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HomeMy WebLinkAbout2015_0928_Minutes Open_APPROVEDCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 10/26/15 Board /Committee: CHARTER REVIEW COMMISSION Meeting Date September 28, 2015 Location Mo'ikeha Building, Meeting Room 2A /213 Start of Meeting: 4:00 pm End of Meeting: 5:25 pm Present Chair Jan TenBruggencate; Vice Chair Joel Guy. Members: Mia Ako; Ed Justus; Allan Parachini; Patrick Stack; Cheryl Stiglmeier Also: Deputy County Attorney Philip Dureza; Boards & Commissions Office Staff. Support Clerk Barbara Davis; Administrator Jay Furfaro; County Clerk Jade Fountain - Tanigawa; Deputy County Clerk Scott Sato Excused Absent SUBJECT DISCUSSION ACTION Call To Order Chair TenBruggencate called the meeting to order at 4:00 p.m. with 7 Commissioners resent. Approval of Regular Open Session Minutes of August 24, 2015 Mr. Justus moved to approve the minutes as Minutes circulated. Mr. Parachini seconded the motion. Motion carried 7:0. Business CRC 2015 -02 Staff's update on status of County Clerk's Office verif y g accuracy of 2014 Codified Charter for certification for continued Charter Commission's identifying and proposing non - substantive changes to the Charter (On- going) Staff noted the County Clerk's Office has indicated their target date is now October. CRC 2015 -03 Chairman's update on the status of the preamble (On- going) County Clerk Fountain - Tanigawa said they had spoken with the Office of Elections on Oahu to try to locate the actual ballot that the preamble was supposed to have been proposed on, and they could not locate it in their warehouse or in their archives. Absent of that the County Clerk's Office will be requesting a formal opinion from the County Attorney's Office whether it should be listed on the ballot, or if they feel comfortable with the background information provided from the Clerk's Office to have it inserted Charter Review Commission Open Session September 28, 2015 01M- SUBJECT DISCUSSION ACTION in the Charter. CRC 2015 -04 Memorandum dated 8/27/15 soliciting input from the Maw County Council and Department Heads asking them to review their portions of the Charter and to report back to the Commission for consideration of any changes desired Staff stated there will be delays in receiving information as the request was also given to some of the Commissions who only meet once a month and need to place the request on their agenda; they were requested to respond back to the Charter Commission by the end of this year. Responses received will be placed on the Charter Commission's agenda. CRC 2015 -06 Request from Chair TenBruggencate to place on the agenda the issue of Council Districting Chair TenBruggencate said he placed this item on the agenda at the request of Commissioner Stack. Chair TenBruggencate pointed out the issue of districting for County Council candidates has been considered several times by several Charter Commissions. Since there is not a specific proposal before the Commission the Chair deferred to Commissioner Stack. Mr. Stack agreed that this issue has been kicked around more than once or twice, but he understands that for each successive motion to be passed it has been approved by a higher and higher percentage. Mr. Stack said he is not a dyed in the wool districting person but there are certain aspects in our County that do not have any home favorites. The Commission does not need to go through the details now because if this body gets serious about districting it could fall back on the last opportunity they had for districting, and use that language and those geographical areas for representation. Chair TenBruggencate said his recollection from the last time they dealt with districting there were so many different proposals they could not develop a majority around any one. If this moves forward the Commission Charter Review Commission Open Session September 28, 2015 01M SUBJECT DISCUSSION ACTION would need to rally around a single proposal. Mr. Guy remembered it differently. The Commission did look at different districts, and he applauded Commissioner Justus for all the work he did. The Subcommittee solicited information from the public, but for the new Commissioners who did not go through that lengthy process it is a hard talk to have. Mr. Guy said he learned more about districts than he thought he would ever want to know. There was one district proposal that made it to the table, but it did not pass. This issue has been on the ballot multiple times, and it is getting closer and closer to passing. It seems like the people are wanting it more and more, and clearly there is a desire for it, so we should let the voters vote on it. Mr. Justus said he did write up some language that was used the last time this was presented to the Commission with the only difference he was proposing 5 districts with 2 at -large seats. In 2006 it was proposed as 3 districts and 4 at- large, basically using the State legislative districts. When districting was first proposed in the `80s there was a greater number of people