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HomeMy WebLinkAbout2016_0425_Minutes Open_APPROVEDCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as amended 5/23/16 Board/Committee: I CHARTER REVIEW COMMISSION Meeting Date I April 25, 2016 Location Mo'ikeha Building, Liquor Conference Room 3 Start of Meeting: 2:01 p.m. I End of Meeting: 3:39 p.m. Present Chair Allan Parachini; Vice Chair Ed Justus. Members: Merilee (Mia) Ako; Patrick Stack; Cheryl Stiglmeier (2:02 p.m.); Russell Wong. Also: Deputy County Attorney Philip Dureza; Boards & Commissions Office Staff: Support Clerks Barbara Davis and Darcie Agaran; Administrator Jay Furfaro Excused Absent SUBJECT DISCUSSION ACTION Prior to the start of the meeting Council Administrative Assistant Eddie To enio gave the Oath of Office to new Commission Member Russell Wong. Call To Order Chair Parachini called the meeting to order at 2:01 p.m. with 5 Commissioners present. Executive Ms. Ako moved to go into Executive Session Session pursuant to the Hawaii Revised Statutes for the purpose as detailed on the posted agenda. Mr. Wong seconded the motion. Motion carried 5:0 Ms. Sti lmeier entered the meeting at 2:02 p.m. Return to Open Ratify Commission actions taken in Executive Session for items ES-012 The meeting resumed in Open Session at 2:30 and ES-013 Session p.m. Mr. Justus moved to ratify the actions taken in Executive Session which was to approve ES- 012. Ms. Ako seconded the motion. Ken Taylor said last month he suggested they deal with those issues in public and they elected not to and he is asking now for consideration of releasing these documents that took place in closed session at the last meeting. Motion to ratify carried 6:0 Charter Review Commission Open Session April 25, 2016 Page 2 SUBJECT DISCUSSION ACTION Mr. Justus moved to waive the Attorney/Client privilege and waive the confidentiality of the minutes that were approved in Executive Session. Mr. Stack seconded the motion. Ms. Ako said she would be voting against the motion. Whatever they share in Executive Session and the minutes should stay confidential. The same issues are brought up in Open Session and at that time the minutes for Open Session pretty much reflect the thoughts that come out from Executive Session. Ms. Ako said her stand is that Executive (Session) is closed to the public and should remain closed as it is between the County Attorney and the Commissioners. Mr. Justus asked Counsel if they found anything in the minutes that would be a potential hazard for the County if the public was to have that information. Attorney Dureza did not believe so. Chair Parachini said he did not think this would commit for all past and future Executive Sessions if a motion is approved to make these materials open to the public. Roll Call vote to release Executive Minutes: Nay-Ako; Aye -Justus; Nay -Stack; Aye- Stiglmeier; Nay -Wong; Aye-Parachini. Motion failed 3:3 Chair Parachini said there was a discussion of the amendment that would create a Zoning Board of Appeals and the County Attorney's Office reminded us that this area of zoning and planning law is one of the areas where the County's exposure to litigation and misunderstanding is at its highest. From an abundance of caution our view was that we should proceed here very carefully, but you should not draw any nefarious conclusions from this as it reflects a desire to be very careful and to move forward very carefully. Approval of Regular Open Session Minutes of March 28, 2016 Mr. Justus moved to approve the minutes as Minutes circulated. Ms. Sti lmeier and Ms. Ako Charter Review Commission Open Session April 25, 2016 Page 3 SUBJECT DISCUSSION ACTION simultaneously seconded the motion. Page 2 next to last sentence in first paragraph realign the comma to after "here". Capitalizing the "w" in website was questioned with Staff who indicated they did it as such to indicate it was the County's website versus just any website. It was brought up that the move is to go away from capitalizing "internet" and "website" to which Staff said the decision would be up to the Commission. The Commission left the capitalization stand as written. Ken Taylor commented on page 2 center paragraph it says the purpose of the Executive Session is to review the Attorney's review of actions previously taken by the Commission. Once we come out of Executive Session it will be disclosed what transpired and we will proceed [...... ]. On the next page you ratify the Commission's actions; there is no discussion as to what took place. That is wrong — you are supposed to at least give some indication