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HomeMy WebLinkAbout2015_1123_Minutes Open_APPROVEDCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 1/25/16 Board /Committee: CHARTER REVIEW COMMISSION Meeting Date November 23, 2015 Location Mo'ikeha Building, Meeting Room 2A /213 Start of Meeting: 4:00 pm End of Meeting: 6:52 pm Present Chair Jan TenBruggencate; Vice Chair Joel Guy. Members: Mia Ako, Ed Justus; Allan Parachini (4:07); Patrick Stack; Cheryl Stiglmeier Also: Deputy County Attorney Philip Dureza; Boards & Commissions Office Staff. Support Clerk Barbara Davis; Administrator Jay Furfaro Excused Absent SUBJECT DISCUSSION ACTION Call To Order Chair TenBruggencate called the meeting to order at 4:00 p.m. with 6 Commissioners resent. Approval of Regular Open Session Minutes of October 26, 2015 Minutes Mr. Justus noted he had a clarification and one correction. Page 16: Mid -way through the 2nd paragraph remove the period in 20.12 so that the language reads as the year 2012 and not as a section of the Charter. Page 11: Clarifying the l Ot" sentence from the bottom, Mr. Justus said he was asking Commissioner Ako if she thought a Charter amendment should pass if it received more yes votes than the combination of no and blank votes put together. Mr. Justus intended to ask a question and not state an opinion. Mr. Justus moved to approve the minutes as amended. Ms. Stiglmeier seconded the motion. Mr. Ken Taylor said after reading the minutes, he had real concerns about some of the actions that had taken place and asked if there was a procedure for asking for reconsideration. Chair TenBruggencate said he could ask for reconsideration, but his understanding of the rules is that only members of the Commission can make a motion for reconsideration. Mr. Furfaro Charter Review Commission Open Session November 23, 2015 Page 2 SUBJECT DISCUSSION ACTION further clarified that only those that vote in favor can request a reconsideration. Mr. Taylor said one of the issues was districting and another was a discussion of 4 -year terms for Council. Chair TenBruggencate said districting was on the agenda for this meeting and the 4 -year term issue died, so it will not be coming back. Mr. Parachim joined the meeting at 4:07 p.m. Ms. Felecia Cowden stated the October 261h minutes were not posted on the County webpage at the time she left Kilauea that day with the agenda only coming out 6 days ago. Her concern was, as she tries to do her homework for these meetings, she can't click on the agenda item like with Council agendas to pull it up. She is unable to get into the (Charter) agenda and look at what is being proposed in order to have true discussion relative to what is being put forward. She stressed how important it is that this information goes out to the public and is basically not withheld, and to not have the minutes by 2:00 p.m. when she left her house is really problematic. Staff asked to respond to the posting process stating every month, six to seven days prior to the meeting under the "Agenda" module on the Charter's webpage, the agenda is posted followed by a copy of the minutes, followed by copies of any of the printed information the Commission will be discussing at the meeting. Posted on the website is all the information included in the Commission's meeting packet. Ms. Cowden said the website has changed recently and it is not easy to find. From the drop -down menu, the listing of the agendas is on the left and on the right is the listing of the minutes. Staff pointed out the minutes in that module are not posted until they are approved by the Commission; the draft minutes are included as part of the agenda packet in the left module. Ms. Cowden stated she feels that 6 days is an insufficient amount of time to be Charter Review Commission Open Session November 23, 2015 Page 3 SUBJECT DISCUSSION ACTION posting these things for the community to provide input. Mr. Furfaro stated that the legal requirement for posting is 6 days and the Commission might want to pursue a discussion on whether minutes that have yet to be approved get posted, and he would be happy to speak with the IT Department if there are any concerns on the upgrade to the website. Motion carried 7:0 Executive Attorney Dureza cited that the Board would go Session into Executive Session pursuant to the Hawaii Revised Statutes for ES -008 and ES -009 as fully described on the posted agenda. Mr. Justus moved to go into Executive Session at 4:21 p.m. Ms. Stiglmeier seconded the motion. Ms. Cowden said it was unclear from reading the agenda and asked what the Executive Session was about. Chair TenBruggencate said the Commission has legal opinions from the Attorney on charter amendments that they need to review. Both of the amendments will come up later on the agenda. Mr. Justus said the substance of what those items cover are stated in the Open Session portion of the agenda. Mr. Taylor agreed with Ms. Cowden in not knowing if the legal opinion was made available to the public, then he thought the Commission was out of line. Discussion of a proposed charter change should be made available to the public. Chair TenBruggencate said if Mr. Taylor had a copy of the Charter it was clear, but those sections of the Charter referred to in the Attorney's opinion involve initiative and referendum and the Council's authority to govern its membership, and is part of the packet. Mr. Taylor said the public has a right to know and understand the whole discussion when they are talking about a charter amendment change. The fact the Attorney may feel he has a legal opinion, it is just an opinion and no Charter Review Commission Open Session November 23, 2015 Page 4 SUBJECT DISCUSSION ACTION different than any of the Commission's discussions in talking about a proposal. Because it affects the whole community it should be dealt with in a public forum, and to go behind closed doors to talk about a proposed change is hard to swallow. Mr. Justus felt the sequence of events was not clear to the public. Any time the Commission votes to approve a proposed amendment that amendment gets brought to the County Attorney's Office who renders an opinion regarding whether it complies with law. That opinion goes back to the Commission to review and that is the attorney - client privilege between the Commission and the County Attorney. Once that is done, the Commission is able to continue the discussion of the proposed amendment; these are amendments