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HomeMy WebLinkAbout2017_1127_CRC Minutes Open_ApprovedCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Annroved as circulated 12/18/17 Board/Commission: CHARTER REVIEW COMMISSION Meeting Date I November 27, 2017 Location Mo'ikeha Building, Meeting Room 2 A/B Start of Meeting: 4:02 p.m. End of Meeting: 7:15 p.m. Present Chair Jan TenBruggencate; Vice Chair Ricky Watanabe (left at 6:52 p.m); Members: Virginia Kapali, Carol Suzawa, and Galen Nakamura (entered at 4: 05 p.m.) Also: Deputy County Attorney Adam Roversi; Boards & Commissions Office Staff. Administrative Assistant Lani Agoot, Administrator Paula M. Morikami Excused Isaac Cockett Absent SUBJECT DISCUSSION ACTION Call To Order Mr. TenBruggencate called the meeting to order at 4:02 p.m. with 4 Commissioners present. Approval of Meeting_ Minutes of October 23, 2017 Ms. Suzawa moved to approve the minutes as Minutes circulated. Ms. Kapali seconded the motion. Motion carried 4:0. Chair TenBruggencate asked for a motion to receive four (4) communications for the record. Ms. Suzawa moved to receive four (4) communications. Mr. Watanabe seconded the motion. Chair Tenbruggencate asked Ms. Suzawa to amend her motion to receive seven (7) communications. Ms. Suzawa moved to receive seven (7) communications. Mr. Watanabe seconded the motion. Motion carried 4:0. Business CRC 2017-05 Proposed Charter Amendment to Remove the Zoning Board of Appeals (Article XIV, Subsection 14.12 - 14.14) (deferred 10123117) Chair TenBruggencate asked if anyone in the public objected to having Planning Director Michael Dahilig brief the Commission before taking public testimony to which there were no objections. Mr. Dahilig stated that in 2016 the Zoning Board of Appeals (ZBA) was Charter Review Commission Open Session November 27, 2017 Page 2 SUBJECT DISCUSSION ACTION established, via Charter Amendment and approved by the Charter Review Commission, in an attempt to try and address a chronic issue with the Planning Commission regarding contested case hearings. He explained that under the Hawaii Revised Statutes, Chapter 91, any time a matter of due process was handled concerning a discretionary decision by a governmental body, it had to go through a contested case hearing procedure which could happen either by a permitting action or as a consequence of an enforcement action. Mr. Dahilig said the Planning Department, as well as the Planning Commission, had been moving towards a more robust enforcement regime over the past few years relative to things like vacation rentals. Owners of vacation rentals have been playing games with the Planning Department, as well as the Planning Commission, whereby the cost of prolonging administrative litigation had become a business expense for them. He said currently there were approximately twenty-four (24) cases that continued to slowly mitigate their way through the Planning Commission's contested case hearing process, and the concern was the heavy workload for the Commission's docket, as well as the games being played with administrative litigation. He added that Honolulu County, Maui County, and Hawaii County have ZBAs. Mr. Dahilig said once the ZBA was established the Planning Department began drafting rules for the Board and tried to find board members. What became prohibitive was the potential workload and time required to serve on the Board, which could be twenty (20) to twenty-five (25) hours a week. He said the concern with the current Charter Amendment was whether or not it was the right solution to the ever-growing contested case hearing problem that is bogging down the caseload of the Planning Commission. He clarified that it wasn't that the ZBA wasn't necessary, but the reality was that this type of high-level technical work would always, to some degree, need hearings officers, or the equivalent, to be able to move contested case Charter Review Commission Open Session November 27, 2017 Page 3 SUBJECT DISCUSSION ACTION hearings efficiently. Mr. Dahilig stated that the Charter Review Commission could decide whether or not the ZBA made sense as a way to lessen the load on the Planning Commission, or if there was another way the Planning Commission could handle the growing caseload. He said one thing he wanted to bring to the table was whether or not the duties of the ZBA could be expanded to assume the hearings officer appointment and management roles. He added that the work to maintain and keep a consistent enforcement effort at the county level would always require an investment in some type of adjudication, and bringing that over to a volunteer board would not provide the level of satisfaction and efficiency of the process that the public expects. Commissioner Galen Nakamura entered the meeting at 4:05 p.m. Chair TenBruggencate asked Mr. Dahilig if he had a proposal to modify the existing Charter Amendment to which he replied no, saying that part of the discussion was whether or not the Commission wanted to explore amending the current Charter Amendment because there had been no success in finding people to serve on the ZBA in a timely manner. Ms. Suzawa asked Mr. Dahilig if he was considering proposing an amendment change to the existing contested case process. Mr. Dahilig clarified that the Planning Commission's rules provide for the process, as well as in the way the Charter and Statutes were written. He said it was more an issue of the workload that the Planning Commission carried that had been the driver behind their concerns. Ms. Kapali asked Mr. Dahilig if the Charter Amendment was put on the Charter Review Commission Open Session November 27, 2017 Page 4 SUBJECT DISCUSSION ACTION ballot in 2016 in response to a large backlog of appeals before the