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HomeMy WebLinkAbout2015_0727_Minutes Open_APPROVEDCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 8/24/15 Board /Committee: CHARTER REVIEW COMMISSION Meeting Date July 27, 2015 Location Mo'ikeha Building, Meeting Room 2A /213 Start of Meeting: 4:05 pm End of Meeting: 5:16 pm Present Chair Jan TenBruggencate. Members: Mia Ako; Ed Justus; Allan Parachini; Patrick Stack Also: Deputy County Attorney Philip Dureza; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrator Jay Furfaro; County Clerk Jade Fountain - Tanigawa; Elections Administrator Lyndon Yoshioka Excused Vice Chair Joel Guy; Member Cheryl Stiglmeier Absent SUBJECT DISCUSSION ACTION Prior to the start of the meeting County Clerk Jade Fountain - Tanigawa gave the Oath of Office to new Commission member Merilee (Mia) Ako. Call To Order Chair TenBruggencate called the meeting to order at 4:05 p.m. with 5 Commissioners present. Chair TenBruggencate thanked Ms. Ako in advance for her service. Approval of Regular Open Session Minutes of June 22, 2015 Minutes Following discussion of what may have been intended with some of the comments attributed to Commissioners there were no changes to the minutes. Mr. Justus moved to approve the minutes as circulated. Ms. Ako seconded the motion. Motion carried 5:0 Business CRC 2014 -06 Discussion and possible decision - making on the percentage of required voters for petition initiated amendments (On- going) a. Charter Amendment, Article XXIV, Section 24.01 B (other language proposed in Section 24.01 approved 6/22/15) b. Initiative and Referendum, Article XXII, Section 22.03 C Chair TenBruggencate explained that Attorney Dureza has opined that the Commission can address initiative and referendum and charter amendment Charter Review Commission Open Session July 27, 2015 Page 2 SUBJECT DISCUSSION ACTION percentages in a single charter amendment. Previous information the Commission had been given was that you could not combine them; they had to be separate units. Mr. Justus questioned the language in the packet showing all the proposed language from the prior month's proposal regarding defining a charter amendment and the county clerk issues, but noticed in that same language there is a raising from 5% to 10 %. He questioned if this was all being lumped together or was it a mistake having all that language in there. Staff explained that the language (defining a charter amendment and the county clerk issues) was approved previously, but the agenda item is to discuss only Section 24.01 B which addresses the percentage. Following all proposed changes, the Article in its entirety will be sent to the Attorney's Office for approval as to form and legality. If ballot question(s) have not yet been proposed they can be included before the Article is sent for review. Chair TenBruggencate said the suggestion at this point is that initiative, referendum and charter amendments would all be at 10 %. Mr. Stack affirmed what the Chair was talking about in which they would increase the Mr. Parachini moved to approve changing the percentage from 5% to 10% for charter amendments, and while he is not in percentages to 10- 10 -10. Mr. Justus seconded any way for that he understands a compromise is called for now. the motion. Ms. Ako said before she can vote she needs to be clear on the difference between an amendment and referendum. Chair TenBruggencate said there are four places in the charter where a citizen can petition to change something about County government and one of them is a County charter amendmen,t which changes the fundamental form of government. As it currently stands that requires the signatures of 5% of the registered voters. To pass an initiative, which is an ordinance to go to the voters to pass a law, Charter Review Commission Open Session July 27, 2015 Page 3 SUBJECT DISCUSSION ACTION requires 20 %. To repeal a law, which is the referendum, takes 20 %. To recall an elected official takes 20% as the charter currently stands. The discussion has been in large part about whether it is appropriate that it be so much more difficult in the number of signatures you have to raise to simply pass an ordinance than to change the form of government. After a couple of years of discussion, the Commission is now at the point of suggesting all three percentages be made the same, 10 %, so people will be less likely perhaps to select the easier one even if it is not the appropriate one for what they are trying to accomplish. Mr. Justus said his perspective has always been that just raising percentages without establishing stricter criteria as to what constitutes a charter amendment would not solve anything. Mr. Justus said he was more in favor of changing the percentages to make them all equal. Ms. Ako said she was just trying to understand how this Commission came up with the percentages they are proposing. Mr. Justus said when the charter was originally written it did not include initiative or referendum and it only specified 5% as the number for creating an amendment. In the `70s when they realized they needed initiative and referendum there was a charter amendment that made those percentages 20 %, but they did not alter the 5% for charter amendments. Because it only takes 5% to change