that did not want it. The last time it was on the ballot it was about 131 (sic) votes away from passing. In researching how the various districts voted it seemed the outlying communities typically almost always voted in favor, but Lihu`e and Kapa`a did not. Looking at the voting numbers from this past Council race had there been a district seat the lady from the North Shore would have been elected as a district candidate. The point is there was a district on the Island that had a candidate who spoke their voice, but did not get elected. It says there are communities that want to have someone from their area to represent them. Mr. Parachini said personally as a voter he is still on the fence. He has had a number of conversations with members of the public, and was reminded it has been on the ballot in the sequence laid out, but he thinks it is something Charter Review Commission Open Session September 28, 2015 I'._- AI SUBJECT DISCUSSION ACTION the voters deserve to be able to give their voice to. It might be a good idea if the Commission can come to some consensus of what to propose to the public. Mr. Parachini said he is drawn to the 3 district idea because if it is more than 3 they have to establish an apportionment mechanism for the County, and if there was an apportionment battle it could be litigated for decades. If something is to be proposed Mr. Parachini thought it should be 3 districts and 4 at- large, but he was not saying it was the only practical way to do it. Mr. Parachini felt this could also present a good opportunity to consider 4 year terms for all County Councilmembers, but terms would need to be staggered in the beginning. Mr. Guy asked if a 2 year district and a 4 year at -large term would help with the staggering. Mr. Parachini said his initial feeling was that it should be 4 years for all of them. Ms. Ako said before she can vote she needs to have this issue vetted as she does not have enough information to make a decision. Chair TenBruggencate assured Ms. Ako that the Commission would not take a final vote on this issue today. Chair TenBruggencate requested that Staff make available the Sub - committee reports on districting to the Commissioners. Mr. Guy stated there were some very passionate people for and against districting at the various meetings, so these conversations are not meant to put anyone on the spot, but to start the conversations so intelligent decisions can be made. Mr. Guy also pointed out there was no proposal to be voted on. Mr. Parachini agreed they need to cover the base of getting public input on this. Mr. Justus recalled that the public wanted districts, but no one could come to a clear consensus as to which proposal they wanted. Chair TenBruggencate pointed out that there was also a substantial number of people who did not want districting period. Chair TenBruggencate asked if the Commission wanted to make a single proposal now or defer this to the next meeting, Ms. Sti lmeier moved to defer to the next meeting. Charter Review Commission Open Session September 28, 2015 I' _ SUBJECT DISCUSSION ACTION Mr. Parachini seconded the motion. Motion carried 6:1 (nay-Justus) CRC 2015 -07 Request from a member of the public via Chair TenBruggencate to again consider a proposed amendment to allow county board and commission members to appear before other county boards, commissions, or agencies Chair TenBruggencate said this request came from a member of the public, Dennis Esaki, who is out of State today, but did send a letter. A second letter was received from the president and CEO of the Kauai Chamber of Commerce, Mark Perriello. Chair TenBruggencate said a ruling of the Board of Ethics says if you are a member of a board or commission, even though you are a volunteer, you are an officer of the County. The Charter says if you are an officer of the County you may not appear in behalf of private interest before any board, commission, or agency of the County. The proposal from the Chamber of Commerce and Mr. Esaki is to amend that section to say if you are a board member or commissioner you cannot appear on behalf of a private interest before the panel that you sit on, but you can do so before other agencies. One of the suggestions is there are people who will not serve on boards or commissions because they depend for their livelihoods on appearing before County boards, commissions, and agencies, and as a result we lose the opportunity to take advantage of their volunteer service. Chair TenBruggencate drafted language to try to accomplish this, which adds the additional piece of information that if they are allowed to appear they would simply need to disclose that they serve on a board or commission. The suggestion is to continue to make it impossible for members of boards and commissions to appear on behalf of private interest before their own commission, but to allow them to do business with the County outside the commission they serve on. Mr. Parachini asked the Attorney to clarify what private interest means in Charter Review Commission Open Session September 28, 2015 01 • SUBJECT DISCUSSION ACTION this context. Attorney Dureza said as a general definition, since he has not researched this, would be something that is not governmental, so it could be corporations or `for' or `non' profit organizations. Chair TenBruggencate said the current language prohibits an attorney from representing a paying client, or even a non - paying client, before boards or commissions if that attorney serves on a board or commission. The suggestion has been that those people are not offering themselves up for County service because it would impact their ability to make a living. Ms. Ako questioned County legal representation in the capacity of a board or commission member versus when not acting in the capacity as a commissioner to which Attorney Dureza said basically if they are doing something as an official duty as an officer for the County they would be "covered" by the County Attorney's Office. Chair TenBruggencate noted that the language from the 2008 Charter amendment was included in the meeting packet, but that proposal was turned down by the voters. Mr. Justus thought they should make it clear in the language to say "provided however unpaid or volunteer County board and commission members may appear ". He thought because they didn't state the members are unpaid a person who has no concept of County governance might naturally think that board or commission members are paid. Mr. Stack said they should clarify the language to read "Kaua`i county boards and commissions" because the way it is written it could be any board — it could be the Big Island's board. Mr. Parachini asked for further clarification on private interest — if he is a chair or an officer of a community association and the community association is displeased with the level of police patrol service and decides to complain to the police commission about this, he could not do this, correct? Chair TenBruggencate said it was his understanding that the way the Charter is being interpreted today that is correct. Mr. Justus so moved. Charter Review Commission Open Session September 28, 2015 01M- SUBJECT DISCUSSION ACTION Chair TenBruggencate called for a motion. Chair TenBruggencate clarified the motion by adding they include Mr. Justus' suggestion they use the term "volunteer" in the ballot question. Mr. Justus said the exact words would be "provided however unpaid or volunteer County board and commission members ". The revised 2015 proposal from Chair TenBruggencate which was distributed at the start of the meeting does not include the actual Charter language — only the ballot question. Mr. Justus asked if he could remove his motion and just use the language provided in the ballot question as the language for the motion. Chair TenBruggencate pointed out the language is different (in the 2008 and 2015 proposals). Staff suggested deferring this item so it can be brought back the next month in Ramseyer form for the Commission to review. Chair TenBruggencate said he tried to make the 2015 proposal more palatable, since the 2008 proposal failed, by including a disclosure. Chair TenBruggencate said if Mr. Justus was planning to ad lib it would be better to have something written. Mr. Parachini asked if it would be reasonable to suggest that the Chair, as the author of the 2015 proposal, prepare amended language as Mr. Parachini is not comfortable voting on something where there is not Mr. Justus move to defer to the next month. Mr. something to vote on. Could the Commission see some proposed Charter Parachini seconded the motion. Motion carried language next month? 7:0 CRC 2015 -08 Proposed amendment from Commissioner Justus on Article 111, Section 3.06 and 3.07 D, and Article XXIX, Sections 29.01 -06, as relates to the Compensation of Councilmembers and the Organization of Council; Officers; Rules; Employees Mr. Justus said he proposed the amendment since he has heard it batted Charter Review Commission Open Session September 28, 2015 0i i SUBJECT DISCUSSION ACTION about over the years. The language about compensation mirrors the language that it states for board and commission members. This proposes that councilmembers would not receive a salary or monetary compensation, but they would be given payment for expenses that happen during their work. In order for that to happen there would also be changes in the section for the Salary Commission and the Rules of the Council, because if they are not going to receive any compensation they cannot suspend them without pay for a month if they have done something wrong. In studying the formation of the Constitution one of the things that kept coming up is the idea that anyone who is running for a legislative office should not be paid; these should be people who want to see the betterment of government, and not be there just to collect a salary. Also people often complain they cannot get to Council meeting because they happen in the middle of their work day. Writing letters or emails are not as effective as someone in the room voicing their opinion. If you remove the salary of the councilmembers you