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HomeMy WebLinkAbout2015_1026_Minutes Open_APPROVEDCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as amended 11/23/15 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I October 26, 2015 Location Mo'ikeha Building, Meeting Room 2A/213 Start of Meeting: 4:01 pm I End of Meeting: 6:04 pm Present Chair Jan TenBruggencate; Vice Chair Joel Guy. Members: Mia Ako, Ed Justus; Allan Parachini (4:13 p.m.); Patrick Stack; Cheryl Stiglmeier Also: Deputy County Attorney Philip Dureza; Boards & Commissions Office Staff: Support Clerk Barbara Davis Excused Absent SUBJECT DISCUSSION ACTION Call To Order Chair TenBruggencate called the meeting to order at 4:01 pm with 6 Commissioners present Approval of Minutes Regular Open Session Minutes of September 28, 2015 Ms. Stiglmeier moved to approve the minutes as circulated. Mr. Guy seconded the motion. Motion carried 6:0 Business CRC 2015 -02 Staff's update on status of County Clerk's Office verifying Mr. Justus moved to defer to the next month. Ms. Stiglmeier seconded the motion. Motion carried 6:0 accuracy of 2014 Codified Charter for certification for continued Charter Commission's identifying and proposing non - substantive chances to the Charter (On-going) No update has been received from the County Clerk's Office CRC 2015 -03 Chairman's update on the status of the preamble (On- going) Mr. Justus moved to defer to the next month. Mr. Stack seconded the motion. Motion carried 6:0 Chair TenBruggencate noted Ms. Fountain - Tanigawa, County Clerk, was not in the office today and so he does not have an update. 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 Charter Review Commission Open Session October 26, 2015 Page 2 SUBJECT DISCUSSION ACTION changes desired (On- og my a. Letter dated 9/23/15 from the Department of Water indicating they have no recommendations at this time Mr. Justus moved to receive the letter from the Water Department. Mr. Guy seconded the motion. Motion carried 6:0 b. Proposed amendment to Article XVIII, Civil Defense Agency, aligning this Article to the Hawaii Revised Statutes, Article 127A -5, by changing from Civil Defense Agency to Emergency Management Agency Chair TenBruggencate explained that the State has gone through the process of changing the name and some of the functions of its Office of Civil Defense, and turned it into an Emergency Management Agency to better recognize the fact that it is dealing with not only civil defense / homeland security types of issues but a lot of natural disasters. The civil defense terminology seems to suggest it only deals with attacks from without, so this would bring our County Civil Defense Office into concurrence with the language. There are no significant changes in the function of the office but Mr. Guy made a motion to move this proposal it does change the terminology. forward. Ms. Ako seconded the motion. Mr. Stack asked if the name change had any direct or indirect effect on the funding in the event of a national disaster. Chair TenBruggencate thought it should improve the capacity for funding because it puts Homeland Security at the Federal level, which is now in line with our State Office of Emergency Management; it would put this in direct line. Asked if there were any substantive changes other than the name, Chair TenBruggencate said that was his recollection. Mr. Justus said in Section 18.04 it says "each county " and should say "the county" since we do not have the authority to tell any other county what to Mr. Justus moved to amend the language to do. change "each" to "the ". Mr. Guy seconded the Charter Review Commission Open Session October 26, 2015 Page 3 SUBJECT DISCUSSION ACTION motion. Motion carried 6:0 Mr. Justus questioned the amount of not less than $50,000 as a contingency fund, and questioned if they need to add a line that could be enclosed in parenthesis to say to be adjusted for inflation rather than adjusting that amount over the years. Staff pointed out the verbiage was "not less than" to which Mr. Guy said he got the sense that the Civil Defense is really in tune with what their budget constraints are, and would have made that recommendation if there was a concern. Chair TenBruggencate agreed that Motion to approve the main motion as amended the $50,000 was not a limit, it just says not less than, so it could be any and forward for legal review carried 6:0 amount over that. CRC 2015 -06 Discussion and possible decision - making on whether to pursue developing and placing an amendment on the ballot for Council Districting (Deferred from 9/28/15 meeting) a. Review of past districting election results Chair TenBruggencate noted they had received written testimony from Felecia Cowden and invited her to address the issue. Ms. Cowden noted this topic has come up a number of times and she did send in her suggestion. In the handout, extending the number of years has gone on the ballot a number of times and has been rejected; that is new and valuable information for her. Ms. Cowden does think there is some value in districting and thinks if 4 of the council positions were at -large that allows for a majority vote on any particular issue that is at- large. Turning that to a 4 year position would be a good thing and to have it be full time. She is conscious that many of the people have another job, and when you are only elected for 2 years you might not want to give up your very serious job. This would allow for full time focus and we would have a much stronger Council. If there were 3 district positions that would work and flow as it is Charter Review Commission Open Session October 26, 2015 Page 4 SUBJECT DISCUSSION ACTION for the State Representatives (Districts 14, 15 and 16), it would be easy at the time of balloting. Those