something in the charter people were trying to use that as a vehicle, so in making them all equal there is not an easier route. Mr. Justus said he was against it because he did not feel that completely resolved the issue, but the 10% number is trying to find a balance on where we can make all of these avenues for the public equal instead of trying to raise all of it to 20 %, which he opposes, or bringing them all down to 5% which seems too low. Mr. Parachini thought Mr. Stack was quite correct when he said it is a compromise. It is a compromise on a signature requirement that we could reach consensus on. What is the logic behind 10 %, as opposed to 11 % or 9 %, it is strictly finding language on which the Commission could reach Charter Review Commission Open Session July 27, 2015 SUBJECT DISCUSSION ACTION consensus. Mr. Parachini said he was happy with where they ended up, and something can be presented to the voters that moves the system along and improves it. Ms. Ako said she was asking because voters are going to want to know how the Commission came up with that number of 10 %. Chair TenBruggencate said the impetus for this is that on multiple occasions people who have sought to make changes in government have selected the vehicle of a charter amendment because it only required 5 %. The Courts and the County Council have told these people they are using the wrong vehicle, and have therefore been thrown out by the Courts and the Council. The Commission's main goal was to not put people in that situation and we have found an equilibrium with 10 %. Mr. Justus thought that 10% was high enough that it makes anyone's efforts credible and low enough to still make it accessible. Chair TenBruggencate explained this was not the final shot as when the Commission has finished with this it is sent to the County Attorney's Office Motion to increase the percentage required for a for review, and then it comes back to the Commission at which time the charter amendment to 10% from 5% carried 5:0 Commission could kill the proposal at a future meeting. Motion to reduce the percentage required for initiative and referendum from 20% to 10% carried 5:0 CRC 2015 -01 Discussion and possible decision - making on proposed changes to Article XXVII Recall: Section 27.01 Recall Procedure, Section 27.03 Signatures, Section 27.06 Recall Election and Section 27.09 Immunity to Recall Chair TenBruggencate invited Ms. Fountain - Tanigawa and Mr. Yoshioka to provide comments on Mr. Parachini's proposed changes to Article XXVII. But first Mr. Parachim was asked to present a summary of his proposal. Charter Review Commission Open Session July 27, 2015 Page 5 SUBJECT DISCUSSION ACTION Mr. Parachini stated there are nine elected officials in Kauai County, but the way the charter is currently worded only two of them are subject to recall. As a matter of equity, Mr. Parachini thought that all elected officials should be equally exposed to recall. This is not designed to pertain to any particular current County councilmember, and no current member would be subject to this since it would not appear on the ballot until 2016. It is just a matter of cleaning up the equity element of the charter in which if you are elected there is a single way to be recalled, and everyone is subject to the same action. Chair TenBruggencate provided background noting that the prosecuting attorney and the mayor serve a four -year term whereby the county council is currently exempted from recall because of specific language in the charter that recall does not apply to those elected to a two year term. Mr. Parachini is suggesting that recall apply even in the case of a two year term with language that would require a special election by all - mail and the County Clerk's Office indicated they have concerns about this. Mr. Yoshioka said the biggest portion of the amendment that will cause the greatest concern is the reduction in the timeline by which the election would need to be conducted. The amendment would require the Elections Office to conduct an election not less than 30 days, nor more than 45 days, after the election has been presented. This presents concerns and issues with that timeline because there is not a voting system contract in place. The voting system contract that is currently in place is with the State so we would have to go through the procurement process to get the system. There would also be a problem with getting a sufficient supply of envelopes produced. The envelopes are special ordered and are ordered in excess of 45,000 to 47,000 for each election. Through the normal procurement process it takes about 3 weeks to get the bid out and award the bid. The contractors take about a month and a half to two months to get the envelopes produced and sent to Charter Review Commission Open Session July 27, 2015 01M SUBJECT DISCUSSION ACTION us. The contractor that has won the bid over the past several elections is based out of Washington state. There are no vendors in Hawaii that can produce the quantities and sizes of envelopes that we need and have them personalized in time to conduct this election in the time specified. Mr. Parachini stated he was very sympathetic to the Elections Office's concerns noting it was not his intention to cause any difficulty. He said he