that have already been discussed, voted on and public input taken — there is nothing hidden. Mr. Parachini pointed out that charter amendments relating to those two articles have been on our agenda each month for more than 6 months. All of the discussions about those two sections are in the minutes that are publically available and it has quite a long history to it; there has been ample opportunity for people to weigh in on it. Motion to enter Executive Session carried 7:0 The Commission moved into Executive Session at 4:24 p.m. Return to Open The meeting resumed in Open Session at 4:29 Session p.m. Ratify Commission actions taken in Executive Session for items: ES -008 and ES -009 Mr. Justus moved to ratify actions taken in Executive Session. Mr. Parachim seconded the motion. Motion carried 7:0 Mr. Justus moved to waive the confidentiality of the attorney opinions. Mr. Guy seconded the motion. Asked for comments, Attorney Dureza said they have discussed this before and concluded that basically the Commission is the client and if they so feel Charter Review Commission Open Session November 23, 2015 Page 5 SUBJECT DISCUSSION ACTION they want to release it, it is their decision. Roll Call Vote: aye -Ako; aye -Guy; aye - Justus; aye - Parachini; aye- Stack; aye - Stiglmeier; nay- TenBruggencate. Motion carried 6:1 Business CRC 2015 -02 Staff update on status of County Clerk's Office verifying 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 receipt of a letter from the County Clerk stating they have completed their proof - reading of the Codified version of the Charter and were sending it to the County Attorney for final review before certifying as to the authenticity. Staff hopes to have this item back before the Commission in January. Ms. Stiglmeier moved to receive the report. Mr. Justus seconded the motion. Mr. Guy stated for the record that as much as this is non - substantial, this is a very important part of what the Commission has been doing and he wants to encourage everybody to take a look and keep an eye on the process. Ms. Cowden stated she has been following this over time and appreciates the value of what is there; this is one of the most core responsibilities of this group. Motion carried 7:0 CRC 2015 -03 Chairman's update on the status of the preamble (On- going) Chair TenBruggencate has again conferred with the County Clerk who confirmed she is awaiting a report and aspires to have something for the next meeting. Ms. Stiglmeier moved to receive. Mr. Justus seconded the motion. Motion carried 7:0 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 (On-going) Charter Review Commission Open Session November 23, 2015 Page 6 SUBJECT DISCUSSION ACTION a. Proposed amendment to Article XII, Fire Department, from Fire Chief Robert Westerman Chair TenBruggencate noted the receipt of a proposal from the Fire Chief which more accurately reflect the duties of the Fire Department. Mr. Parachini moved to approve the proposed amendment. Mr. Justus seconded the motion. Chair TenBruggencate said the change seems to be a small one and changes some gender from "he" to "Fire Chief', changes "Fire Prevention and Control" to "Fire Prevention and Operations" and adds language that the Fire Department shall provide for a safer community through effective leadership and programs in fire prevention, fire operations, hazardous materials, emergency medicine, ocean safety, rescue operations and all hazards. It additionally adds in section D that the Fire Commission oversees the Department as opposed to the Mayor. Attorney Dureza said the change on 12.03 D is pretty substantial and does not just update what they do now; that would change the structure pretty drastically. Whether or not that is a wise course to take, it is up to the Commission to debate, but in terms of legal consistency there probably needs to be an amendment done as well to section 12.05. Section 12.05 describes all of the powers of the Fire Commission and does not enumerate the power to assign any duties to the Fire Chief. In 12.05, the Commission can only make recommendations. Adopting 12.03 D without addressing 12.05 would be inconsistent. Chair TenBruggencate said this impacts the Fire Commission, the Fire Chief and the Mayor and suggested deferring this to the next meeting and inviting all three to the meeting for discussion. Mr. Guy said they need to be clear on the agenda that is the direction they are looking at rather than saying they are asking for feedback. Changing the power should be clearly described in Mr. Guy moved to defer this item to the next the agenda. meeting and have the staff invite the Fire Chief, a representative of the Fire Commission, and the Mayor or his representative to discuss this item Charter Review Commission Open Session November 23, 2015 Page 7 SUBJECT DISCUSSION ACTION with the listing on the agenda item to note it involves a change in the powers of the Mayor and the Fire Commission. Mr. Justus seconded the motion. Mr. Stack and Mr. Parachini both thought it was preferable that the individuals respond in advance, but you can't cross - examine an interrogatory ........... this is an issue that has enough implications to it that he would like to have the 3 people present so the Commission can talk with them. It would be good if they weigh in, in advance but it is not a substitute Mr. Justus moved to amend the motion to ask the 3 for having them present. individuals to submit comments in writing before the meeting in addition to attending the meeting to further discuss issues with the Commission. Mr. Guy seconded the motion. Motion to amend carried 7:0 Motion on original motion as amended carried 7:0 CRC 2015 -13 Scope and authority of a Special Committee to determine the best council districting plan and present a specific proposal for consideration a. Overview of the findings and recommendations of the Special Committee on County Districting to the Charter Review Commission, pursuant to HRS §92 -2.5, for discussion and possible decision - making by the Commission as a whole at its December 21, 2015, or a later meeting. Chair TenBruggencate asked the Committee if they had a report to present. Mr. Parachini said Commissioners Stack, Ako and he held one meeting on this issue. Early in the conversation it became clear that they were punching in the dark to try to anticipate what the public will support given the number of potential permutations this could take — how many