Planning Commission. Mr. Dahilig explained that appeals that dealt with property rights were specialized and involved legal motions. The Planning Commission is coached by the County Attorney to handle things from a permissive standpoint and from a punitive standpoint. He said Hawaii County separates their contested case hearings because of the amount of education that would be required to have a functioning commission do the work without providing some type of liability for the county. The Planning Commission currently utilizes hearings officers; and the Council appropriates monies to support that. However, over the past four (4) to five (5) years, close to a third of a million dollars was approved for the cost of hearings officers on contested case hearings. Mr. Dahilig said that another issue was that individuals were challenging the credibility of the hearings officers in an effort to hold on to their vacation rentals, which further burdened the Planning Commission. Mr. Dahilig stated that the creation of the ZBA was an attempt to even the load from a fiscal standpoint, as well as a workload standpoint, and not to over burden the volunteer Planning Commission. Mr. Nakamura asked Mr. Dahilig if he had a proposed Charter Amendment to provide for a hearings officer. Mr. Dahilig stated that he was in discussions with legislators in the Interim Housing Committee at the Capital concerning whether or not Chapter 91 needed to be adjusted to try and provide a more timely due process than the current Chapter 91 regime. However, he did feel that a countywide hearings officer was not a far- fetched idea, but was unsure of the Office of the County Attorneys (OCA) preference. Mr. Dahilig added that although vacation rental operators had tried to legally maneuver and play games with the OCA, the OCA had given a yeoman's effort facilitating the due process. Mr. Dahilig stated that a hearings officer position made a degree of sense because by function of Charter Review Commission Open Session November 27, 2017 Page 5 SUBJECT DISCUSSION ACTION Supreme Court law, there was more need to produce records, which would be more second nature to a licensed attorney than to a seven -member volunteer commission. Chair TenBruggencate called for public testimony. Mr. Ken Taylor stated that it seemed like only a few days ago that he supported Mr. Dahilig's request to establish the ZBA. He said the problem was that the County was very secretive in how they considered people to serve on boards and commissions. With a population of over 70,000 people, he couldn't believe there wasn't anyone willing to serve on the ZBA. Mr. Taylor said instead of advertising for positions on boards and commissions in newspapers, the County operated in a small, tight circle for who was invited to be on a board or commission. He said it was disingenuous to eliminate the ZBA until advertising was done to fill the board. Ms. Janee Marie Taylor stated that she was representing the People's Pono Alliance, which was a group of career professionals on Kauai skilled in the areas of administration, operations, finance, and beyond. She read their communication regarding the ZBA for the record (on file). Councilmember JoAnn Yukimura stated that she was testifying as an individual councilmember, and that she was in favor of removing the ZBA. She said because the Planning Director said that it was adjudicatory in nature, it was an administrative hearing, and felt the most efficient way to handle the appeals was to have someone who was qualified with a legal degree and background. To try and find seven (7) laypeople and coach them regarding the law and how it was applied didn't make sense to her. She said a hearings officer was the best way to handle the vacation rental appeals. Charter Review Commission Open Session November 27, 2017 Page 6 SUBJECT DISCUSSION ACTION Ms. Yukimura stated that there were other needs for a hearings officer within the County, and that a full-time hearings officer position was worthy of exploration. Ms. Kapali asked Ms. Yukimura her opinion regarding possible conflicts of interest with a county -paid administrative hearings officer. Ms. Yukimura replied that the State had hearings officers and suggested looking at their process to eliminate conflicts of interest. Chair TenBruggencate asked County Attorney Mauna Kea Trask to speak on the agenda item. Mr. Trask said there were Federal and State constitutional rights when dealing with land use entitlements, and property owners were entitled to the utmost due process of the law which was time-consuming. He said in considering a hearings officer, you would have to consider who the appointing authority was and who they would answer to. A hearings officer would need an office, staff, and an attorney. He said the OCA remained committed to finding the best process but that it was going to be expensive. Mr. Trask stated that the OCA has done a lot over the past four (4) years to divide the office and have designated litigators. He said their workflow has slowed because in cutting a couple hundred thousand to a million dollars in special counsel, and taking litigation in-house, the OCA could only allocate six (6) attorneys to advice and counsel; one of the six (6) being largely dedicated to the Department of Water, one to the Police Department. Mr. Trask noted that the Planning Department and Human Resources required a lot of support, and he mostly dealt with the Mayor and Council. He said although workflow had slowed, he felt the OCA had an ethical responsibility to give well -researched answers. Initially, he thought the ZBA could handle cases much like district court; however, because Charter Review Commission Open Session November 27, 2017 Page 7 SUBJECT DISCUSSION ACTION