was open to refraining the proposal in a way the wording comports with what the Elections Office can live with. Mr. Parachini said he also thought they might want to talk about the social security number issue and he surrenders to what the Elections Office's needs are. Mr. Yoshioka said Ms. Fountain - Tanigawa, Mr. Sato and he have discussed this at various times over the past several months and they understand the sensitivity regarding that particular personal bit of information. They have looked at other means for verifying petitions, however what they have found is unproven. But as part of a different project they will be looking at this closely. Intelligent character recognition software is one area being looked at, but there are a lot of questions that have to be answered with cost being one, accuracy of the read and match is another. It is not totally impossible to do; it would just take longer to process the petitions without that identifier. At this point the only way to get it down to the timeline that might be suitable for the ten day window needed to process would be to add staffing and work as many hours as necessary to hit the deadline. Mr. Parachini said he would be very open to modifying the proposed language in a way that makes it something the Elections Office can do without killing itself. If they would like to suggest specific language he would happily defer to their judgement on that. Mr. Yoshioka thanked him saying they appreciate the opportunity, and asked when the alternate language would be needed. Charter Review Commission Open Session July 27, 2015 Page 7 SUBJECT DISCUSSION ACTION Chair TenBruggencate said with the two year term it is Mr. Parachini's suggestion that a recall would not happen within the first 6 months of that term, which leaves about 1 year before they are in election season where people are actively campaigning. Effectively, there is 1 year between the 6 months at the beginning and the 6 months at the end during which you would want to potentially do a recall. Mr. Parachim pointed out that the proposal changes the 6 months to 3 months for that very reason. Chair TenBruggencate asked if a candidate has time to exhibit sufficient mis /mal /nonfeasance to be recalled after just 3 months. As you move between the 3 months at the beginning of the term and the 6 months at the end of the term when they are campaigning for election do you want to have another election within that period. The question is what is a reasonable number for the Clerk's Office? It is 3 weeks for procurement, 1 1/2 to 2 months to produce and deliver the envelopes which brings you to around 10 weeks and the envelopes have not been mailed out yet, and that could take it up to 12 to 14 weeks. Mr. Yoshioka said he had not looked at a timeline yet, but wanted to add that even though this pertains to County business there are Federal mailing deadlines to adhere to regardless of whether it involves a Federal contest or not. That requires sending ballots out to overseas voters 45 days prior to the election, so the Elections Office would have to carefully look at all the timelines. Mr. Yoshioka said they could provide the Commission with a ballpark timeline factoring in the procurement of the envelopes, the voting machines, and the mailing deadlines, etc. Chair TenBruggencate said while they are considering an all -mail election, are there other options for holding an election that does not rely on the postal service, for example electronic. A lot of this has to do with shuffling paper and do we need to shuffle paper? Mr. Yoshioka thought neighborhood boards did their elections online, but the fact that this is an official governmental election he would not recommend going in that type of voting technology. It may be okay for corporate board elections, Charter Review Commission Open Session July 27, 2015 OEM SUBJECT DISCUSSION ACTION but he would not feel comfortable going that route based on the significance of what they are attempting to determine. Also, Mr. Yoshioka said he does not know of any electronic internet type of voting system that has passed Federal certification. Mr. Parachini asked if the Elections Office was able to solicit bids on a contingency basis; could they go out for a bid essentially "if' we need this what is your price. Mr. Yoshioka said he would need to check with procurement. Chair TenBruggencate said given the compressed timeline there is another option, which is to remove the two year term language and to allow a recall to be held as a special election during the regularly scheduled primary. What that would accomplish is that if someone was sufficiently unpopular enough that you wanted to get rid of them you would remove them for the last 3 or 4 months of their term, but they could still be a candidate the next time and the voters could put them back in or not. Instead of holding a special election on a separate day, any recall that occurs during the two year term is voted on at the next primary election. Mr. Yoshioka said that would address a lot of his issues. Mr. Parachini said that would make the recall process more symbolic than anything. He still thought all elected officials need to have the same exposure to recall. Ms. Ako had the impression that the Commission was in agreement