districts, Charter Review Commission Open Session November 23, 2015 SUBJECT DISCUSSION ACTION who lives there, who doesn't. The Committee feels this needs to go back out to the community and find a different and better way of asking. We talked about a special meeting of the Commission, and an on -line survey that would have to be heavily promoted to get a meaningful response. Mr. Parachini said he understands the County has used the software called SurveyMonkey in the past. The Chair has said the Commission should come to a consensus of its members on what to put on the ballot, and while agreeing with that it is hopeless to shoot in the wind because the election results the last couple of times this has come up suggest that many voters may have been in favor of a districting scheme, but did not like the particular option offered to them and either didn't vote or voted against it. Mr. Parachim thought another effort to get community opinion could result in the committee reconvening and drafting the language discussed at the last meeting. Mr. Stack wanted to comment on the process and believed in a sense that there is a desire, and maybe a need for districting, and he has been on the record of making motions in favor of that happening. Even people who are in favor of districting may not be in favor of a particular type of districting and we should look at using the SurveyMonkey. The frustration is in the many ways it can be done and it might not work. Ms. Ako agreed with Mr. Stack on how do you cut the pie and the committee's discussion went on and on, which is exactly the problem the public is feeling. Chair TenBruggencate said there are two things they can do of which one is to accept the report since the Commission cannot act on this today under the Mr. Justus moved to accept the report. Ms. open meeting rules. Stiglmeier seconded the motion. Ms. Cowden considered this a substantive piece that changes the Charter Charter Review Commission Open Session November 23, 2015 Page 9 SUBJECT DISCUSSION ACTION and she is in agreement with Mr. Parachini in bringing it out to the public. There is another (tool) besides SurveyMonkey, which is a brand new software that builds the consensus or shows where there is more crowd element coming together and is called Loomio. Ms. Cowden also suggested press releases and going to neighborhood centers to get that element of the Motion carried 7:0 public who are not on the internet. CRC 2015 -14 Review, discussion and possible decision - making on a Charter Amendment Proposal for Articles XXII and XXIV as relates to the percentage of registered voter signatures for an initiative, a referendum and a proposed petition charter amendment and to enable the county clerk to determine whether the proposal is a valid charter amendment Chair TenBruggencate stated for the record that a communication had been received from Mr. Carl Imparato. Mr. Guy moved to receive the communication. Mr. Stack seconded the motion. Motion carried 7:0 Chair TenBruggencate called for a motion on the agenda item. Mr. Justus moved to accept the proposal for discussion. Mr. Parachim seconded the motion. Mr. Taylor was troubled with recommendations from the Commission on this issue but agreed with most of Mr. Imparato's comments. It used to be fairly easy to collect signatures, but today with shopping centers, malls, and private property it is impossible in most cases to collect signatures on those properties. The people do not relinquish their rights when they elect their officials. You have an obligation to the people, not the establishment, to leave things the way they are in reference to the increase from 5% to 10% in the number of registered voter signatures required for a charter amendment. It is very difficult to gather signatures even at 5% and takes a lot of work. As far as the County Clerk authorizing to determine whether a petition is valid or not, they have a lot of knowledge, but they do not have the legal knowledge and background. The petition should be sent to the Charter Review Commission Open Session November 23, 2015 Page 10 SUBJECT DISCUSSION ACTION County Attorney's office for verification and that should be adequate; there should be no reason to change. The recommendation to change the referendum from 20% to 10 %, which in past discussions this Commission has suggested bringing one down and the other up, does not make sense. You bring one down, but you don't bring the other up. Ms. Cowden thought Mr. Imparato wrote an excellent letter and seconded almost everything he said. He did a good job making recommendations relative to the wording on the validation; it really should be as the citizens bring forward. Ms. Cowden thought all the percentages should be 5% and that all the percentages should be even. For a charter amendment that is not legal, she understands it can happen and the risks that are there. If this Board has good public presentation this becomes the clearing house for it. It should not be that 7 people can vote for a substantive piece and 5% can't sign. Summing up, she echoed Mr. Taylor and felt Mr. Imparato said it very, very well — 5 -5 -5 — and not give it to the County Clerk as it is unfair to put the clerk in that position as well. They are accountable to their bosses and it is not possible to have an unbiased opinion. Mr. Justus said in the section pertaining to Article XXIV, 24.01 B. the language in the third paragraph changed while he was gone. From the discussion that was reflected in the minutes, it is kind of his screw -up because he had written it to say the County Clerk may seek a declaratory ruling if they find it as an invalid amendment, but he meant to say "shall ". Because of that, it took the conversation into the County Clerk was given authority to say it is a valid or invalid charter amendment. When he wrote the proposal, he never intended for the Clerk to have any powers of invalidation. Mr. Justus thought it important to follow what is already written in case law (2004 `Ghana amendment) that said the power to invalidate or validate a charter amendment is a question of law for this court to decide — not the County Clerk, not the County Council. That is Charter Review Commission Open Session November 23, 2015 Page 11 SUBJECT DISCUSSION ACTION why it was written in such a way that if the Clerk found it to be an invalid amendment, they would be required to seek a declaratory ruling to that effect. It does not give the Clerk the ability to