contested case hearings were constitutional issues, they were very time- consuming. Mr. Lonnie Sykos stated that there had been insufficient resources within the Planning Commission to deal with the TVR issue for a long time. He said the problem he had with repealing the ZBA was what would happened to the due process for people who filed appeals. Mr. Sykos agreed with Mr. Taylor that there were a lot of qualified people on the island to sit on the ZBA, and that the County should expand their efforts to find qualified individuals. He said the reality of the expense of the appeals impacted everyone. Ms. Suzawa commented that if she had to volunteer twenty-five (25) hours a week and she owned a company, she wouldn't volunteer. Chair TenBruggencate said he felt that there was a problem, and the Charter Amendment tried to solve the problem; however, the County Attorney and the Planning Director said they were in the process of looking at other options. He said he didn't want to create two (2) separate Charter Amendments because it would clutter the ballot, and preferred changing the existing amendment to address the issues. Chair TenBruggencate suggested the item be deferred and asked for a motion. Mr. Nakamura moved to defer CRC 2017-05. Mr. Watanabe seconded the motion. Motion carried 5:0. CRC 2017-06 Proposed Charter Amendment to Amend Article XIII Relating to the Department of Public Works, Sections 13.01 - 13.03 by changing title from County Engineer to Director of Public Works, and changing job description to reflect title change (deferred 10123117) Charter Review Commission Open Session November 27, 2017 Page 8 SUBJECT DISCUSSION ACTION Chair TenBruggencate stated that a letter was sent to the former County Engineer Larry Dill requesting his attendance; however, didn't see him in the audience. The Commission also received a letter from the Director of Human Resources Janine Rapozo, who proposed the amendment, stating that she was unable to attend the meeting. Chair TenBruggencate said he would ask for a deferral so that Ms. Rapozo could be present, but would allow public testimony. Ms. Taylor read written testimony into the record (on file). Mr. Watanabe stated that the County had numerous qualified and licensed engineers. He said the question was whether the title change would reduce the responsibility of the County Engineer. Councilmember Mel Rapozo stated that he was speaking as a citizen and individual councilmember. His concern was regarding the timing of the proposed amendment because the Mayor had one (1) year left on his term, and the change wouldn't take effect until the next election. He said he was against the proposed amendment because the County Engineer should be a licensed engineer, and that he didn't agree that the position was historically hard to fill. Mr. Rapozo provided that in 2016 the County advertised for the positon in the Garden Island for one (1) week, the Star Advertiser for one (1) day, and was posted on the County website; but did not advertise on the nationwide government job system Neo.gov, in the Pacific Business News, or in any other publication. He said the County wanted to find the people they wanted versus the most qualified, and they were lowering the standards of the position in order to do that. Mr. Rapozo stated that in 2016 when Mr. Dill left the County, the Mayor made it clear during the budget session that he did not intend to fill the position because he only had two (2) years left on his term, and felt he could do the job with existing personnel. Mr. Charter Review Commission Open Session November 27, 2017 Page 9 SUBJECT DISCUSSION ACTION Rapozo said he, along with other councilmembers, questioned the Mayor's decision and were notified that the Mayor had reconsidered and was going to solicit for the position. He added that the County Council's efforts to fill the Auditor's position were extensive and costly, and he was satisfied with their efforts; however, he was not satisfied with the efforts by the Administration to fill the County Engineer position. Hawaii State Department of Transportation Engineering Program Manager Lawrence Dill entered the meeting at 4:35 p.m. Mr. Dennis Esaki stated that he was against the proposed Charter Amendment removing the professional Engineer's license requirement; however, he was not against anyone that the change would affect. He said others who deal with the Engineering Division agree with him but are afraid to testify due to possible retaliation. He said salary was not the only factor in filling the position, nor was it the key factor. The Mayor and Managing Director positions don't require licenses, and the proposed change would only add another layer without a license. He said the position might become a political one, like the State, whose department heads were appointed by virtue of political payoff and not qualifications. He added that the proposed change would be a disservice to the residents and taxpayers of Kauai. Ms. Yukimura stated that she was speaking as an individual councilmember. As a former mayor, she said it was very difficult to find a qualified engineer. She said at that time, she broadly advertised for the position and hired a highly qualified engineer from Los Alamos Laboratories. Ms. Yukimura said she felt the County Engineer position was where highly technical expertise and management perspective came together, and didn't think you could rely on lower -level engineers to make final decisions. She stated that she was against removing the license Charter Review Commission Open Session November 27, 2017 Page 10 SUBJECT DISCUSSION ACTION requirement; however, it was difficult to find a qualified engineer due to the variation between the private sector and the County's salary