will be getting people who are there because they want to be there, and are there to hear the community's voice. They would probably try to hold meetings at night, so it does not interfere with their jobs, and you would get more participation from the public because they can actually come to the Council meetings and voice their opinions. Mr. Justus said he did not know what the ramifications would be, but he would like the Commission to discuss this. Ms. Ako said a lot of thought had gone into the proposal, but the reality is it costs a lot of money to live in paradise. Currently what the elected officials on the Council make is not enough to sustain them, whereby some of them work two jobs. To ask for this elected position to be non -paid is focusing on a select group of individuals that can afford to not work. While it may be a great idea, the reality is Ms. Ako did not think it could be done, and very few would throw their hat in the ring. Mr. Stack asked how Ms. Ako knew that people would have to get a salary to maintain their position. Ms. Charter Review Commission Open Session September 28, 2015 I'._-' SUBJECT DISCUSSION ACTION Ako said not everyone in the County Council works two jobs, but the pay they currently make is not a living wage. Mr. Parachini said there are at least two members that have other jobs to which Chair TenBruggencate said it is more than that. It is essential to focus on what they ask County Councilmembers to do, and there is a lot to those jobs well beyond showing up for a regular meeting every two weeks, special meetings, committee meetings, and public hearings. There is a great deal of constituent interaction involved in being a councilmember. The demands of the job are so great we would be risking putting ourselves in the position of paying nothing and getting nothing. There has been debate on whether being on the County Council is or is not a full time job, and Mr. Parachini's impression is that it is far closer to a full time job than not. It would be a very bad bargain. Ms. Stiglmeier does not want to assume individuals have enough money to be able to volunteer for a County Council position, and feels that the time that is put in for being able to serve our community is worth some type of compensation. The compensation they currently get is not a great amount, but in order to get individuals to take the position that much more seriously they are being compensated to complete certain tasks. If the monetary compensation is taken away will individuals take their job as seriously as they do? If they don't have to work, and as sitting councilmembers have their meetings at night, possibly they might have more interaction. But they deserve some sort of compensation because they work hard for us. We take away that compensation what quality of work will we get from them. Mr. Stack said you only have to look to this room to see that altruism and unpaid volunteerism works. Ms. Stiglmeier agreed. Mr. Stack stated that he is very, very proud to be part of the Commission of this County when he looks around the table and sees who he is colleagues with, and he would Charter Review Commission Open Session September 28, 2015 01M SUBJECT DISCUSSION ACTION continue to do this whether he was paid $25 a day or zero, which is currently zero. We all owe a great debt to these institutions, and we need to support them. There are very talented people on this island with a wealth of experience that would be happy to donate their time, and making this a non - paid enterprise is to reduce it or elevate it to what we are doing right now. Mr. Justus said across the United States there are many municipalities that do not pay their council; communities of our size and larger. It is a testament that people do step up to the plate. Mr. Guy questioned if someone is broke do they not get to run? If you do not have that luxury, but you really want to do good for your community it would be hard to run; you would be excluding the people who can't afford it. Chair TenBruggencate said it was fair to say that in at last the first four months of the year the County Council spends inordinate amounts of time working on the budget. It is something you could not hold another job and do that unless you had a very civic minded employer. Mr. Justus said whether the Council is part-time or full -time the Charter says they are part- time, so it might be worth discussing amending the Charter to make them full -time positions because it is a full -time job. Ms. Fountain - Tanigawa clarified the point made about the Council being a full -time versus part-time job noting that although the Charter states they are part-time the ERS (Employee Retirement System) considers them full- Mr. Justus moved to accept this item as a time employees. Charter amendment. Mr. Stack seconded the motion. Roll Call Vote: Nay -Guy; Abstain - Justus; Nay - Parachini; Aye- Stack; Nay - Stiglmeier; Nay - TenBruggencate; Nay -Ako Charter Review Commission Open Session September 28, 2015 Page 11 SUBJECT DISCUSSION ACTION Motion Failed 5 Nay; 1 Aye; 1 Abstain