as to what did take place. Another comment from page 14 in which it says in agreement with the Chair the Attorney said there is no requirement that a study has to be reduced to writing. Mr. Taylor said he did not disagree with the statement that the Commission does not necessarily have to reduce their study to writing, but if the information found in the study is brought to the Commission there has to be a discussion and it is documented in the minutes. Looking at the minutes for the past year to see where any discussions had taken place in reference to any studies of government activity he found it was very silent. Mr. Taylor believes those discussions should show up in the minutes and suggested this Motion to approve the minutes as amended should be a future agenda item for discussion. carried 6:0 Business CRC 2015-02 Decision-makiniz on the Charter Commission's corrective changes to the 2015 Codified Charter on gender neutral language grammatical, spelling or formatting errors, the Findings and Purpose, and a ballot question for consideration of placement on the 2016 ballot On- Charter Review Commission Open Session April 25, 2016 Page 4 SUBJECT DISCUSSION ACTION oin Pages 61, 47, and 29 Mr. Justus questioned what the highlighted sections meant to which Staff said they would compare this with the original document and would appreciate any other comments or questions the Commission might have. Mr. Justus pointed out the 2008 amendment shown on page 66 and asked if those last two were the ones in the Appendix that were invalidated with the response being yes. Mr. Justus said he still wanted to find out the status of the preamble stating it is part of the main charter but it still is not in here. Staff pointed out the item was received at the last meeting so no action is currently being taken to which Mr. Furfaro said to move and receive an item just puts it in park — it is doing nothing. Mr. Stack referred to page 47, the last sentence below Section 23.17 in which "either sex" was lined through and replaced by "any gender". He suggested changing "any" to "either" because there are only 2 genders. Mr. Justus said there is transgender and some people have both genders. Some of the Commissioners agreed they had talked about this and decided on "any gender", which would be as inclusive as they can be. Mr. Justus said he would like to defer this but also send a communication to the County Clerk's Office on the status of the preamble, so if they found out it is legally part of the Charter it can be included in the language. Mr. Justus moved to defer this item to the May agenda. Ms. Stiglmeier seconded the motion. Motion carried 6:0 Mr. Justus requested the status of the Preamble be placed on the May agenda with the Chair asking they have the County Clerk attend that meeting. CRC 2016-08 Discussion and decision -making on Findings and Purposes, Amended Charter Language if required, and Ballot Questions (On -going): CRC 2014-06 b. — what constitutes a charter amendment Charter Review Commission Open Session April 25, 2016 Page 5 SUBJECT DISCUSSION ACTION CRC 2014-06 c. - percentages for charter amendments; initiative and referendum; county clerk authority CRC 2015-04 a. — Article XII — Clarifying duties of the Fire Chief and the authority to assign duties CRC 2015-04 b. — Section 14.12 — Creating a Zoning Board of Appeals - CRC 2015-04 d - Article XVIII, Civil Defense/Emergency Management Agency CRC 2015-16 — Section 24.03 - Establishing a Permanent Charter Review Commission CRC 2014-06 b and CRC 2014-06 c were brought back on the agenda for a final review of the Findings and Purpose and the Ballot Question. Chair Parachini asked to keep in mind that the Findings and Purpose will be useful for the public education component that the Commission will need to Ms. Stiglmeier moved to approve the Findings do. and Purpose, the amended language, and the ballot questions. Ms. Ako seconded the motion. Mr. Justus stated he was not comfortable with the ballot question being two ballot questions because he can easily foresee voters wanting to not define what constitutes a charter amendment, but want to make it so their proposed amendments by voter petition wouldn't be negated by the Council or vice versa. Those are two very separate issues — one is about definitions and the other is about process and it is important to separate ballot question into two questions. Staff pointed out that was discussed last month and the Motion carried 5:1 (Nay -Justus) Commission voted to keep it as is. Chair Parachini drafted the Findings and Purpose language for