invalidate it, it puts it right into the courts where it is supposed to be. Mr. Justus would prefer to amend it to read if the County Clerk concludes the measure is not a valid charter amendment, the County Clerk is required to seek a declaratory ruling. If the ruling finds the amendment is valid, the Clerk shall examine it to see whether it contains a sufficient number of valid signatures of registered voters. If the ruling is found invalid, the Clerk so shall certify and provide the reasoning for that ruling. That incorporates the language Mr. Parachini wrote, but brings it back to Mr. Justus' original intent when he proposed this item. Mr. Parachini said when they talked about this matter a few months before, he thought where they ended up was the Clerk's function is essentially ministerial. The Clerk is tasked with making a determination whether something presented to them passes muster under the new language in §24.01. A proponent always has the option to seek a declaratory ruling from the court — it does not need to be spelled out, it is a right that exists and people are free to use. Mr. Parachini did not know if they needed declaratory judgement language written into the Charter when that process is already enabled by the reality of law. Mr. Guy said Mr. Justus is inserting the process into the County Clerk for clarity. Mr. Justus said it spells it clearly in the Charter, so there is no room for confusion or misreading the Charter. Mr. Parachini said he did not have a huge issue with doing that but thought it was unnecessary. Mr. Guy said you are putting the responsibility on the Clerk, and not the presenter of the petition (to seek the declaratory ruling). Mr. Stack said the Clerk could be construed as conflicted noting that if the Mayor appointed you, Council approved you and you get a paycheck from the County, it would not take Charter Review Commission Open Session November 23, 2015 Page 12 SUBJECT DISCUSSION ACTION much to get this tossed. That part of the process needs re- examining and probably a much better way than getting the Clerk involved. Perhaps a sub- committee of this Commission might be more appropriate. Ms. Ako asked who currently has that authority to which Chair TenBruggencate said in his reading of the Charter, nobody is given that authority and has de facto in the Kauai Rising petition where the County Council accepted that authority and made that decision, and is a template for the future. The prior discussion as a Commission was should the County Council have that authority, and one suggestion was to find another clear route that is a little less wrapped up in the politics. One discussion was to give it to the County Attorney, but the County Attorney is appointed by the Mayor, confirmed by the Council and maybe that is not a lot different. It went to the Clerk because basically that is their job as they handle and process documents. Mr. Justus added that it puts all the job responsibility of processing the voter petitions completely in the hands of the Clerk, but if there is something that doesn't match up with the Charter, then it goes to the court to decide. Chair TenBruggencate said if the Clerk sees a problem, they do not make the final decision; they make their case to the court. Mr. Guy said one of the thoughts was the County Clerk would take it to the County Attorney for advice. Mr. Justus said this streamlined the process as the only entity that could interfere with the voter petition was the courts. Attorney Dureza said he wanted to highlight the effect of Mr. Justus' amendment in that every time the County Clerk disagrees whether or not something is a valid Charter amendment, it is an automatic lawsuit; you are forcing the County to file a lawsuit for a declaratory ruling based on that language. Mr. Guy questioned why the percentages of registered voters and the County Clerk's authority was part of the same agenda item. Chair TenBruggencate explained they are in the same section of the Charter. Mr. Charter Review Commission Open Session November 23, 2015 Page 13 SUBJECT DISCUSSION ACTION Guy thought they were both important and with Mr. Imparato's written testimony he would feel more comfortable deferring the second half of the agenda item in order to digest the process. Mr. Guy discussed the rationale of lowering some of the percentages while raising the 5% to 10% for petition initiated amendments. He thought that made for good democracy when you had to get 10% of the voters because you have a larger amount of people involved in it. It makes you dig deeper and get the word out even further of what the proposed Charter amendment is. Mr. Justus said for the interest of clarity of the two somewhat different issues, he would move to amend the section in Article XXIV, Yd paragraph, in reference to the County Clerk ............ he will make a motion to pass those changes to be discussed as a group and make as a separate approved item. Chair TenBruggencate said they could bifurcate the question and turn it into two complete votes. Mr. Guy asked Attorney Dureza if there was a problem separating the items and was it okay the way they were listed on the agenda. Attorney Dureza said the standard in terms of the agenda is whether or not the agenda gives enough information that when the public reads it, they have enough of an understanding to decide whether or not they want to participate (Inaudible). The agenda talks about it and you have the proposed language, so he felt it was compliant with the Sunshine Law, but whether or not for clarity sake Mr. Justus moved to bifurcate the two proposals they want to separate it — the clearer it is....... dealing with the raising and lowering of percentages and the other dealing with charter proposal processes. Mr. Guy seconded the motion. Mr. Parachini said if they bifurcate them, where on the agenda does the new language that appears in §24.01 come in to play. We are ignoring that when in fact it is probably the most important language. Chair TenBru encate Charter Review Commission Open Session November 23, 2015 Page 14 SUBJECT DISCUSSION ACTION said ballot question number 2 — the first phrase in that sentence says "shall it be specified what constitutes a charter amendment ". Chair TenBruggencate said they are going to have to send this back to the Attorney to separate those two, but the 10% in Article XXIV belongs to ballot question number 1. The rest of XXIV belongs to ballot question 2. Motion carried 