positions could be 2 years and at the same pay rate as now; more of a junior position, but they would have equal vote in everything else. That would allow for people coming in to get experience, and if they are not up for the job they would cycle out a little bit faster and would keep the costs down. When there are 4 at -large positions they would stagger with 2 elected each of the two years, so it allows for stability and continuity in the Council. Chair TenBruggencate noted the arrival of Mr. Parachini at 4:13 p.m. Mr. Guy expressed his appreciation for Ms. Cowden's well thought out testimony as it is invaluable when someone takes the time to give great information. Chair TenBruggencate noted they had a discussion of this at the last meeting, and one of the things that has come up in the past is the North Shore district has on two previous occasions been split and turned into a canoe district, which might be problematic. They might have to do a separate reapportionment for the Council so it is possible tying it to Representative districts might not be the most efficient way to accomplish what they are trying to do. Ms. Cowden said she suggested it just so it is easy in terms of how it is at the polling places. Mr. Parachini asked Ms. Cowden where she was on the issue of these at -large councilmembers being elected at -large or by the voters in the particular district. In other words, if they are elected at- large, in most models they have to live in the district but the countywide vote determines. Ms. Cowden felt that on an island with as small a population as 70,000 it is not inappropriate to have at- large. That is why making the 4 year term full time with some definition where they do not have a competing job so they are out and meeting in all the areas. The 4 year positions could live anywhere; the districted positions would need to live in their district. At -large is important because for an island this size in terms of population there are many decisions that do not matter what area Charter Review Commission Open Session October 26, 2015 Page 5 SUBJECT DISCUSSION ACTION you live in. Mr. Guy explained with the Maui model, there are 9 districts and you have to live in the district, but the whole island votes for every councilmember. On the Big Island they have to live in and are voted for only by those in that district. Mr. Justus said to be clear it is called districts at- large. Ms. Cowden said absolutely those in the east and north would vote for their east and north person, and only west side would vote for west side, only central would vote for central; otherwise they might as well all be at- large. Mr. Guy asked for more information on canoe districts to which Chair TenBruggencate explained that at one time Peter Apo represented Hanalei even though he was from Waianae. Kauai was too small for 3 full districts and too big for 2 districts so they took the North Shore in one redistricting year and connected it to Waianae. In another canoe district year we were connected to Maui. Asked how that would connect to the County Council Chair TenBruggencate said if we simply follow the Representative Districts and they canoe the Representative Districts in the future then there might be a situation where there is a councilmember from a very small part of the island. Attorney Dureza said he was informally asked to look into the canoe district situation which began around 1981. The Constitution actually forbids such things as canoe districts, but that was challenged in 1981 under the equal protection clause because you are supposed to have this principle where it is a fairly equal distribution among legislators and the constituents. What happens with that Constitutional provision that these certain island districts themselves should be kept intact was that it skewed the distribution of legislators per the amount of population they are supposed to represent. That was challenged in 1981 and stuck down as unconstitutional, and from that arose the canoe district situation. Since then, and one of the reasons they lost in 1981was at the time the State did not put forward its reasons Charter Review Commission Open Session October 26, 2015 Page 6 SUBJECT DISCUSSION ACTION why it had this policy of keeping certain districts with the 4 main island groupings and so the court ruled against them based on that. This was challenged again recently in 2013 and this time the State put forward their valid reasons based on the history of Hawaii and how especially since the 2 decades they experimented with the canoe districts how that did not work out so well. So the court upheld the constitutionality of keeping Kauai as that despite the fact that proportionately it was off. Going forward it will probably survive constitutional challenges based on that recent decision that the court upheld. It went up to the Supreme Court but the Supreme Court did not pick it up and did not decide on the merits, but effectively it sort of went through the system. Mr. Justus asked if in turn that ruling would affect potentially how County districts might be arranged as opposed to one district might be a little bit larger in population than the other because of geographic differences. If the North Shore has 2,000 less people than all the other districts, in theory would that principle apply because of geographic or cultural differences? Attorney Dureza said yes, it would apply here so if it is applied to Kauai and Niihau then proportionately from every district it should be fairly equal and you can't sway that greatly. There is case law that says if the maximum difference is 10% from one district to the lowest district, then it is okay. But above that it becomes constitutionally suspect and you need to put forward a reason why there is such variation between