clarifying the duties of the Fire Chief so that is new to the Commission. Chair Parachini asked for a motion to accept the proposed amendment, Findings Ms. Ako moved to accept the Findings and and Purpose and Ballot Question. Purpose and the Ballot question for CRC 2015- Charter Review Commission Open Session April 25, 2016 Page 6 SUBJECT DISCUSSION ACTION 04 a. and move this forward to the ballot. Ms. Stiglmeier seconded the motion. Mr. Justus said any Findings and Purpose they draft should be in the simplest language possible. Mr. Justus questioned use of the word "terminology" in the second paragraph to which the Commissioners thought Motion carried 6:0 it was a commonly understood word. Ms. Ako moved to defer CRC 2015-04 b. to the Item CRC 2015-04 b. - Creating a Zoning Board of Appeals May meeting. Mr. Wong seconded the motion. Motion carried 6:0 Chair Parachini drafted language for the Findings and Purpose for CRC Ms. Ako moved to approve the Findings and 2015-04 d. Civil Defense/Emergency Management Agency Purpose and the Ballot Question for CRC 2015- 04 d. Ms. Stiglmeier seconded the motion. Motion carried 6:0 Again, Chair Parachini has drafted language for the Findings and Purpose Ms. Stiglmeier moved to accept the Findings and for CRC 2016-16 to create a permanent Charter Commission. Purpose and approve the Ballot Question. Mr. Wong seconded the motion. Ms. Ako said in the past meeting both former Commissioner TenBruggencate and she voted against this and she will stand on the Charter Commission (sic) being looked at every ten years instead of in perpetuity. Chair Parachini asked Mr. Wong if he had questions on this proposed amendment since it does affect the Commission to which he was just appointed. Mr. Wong said if something doesn't sunset then things go on and on and nothing ever happens, and so the fact that the Charter Commission does have an end date is part of the reason the Commission is in the position it is now trying to get everything done. Having that need is positive sometimes because it forces you to take action and put matters to Charter Review Commission Open Session April 25, 2016 Page 7 SUBJECT DISCUSSION ACTION the public. There is also a need for government purposes to have some review of the Charter. Chair Parachini said Mr. Wong had just summarized the dilemma. Mr. Justus said he completely supports the amendment ut is confused why they are discussing it because according to the minutes this proposal died at the last meeting because it didn't get a second. Mr. Justus said they voted on removing the strikethrough on "commencing 2007" and that failed. He then moved to accept the amendment as written but no one seconded it therefore this item shouldn't even be on the agenda. Mr. Justus said he would love it to be on the agenda but process trumps that. Mr. Furfaro said the process is correct but in fact the Chair determines the agenda going forward and somehow it got back on. (There were multiple conversations going on at the same time) Mr. Justus said it should not be on the Findings and Purpose page because it did not pass this body to have a Findings and Purpose. Attorney Dureza said his recollection and based on the minutes there was a vote on putting this charter amendment (on the ballot) to make the CRC a permanent charter commission — corrected to say on -going charter commission. That motion carried forward based on page 37. The current charter amendment deletes that entire dependent clause starting with "for a period of ten years commencing in 2007 and the sentence following. What he thinks Mr. Justus tried to do was undelete the "commencing in 2007" part so only that part failed but he thought the group voted to put the amendment onto the ballot to which Chair Parachini said that was the way he remembered it. Mr. Justus said he then moved to accept the amendment as presented — motion failed for the lack of a second. Staff thought the amendment would be with the strikethrough to which Mr. Justus said the amendment of the charter amendment (was still not clear as to his intent). Mr. Furfaro wanted to make sure they are following the Rules versus what he thought he said versus what was stricken and Mr. Furfaro would like to hear from the County Attorney one more time what he just said. Deleted: and Charter Review Commission Open Session April 25, 2016 Page 8 SUBJECT DISCUSSION ACTION Attorney Dureza said his understanding was that the body voted for that charter amendment to be on the ballot and then Mr. Justus tried to undelete the language "commencing in 2007" and that failed. Based on that the amendment