levels. She added that it would be great to find a way to address the issue on a case -by - case basis based on the existing economic situation. However, she didn't think it was worth sacrificing the needed capabilities of the County Engineer just for the sake of filling the position. Mr. Nakamura asked Ms. Yukimura how she felt about adding managerial experience to the requirement for the position to which she replied that although the existing position required a certain amount of experience in an administrative capacity, it was more difficult to measure than whether someone had a degree or not. She said that the County Council used an executive firm in their search for a County Auditor, and felt that was a good way to fill a position. Mr. Taylor stated that he was opposed to the proposed Charter Amendment, saying that the Public Works Department was the largest department in the County and the change would lower the bar. He agreed that it was difficult to find qualified engineers; however, he did not feel that the County advertised for the position as much as they could have. Mr. Taylor stated that the County should be looking to move forward, not backwards, which is what the change would do. He said when the County hired Larry Dill; it was a great move forward to have an engineer with his knowledge and ability. Chair TenBruggencate asked Hawaii State Department of Transportation Engineering Program Manager Lawrence Dill to speak on the proposed Charter Amendment. Mr. Dill stated that initially he grudgingly supported the proposed Charter Review Commission Open Session November 27, 2017 Page 11 SUBJECT DISCUSSION ACTION amendment because of the difficulties with filling the position. However, he didn't think the current situation was representative of the County's history as far as filling the position, and felt the proposal could be a knee- jerk response to the current situation. He said there was more to the position than the technical aspect such as administration, personnel, negotiations, and political issues on any given day, but the technical aspect was the most important. He said having a PE (Professional Engineer) license was a good determination that the individual was qualified for the position. Mr. Dill stated that it was a good idea to keep the license requirement for the County Engineer position. Ms. Kapali stated that it was clear that the Charter says "shall be a registered engineer", and that the County Engineer was responsible for the administration of the Public Works Department. She said strong management experience was needed in the position, and that many large corporations hired their technical support. She agreed with Ms. Yukimura and Mr. Dill that individuals who applied for the position needed a number of years of experience in engineering, whether they were registered or not, with a strong foundation in management. Ms. Kapali suggested that the job description for the County Engineer position be modified to provide a certain number of years of management training and experience to qualify for the position. She said in all the years she was with the County, there were gaps when the County couldn't fill certain positions simply because someone didn't have a license, but they were great administrators and had technical skills. Mr. Dill agreed with Ms. Kapali, saying that rather than removing the PE requirement, a consideration would be to add the experience in public administration to the position. He said he recognized the challenges in finding the right person and would hate to do anything that would lower the Charter Review Commission Open Session November 27, 2017 Page 12 SUBJECT DISCUSSION ACTION bar for the County Engineer position. Mr. Sykos stated that the County needed a licensed engineer, and the arguments against having a licensed engineer didn't make any sense. He said over the last fourteen (14) years, he had attended meetings and seen all the money the County wasted doing things inappropriately and not accomplishing what they tried to do, like road resurfacing. Mr. Glenn Mickens said when Mr. Dill was the County Engineer; he turned things around for the County. He said it was important that the County hired the right person; anyone could go to school, get a degree, and not be qualified for the position. He suggested that the County might have to raise the salary of the County Engineer position to attract qualified individuals. Mr. Esaki clarified that a registered engineer was the same as a licensed engineer. Chair TenBruggencate stated that Human Resources Director Janine Rapozo proposed the Charter Amendment but wasn't able to attend the meeting and asked to defer the item. Mr. Nakamura moved to defer CRC 2017-06. Mr. Watanabe seconded the motion. Motion carried 5:0. CRC 2017-07 Proposed Charter Amendment to Remove Article XXXII relating the County Auditor (deferred 10123117) Chair TenBruggencate asked if anyone from the Administration wanted to speak on the matter. Seeing none, he called on Council Chair Mel Rapozo. Mr. Rapozo asked if the Charter Amendment was proposed by the Charter Review Commission Open Session November 27, 2017 Page 13 SUBJECT DISCUSSION ACTION Administration to which Chair TenBruggencate clarified that it was proposed by a member of the Charter Review Commission. Mr. Rapozo provided a brief history of the Council's solicitation process for the County Clerk, saying that they were going through the same process to fill the County Auditor position. Through that process, thirty-five (35) names were generated, resulting in twenty-eight (28) qualified applicants. He said two (2) job offers were made, both were declined, and the position remained vacant. He said that because the Council was in the process of filling the