to place all nine elected officials into the recall system rather than just the two in the charter to which Chair TenBruggencate said they had not agreed on that; the Commission was still in discussion. The Commission is in the process of saying if we want to do this how would it work. Mr. Stack asked if there was not a mechanism within Council that they could take care of their wayward friends. Mr. Furfaro said there was, but he would prefer the County Clerk expand on that. Ms. Fountain - Tanigawa cited §3.07 D which states The council may, upon an affirmative vote of at least two - thirds of its entire membership, suspend without Charter Review Commission Open Session July 27, 2015 SUBJECT DISCUSSION ACTION pay for not more than one month any member for disorderly or contemptuous behavior in its presence. The presiding officer or the council by a majority vote may expel any other person who is guilty of disorderly, contemptuous or improper conduct at any meeting. Chair TenBruggencate said within the charter is the impeachment provision which requires just 5% of the voters registered in the last election to file an impeachment petition, and it is different from recall in that if an impeachment petition is brought and found to be sufficient the issue goes to court where it needs to be proved that the person sought to be impeached has conducted himself in a way that shows misfeasance, nonfeasance or malfeasance. Mr. Stack said that demonstrated why Mr. Parachini's procedure does not work. The candidate for expulsion only has a 2 year term in office and through legal maneuvers the process can be delayed with the 2 years coming and going long before any legal action is taken. So not to minimize the importance of what is being said it is not as effective as impeachment because impeachment takes two- thirds majority of the Council. Chair TenBruggencate pointed out that impeachment takes a 5% petition from the voters and then it goes to court. Mr. Furfaro clarified to expel someone the Council needs a super majority of 4 of the 6 remaining members. Mr. Justus said he did not understand that because it states they can expel any other person who is guilty of disorderly, contemptuous or improper conduct at any meeting. Does that mean any other person other than Council people? Chair TenBruggencate said yes; if he were to go to Council and become abusive the Chairman of the Council has the authority with the vote of a majority of the Council to kick him out. They can also do that if a member of the Council behaves in that way. Mr. Justus thought the section said Council could only suspend their pay for a month. Mr. Parachini said the Chairman raises issues about the practical elements of implementing a system of this nature and he is prepared to fold on this issue. Mr. Justus thought there was merit in some of what Mr. Parachini was saying and he should not scrap the whole thing. Mr. Justus also understood the County Clerk's Office on the timelines for procurement and all, and could leave that section alone, but he is still interested in the discussion of lowering the percentage rate of recall. There is also interesting conversation to be Charter Review Commission Open Session July 27, 2015 Page 10 SUBJECT DISCUSSION ACTION had about lowering it from 4 year terms to regardless of length because the public should have the ability to have a say on every elected official, so he is not sure if Mr. Parachini moved to approve the proposed recall is the way or impeachment. Ms. Ako said she agreed with Mr. Justus. language for Article XXVII for discussion purposes. Mr. Justus seconded the motion. Ms. Ako thought this was a way for the public to feel some form of empowerment, but there are some glitches in the article. Ms. Ako would like to see discussion continue on this article, in particular section 27.01 and do they change it from 2 elected four year officials to 9 which includes all elected officials. Mr. Justus thinks in some sense even if it is never used just the fact that recall could be an option on any official, with that in the back of their mind it might keep them on their toes. Mr. Furfaro said just having it there as an opportunity is a pretty strange approach to having people do business in a 2 year term, which they can only actively participate in for about 18 months because then they are on the campaign trail again. If someone upsets the body enough that it would call for impeachment they will probably run a very shallow re- election campaign. A caution right now because our rules are on the edge. This piece started with calling up the Clerk's Office and the Elections Office to get an understanding of what concerns they would have on a procedure for which there was no motion made, but now the Commission is in discussion. The Commission needs to consider if you are doing this for a 2 year term how do you fill the position of the guy who gets recalled, and what is the cost associated with a removal when you have reprimand and the ability with in the Council body to have some removed under 3.07 and 23.13. There are a lot of personal challenges that it puts on the division of Elections, as well as the fact there is not a full time elections staff. The elections in the County of Kauai are run by as many as 6 part- timers