our legislator and the number of the population the legislator represents. Chair TenBruggencate said his understanding is the way Maui County gets away with having a situation where some districts have 10 or more thousand people and Lanai only has 2,000 to 2,500 and they each get a councilmember is by the fact that everybody gets to vote for everybody so no voters are disenfranchised by not being able to vote for an equal number of people. We have also had a lot of testimony from people saying they want to vote for 7 people. Mr. Guy agreed there was a lot of that testimony. Mr. Justus was appreciative of the discussion on the canoe districts because if the 3 districts match the State districts, but there is not a Charter Review Commission Open Session October 26, 2015 Page 7 SUBJECT DISCUSSION ACTION district apportionment committee because of costs to the County, his immediate concern was what if the State decides to have canoe districts, and we would not be able to follow that. Whatever plan we choose to move forward with we are going to have to have a reapportionment committee. That is probably why when it was proposed in 2006 they had an apportionment committee even though it was still matching the State districts. Chair TenBruggencate suggested there is one scenario in which they could avoid the reapportionment issue and require the various parts of our community get covered and that is by adopting the moku system. You would absolutely not have equivalent numbers of people but if you took the moku of Halele`a and Koolau on the North Shore that would extricate Kapa`a altogether and it would be considered the North Shore district. Any districting scheme is going to include a fair amount of Kapa`a just to get enough people into that district. You would have one councilmember from the North Shore and Napali, one councilmember from Puna — the Lihu`e and Kapa`a area — and then another councilmember from Kona, Mana, and Niihau, but that system would only work if you had at -large voting because it follows the Maui example and avoids the one -man, one -vote issue. Mr. Parachini said he found the Kauai Transportation Data Book on the Internet, which is the only place he has seen a population breakdown in looking at the island as 5 population centers. It was pointed out that Mr. Justus had also created that information through his own research. Mr. Parachini said the North Shore has a problem no matter what. If you look at the 5 population center model the North Shore in 2010 had 8,000 people which was more than 3,000 fewer than the next highest ones. The question this raises is if this scheme says the North Shore begins at Moloa`a do we know what would happen to the population of the North Shore if you (inaudible) Kealia and Anahola. Mr. Justus said he used the 2010 census data and broke the island into 5 districts — North, East, Central, South and Charter Review Commission Open Session October 26, 2015 Page 8 SUBJECT DISCUSSION ACTION West — trying to break them down by fairly even population numbers. Each one is somewhere between 11,000 to 12,000 residents per district. In order for the North Shore to be more balanced with all the other districts it would have to include Kawaihau, Kealia and Anahola before it could become an even population with the rest of the districts. Mr. Parachini noted that would not please residents out of the North Shore. Mr. Justus said he looked at the voting numbers and the candidates they chose from the 2014 election and pretty much all the polling centers, Anahola and North, voted Barca for Mayor and Felicia Cowden as their top candidate and Gary Hooser as their top candidate. Mr. Parachini asked Mr. Justus if he was sure that was true about Anahola to which Mr. Justus said he was pretty sure that was true; he might be wrong about the Council part but does believe they voted Barca for Mayor. Mr. Parachini believed that was incorrect. Chair TenBruggencate stated they should not make their decision based on how people voted in the past; they need to make their decision (inaudible). Mr. Guy said they have had conversations about economic sources of the island, the expenditures, and districting representation, which is all a very complex issue. As a person who has been a proponent of districts for a long time keeping it simple and keeping the reapportionment within mokus or 5 districts and present that to the general public is challenging. Let the voter vote on districting and after all the work that has been done that is such a much easier transition. If we need to reassess that in a couple of years and if we can do better, we can do better. Keep it clear, keep it easy to present and give the voters the opportunity to vote on districting. Mr. Parachini said he has been doing a fair amount of research and it has caused him to abandon his notion that observing the 3 State House Districts would make the most sense; he did not even consider the canoe district issue. He is not seeing a way that reflects the diversity of the communities Charter Review Commission Open Session October 26, 2015 Page 9 SUBJECT DISCUSSION ACTION on the island. Mr. Guy said absolutely not; it gives better representation of the westside, the northside and the eastside. Obviously 7 districts would be the best representation if you wanted to get each district to have a strong........ Mr. Justus said for him the one that seems to match most the different cultural divisions of the island and the one the County uses for their TMK map data is 5 districts. There are a lot of different things in which the County breaks down the island into 5 districts. As a westsider when districting came onto the ballot in 2006 there were only 3 districts, and they lumped the west and south shore together. As much as he wanted districts he could not support the idea of lumping the westside and the south shore together because they are completely different types of communities; they have different needs, they have different characteristics. 