7:0 Returning to ballot question 1, reducing the percentage from 20% to 10% for initiative and referendum and increase to 10% from 5% for a charter Mr. Justus moved to approve the proposal for amendment.......... ballot question I for discussion. Mr. Guy seconded the motion. Mr. Taylor said signature gathering for referendum there has never been a petition for referendum to which Chair TenBruggencate said there has been — Nukoli`i. Mr. Taylor continued saying a referendum could be changed if the voters voted and put it in place, but the Council at a later date could change the referendum. So the percentage doesn't make any difference; nobody is going to waste their time going after a referendum. The only thing that makes sense to move forward with is a charter amendment which can only be changed by a vote of the people. To make a comparison between the two is absolutely ridiculous. You could do away with the referendum and nobody would be hurt by it. Chair TenBruggencate said they have had both initiative and referendum in this County and there was a referendum that reversed the Council's zoning of the Nukoli`i Resort property, and subsequently there was an initiative in which that decision was reversed and restored the zoning to the Nukoli`i Resort. In each of those cases, the 20% of signatures were raised. Mr. Taylor said the point was the Council still could have changed it without having another referendum. Ms. Cowden finds the framing of this a little bit of coercion. Taking the signature from 20% to 10 %, people will agree it makes it easier. But to go Charter Review Commission Open Session November 23, 2015 Page 15 SUBJECT DISCUSSION ACTION from 5% to 10 % ..... there is a negotiation that is uncomfortable. Ms. Cowden did not feel that was right. The (voters) should be able to make the decision on each one. Ms. Cowden would like to see it go 5 -5 -5 because she does grasp when the most significant piece takes the least requirement, she gets that. She is not happy to have to make all those choices together. If it all were to say 5% you are giving to the people; this represents a take. The big issue is when you are taking away from the people. Mr. Parachini responded to a point Mr. Taylor made in that the Charter is the framework for how the County government works. The County Code is the execution, the statutes that flesh out what the Charter says. How do you write language that allows one section of the Charter to apply to both charter amendments and ordinances because they are completely different creatures? Mr. Parachini felt they were okay where they were. Mr. Justus said when this was first presented back in 2011, the idea was about equalizing the numbers because it shouldn't be easier to change the Charter than it is to remove a law. Mr. Justus wanted to know what the Commission thought about reducing all percentages to 5 %. Chair TenBruggencate said this has been a discussion for many, many hours. There have been proposals for moving each one of these items up as high as 20 %, as low as 1% and it has gone back and forth. This is the only proposal that we were able to develop a majority around, and it is clearly a result of negotiation by members of the Commission. It is a job of this Commission to find changes to the Charter that are desirable or necessary, and this is both necessary and desirable. Ms. Ako noted this proposal was completed before she came on board and has come back from legal with an opinion and now it is being rehashed. It is close to being on the ballot, but if it is going to be reopened for discussion, it just might not make the ballot. Mr. Parachini agreed with Ms. Charter Review Commission Open Session November 23, 2015 Page 16 SUBJECT DISCUSSION ACTION Ako saying they could reprise this conversation ad nauseam. It was settled at 10% as a compromise in which everyone gave some ground and tried to come to an acceptable middle. 10% for all three is not unreasonable; it forces proponents to go out and engage the community so people really understand what an initiative, charter amendment, or referendum is all Mr. Justus moved to amend the proposed about. language to reduce all the percentages to 5 %. Mr. Stack seconded the motion. Mr. Stack said they are there to help the people make the best decisions for themselves — we are not here to sell, educate or promote. We are to present clear understandable language on a ballot that people can say yes or no to and he did not think they were there. Attorney Dureza stated there is an opinion by OIP (Office of Information Practices) that they can have discussions related to things on the agenda as long as it has a sufficient nexus to what is on the agenda, but recommends if there is a proposed amendment to certain things, the Commission should delay voting on the agenda until the actual amendment can be put on the agenda in the event other public would want to participate. Mr. Justus said they have made amendments and voted to approve and asked how that matches what Attorney Dureza is saying now. Attorney Dureza said this issue came up before and he looked it up recently and this is what he discovered. Chair TenBruggencate asked if he was suggesting any item that any Board in the State amends, they cannot vote on — that makes no sense. Attorney Dureza quoted from the OIP opinion "the OIP does acknowledge, however, that there may be unforeseen circumstances in which a discussion at a meeting results in the decision to draft a bill or resolution to address an agenda item. Because the proposed bill or resolution was not previously in existence it could not have been noticed. So long as there is sufficient nexus between what was noticed and what the discussion resulted in there would be no violation of the Sunshine Law. This however must be Charter Review Commission Open Session November 23, 2015 Page 17 SUBJECT DISCUSSION ACTION determined on a case -by -case inquiry. Further the OIP is of the opinion that the nexus should be reflected in the meeting minutes and voting on such a resolution or bill should take place at a future meeting that is properly noticed." Mr. Justus thought that sounded like it was referring to a bill or proposal that did not exist prior. Chair TenBruggencate felt there was adequate nexus in this situation to proceed. Based on what he heard, Chair TenBruggencate said this does not sound dramatically different and it was noticed on the same topic. Ms. Ako said what they are going to