Guy asked Chair TenBruggencate what his summary was to which the Chair said it was the original language. Mr. Justus said he mentioned earlier that the voter petition process was designed as the purest most direct form to put the people's power into the amendment process. When the charter was first presented to the board of supervisors explaining what the charter is and all of its different segments they made it very clear that the power to amend was either done by the council or by petition of the voters. By having someone or a body potentially having the power to say no this is not valid eliminates that direct democracy. Mr. Justus said he hopes to maintain making sure the people Charter Review Commission Open Session May 18, 2015 Page 10 SUBJECT DISCUSSION ACTION have the avenue and they don't get burdened with the cost of challenging the county. Maui County has a process whereby if you get ten percent of the signatures it gets put to the council to say yes or no to put it on the ballot. If council says no then the people can go back and get twenty percent of the signatures and it goes directly onto the ballot. That could be a potential that we use if we want to create a safety net and eliminate other hazards. Mr. Stack said the Maui model is interesting, but it also opens itself up to a lot of legal and governmental chicanery. For instance if the petition delivered ten percent of the votes is there a time limit imposed on the county to respond to accept or reject that ten percent? It gives Maui County an opportunity to stonewall any petition; just don't respond to it. Mr. Justus said he did not know the details of their charter. Mr. Parachini thought that was easily remedied by building in a time limit. Mr. Parachini said they place a great deal of trust in the county clerk to implement the charter under the detailed procedural rules created by the county clerk for the initiative submission process. Just as that was perfectly appropriate under the charter as it existed the clerk would be expected to devise a further process that we should not dictate, but the clerk would have the confidence of the county to sort out what the answer to the question is. Mr. Guy asked if they have to convey that to the voters that it is something they want because they would not be voting on that, they would be voting on this panel and the county clerk would figure out how they operate. Mr. Guy liked the direction this was heading and is more open to that than having this all fall back to the county attorney to make the decision for all the work that has gone down, and the panel would help with the transparency. Mr. Parachini thought the core question was there has to be a process by which someone would determine whether a proposal fits the definition of a charter amendment. If we do not have that we do not have anything; we have not fixed the problem. Mr. Parachini said he is more comfortable with the language floated in the proposal than with the panel concept because the panel concept gets potentially very complicated. If they properly empower the clerk and properly empower the county attorney they can address that. Mr. Justus asked if there was a way to give the county clerk the ability to say something is or is not a charter Charter Review Commission Open Session May 18, 2015 Page 11 SUBJECT DISCUSSION ACTION amendment. If the power is given to the county clerk that still requires the petitioners to have to challenge the county if the clerk says it is not a charter amendment is there a way that the petitioners cost for challenging the county would fall onto the county? Attorney Dureza did not know how that would play out. In court you can always ask for attorneys' fees but it all depends on the strength of the case and if it is awarded. Typically the practice is that each bears their own attorneys' fees. Technically either party can sue for attorneys' fees depending on the issue. Mr. Justus said his concern is money being the determining factor in pursuing what is right. Chair TenBruggencate said there were two previous charter amendments that were clearly not charter amendments and got thrown out in court; it cost a lot of money. Some of the Charter Commissioners concluded that a lot of the Kauai Rising proposal was not a charter amendment. What we are trying to produce is a safeguard in asking the county attorney to make a judgment — is it what it appears to be? A county attorney who makes a really bad judgment is going to get a lot of criticism and he would hesitate to say the county attorney is incapable of handling this simple job. Chair TenBruggencate said he does have an issue with the county paying for the cost because even a bad case will go in if there are no legal fees. Mr. Justus said at the very least they can correct some of the language for the Mr. Justus moved to amend the motion in that the sake of discussion. 4th paragraph, 1st sentence the words with the council be deleted so it reads: upon filing of such petition, the county clerk........ Mr. Parachim seconded the motion. Motion carried 5:0 Chair TenBruggencate asked if they wanted attorney or attorneys to have a first shot at it or should it go straight to court, and then it can be decided if it is to be a panel or an individual. Mr. Stack said the ultimate resolution will come from the court so why not skip that and go straight to court and save some money. Chair TenBruggencate said if someone presents a valid charter amendment and Charter Review Commission Open Session May 18, 2015 Page 12 SUBJECT DISCUSSION ACTION everyone recognizes it as a valid charter amendment it does not need to go to court. Mr. Justus thought this was coming up because recently the council decided they had the power to reject charter amendments; that is when it became an issue. In the past if there was any question about charter amendments the county did the declaratory ruling route because that was how they understood the charter worked. Chair TenBruggencate said the county has never done a declaratory ruling. Mr. Justus said they did for the 2004 `Ohana amendment to which Chair TenBruggencate said only after it was passed. Mr. Justus said they actually sought it before it went onto the ballot and they tried to expedite the process in order to get it defeated before it could get onto the ballot. Chair TenBruggencate stated that was not his recollection, but Mr. Justus said he had the legal things with him if anyone wanted to read them. Mr. Justus continued by saying the council already knew they had the ability to do the declaratory ruling; it is only recently they read an interpretation of the charter to say they had the power to say something wasn't valid. That is why we are having this discussion of who has the authority to reject it. In the original version, the unaltered version of article XXIV, nobody has the power to reject it. The modern attorney opinion says the council does, but it is Mr. Justus' understanding that most everyone here said no the council does not have that authority. By sticking with the declaratory ruling we are sticking with historical practice. Mr. Guy asked how he was clarifying that and was he writing that into the proposal. Mr. Justus said it was not necessary to write it in, but it certainly made it a clearer process and eliminated any confusion for the council or any other body to think they have a power to do anything other than a declaratory ruling. Mr. Guy felt it would have to be a part of the proposal because if you didn't, according to Mr. Justus' example previously, they always did it and now they don't. Mr. Justus said there is the automatic safeguard that if anyone is presenting an amendment that obviously is not legal language, section 24.01 would say is limited in substance amending the form of county government. That would not have been in there before but now they know if it goes to court they will lose automatically. Charter Review Commission Open Session May 18, 2015 Page 13 SUBJECT DISCUSSION ACTION Mr. Parachini said they could resolve this dilemma by removing the words county attorney and have that line read shall seek a timely legal opinion on whether the measure ......... granted that does not tell the county clerk how to do it, but there are a lot of things the county clerk is not told how to do. Mr. Justus said if it is a legal opinion and they are still given the power to reject it ...... Mr. Parachini said if the legal opinion said this is not kosher then the clerk tells the petitioners no go. Asked what happens if it is a valid opinion but the legal opinion says it is not valid it puts the ball back into the petitioner's court to take the county to court. Mr. Parachini did not think the court of public opinion would sit still for something that glaring. We can't write a charter amendment that prevents any possible abuse that can be conjured up. Mr. Justus said he was okay with the county incurring the cost of doing a declaratory ruling. It is fair for the people who put in so much work and effort to do a petition and it matches the historical actions of the county. Chair TenBruggencate said they are going to spend the money anyway. Who decides to take it to court? Mr. Justus said the county would decide that whether we empower the county clerk or whomever, but if the county has a problem with the charter amendment they have that clear power to seek a declaratory ruling on it, but it wouldn't prevent it from being put on the ballot. Chair TenBruggencate said they have that power now. Mr. Justus said this would eliminate any misunderstanding that they have any other powers. Chair TenBruggencate said Mr. Justus is suggesting taking the powers away from the county council and throw it into the courts. Mr. Justus said the courts are the ones who have the power to determine whether it is valid or invalid. Chair TenBruggencate said as it stands today the county council asserted that authority and nobody has challenged that authority so as it stands today the practice in the County of Kauai is the county council has that authority. You are talking about taking that authority away from the county council, seven elected representatives of our community, and putting it in the hands of an appointed judge. Mr. Justus said he would prefer the judgment of the judge who is required to have voluminous legal experience in looking at this stuff as opposed to seven individuals, who have no requirements except that they live Charter Review Commission Open Session May 18, 2015 Page 14 SUBJECT DISCUSSION ACTION here, to make a decision on whether something is a valid or invalid charter amendment. Mr. Parachini