position and had spent a considerable amount of money on an executive recruitment firm, they would like to complete their process. He said the application deadline was January 2018, and they hoped to have an auditor in place by April 15, 2018. Mr. Rapozo stated that if the Council was unable to fill the position by that time, they would likely introduce a proposed Charter Amendment to remove the County Auditor position. He added that the cost of the County Auditor's Office (CAO) was being considered as well, and that he didn't think a properly run office would cost as much as the previous Auditor's Office, which was over one million dollars. Mr. Rapozo stated that he would rather have an independent audit function than have the Council decide who would be audited. Councilmember Arryl Kaneshiro stated that as the Council Budget and Finance Chair, he had looked at the cost of the CAO, as well as the cost of independent audits. He said the question was whether it was more cost- effective to have a CAO, or contract out the audits. Ms. Suzawa asked if the Council was satisfied with the results of the audits they had received to which Mr. Kaneshiro said that he was pleased with the in-house and the contracted audits. Ms. Kapali stated that the County historically contracted out their audits and asked why the County went to an internal audit system. Mr. Kaneshiro said he didn't know and referred the question to Mr. Rapozo. Charter Review Commission Open Session November 27, 2017 Page 14 SUBJECT DISCUSSION ACTION Mr. Rapozo explained that as a councilmember in 2002, he requested a number of audits but was unable to secure the votes to pass them. At that time, Council Chair Furfaro was successful in getting a proposed a Charter Amendment passed to create the CAO to alleviate the pressure on councilmembers having to ask for audits. Mr. Rapozo stated that his concern was using the Charter to secure positions in the County, like the earlier discussion about creating a hearings officer position via Charter Amendment. He said he felt the ability and authority to create positions in the County was with the Administration or the Council; the Charter was designed to create County structure. Mr. Nakamura asked Mr. Rapozo if the Auditor took direction from the Council or individual councilmembers regarding what audits were conducted. Mr. Rapozo explained that although in the past there had been issues with the process, the Auditor was tasked to create an audit plan with input from the Council and the community, and submit it to Council as information only, not for approval. If the Council wanted an audit conducted, they could draft a resolution which had to be voted on by the Council and backed by funds to pay for the audit. He said the process was designed to be independent from the Council and the Administration. Councilmember Derek Kawakami stated that during the budget session, he was the first one to question the efficiency of creating the CAO. He said his opinion was his opinion, and felt that voters should have the opportunity to revisit the necessity of having the CAO. He agreed with the previous two (2) speakers regarding fiscal responsibility and said this was an opportunity to give the voters knowledge behind the cost of the CAO. Mr. Kawakami said people initially thought the CAD was a good idea that would create a more efficient government. Coming from the private sector, he viewed audits as a tool for efficiency and welcomed audits. He said that was the kind of culture needed in government to be successful, and that some Charter Review Commission Open Session November 27, 2017 Page 15 SUBJECT DISCUSSION ACTION people's opinions were that government was inefficient. Mr. Kawakami stated that he was open to sending the proposed Charter Amendment to the voters because it was not very often that an office was vacant and an opportunity was presented to revisit the necessity and cost-effectiveness of the office. In response to Ms. Suzawa's question regarding whether or not the Council was satisfied with previous audits, he said personally he was not. What he was satisfied with was the Department of Transportation's Short Range Transportation Plan, completed by a hired consultant that pinpointed efficiencies and areas for improvement. He added that he was open to that process in the future. Councilmember Mason Chock stated that he was testifying as an individual and requested that the County Council be allowed to complete their recruitment process and follow through on their commitment to the people of Kauai to find the most qualified individual for the County Auditor position. He said if they were unsuccessful within their timeframe, the Council had discussed a Charter Amendment to put the vote before the people of Kauai. He added that a lot had been learned throughout the process, and felt there were some positive aspects to retaining the CAO. Mr. Chock stated that he was satisfied with their outside audits, and that an objective, independent office that took the approach of following though, in the sense of continuous learning and improvement, was the right approach. He agreed with the previous speakers that the CAO wouldn't cost as much as it had in the past if the right people were in place. Finding the right, qualified individual was difficult; however, he felt an executive search may provide that opportunity. Ms. Kapali stated the Office of Boards and Commissions provided that proposed Charter Amendments needed to be ready by June of 2018, and asked Mr. Chock if the Council's process would be complete by March or Charter Review Commission Open Session November 27, 2017 Page 16 SUBJECT DISCUSSION ACTION April of 2018. Mr. Chock said the Council was having that conversation now and could provide