be putting out in a ballot question will be shall the percentage of registered voters signatures be reduced from 20% to 5% for an initiative or a referendum. Shall the percentage of registered voter signatures required to commence the charter amendment process via voter petition be ...................Chair TenBruggencate said this would only refer to initiative and referendum; it would no longer have any application to charter amendments because that Roll Call Vote on amendment to reduce all would stay at 5 %. percentages to 5 %: nay -Ako; nay -Guy; nay - Justus; nay - Parachini; aye- Stack; nay - Stiglmeier; nay- TenBruggencate. Motion failed 1:6 Roll Call Vote on main motion that all percentages be 10 %: aye -Ako; aye -Guy; aye - Justus; aye- Parachini; nay- Stack; aye - Stiglmeier; aye- TenBruggencate. Motion carries 6:1 Chair TenBruggencate called for a motion with regard to Ballot question number 2 which reads Shall it be specified what constitutes a charter amendment, and shall the processing of proposed charter amendment via voter petition be revised to enable the county clerk to determine whether the proposal is a valid charter amendment? Mr. Guy moved to defer this item. Motion failed Mr. Justus felt the third paragraph in §24.01 B needed to be reworded. for lack of a second. Charter Review Commission Open Session November 23, 2015 Page 18 SUBJECT DISCUSSION ACTION For the sake of discussion, Mr. Justus moved to approve this item as a charter amendment. Ms. Stiglmeier seconded the motion. Mr. Justus moved to amend the third paragraph as follows: If the county clerk concludes the measure is not a valid charter amendment, the county clerk is required to seek a declaratory ruling. If the ruling finds the amendment valid, the clerk shall then examine it to see whether it contains a sufficient number of valid signatures of registered voters. If the ruling finds the Mr. Parachini wanted to clarify that if the clerk receives the petition, amendment to be invalid, the clerk shall so examines it and determines that it complies with the language in §24.01, it certify and provide the reasoning for the ruling. ends there. Mr. Justus said if it complies, it falls into the second paragraph and he read that section. Chair TenBruggencate thought the language as proposed was adequate and Mr. Guy seconded the motion. said that was the county clerk's job and they should let them do their job. Mr. Taylor agreed for the most part with the amendment. Whoever is making the decision should first have a discussion with the petitioners and give them a chance to rewrite the petition within 10 days if it is simple and can be done in that fashion. The petition should not be killed over something that is a simple change. Chair TenBruggencate said that is how it works now and there is a petitioners committee, so the clerk can call in the petitioners committee and they have the authority to amend the document. Charter Review Commission Open Session November 23, 2015 Page 19 SUBJECT DISCUSSION ACTION Ms. Cowden thinks this is specifically trying to address what happened last time. The petition went into the clerk's office, sat there for 3 weeks, comes back and said they need to have this much edge around the borders and duh, duh, duh and did not flag the problem at all. They waited until all the signatures were done and then they said something. Whereas when it was originally written, it goes into that group and the response was the layout on the page. Ms. Cowden said she tried to help them, but was not part of that group and knows that happened. There did not seem to be any kind of intent to be helping along the people's needs or wills. Ms. Cowden stated she was uncomfortable with the writing, but accepts it is what the Commission wants. It seems the core intention is more to circumvent the ability of the people to put something forward. In response, Mr. Justus said being the drafter of this item, his intent is in no way to deny the people the ability to propose items or create any obstacles. His reason for presenting this was to remove any obstacles such as the Council assuming it has the authority to invalidate or reject voter petition charter amendments. This is a process designed to make the most streamlined way possible that only the courts have the ability to say no, this is not a valid charter amendment. It already states in the Charter that the County Attorney has the ability to make any restatement of the language or the text and in answer to that concern, they could alter the language to say that the county clerk can make those suggestions. Ms. Cowden said the suggestions that come back are powerful whether it is the County Attorney or the clerk, but not to run out the clock as happened last time. Chair TenBruggencate pointed out that if the Commission does not pass this forward, it goes to the County Council — they make the decision. Charter Review Commission Open Session November 23, 2015 Page 20 SUBJECT DISCUSSION ACTION Mr. Guy said he moves with caution in supporting this as he needs to do more work on it even though he does like the direction it is going. Ms. Stiglmeier thought the language was clear as it is. With the public testimony and discussion around the table, perhaps they should look at clarifying a little further so the public does not have questions. They need to add in language that it is not just placed on the county clerk to make the decision. Mr. Guy said the added language says if the clerk says no, they have to go to the court to back them up. Mr. Justus explained to the new members his lengthier version that was originally proposed which incorporated portions of Article XXII. In response to Mr. Justus' question, Chair TenBruggencate said it is his understanding that the clerk's office has a set of rules and regulations available to petitioners which govern how quickly they respond and how they proceed in the process. The Chair's recollection differs from Ms. Cowden's in that it was not margins, but the fact that the signature pages of the petition did not have the language of the petition on each page, so there was no guarantee that the people who were signing could see what they were signing. Ms. Cowden said there was a piece like that in there. She gets that there were problems in the wording and the structure, but it was frustrating that was not highlighted when it came back. Roll Call Vote on the amended motion: aye - Ako; aye -Guy; aye- Justus; nay- Parachim; aye - Stack; aye- Stiglmeier; nay- TenBruggencate. Mr. Justus said in response to the discussion that ensued with the public, Motion carried 5:2 perhaps the simple fix to §24.01 B, last sentence which reads amendments which may be suggested by the county attorney and move to amend that to read instead of attorney it says clerk. Mr. Justus moved to amend the last sentence in §24.0113 to read "clerk" in place of the word Mr. Justus said his reasoning for that is he is not sure exactly when the "attorne ". Mr. Guy seconded the motion. Charter Review Commission Open Session November 23, 2015 Page 21 SUBJECT DISCUSSION ACTION county attorney would be involved in proposing any changes to the language, but if it was given to the power of the county clerk to propose changes, the county clerk would most likely consult with the county attorney since the county clerk is the sole person that the petition group is interacting with. Chair TenBruggencate said in his view, he would leave it with the attorney; it is important to get the attorney involved and this ensures the attorney is involved. Chair TenBruggencate further said he is almost at the point he is going to oppose this; it takes power away from the petitioners — all the time it is sitting in court the petitioners do not have the opportunity to go out and repair their petition and get it in before the election. Mr. Justus asked what kind of mechanism the Chair would suggest that could provide that ability for the petitioners to repair it before it has to go court; the current language does not give them that opportunity at all. Chair TenBruggencate said it is his understanding that the interface between the county attorney's office and the clerk's office and the petitioners is a negotiation, which allows the county to express its concerns and the petitioners to respond. It is appropriate that the county attorney make suggestions for changes in the language because it is legal language — that is not the county clerk's job. Mr. Parachini was in agreement and his recollection of what happened with Kauai Rising is very much like the Chair's, and that the flaws were grave and not minor, and there was a lot of frustration with the petitioners failing to respond to suggestions or critiques made to the petitioners. It was a unique situation that was addressed through a combination of activities by the county attorney and activated by the clerk as it should have been; it was not just spacing on the page or the weight of the paper. Mr. Justus withdrew his motion. Mr. Guy withdrew his second. Roll Call Vote on the main motion as amended: a e -Ako; aye-Guy; a e- Justus; a e- Parachini; Charter Review Commission Open Session November 23, 2015 Page 22 SUBJECT DISCUSSION ACTION aye- Stack; aye - Stiglmeier; nay- TenBruggencate. Motion carried 6:1 CRC 2015 -15 Review, discussion and possible decision - making on a Charter Amendment Proposal for Article III, Section 3.07 D as relates to Council's authority to expel one of its members for disorderly or contemptuous behavior Chair TenBruggencate said as background the Council has the authority to remove a member of the public who is disorderly, has the authority to sanction a member of the council who is disorderly by removing the right to vote and removing their salary for a period of time, but does not have the authority to remove the councilmember from the room, which this language would give them. Mr. Justus move to approve the proposed amendment. Ms. Ako seconded the motion. Mr. Justus said this had been sufficiently discussed before and he had nothing further to add. Chair TenBruggencate pointed out this is additional language; nothing has been removed from the section. Added language is The council mav, upon an affirmative vote ofat least two - thirds of its entire membership, expel from a meeting any member for disorderly or contemptuous behavior in its presence. Ms. Cowden asked if it meant expelled from the meeting or expelled from the Council. Chair TenBruggencate responded it would be from a meeting. Mr. Taylor said the Council has their own rules and regulations of governing themselves and that is plenty adequate. This is not a situation that needs to be a charter item. Mr. Guy asked if this was something that happened often and asked if it was necessary and desirable to put things on the ballot where there is not a huge need. Mr. Stack said it makes a lot of sense that the Council would take care Charter Review Commission Open Session November 23, 2015 Page 23 SUBJECT DISCUSSION ACTION of some unruly person within their meeting, and it is entirely appropriate that Council take care of that during business and not some other commission. Mr. Parachini agreed adding he thought this was superfluous. Mr. Justus agreed with the other Commissioners and noted he would be voting against it. Roll Call Vote to approve proposed amendment: nay -Ako; nay -Guy; nay - Justus; nay - Parachini; nay- Stack; nay - Stiglmeier; aye- TenBruggencate. Motion failed 1:6 CRC 2015 -16 Proposed amendment revising Section 24.03, Kauai County Charter, relating to establishing permanent Charter Review Commission Chair TenBruggencate pointed out the Commission is in a one -time ten -year session of the Charter Commission which sunsets at the end of next year. This measure proposes to establish a permanent Charter Commission. The current Charter, with the exception of this one ten -year period, calls for the Charter Commission to be empaneled for 3 years every 10 years. Mr. Justus moved to approve the proposed amendment. Mr. Parachim seconded the motion. Mr. Taylor stated in the couple of years leading up to '07, there was a lot of discussion about management style of government, and the Commission at that time determined in order to move forward with a study, it would take a lot of time and effort. That is why they suggested this ten -year period for that purpose and that purpose only. He is opposed to amending the sunset law and does not see why 3 years every 10 years would not take care of things that are necessary as there are provisions for special activities. Ms. Cowden sees 2 viewpoints and appreciates the 10 years of effort that has cleaned up a lot of the loose ends. She can see that there could be value in an on -going Charter Review Commission, however in many ways that feels like the Council looking not to have term limits. What is really important is when there are these substantially macro -level issues