is still on the ballot — it is only his action trying to delete "commencing in 2007" that failed is his understanding. Chair Parachini said that was what he recalled. Mr. Furfaro wanted clarity saying that commencing in 2007 was the original start date for the ten year cycle and that was all he was trying to undelete. Mr. Furfaro said that motion failed to the County Attorney and the fact that it goes back on the ballot was never discussed because that was never retracted. Attorney Dureza said that was his understanding. Staff said what they don't understand was what Mr. Justus was saying when he moved to accept the amendment as presented — we don't know if he was talking about with the strikethrough, without, or as originally agreed upon. Mr. Justus asked where they go from there. Chair Parachini thought the County Attorney has interpreted that it is still alive. Chair Parachini said they now have a motion and a second to approve the Findings and Purpose, the Ballot Question and to move this onto the ballot. Ms. Ako said the charter is studied and reviewed every ten years and at the end of this year (the Charter Review Commission) will go into hiatus. It then comes back for ten years, in 2017. Chair Parachini said when it resumes operation members would have to be appointed anew but the Charter Commission would go back into business. Ms. Ako said she would like to insert in the Findings and Purpose and does not know how to do it, but what the public needs to know is that currently every ten years the Charter is reviewed and then it sunsets and in another ten years the Charter Commission comes alive again. There is a body again that looks at the old Charter, new Charters that come about and whether there need to be changes. Ms. Ako would like something in the Findings and Purposes so the public understands if they choose not to approve this amendment the Charter Review Commission Open Session April 25, 2016 Page 9 SUBJECT DISCUSSION ACTION Charter will get..... Mr. Justus interjected maybe a pros and cons or what the meaning of a yes vote is and what the meaning of a no vote is. The meaning of a no vote would say that the Charter Commission would commence every ten years; a yes vote would mean it is an on -going commission. Ms. Stiglmeier asked if that would be in the voter education packet. Staff stated they have not yet met with the Public Information Office who will help the Commission (with the education piece). Mr. Wong said if the Charter Commission is not on -going then there is no Charter Review Commission as of January 1, 2017 unless or until the Mayor says they will make a new Charter Commission and the Council approves it. The response was no — it would be ten years. Mr. Justus read from the minutes of the body who made that language, but was unable to get any clarity on what was meant by the Commission being in place for ten years, then another ten years before going dormant for ten years. Attorney Dureza said the minutes may say one thing but the language (in the Charter) did not suggest what Mr. Justus had just read. In terms of statutory interpretation you read it and make your conclusion based on the plain meaning of what the language states. Saying ten years, ten years and dormant for another ten years Mr. Dureza did not know how that could be read in the current Charter language. Attorney Dureza thought a plain reading of what the available language is suggests ten year awake and dormant intervals. Mr. Wong asked if he understood correctly that if the public votes to approve an on -going Charter Commission then it does not go dormant for ten years to which the response was correct. In response to Mr. Wong's comment about things that may be of interest over the next ten years, Chair Parachini explained there are three ways to amend the Charter — through the Charter Commission, by initiative, or through the Council. (If the amendment does not pass) it would mean one of the three options is off the table after January 1, 2017. In terms of some of the amendments the Charter Review Commission Open Session April 25, 2016 Page 10 SUBJECT DISCUSSION ACTION have been talking about like the Zoning Board of Appeals, clarifying the Fire Chief function, taking note of the statutory requirement for the Civil Defense Agency the Chair has difficulty understanding how amendments of that import would rise to the level of the attention of the Council. Who else would put something like that on the ballot if we don't? Chair Parachini said it has been moved and seconded that we accept the Findings and Roll Call Vote to accept the Findings