5 districts with 2 at -large is the most ideal with a west district, the south shore, central, east and the north. You still have the at -large perspective and it is very important to maintain an at -large perspective. Mr. Justus said he is leaning towards 5 districts, but is open to whatever the majority thinks. Mr. Parachini said someone had told him that blank ballots count as noes. When you look at the number of blank ballots in 2010 and 2006 the number of blank ballots are very high. People are fond of saying each time this is on the ballot it has come closer to being passed, but not if you count the blank ballots. Chair TenBruggencate said the blank votes are counted differently in State races and in County races. On State Constitutional matters the blank ballots are counted as noes; in County races blank votes are not counted. Mr. Parachini said the high volume of blank votes tells us that either people were confused, or didn't understand what this was all about in the first place, which is why it is so important for the Commission to reach a clear consensus on a specific proposal. Mr. Justus reads blank votes differently; he reads it as they didn't care enough to vote about it. It Charter Review Commission Open Session October 26, 2015 Page 10 SUBJECT DISCUSSION ACTION was not important enough to them, and if they didn't understand it why didn't they just vote no. If you don't vote, it doesn't count. Mr. Parachini said these are people who showed up at the polling place or sent in their absentee ballot and if you look at other issues that were on the ballot the last time, disclosure, judicial nominees' names, relating to State justices' retirement ages — huge numbers of people refused to vote on those. Mr. Justus thought maybe they didn't feel they were qualified to vote on it. Ms. Ako said at the last meeting she said she was not able to vote and she needed to get more information. She went back to the 2013 and 2014 minutes and looked at the sub - committee findings and became aware through the March 24, 2014, minutes there were a lot of members from the public who appeared that weren't too keen on changing what was now. The sentiment was if it is not broken then why are we fixing it? Listening to the discussion today it has gone past whether we should do districting to how are we going to redistrict and that is where she is stuck again. Has the Commission decided that we are going forward because that is the first thing? The next step would be if we are going to move forward then what are we looking at? Ms. Ako said she was asking for clarification because right now it is just discussion and it is going allover the place. Agreeing with Mr. Parachini that when there is a large percentage of blank votes we have failed as a Commission because that means there is a large population that did not understand what was put out to them. Mr. Guy said if the proposal is for 7 districts he would say no, but for him it is the Commission's responsibility to give the public an opportunity to vote on districting again. As a group Mr. Guy did not think they could all say they were in on issues and hammer out what the district is because if the district is not a certain way he will not support it. They have to find something they can all agree on in order to move this and give it to the people to vote on. As far as the misunderstanding and the challenge on the no votes confusing questions are something this Commission has been criticized for Charter Review Commission Open Session October 26, 2015 Page 11 SUBJECT DISCUSSION ACTION a lot. Ms. Stiglmeier agreed with Ms. Ako saying the Commission needs to come to a decision as to whether or not they want to move forward with districting. We are discussing how to break down the districts without even having said we are going to move forward with this. Mr. Stack asked if they could float a motion on discussing districting going forward without specifying what it would be. Chair TenBruggencate said the last time districting came up almost everyone on the Commission had some form of districting they wanted, but if it wasn't that one they weren't going to vote for any, and we have already heard that from Mr. Guy. Mr. Stack said the purpose in floating the motion is simply not to waste time on irrelevant scenarios, but find out if we have a majority that wants to pursue districting. At a later time we can propose the benefits of the districts. Mr. Justus said to address the blank votes he understands the need to get those people to vote, and asked if Ms. Ako's concern was that a charter amendment one passes when it is the majority over no and blank votes. Ms. Ako said she was commenting on Mr. Justus' comment that if there were blank votes it said to him the voter was not interested, but she felt it was not that they did not care about it, it could be they did not understand the issue. They came to the polls to vote, and if they really didn't care they wouldn't have showed up. We need to educate the public so they can make a decision, whether yes or no. Chair TenBruggencate suspended the rules to allow Ms. Cowden to comment on other agenda items since she needed to be at another meeting. Ms. Cowden said she is very interested in this issue, and said she could have filled the room had she known about this before. CRC 2015 -07, Ms. Cowden enthusiastically supports Commissioners attendance at other boards; it is a significant limitation in the way it is now. CRC 2015 -11 the Council's ability to influence their own term limits they should not be able to propose that legislation. If someone