updates to the Commission in January. Chair TenBruggencate commented that if the Commission were to pass the proposed amendment, it would confound the Council's ability to find an auditor. Ms. Yukimura, speaking as an individual councilmember wanted to see the Council's recruitment process completed. She said she was in favor of an independent internal auditor because of the need for good risk management, and that effective government was what the people of Kauai wanted. Ms. Yukimura stated that the high costs of the previous CAO were partly due to the auditor that was in place, and that the office could be streamlined and more helpful to the County and its department heads with the right person in the position. Ms. Taylor read her written testimony on behalf of the People's Pono Alliance into the record (on file). Mr. Watanabe clarified that the Office of the County Clerk was the legislative branch, not the judicial branch. Mr. Mickens read his written testimony into the record (on file). Ms. Norma Doctor Sparks stated that she was concerned about the attempt to remove the County Auditor position from the Charter and felt independence was needed. She said as an administrator in California and Hawaii, she was audited many times and was often discouraged because she felt she was being unduly criticized. However, throughout that process, the agencies that she directed did improve and began to understand what Charter Review Commission Open Session November 27, 2017 Page 17 SUBJECT DISCUSSION ACTION was important to the public. Ms. Sparks stated that the people of Kauai wanted the CAO, and although recruitment might be difficult, that should not be a reason to eliminate the CAO. She agreed with previous speakers that the cost of the CAO should be considered; however, the cost of the office could change dramatically depending on who designed the office. Mr. Taylor read his written testimony into the record (on file). He pointed out the benefits the County received from previous audits by the former County Auditor. He said earlier discussions focused on the cost of audits, not the cost benefits from those audits. Mr. Taylor stated that he was in favor of keeping the CAO, and that the County needed to buckle down and understand where monies were being spent. He agreed that it was difficult to fill the position and that the County Council had done a good job in their recruitment efforts. Mr. Sykos said he disagreed with earlier statements made that the Auditor chose which audits to perform. He said the Auditor didn't choose what to audit and he referred to a document called The Yellow Book which provided guidance for small government operations and their audits. He said the value of having an independent auditor was that it eliminated political interference that prevented the public from discovering how the County's money was spent. Mr. Sykos stated that the biggest problem in hiring an auditor was the mistreatment of the previous auditor, and that the County could hire anyone they wanted. The Commission recessed at 6:01 p.m. The Commission reconvened at 6:06 p.m. Chair TenBruggencate clarified that the business before the Commission was to make a decision on the item and asked for the Commission's Charter Review Commission Open Session November 27, 2017 Page 18 SUBJECT DISCUSSION ACTION preference. Mr. Nakamura suggested the item be deferred to March 2018 based on the requests by Councilmember Yukimura and Council Chair Rapozo. Chair TenBruggencate said he thought the Council provided their decision would be in April of 2018. Mr. Nakamura said April was fine and asked that Council Chair Rapozo report back to the Commission with an update. Chair TenBruggencate asked Mr. Nakamura if he was making a motion to defer to which Mr. Nakamura said yes. Mr. Nakamura moved to defer CRC 2017-07 to April 2018, with a request that Council Chair Rapozo be present with a report from the County Council. Ms. Suzawa seconded the motion for discussion. Chair TenBruggencate clarified that there could be no discussion following a motion to defer. He said the Commission's options were to vote for the motion to defer and continue their discussion. Chair TenBruggencate asked for a roll call vote: Commissioner Nakamura - Aye; Commissioner Kapali - Nay; Commissioner Suzawa - Aye; Vice Chair Watanabe - Nay; Chair TenBruggencate - Nay. Motion failed 2:3. Ms. Kapali moved to reject CRC 2017-07 relating to the County Auditor. Mr. Watanabe seconded the motion. Ms. Kapali said after listening to all that had been said, she saw that there Charter Review Commission Open Session November 27, 2017 Page 19 SUBJECT DISCUSSION ACTION was a lot of history regarding the County Auditor, and that the County needed to be accountable for their operations. She said she wasn't sure it took an internal auditor, but felt the County was going in the right direction to reach the overall goal of an efficient and effective government. Ms. Kapali said she didn't feel a deferral gave the County Council enough time to complete their process and get an office in operation. Chair TenBruggencate stated that it was the Charter Review Commission's responsibility to review issues. There had been a combative relationship involving the previous auditor, and the position had been vacant for some time. He said the County Council was considering proposing a Charter Amendment to remove the County Auditor if they were unsuccessful in filling the position, and he didn't think the Commission should interfere with their process. Chair TenBruggencate stated that he would support the motion on the floor. With no further discussion, Chair TenBruggencate asked for a roll call vote. Commissioner Nakamura - Aye; Commissioner Kapali - Aye; Commissioner Suzawa - Aye; Vice Chair Watanabe - Aye; Chair TenBruggencate - Aye. Motion carried 5:0. CRC 2017-08 Proposed Charter Amendment to Amend Article XIX, Financial Procedures, Section 19.15 (C) by adding language to include corresponding maintenance of those lands or property entitlements Chair TenBruggencate stated that Deputy Planning Director Kaaina Hull, assigned to the Open Space Commission, was not in attendance and asked for the item to be deferred after taking public testimony. With no public testimony, Chair TenBruggencate asked for a motion to defer. Mr. Watanabe moved to defer CRC 2017-08. Mr. Nakamura seconded the motion. Motion carried Charter Review Commission Open Session November 27, 2017 Page 20 SUBJECT DISCUSSION ACTION 5:0. CRC 2017-09 Proposed Charter Amendment Establishing Council Districting Chair TenBruggencate stated that the amendment was proposed by a Commissioner and called for public testimony. Mr. Taylor stated that he had concerns with Council districts, saying the problem was that a councilmember had only one (1) vote, and if he wanted to get anything accomplished in his district, he would have to solicit other districts, which didn't make for good government. He added that it would take away his democratic process of being able to vote for councilmembers, and that every ten (10) years when a census is done, districts would need to be reevaluated in order retain equal populations within each district. Mr. Sykos stated that he was opposed to Council districting because it would alienate communities from one another, the current system worked, and he didn't see the point in changing it. Mr. Mickens agreed with Mr. Sykos, saying if it wasn't broken, don't fix it. Ms. Felicia Cowden said she was from the North Shore and felt they were underrepresented. However, she didn't think Council districting was a good idea and she was glad she could vote for all seven (7) councilmembers. Chair TenBruggencate asked Ms. Kapali to speak on her proposed amendment. Ms. Kapali thanked the public for their input and agreed with their comments. She provided that the reason she proposed the amendment was Charter Review Commission Open Session November 27, 2017 Page 21 SUBJECT DISCUSSION ACTION for the purpose of discussion. Since 1982, Council districting was considered four (4) times; twice by the County Council and twice by the Charter Review Commission. Ms. Kapali said this wasn't a new discussion but Kauai was new and she wanted to see the younger adult population be more civic -minded. She said because young adults were busy with work and raising children, Council districting may provide them the opportunity to represent their own districts which would be smaller, more manageable, and they would be more sensitive to the issues in their area. Mr. Nakamura shared an idea from the late John Isobe whereby there would be three (3) district councilmembers using the State Representative's line, and four (4) at -large councilmembers. Ms. Suzawa shared that during the six (6) years she was on the Charter Review Commission, the proposal came up at every election. She said she felt Kauai was small enough to manage, and she preferred to vote for all seven (7) councilmembers. Mr. Watanabe agreed with Ms. Suzawa. Chair TenBruggencate stated that there was no specific proposal for the amendment and suggested the Commission receive the item with the understanding that if a proposal was presented to the Commission in the future, they could revisit the issue. Mr. Nakamura moved to receive CRC 2017-09. Mr. Watanabe seconded the motion. Motion carried 5:0. CRC 2017-10 Proposed Charter Amendment to Article III, County Council, Section 3.03 relating to terms 1. Councilmembers serve two (2) four-year terms beginning with the Charter Review Commission Open Session November 27, 2017 Page 22 SUBJECT DISCUSSION ACTION 2020 election 2. Four (4) Councilmembers serve two (2) four-year terms full time (staggered), and three (3) Councilmembers serve two (2) two-ygar part time Chair TenBruggencate asked Ms. Cowden to speak on her proposed amendment. Ms. Cowden reviewed her proposed amendment handout with the Commission (on file), highlighting a section she added which stated that "a basic proficiency test of math, literacy, understanding of a budget, and functions of a county government is necessary for the full time position. " She said it was necessary to have councilmembers with the skill set to do the job effectively. Ms. Suzawa said Ms. Cowden's proposal had possibilities. She questioned the legality of the "full-time" requirement, saying that she didn't think the Charter could be restrictive. Ms. Cowden responded that it was up to the Charter Review Commission to vet the proposed amendment. Chair TenBruggencate asked Ms. Cowden whether or not she had considered who would develop and administer a proficiency test to which Ms. Cowden said she hadn't made that determination. Chair TenBruggencate asked Ms. Cowden if she was concerned that a single legislative body with two- and four-year terms would create a class distinction within the body and hinder its efficiency. Ms. Cowden provided that there was nothing that weighted the vote of any one person, nor were there any limitations. Chair TenBruggencate asked Ms. Cowden how she saw the ballot question set up to which she explained that all candidates would be on the same ballot and the top four (4) candidates would get the Charter Review Commission Open Session November 27, 2017 Page 23 SUBJECT DISCUSSION ACTION four-year full-time terms, and the next three (3) would get the two-year part- time terms. Chair TenBruggencate clarified that candidates wouldn't be able to run for specific terms to which Ms. Cowden said that it could be set up that way as well; however, it