and Purpose language and the ballot question. Purpose and the Ballot Question: Nay-Ako; Aye -Justus; Aye -Stack; Aye-Stiglmeier; Aye - Wong; Aye-Parachini. Motion carries 5:1 Mr. Furfaro said one of the Commissioners had asked to amend specific language as relates to the Ballot Question and they should close that discussion. Ms. Ako said like how they clarified with Commissioner Justus the meaning of a yes vote and a no vote and she did not know if that was appropriate. Staff explained (public education) has gone different ways over the years — sometimes you do not necessarily do the meaning of a yes or the meaning of a no with the thought being that this Commission only moves forward things they think will benefit, so why would you tell the public not to vote for something. That is one school of thought. We also get feedback from the public saying they have to have that information as it is security to read a yes and a no even when it goes against what the Commission is proposing. The Commission needs to decide how they want public education to look. It was further explained that it was too early to have the PIO join the Commission and they would need to follow protocol by sending the information through the Mayor's Office. Additionally, the PIO does not normally come to the meetings — the Commission tells that office what is needed. Ms. Ako said she would like to reconsider the vote because what was voted on is not the full disclosure because it says as the charter currently reads, the Charter Review Commission will conclude its Charter Review Commission Open Session April 25, 2016 Page 11 SUBJECT DISCUSSION ACTION 10 ' year and sunset as of Dec. 31, 2016 There should be another part that says something about reconvening in 2017 and that way you don't have to have the pro and con because the findings and purpose is complete. We are going to sunset in 2016 after ten years but it will reconvene. Mr. Justus suggested rewording it to read the charter commission will conclude it....... Ms. Stiglmeier moved to reconsider the Findings and Purpose for establishing a permanent Charter review Commission. Mr. Stack seconded the motion. Motion carried 6:0 Ms. Stiglmeier moved to amend the Findings and Purpose to read as the charter currently reads the charter review commission shall conclude its 101h year and sunset as of Dec. 31, 2016, reconvening in ten years. Mr. Justus seconded the motion. Motion carried 6:0 Ms. Stiglmeier moved to approve the Findings and Purpose and to accept the Ballot Question as amended. Ms. Ako seconded the motion. Motion carried 6:0 CRC 2016-04 Overview of proposed amendments approved by CRC to be moved forward (On -going) No Commission action required. Announcements Next Meeting: Monday, May 23, 2016 Chair Parachini asked if the Commission would like to stick with the 2:00 p.m. start time. Mr. Furfaro introduced Darcie Agaran from the Boards and Commissions Office and explained the cross -training she is undergoing. Ms. Sti lmeier noted it was difficult for her to get out of the office at 2:00 Charter Review Commission Open Session April 25, 2016 Page 12 SUBJECT DISCUSSION ACTION p.m. While it was noted the Commission has the ability to place ballot questions on the 2018 ballot, Staff pointed out there is still work to be done for the current year such as sending Findings and Purpose to the Attorney for review and then back to the Commission for final approval. Chair Parachini said they are not idle in the process of public education; we have not even had the conversation on how to handle that. Mr. Furfaro said even though pieces will be coming back next meeting they need to focus on the narrative, the marketing of the pieces. Staff said they also need to determine how to present the information to the public as it was approved last election that the entire text of the charter amendments can be published online but summaries of the text can be published in the newspaper. The Commission has to be sure not to confuse the public who do not go online into thinking the only change may be on page one when in fact there are changes to some sixty pages. Chair Parachini asked that a discussion of public Chair Parachini restated that the next meeting is Monday, May 23, 2016 at education strategy be placed on the May agenda. 2:00 p.m. Adjournment Mr. Wong moved to adjourn the meeting at 3:39 p.m. Mr. Stack seconded the motion. Motion carried 5:1 (Nay -Justus) Submitted by: Barbara Davis, Support Clerk Reviewed and Approved by: () Approved as circulated. O Approved with amendments. See minutes of meeting. Allan Parachini, Chair