else proposes it, certainly they can Deleted: but he is Deleted: ed Charter Review Commission Open Session October 26, 2015 Page 12 SUBJECT DISCUSSION ACTION talk about it, but it seem like a significant conflict of interest. CRC 2015 -12 on the Mayor and County Manager position, and it is not a real simple question. It is a little bit dangerous to just jump to that. It is a concentration of power. If you have a powerful individual on the Council it could be a simple bloc vote. We can't reduce the County to a simple running of a business, it is the leadership of a community. She suggested putting really stringent criteria on the Managing Director and have that position that is essentially like a County Manager that has real strong background in fiscal management, planning and community development. Then they would not have to have been here a long time because there would be a Mayor in place that balances that. Mr. Justus pointed out the proposal he put forth was not the creation of a council /manager system. Ms. Cowden said she was not aware of what he had put forth. Mr. Justus said what Ms. Cowden proposed was pretty close in principle to what he had proposed to the Commission with the only difference instead of the Managing Director it is called the County Manager and is jointly selected by the Mayor and the Council to which Ms. Cowden said she was really down with that and thinks still yet they should have a Mayor. On the first issue she thinks they should have 4 at -large as there will always be a majority that is looking at the interest of it although she does agree there are 5 districts. Mr. Stack moved to determine if the Commission wished to continue discussing and deliberating Chair TenBruggencate asked if there was a motion on districting and districting. Mr. Guy seconded the motion. whether there is a commitment on the part of the Commission to move forward with a discussion on districting. Roll Call Vote to pursue districting: nay -Ako; aye -Guy; aye - Justus; aye - Parachini; aye- Stack; aye - Stiglmeier; aye- TenBruggencate. Motion carried 6:1 Mr. Justus moved the Commission accept a proposal for a charter amendment for 5 Council Charter Review Commission Open Session October 26, 2015 Page 13 SUBJECT DISCUSSION ACTION districts and 2 -At Large districts. Mr. Guy cautioned that before they make a motion on a specific proposal and someone does not support it and it is shut down that they discuss it more. There are 3 Commissioners present that voted for districts in the past and worked very extensively on the topic and are flexible on the issue. Ms. Ako said what is currently on the agenda is what they just voted on and they Motion died for lack of a second. made a decision on whether to pursue developing and placement of an amendment. The next step is there needs to be an agenda item that is sunshined for the public to look at and which can be modified. Mr. Parachini said it has been 5 years since this Commission explored the topic with the community and he did not think they could to a sensible conclusion about what the community is interested in at this point. Mr. Parachini suggested that they form a sub - committee to go back out and engage the community to try to get a sense of whether it is possible to reach a consensus that would not leave people helplessly confused. Mr. Guy said the challenge of reaching a consensus is going into a room of people who have not read the proposal and you get a bigger confused discussion on what the best thing is. Mr. Justus then corrected the timeline saying it has not been 5 years since this body went out to the community; at most it has been 2 years if that. Community meetings were held when the Commission was trying to put this on the 2014 ballot. Mr. Guy asked Mr. Parachini if he saw one proposal that would fit with the island and the numbers. Mr. Parachini said the way the map lays out envisioning 5 population centers makes sense. He has recently abandoned his idea of saving money and avoiding litigation over apportionment by sticking to the existing 3 district design. We should not be Charter Review Commission Open Session October 26, 2015 Page 14 SUBJECT DISCUSSION ACTION constrained by the State House districts that already exist. Mr. Parachini said 5 districts makes the most sense to him. Mr. Guy said from sitting on those committees, a lot of people wanted to vote for their 7 councilmembers. With 4 districts and 3 at -large you still have the opportunity to vote for the majority of the Council. Your vote can influence the Council because you vote for your district and the 3 at- large. Mr. Justus said he prefers the 5 in the sense that no community has one majority over any other. Mr. Parachini said on the Council Mr. Guy moved to form a sub - committee to create vote there were 42,000 blank votes suggesting a huge number of people did a proposal to put on next month's agenda. Mr. not vote for 7 names. Chair TenBruggencate said that works out on average Parachini seconded the motion. that everyone voted for 5. Staff informed the Commission that the sub - committee report will come back next month for review, but cannot be discussed until the following month. Chair TenBruggencate said the other alternative would be that 2 members have a conversation and recommend a proposal without the sub- committee process and bring it back to the Commission. Mr. Parachini said the timing does not much matter since nothing they do can be before the voters before 2016. Chair TenBruggencate said by about April or May the Commission's work has to be done other than processing what has been approved because of the deadlines for getting things on the ballot. Chair TenBruggencate recapped the process in which he appoints 3 people who work out a proposal and bring back the report to the next meeting, but it cannot be voted on at that meeting. The report comes back at the December meeting for Commission action unless that meeting is cancelled because of Roll call vote to form a sub - committee: aye -Ako; the holidays in which the report would come back in January. Asked when aye -Guy; abstain - Justus; aye - Parachini; nay - the last sub - committee went to the community Staff replied it was early Stiglmeier; nay- TenBruggencate 2014, but there have been 2 sub - committees that worked on the issue of Motion carried 4:2:1 districting. Chair TenBruggencate appointed Ms. Ako, Mr. Charter Review Commission Open Session October 26, 2015 Page 15 SUBJECT DISCUSSION ACTION Parachini and Mr. Stack to submit a recommendation to Staff 10 days prior to the November meeting. 