that are called back that actually run the posts; there are a lot of mechanical arts there for 18 months of activity. Mr. Parachim asked about language in Charter Review Commission Open Session July 27, 2015 Page 11 SUBJECT DISCUSSION ACTION the charter that establishes a procedure for filling an unfilled term. Mr. Furfaro said it is not defined definitely where automatically the 81h voter gets in. Staff added however there is a procedure for filling the mayor's position. Mr. Furfaro then explained the procedure that applies in the appointment of a councilmember. Chair TenBruggencate added there is a provision for the Council to select the next person, but it does not tell the Council how to do it. Chair TenBruggencate said there were other things in the proposal such as the issue of whether a social security number should be included when signatures (on a petition) are collected. Mr. Parachim's language, as proposed, is that social security numbers not be collected as a privacy issue, but there are concerns on the part of the Elections Office on whether they can expeditiously check signatures for their validity in the absence of an additional identifier such as a social security number. Asked about confirming signatures using social security numbers Mr. Yoshioka said that is the most efficient way to access the individual's record in the voter file. Asked if it would work just as well to list only the last 4 digits of the social security number, which would help ensure privacy on the part of the voter, Mr. Yoshioka said it would not allow a search of the vote file as quickly because even with only 40,000 or so registered voters in Kauai County there are numerous duplicate 4 digits in the last portion of a SSN. Without the full 9 digits Elections would have to do a name search, which increases the number of keystrokes required to access the record. Even with the name search if you do not hit that individual's record, but rather a list of names, you would have to scroll through to find the record that you are searching for, and open it up to find the corresponding documents. It would double or triple the amount of time to access 1 record. Chair TenBruggencate said another item to be addressed is who has access to the voter list because inherent in Mr. Justus' question was that almost anyone could go look at a voter record. Mr. Justus said he did not mean a voter record, but rather the Charter Review Commission Open Session July 27, 2015 Page 12 SUBJECT DISCUSSION ACTION petition itself to which Mr. Yoshioka said that is a possibility. Mr. Justus thought that was a measure that needed to be corrected as it is a huge problem in this day of identity theft, and could be a really big problem if someone decided to do a phony recall election. Ms. Ako said this is turning into the rabbit's hole because in an election, whether you want to run or not, the list of names of the people putting their name for you to run is with a social security number. If someone chooses not to put their social security number that is their prerogative, but everything having to do with the elections if you put your name to it when you go to vote it is your social security number. Sorry but to ask to change that is the rabbit hole. Mr. Yoshioka said they are looking at intelligent character recognition, and applications to try to establish alternative ways to verify petitions, but it is just in the research stages. Ms. Ako stated that our elections are part of the State Elections; if the State Elections is going to make changes and go with recognition then we are good. But to ask our County to go into this, how are we going to fund this. Mr. Justus said Ms. Ako makes a good point because it is not something the Charter Commission can fix; it would probably have to be something at a higher State level to address those potential security issues. Chair TenBruggencate said he was pleased that the Elections Office, on its own initiative, is looking for solutions to this problem because he does not think the Commission can dictate those solutions. Mr. Stack thought Ms. Ako was right on target; they do not want to take something that isn't a problem and make it a problem, or put too much light on something that is insignificant. A recall is something that would only happen if some elected official did some really heinous thing, which might fall under the heading of criminal and not civil. Chair TenBruggencate's view was that until such time as Council is a 4 year term Mr. Parachini withdrew his motion. this is a problematic issue of which he will not be supporting. Asked why Mr. Parachini dropped the percentage from 20% to 10% the response was for consistency with the other proposals. Mr. Justus said in Mr. Justus withdrew his second. Charter Review Commission Open Session July 27, 2015 Page 13 SUBJECT DISCUSSION ACTION this instance he thought 20% was a good number. Mr. Justus moved to receive CRC 2015 -01. Mr. Stack seconded the motion. Motion carried 5:0 Announcements Next meeting: Monday, August 24, 2015 —4:00 p.m. Adjournment Chair TenBruggencate adjourned the meeting at 5:16 p.m. Submitted by: Barbara Davis, Support Clerk () Approved as circulated. O Approved with amendments. See minutes of Reviewed and Approved by: meeting. Jan TenBruggencate, Chair