CRC 2015 -09 Proposed amendment from Commissioner Justus on Article III, Section 3.07 D as relates to disorderly or contemptuous behavior by councilmembers Mr. Justus referred to a prior discussion on what the Council's authority is over its members. Mr. Furfaro had said the Council not only has the authority to suspend pay, but to expel from the meeting, and the plain reading of the Charter does not explicitly state that the Council has the ability to expel its own members for disorderly conduct. The current Charter says (Section 3.07 D) ( ... ) The presiding officer or the council by a majority vote may expel any other person who is guilty of disorderly, (...) conduct (... ). For the sake of clarity in the Charter so it cannot be refuted in the future it could be made clearer that the Council does have the authority to expel one of its members from the meeting for disorderly conduct. Mr. Furfaro clarified that he had referenced the Council having the ability, with a super majority, to reprimand members for their conduct behavior as well as having the ability to suspend them for any period of time with the consequences being an interruption in their pay. Further clarification can be obtained from the County Clerk, but it does exist. Mr. Justus said he was not clear on what Mr. Furfaro said. Mr. Furfaro said Council Rules have those options regarding reprimand with a super majority. Mr. Parachini said the Charter language is consistent with what Mr. Furfaro just said, and he read the first sentence of Section 3.07 D in which it is stated. Ms. Ako thought Mr. Justus had added another layer to what was cited in the Charter in which they suspend pay, but also expel them from a meeting. Referencing the Council rules and with the two thirds vote that the majority can suspend a member's pay for up to a month, Ms. Fountain - Tanigawa was asked by suspending the pay does that also mean that councilmember is expelled from the Chamber. Ms. Fountain - Tanigawa said it does not state it clearly, and Council rules can also be amended through a Resolution. It implies if they are not Charter Review Commission Open Session September 28, 2015 Page 12 SUBJECT DISCUSSION ACTION attending a meeting or getting paid then they don't come in and their vote is not counted. The Rules don't explicitly state that, but she does not have the Rules in front of her to be able to quote. Ms. Fountain - Tanigawa did not think it would hurt to explicitly state that in the Charter, but the Rules could cover it also. It would help to have it better clarified in the Council Rules, which could address Mr. Justus moved to receive the proposal. Ms. whether it was a committee meeting or a Council meeting. Stiglmeier seconded the motion. Mr. Guy asked permission to address another question to Ms. Fountain - Tanigawa in which he said the Rules can be changed, the Charter can't. Put it in the Charter so it is crystal clear into the future. Ms. Fountain- Tanigawa said if that is what they intend, but they additionally need to think about whether it is the entire membership of a Council Committee, or the full sitting Council, but that can also be covered in the Council Rules. Roll Call Vote: Nay -Ako; Nay -Guy; Abstain- Justus; Nay - Parachini; Nay- Stack; Nay - Stiglmeier; Aye- TenBruggencate Motion to receive failed 5 -Nay; 2 -Aye; 1- Abstain Mr. Justus moved to accept the proposal for the sake of discussion. Mr. Guy seconded the motion. Mr. Justus moved to amend the language to read: The council may, upon an affirmative vote of at least two- thirds of its entire membership, expel from a meeting any member for disorderly or contemptuous behavior in its presence. Following discussion on committee meetings versus full Council meetings, Mr. Justus said he had no amendment to make. Further discussion took place on how specific the language needed to be on expulsion and suspension of pay. Mr. Justus suggested to make it more linear perhaps the second sentence in the proposal should be moved to the beginning of Charter Review Commission Open Session September 28, 2015 Page 13 SUBJECT DISCUSSION ACTION the section so they first have the power to expel, and then the power to suspend without pay, and then also have the power to expel anyone else in the room who Mr. Justus moved to amend the motion by is guilty. putting the middle sentence of proposed Section 3.07 D at the beginning. Mr. Guy seconded the motion. Ms. Ako asked if "disorderly" or "contemptuous" behavior was defined in the Motion to amend carried 7:0 Council Rules. Ms. Fountain - Tanigawa indicated no. Main motion as amended carried 4:2 (Nay - Parachini, TenBruggencate) Amended proposal to be sent to the County Attorney's Office for approval of form and legality. Announcements Next Meeting: Monday, October 26, 2015 — 4:00 p.m. Adjournment A motion was made to adjourn the meeting at 5:25 p.m. followed by a second. Motion carried 7:0 Submitted by: Barbara Davis, Support Clerk O Approved as circulated. O Approved with amendments. See minutes of Reviewed and Approved by: meeting. Jan TenBruggencate, Chair