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 (Section 20.02 D)'_(Deferred from 9/28/15 meeting) a. Letter dated 9/25/15 from Paul Kyno requesting the Commission evaluate the impact of this section and consider revising it b. Proposed amendment dated 10115115 from Chair TenBruggencate ^ revising Section 20.02 D Mr. Guy moved to approve the proposed Attorney Dureza commented on the grammar of the proposed language amendment. Mr. Justus seconded the motion. noting that the word "provided" was not required, which is typically a conjunction and is part of a dependent clause. Start the sentence with "However" which makes the sentence more grammatically correct and say "on behalf' instead of "in behalf'. Mr. Justus moved to approve the proposed amendment as amended. Mr. Guy seconded the motion. Motion carried 6:1 (nay - Parachini) Motion to approve main motion as amended carried 7:0 CRC 2015 -10 Proposed amendment dated 10/2/15 from Commissioner Guy revising Section III as relates to a vacancy in the County Council Mr. Guy moved to approve the proposed amendment. Mr. Justus seconded the motion. Chair TenBruggencate said his preference would be to go to the eighth but not the ninth candidate. There have been elections in the past where there have only been nine candidates and he is not sure it serves the public to have the voters' least favorite candidate be placed on the Council. He further suggested after the eighth candidate the Council should go the traditional way of having the other councilmembers make the selection. Charter Review Commission Open Session October 26, 2015 Page 16 SUBJECT DISCUSSION ACTION Attorney Dureza said the language seems to contemplate that we may move into a situation with at -large districting, and it is confusing because it implies there is already a system where there is an at -large councilmember if you have that language. Mr. Justus said he believes there are portions in the charter that refer to at -large councilmembers as at -large councilmembers (Article I, Section 1.03 Q. Attorney Dureza said that is the system we have now; we don't have district councilmembers. Mr. Justus said ink tha proposed language that adjusted Section 1.03 in which C changed to office of at -large councilmembers. Chair TenBruggencate said there are a couple of places in the Council where it is written in such a way it assumes there might be a system that is a little different from now. Having a provision that provides for a special situation for district councilmembers has no effect if there are no district councilmembers. Attorney Dureza asked if there were any sections in the Charter that references an alternate system. Mr. Justus said by including the words at -large leaves room for the eventuality of if districting is added you do not have to go back and add at- large. Attorney Dureza said that part does bother him and is not sure there is something that is unlawful about it. Attorney Dureza said the language would be clearer by adding "In the event a vacancy occurs in the council for the position of an at -large councilmember ". That would also apply to the second paragraph: "In the Mr. Justus moved to approve as amended. Ms. event a vacancy occurs in the council for the position of a district Stiglmeier seconded the motion. Motion carried councilmember ". 7:0 Roll Call Vote on the main motion as amended: Chair TenBruggencate said he would be voting against the main motion as Aye -Ako; aye -Guy; aye - Justus; aye - Parachini; amended because he would not want to go to the ninth candidate. aye- Stack; aye - Stiglmeier; nay- TenBruggencate. Motion carried 6:1 Deleted: 20.12 Charter Review Commission Open Session October 26, 2015 Page 17 SUBJECT DISCUSSION ACTION CRC 2015 -11 Proposed amendment dated 10/15/15 from Commissioner Justus revising Section XXIV as relates to the Council's authority to propose amendments pertaining to council terms or to council compensation and Section XXIX limiting the Salary Commission's authority to council compensation only_ Chair TenBruggencate asked for a motion. Mr. Justus so moved. Mr. Guy seconded for the sake of discussion. Mr. Justus said this proposal was to limit a conflict of interest from the Council. It eliminates their ability to propose amendments that concern their terms of office or their monetary compensation. The proposed amendments from the Council on either of these areas of the Charter would inevitably be considered self - serving. Council has made proposals over the years to increase their terms of office from 2 years to 4 years and it has been presented on the ballot by the Council 5 times (sic), but has been rejected by the voters every time by a continuously wide margin. The power to propose amendments regarding their terms of office would rest either with the voter petition or the Charter Commission. The other part of this proposal is transferring Council's ability to propose charter amendments regarding Council compensation to the Salary Commission. This