under discussion that if this were to go forward, it really needs to change the format of how this happens so the public is more engaged in it. To be doing powerful changes without the Charter Review Commission Open Session November 23, 2015 Page 24 SUBJECT DISCUSSION ACTION participation of the public, it is not okay that 5 people can make those decisions. Ms. Cowden noted her appreciation for what the Commission has done, but does not think it should continue forward if there are not real clear elements for how the public is engaged when it is core elements for how the County is run. Mr. Guy said it has always been a great opportunity for the public's participation in the process and wishes it was utilized more. Whether it is the public's responsibility or the Commission's responsibility, it is still there and the door is open every month. Mr. Guy said he has a hard time saying to keep the Commission in perpetuity, and if he were to support it, he would put another sunset date on it such as another 10 years. As much as he has always advocated for the public's participation, it has always been a challenge. Mr. Parachim said while voting for this amendment could be construed as self - serving, perpetuating our own Commission, he did not think that was what it was about. There is a clear common sense case to be made for having this Commission exist on an on -going basis just as the other commissions in the County do as well. That being said, Ms. Cowden does have a point — there is more that can be done to inform people to make sure they understand both what and when is being considered by any commission, and we can embark on that work if we are around for a while and he will vote for this. There needs to be an on -going capability to adjust the Charter in ways that can only be accomplished by a Commission like this. Mr. Stack thinks the Charter Review Commission should be permanent; it is an important and valuable tool for the voters. It is a voice for them and levels the playing field. Mr. Justus said his research shows there have been approximately 130 amendments to the Charter since 1968. Of that number, approximately 60 of those came from a Charter Commission where there have only been 5 voter initiated charter amendments on the ballot. This is a valuable tool for the voter, and even the County, to resent Charter amendments in a fairly politically neutral forum. Mr. Justus Charter Review Commission Open Session November 23, 2015 Page 25 SUBJECT DISCUSSION ACTION said if they make the Charter Commission permanent that the meetings be televised. Chair TenBruggencate said he would be voting against this and agrees with the public on this one. The changing of the Charter should not be done with alacrity — it should not be easy. It is a significant document and a remarkable institution, but an institution that should be used sparingly. Roll Call Vote on establishing a permanent Charter Commission: nay -Ako; aye -Guy; aye - Justus; aye- Parachim; aye- Stack; nay - Stiglmeier; nay- TenBruggencate. Motion carries 4:3 CRC 2015 -17 Timeline for 2016 Charter Amendments Chair TenBruggencate said the March meeting will be the final meeting for Mr. Guy and Mr. TenBruggencate, and the reason for the March deadline is that there are a lot of other things that have to happen before the election, including attorney reviews, printing of the ballots, etc., so that is the last time a new proposal can come before the Charter Commission. We are still awaiting the court's decision over the Mayor's authority over the Police Chief. Ms. Stiglmeier moved to receive the Timeline. Mr. Justus seconded the motion. Mr. Taylor offered comments on printing the agenda from the County's website saying if the agenda items were handled in the manner that the Council does, it would help in printing only what the public wants to print. Chair TenBruggencate said that is a computer coding issue and he was not sure the Commission wanted to get into the business of telling Staff how to do their job. It is possible to print just the page number wanted. Motion carried 7:0 Announcements Next meeting: Monday, December 21 Ms. Davis noted she would be taking vacation in December which would somewhat limit the agenda items for their meeting packet. Chair TenBruggencate said one big issue that stands out is the Districting issue, and suggested deferring everything else on the agenda to January with the only Charter Review Commission Open Session November 23, 2015 Page 26 SUBJECT DISCUSSION ACTION issue on the December agenda to be the discussion of Districting. They need to discuss if a subcommittee goes out into the public, or whether SurveyMonkey or Loomio is a more appropriate way to go. With Ms. Stiglmeier and Mr. Guy unavailable on the 21 st, Staff said the date of December 28 was available, but it is the week between Christmas and New Year's. Chair TenBruggencate suggested if they throw Districting back to the subcommittee, it will further delay discussion by another month. Mr. Parachini said he would be open to meeting again with the subcommittee and try to come to some resolution on some course of action. Chair TenBruggencate suggested the subcommittee work with Staff and include a press release. Mr. Justus said any proposal that comes back to the Commission has to be completely ready to be dealt with and get final approval by February. With the subcommittee agreeing to continue their work, Chair TenBruggencate said they expect a thorough report back at the January meeting, and a recommendation of some kind. Mr. Furfaro recapped that the Commission wants the subcommittee to get together to formulate the type of districting questions to be posed, and then have IT create the SurveyMonkey with those responses available and reconciled, so the subcommittee can provide a recommendation at the January meeting. Chair TenBruggencate asked for a motion to authorize the subcommittee to continue this process. Mr. Guy so moved. Ms. Stiglmeier seconded the motion. Staff clarified that the December meeting was cancelled and the next meeting would be January 25, 2016. Motion carried 7:0 Adjournment Mr. Guy moved to adjourn the meeting at 6:52 p.m. Mr. Justus seconded the motion. Motion carried 7:0 Submitted by: Barbara Davis, Support Clerk Reviewed and Approved by: Jan TenBruggencate, Chair Charter Review Commission Open Session November 23, 2015 Page 27 () Approved as circulated. () Approved with amendments. See minutes of meeting.