would be a problem if no one wanted a four-year full-time term. Chair TenBruggencate called for public testimony. Mr. Taylor stated that he was in favor of four-year terms if they were staggered; four (4) and three (3). However, he was opposed to Option No. 2. He stated that many communities across the country that were larger than Kauai had five -member councils and suggested Kauai look at that option as a way to reduce costs. Mr. Sykos said he appreciated all that Ms. Cowden did for the community; however, he did not agree with her proposal. He didn't want a professional politician running the County, State, or the Nation. He said you couldn't pass legislation to make people act ethically, and that the problem was not the term length but the County's bad administration and civil servants. Mr. Sykos said mixed terms was confusing and you couldn't have tests; only age, residency, and citizenship per the Constitution. Mr. Watanabe left the meeting at 6:52 p.m. Chair TenBruggencate called for any additional public testimony to which there was none. Chair TenBruggencate asked Ms. Kapali to speak on her proposed Council terms, Item No. 1. Charter Review Commission Open Session November 27, 2017 Page 24 SUBJECT DISCUSSION ACTION Ms. Kapali stated that four-year terms would provide stability for councilmembers and it was time to try different things that might help the County be more efficient. Chair TenBruggencate asked the Commission for their preference on Mr. Nakamura moved to defer CRC 2017-10 (2). Proposal No. 2. Ms. Suzawa seconded the motion. Motion carried 4:0. Chair TenBruggencate suggested the Commission receive Item No.l for the Mr. Nakamura moved to receive CRC 2017-10 (1). record. Ms. Suzawa seconded the motion. Motion carried 4:0. CRC 2017-11 Proposed Charter Amendment creating a new Farm Commission Ms. Cowden reviewed her proposed amendment handout with the Commission (on file). She said the goal would be to assist the County Planning Department and Office of Economic Development with details specific to managing the nuances of farming permits, planning, and violations. The Farm Commission would be a cross-section of agriculture and food production. She said there has been farming issues, pesticide issues, and farmworker housing issues on Kauai, and the Farm Commission would be a place farmers could receive guidance on all things related to farming. Ms. Kapali stated that she would move to defer the item and asked to have a representative from the Kauai Farm Bureau present for information purposes. Ms. Cowden asked to include a representative from the Hawaii Farmers Union United. Chair TenBruggencate suggested inviting the Department of Housing, Office of Economic Development, and the Director Charter Review Commission Open Session November 27, 2017 Page 25 SUBJECT DISCUSSION ACTION of Planning. Chair TenBruggencate called for public testimony. Mr. Taylor stated that he was in favor of promoting agriculture and that it was a shame that Kauai imported as much food as they do when there were growing conditions that allowed more food production on -island. He said there was a number of farm organizations on -island and he felt the Office of Economic Development should work with them to promote agricultural activities and increase food production. Mr. Taylor said he didn't feel a Farm Commission was a County function. Mr. Sykos said he appreciated what Ms. Cowden was doing; however, as a farmer, his greatest challenge was getting other farmers to reach a consensus on anything. One of the problems the farming community had was long- term access to land and water. He said members of the industry tended to have philosophical and political positions and didn't want to compromise. Mr. Sykos added that farmworker housing was not only regulated by the Department of Housing and Urban Development and the Federal Housing Authority, but also by the Department of Agriculture which has completely separate farm housing regulations. He said he supported promoting agriculture, but the County didn't need another commission. Mr. Sykos stated that Kauai lacked leadership in the area of agricultural development, and creating a Farm Commission was not the right solution. Ms. Taylor stated that she was speaking as an individual on agriculture, and that her opinion was that organic farming was not highly considered by the government bodies throughout the islands. She said she was in favor of the proposal because it was an attempt to create something that supported farmers on Kauai, and that there were many qualified people on -island Charter Review Commission Open Session November 27, 2017 Page 26 SUBJECT DISCUSSION ACTION there were interested in farming. Chair TenBruggencate asked the Commission if they wanted to invite the individuals as discussed to the next meeting. Mr. Nakamura moved to defer CRC 2017-11 and invite the Director of Planning, Director of Housing, Director of Economic Development, County Farm Bureau President, and Hawaii Farmers Union United - Kaua`i Chapter President to the next meeting. Ms. Kapali seconded the motion. Motion carried 4:0. Chair TenBruggencate recommended the Executive Session and CRC 2017- 12 Election of Chair and Vice Chair be deferred to the next meeting. Mr. Nakamura moved to defer the Executive Session and CRC 2017-12 to the next meeting. Ms. Suzawa seconded the motion. Motion carried 4:0. Announcements Next Meeting: Monday, December 18, 2017, 4:00 p.m., in the Mo'ikeha Building, Liquor Conference Room 3 Adjournment Chair TenBruggencate adjourned the meeting at 7:15 p.m. Submitted by: Lani Agoot, Administrative Specialist () Approved as circulated. () Approved with amendments. See minutes of Reviewed and Approved by: meeting. Jan TenBruggencate, Chair