would be the only area the Salary Commission could propose amendments to. This eliminates any conflict of interest from the Council for their pay or future pay and any potential amendments the Council could make to try to remove the power of the Salary Commission from establishing their salary. The voters would have to approve any amendments from the Council, but this prevents potentially self - serving amendments from the Council from burdening the ballot and the voter. Changes to those areas in the Charter should be proposed by either voter petition or by the Charter Commission, and if this measure were to pass in the case of Council compensation the Salary Commission could propose that. Any proposal that could help to eliminate areas that can be potential conflicts of interest are worth putting Charter Review Commission Open Session October 26, 2015 Page 18 SUBJECT DISCUSSION ACTION on the ballot for the voters to decide. Chair TenBruggencate asked what sort of a charter amendment Mr. Justus would envision that the Salary Commission would propose with regard to Council salary. Asked if he was proposing the Council salary be established in the Charter, Mr. Justus said no. It is already established how the Council has their salaries set, but if the Salary Commission comes to an agreement with the Council of how they want to do a different way of compensating the Council, instead of the Council coming up with a way, the Salary Commission would only have the power to propose a charter amendment relating only to the Council's salary — they couldn't propose amendments dealing with anything else. It would remove the Council's ability to propose any charter amendments that affect their salary. Ms. Ako said the Charter Commission has a sunset (date) in 2016 and asked who authorizes this Commission. Chair TenBruggencate said this Commission's current sitting was authorized by a charter amendment for a ten year sitting. The Charter calls for a Charter Commission to be seated for 3 years every 10 years. Thereafter charter amendments will be able to be made only by the County Council or by petition from the voters. Ms. Ako said based on Mr. Justus' proposal if the County Council wants to make any changes to their term limits or compensation, compensation has to go back to the Salary Commission and changes to term limits would have to come through a petition. Chair TenBruggencate said the public has been fully capable and willing to shoot down the Council when they think the Council has proposed an inappropriate measure and he does not think this is needed. There might be other reasons the Council might want to make those decisions, and to limit our community's only one of two ways of amending the Charter is unnecessary. Attorney Dureza questioned Section 29.07 of the proposal and asked what Charter Review Commission Open Session October 26, 2015 Page 19 SUBJECT DISCUSSION ACTION Mr. Justus was envisioning and how that provision is supposed to work. Mr. Justus said that is the same language that exists for the Charter Commission; it explains what happens when the Salary Commission proposes a change regarding compensation for the Council. In relation to Mr. Justus' comment that it mirrors the language in Section 24.03 regarding Charter Review, Attorney Dureza asked how it mirrored it. Mr. Justus said it is just stating the process that the Salary Commission can propose amendments to the existing Charter only regarding Council compensation. Attorney Dureza asked if Mr. Justus was envisioning that Council's compensation would be stated in the Charter to which Mr. Justus said no. It is not changing the existing structure, but for Section 3.06 it removes Council's power to amend that section. It does give the power to the Salary Commission to amend that particular section of the Charter because it is about Council compensation. Attorney Dureza said based on this he is giving the Salary Commission authority to change the Charter without going through the regular amendment process. Mr. Justus said they go through the same amendment process that this Board goes through. Attorney Dureza said according to the proposal as long as they vote 5 or more they change the Charter without going through the regular process. Mr. Justus disagreed saying the majority of voters vote upon it, it then becomes fixed. Chair TenBruggencate suggested that limitation on what they can do is not in there; based on the way it is written they could recommend paying the councilmembers $250,000 a year a piece and put that in the Charter. Mr. Justus said it would not go in the Charter, it would go on the ballot for the voters to decide. Attorney Dureza said there was a comment at a previous meeting on whether or not to reduce the Mayor's compensation to zero, and whether or not there was authority to do that. By Statute, the Commission is limited in what it can do in touching the compensation or salary of officers. Typically how it works Charters can be limited by a governing state statute. HRS 46- Charter Review Commission Open Session October 26, 2015 Page 20 SUBJECT DISCUSSION ACTION 22 suggests in terms of salaries it is regulated by ordinances implying that power belongs to the councilmembers. Mr. Justus said he would be glad to remove the section giving the power to the Salary Commission if that is a bone of contention, if anyone thinks there is anything else in the proposal worth pursuing. Mr. Justus said he would withdraw the proposal to which Chair TenBruggencate said he could not withdraw the proposal as there was a motion on the floor, and called for a roll call vote. Roll Call Vote: nay -Ako; nay -Guy; aye - Justus; nay - Parachini; nay- Stack; nay- Stiglmeier; nay- TenBruggencate. Motion fails 1:6 CRC 2015 -12 Proposed amendment dated 10/15115 from