was asked to reread his proposal: The clerk shall call upon a panel of three attorneys admitted to practice in the State of Hawai `i to determine the proposal's validity as a charter amendment under this section. Two of the panel members would be appointed by the county attorney and one by the initiative's proponents. Attorney Dureza said they have moved really far from what the agenda is supposed to be as they have moved from trying to define what a charter amendment is into trying to determine whether or not they want a safeguard and who decides what a charter amendment is. Chair TenBruggencate said while the agenda is as the attorney suggests the proposed charter amendment has been part of the overall process for some time. Attorney Dureza said the vote they will be taking does not comport with what the notice says. To be fully compliant with the Sunshine Law as they are trying to define what a charter amendment is and not trying to determine whether or not they want the safeguard it might be more prudent to defer the vote to the next session so it can be properly noticed. It has evolved to a different issue than what it originally was supposed to be. Mr. Parachini felt it had been properly noticed since the proposed language is incorporated in the agenda materials. Attorney Dureza asked if they were not voting on totally different language such as the declaratory route. Chair TenBruggencate said Mr. Justus moved to amend the motion to read in the suggestion in the agenda is the charter amendment proposal for article the 0 paragraph: Upon filing of such petition, XXIV; it just does not mention all of the stuff in it but the Commission can take the county clerk shall then examine it to see notice of the attorney's concerns and defer this item after they decide if they whether it contains a sufficient number of valid can come to any consensus on this subject. signatures of registered voters. The next paragraph would read: If the county clerk concludes the measure is not an appropriate charter amendment, the county clerk may seek a declaratory ruling. The next paragraph would read: The county clerk has no power to prevent Charter Review Commission Open Session May 18, 2015 Page 15 SUBJECT DISCUSSION ACTION a petition initiated proposed charter amendment that comports with the definition in 24.01 from being placed on the ballot, except for the method described in this article. Mr. Guy seconded the motion for sake of discussion. Chair TenBruggencate said Mr. Justus added they now have to count the signatures before someone makes the decision which is the opposite of the way it has always been done. Mr. Justus said the language is already there about counting the signatures. Chair TenBruggencate said in recalling the progression he was saying to count the signatures and if there is a problem with the language then they go to court. Mr. Parachini said his intention and what the wording offered says is the opposite of that. In order to avoid the expense The meeting recessed briefly at 5:11 p.m. and of staff time and everything that is brought into play in the process of counting reconvened at 5:12 p.m. the signatures it would make more sense for the clerk to know yes it is or no it isn't before signatures are counted. Mr. Justus liked that idea and withdrew his Mr. Justus moved that the 4th paragraph to read: motion to be further amended at which time Mr. Guy withdrew his second. Upon filing of such petition, the county clerk shall examine it to see whether it is a valid charter amendment. If the county clerk concludes the measure is a valid charter amendment, the clerk shall then examine it to see whether it contains a sufficient number of valid signatures of registered voters. Next paragraph: If the county clerk concludes the measure is not a valid charter amendment the county clerk may seek a declaratory ruling. Next paragraph: The county clerk has no power to prevent a petition initiated proposed charter amendment that Charter Review Commission Open Session May 18, 2015 Page 16 SUBJECT DISCUSSION ACTION comports with the definition in 24.01 from being placed on the ballot except for the method described in this article. Mr. Parachini seconded the motion. Mr. Parachini withdrew his second to allow Commissioner Justus to refashion his motion. Mr. Justus withdrew his motion and restated his amended motion starting with the 41h paragraph Mr. Guy asked why Mr. Justus felt he had to strengthen the article with that last to read: Upon filing of such petition, the county paragraph. Mr. Justus said he would be just as happy removing it. Mr. Guy it to it is said he would have an easier time supporting the motion if that was removed. clerk shall examine see whether a valid charter amendment. If the county clerk concludes the measure is a valid charter amendment, the clerk shall then examine it to see whether it contains a sufficient number of'valid signatures of registered voters. Next paragraph: If the county clerk concludes the measure is not a valid charter amendment the county clerk may seek a declaratory ruling. Mr. Parachini seconded the motion. Mr. Stack asked if in the 41h line of the 4th paragraph the word "called" should be "defined" or "considered to be ". Mr. Parachini said Mr. Justus' amendment has replaced that wording. Chair