Commissioner Justus revising Articles VI and VII as relates to the Mayor and a County Manager system Chair TenBruggencate noted there was testimony on this item earlier from Ms. Cowden. Mr. Justus stated there needed to be two corrections to the proposal. He submitted an amended proposal to the Chair which did not end up in the packet. It eliminated any changes that were made to Section 7.03 so nothing changes (he removed the sentence regarding the mayor receiving no compensation). The ballot question should actually read: Effective December 2018 shall there be a county manager, who is selected by both the mayor and the council? Chair TenBruggencate asked Mr. Justus if his motion was to approve the proposal with the corrections. Mr. Justus stated that he presented this as not a complete proposed amendment but just a draft of a concept. Mr. Justus moved to defer this item to the next meeting. Mr. Stack seconded the motion. Ms. Ako moved to table the amendment since the Council is in the process of looking at this Charter Review Commission Open Session October 26, 2015 Page 21 SUBJECT DISCUSSION ACTION issue. Chair TenBruggencate stopped discussion to take care of the motion to defer since a motion to defer does not allow for discussion. Roll Call Vote on motion to defer: nay -Ako; nay -Guy; aye - Justus; nay - Parachini; nay- Stack; aye- Stiglmeier; nay- TenBruggencate. Motion failed 2:5 Ms. Ako moved to receive the proposed amendment. Mr. Parachini seconded the motion. Ms. Ako said this issue is currently being discussed at the Council level. They have a sub - committee and it appears there will be a briefing this Wednesday on the progress of it, and by the end of the year there will be a larger presentation. Instead of two bodies working on the same issue, let the Council move forward with their study on the County Manager. Mr. Parachini shared Ms. Ako's concern about this as he was also aware of the briefing on Wednesday by the Council sub - committee. The most unfortunate outcome of all of this would be for the Charter Review Commission and the County Council to put dueling charter amendments on the ballot. Mr. Parachini said he has some real questions about what this proposal actually accomplishes in terms of changing much of anything. It is extremely important, not that we defer to the Council's sub - committee, but to be mindful of the existence of that examination. It is vitally in our interest as a body to know what the Council may be considering, and hold up doing more with this until it becomes clear what direction the Council is going to take. He is not suggesting the Executive branch defer to the Legislative branch, but merely saying it would be very unfortunate if on an issue of such high public interest any decision on what to do is influenced by the fact there could be competing proposals on the ballot creating confusion that does not need to exist, and therefore he supports the motion to receive. Charter Review Commission Open Session October 26, 2015 Page 22 SUBJECT DISCUSSION ACTION Mr. Justus said he did know the Council had a sub - committee formed to examine the county manager concept. When this body did its sub- committee regarding the county manager system we received an opinion from the County Attorney's Office that basically said the county manager system under the Hawaii State Constitution is not able to exist. You cannot put a council /county manager system in effect in any county in the county of Kauai (sic). He proposed this alternative proposal to give an option that could actually work because he cannot imagine the Council necessarily putting forward a proposal like this that would share power between the mayor and the council regarding a county manager. This is not to subvert the Council's decision; this is to have preemptive discussion of whether this a viable alternative. We could even present this to the Council to see what they think about it. Mr. Justus said in his mind this is the only conceivable way you can have a county manager -like system, but still have it valid under the Hawaii State Constitution. Mr. Parachini said his understanding was there was some dispute over whether that legal interpretation is correct. Mr. Guy applauded all of Mr. Justus' work and efforts on the Commission, but said he would not be supporting it. Ms. Stiglmeier asked if this was something they could approach the Council with, and perhaps combine efforts so there are not two dueling items on the ballot. Mr. Parachini said if they were to vote favorably on Ms. Ako's motion, but request the Chair to attend the Wednesday Council meeting to make it known to the Council that this discussion has been occurring here, and seek to form an impression about what direction we should take - whether to continue deliberating on something on our own or defer to them. Attorney Dureza did not think that was appropriate. It is sort of envisioning a partnership with the Council that he was not sure the Charter Review was supposed to do. Mr. Parachini said the proposal is in the record; it was an attachment to the agenda so chances are quite good they are aware that something has come to our attention in this meeting today. Roll Call Vote: aye -Ako; aye -Guy; nay - Justus; aye-Parachini; aye-Stack; a e -Sti lmeier; aye- Charter Review Commission Open Session October 26, 2015 Page 23 SUBJECT DISCUSSION ACTION TenBruggencate. Motion carried 6:1 Announcements Next Meeting: Monday, November 23, 2015 — 4:00 p.m. Mr. Justus requested to bring back the item of a permanent Charter Commission to the agenda to which the Chair agreed to a discussion of a charter amendment calling fora permanent Charter Commission. Adjournment Chair TenBruggencate adjourned the meeting at 6:04 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