TenBruggencate said he would be opposing Charter Review Commission Open Session May 18, 2015 Page 17 SUBJECT DISCUSSION ACTION this amendment because he does not want to put that weight on the county Motion as amended carried 4:1 (nay - clerk, and he did not think the county clerk should be authorized to have that TenBruggencate) weight; that is a job for the county attorney. Mr. Justus asked if the Chair would be interested in it if it said the county clerk may ask the county attorney to seek a declaratory ruling. Chair TenBruggencate liked the language Mr. Parachim originally wrote, with no panel and let the county attorney make the decision on whether it is or it isn't. The first line of defense should be the county attorney; that is their job. Chair TenBruggencate said based on the advice from the County Attorney this item should be deferred to the next meeting with the amended language. Mr. Justus suggested the changes defining what a charter amendment is in the first paragraph of section 24.01 be a separate potential charter amendment from the changes in the rest of that section which defines the process. Mr. Parachini said if 24.01 and the other paragraphs are separated, if the voters voted down the mandatory language in those two paragraphs and approved 24.01 as a definition then they are back where they are to which Mr. Justus agreed. Attorney Dureza said if they describe it in terms that relate to the method of introducing charter amendments it would sufficiently be expansive enough. Attorney Dureza said it was the language that was introduced at this meeting that was entirely different from what was noticed to the public. Staff further explained if someone in the public reads only the agenda and not the proposal they might think all the Commission is doing is defining a charter amendment, but the discussion has moved off to include powers, which could be what the Attorney is cautioning them on. Mr. Justus said, as Mr. Parachini pointed out, if they do separate the issues they may lose the effectiveness of defining what a charter amendment is. Mr. Parachini said the risk is if 24.01 is approved by the voters and the other items are not then they are actually in a worse situation than now because it leaves no one and no process to determine whether the proposed amendment meets the standard. Charter Review Commission Open Session May 18, 2015 SUBJECT DISCUSSION ACTION Attorney Dureza suggested noticing for the next meeting to add: clarifying what constitutes a charter amendment and the method for amending the charter. Chair TenBruggencate suggested just saying discussion of possible Mr. Guy moved to defer this item to the June amendments to article XXIV. Attorney Dureza did not know if that was meeting. Mr. Parachini seconded the motion. sufficient notice to the public to encourage them to partake in the discussion. Motion carried 5:0 Chair TenBruggencate said he would work on the agenda language with staff. The proposal is to defer this and have the amended language come back before the Commission for discussion. Mr. Parachim said this has been before the Commission for some time and did not know that deferring a matter of this import until September, out of respect for Mr. Justus' vacation schedule, is appropriate. C. Discussion on raising hepercenta e of required voters for petition initiated amendments. Mr. Justus said he has opposed raising the percentage but was definitely in favor of lowering the initiative and referendum. He is open to raising the percentage to 10% for petition initiated amendments so long as the proposed language also include in the same question lowering the initiative and referendum number from 20% to 10 %, thereby it is equal; it is not easier to change the charter than it is initiative and referendum. Mr. Parachini liked the concept but thought 15% for each would be a better place to be. Attorney Dureza did not think talking about changing initiative and referendum comports with the notice requirements. Chair TenBruggencate Mr. Parachini moved to defer this item to the suggested deferring this item and notice it as a discussion of charter June meeting. Mr. Guy seconded the motion. amendment, initiative, and referendum as well as perhaps recall. Chair Motion carried 5:0 Charter Review Commission Open Session May 18, 2015 Page 19 SUBJECT DISCUSSION ACTION TenBruggencate said they have received a legal opinion in the past that it is probably problematic in a single charter amendment to reference different parts of the charter, but is not sure how to realistically have this discussion if one of the issues is to end up with something balanced without combining them. The Attorney was asked to find a way to deal with the initiative, referendum and charter amendment discussion in a single ballot question. ES -007: Regular Executive Session Minutes of April 28, 2015 With no discussion, changes or questions Mr. Justus moved to approve the minutes as circulated. Mr. Parachini seconded the motion. Motion carried 5:0 Announcements Next Meeting: Monday, June 22, 2015 — 4:00 p.m. Adjournment Chair TenBruggencate adjourned the meeting at 5:40 p.m. Submitted by: Barbara Davis, Support Clerk O Approved as circulated. () Approved with amendments. See minutes of Reviewed and Approved by: meeting. Jan TenBruggencate, Chair