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HomeMy WebLinkAboutMay 21 2018 CRC Meeting Agenda PacketCarol Suzawa Members: Chair Marissa Sandblom Galen Nakamura Virginia Kapali Ricky Watanabe Jan TenBruggencate Vice Chair COUNTY OF KAUA'I CHARTER REVIEW COMMISSION NOTICE OF MEETING AND AGENDA Monday, May 21, 2018 3:00 p.m. or shortly thereafter Mo'ikeha Building, Meeting Room 2 A/B 4444 Rice Street, Lihu'e, HI 96766 CALL TO ORDER COMMUNICATIONS APPROVAL OF MINUTES Open Session Minutes of April 23, 2018 Executive Session Minutes of April 23, 2018 BUSINESS CRC 2017-03 Discussion and decision -making on ballot question, purpose, and background for Proposed Charter Amendment to remove Article IX relating to the Public Defender CRC 2017-04 Discussion and decision -making on ballot question, purpose, and background for Proposed Charter Amendment to remove Article XXX relating to the Electric Power Authority CRC 2017-05 Discussion and decision -making on ballot question, purposed, and background for Proposed Charter Amendment to remove the Zoning Board of Appeals (Article XIV, Subsection 14.12—14.14.) CRC 2017-08 Discussion and decision -making on ballot question, purpose, and background for Proposed Charter Amendment to amend Article XIX, Financial Procedures, Section 19.15(C) by adding language to include corresponding improvement to those lands or property entitlements An Equal Opportunity Employer CRC 2017-13 Discussion and decision -making on ballot question, purpose, and background for Proposed Charter Amendment to amend Article XXIX allowing the Salary Commission authority to establish the maximum salaries of all elected and appointed officials CRC 2017-14 Discussion and decision -making on ballot question, purposed, and background for Proposed Charter Amendment to amend Article VII, Subsection 7.06 giving the Administrator of the Office of Boards and Commissions the authority to appoint or procure a hearings officer for the County of Kauai ANNOUNCEMENTS Next Meeting: Next Scheduled meeting is June 25, 2018, 3:00 p.m., in the Mo'ikeha Building, Meeting Room 2A1213 ADJOURNMENT EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes §92-7(a), the Commission may, when deemed necessary, hold an executive session on any agenda item without written public notice if the executive session was not anticipated in advance. Any such executive session shall be held pursuant to HRS §92-4 and shall be limited to those items described in HRS §92-5(a). Discussions held in Executive Session are closed to the public. Cc: Deputy County Attorney Adam Roversi PUBLIC COMMENTS and TESTIMONY Persons wishing to offer comments are encouraged to submit written testimony at least 24-hours prior to the meeting indicating: l . Your name and if applicable, your position/title and organization you are representing; 2. The agenda item that you are providing comments on; and 3. Whether you will be testifying in person or submitting written comments only; and 4. If you are unable to submit your testimony at least 24 hours prior to the meeting, please provide 10 copies of your written testimony at the meeting clearly indicating the name of the testifier; and 5. If testimony is based on a proposed Charter amendment, list the applicable Charter provision. While every effort will be made to copy, organize, and collate all testimony received, materials received on the day of the meeting or improperly identified may be distributed to the members after the meeting is concluded. The Charter Review Commission rules limit the length of time allocated to persons wishing to present verbal testimony to five (5) minutes. A speaker's time may be limited to three (3) minutes if, in the discretion of the chairperson or presiding member, such limitation is necessary to accommodate all persons desiring to address the Commission at the meeting. Send written testimony to: Charter Review Commission — May 21, 2018 2 1 P a g e Charter Review Commission Attn: Lani Agoot Office of Boards and Commissions 4444 Rice Street, Suite 150 L-1hu`e, HI 96766 E-mail: la oot ,kaudZgy Phone: (808) 241-4917 Fax: (808) 241-5127 SPECIAL ASSISTANCE If you need an ASL Interpreter, materials in an alternate format, or other auxiliary aid support, or an interpreter for a language other than English, please contact Lani Agoot at (808) 241-4917 or lagootC&kauaLgov at least seven calendar days prior to the meeting. Charter Review Commission — May 21, 2018 3 1 P a g e c COUNTY OF KAUA I is he ANN"!, Minutes of Meeting OPEN SESSION Board/Commission: I CHARTER REVIEW COMMISSION Meeting Date I April 23, 2018 Location Mo'ikeha Building, Meeting Room 2A/2B Start of Meeting: 3:00 p.m. I End of Meeting: 4:15 p.m. Present Chair Carol Suzawa; Vice Chair Jan TenBruggencate; Members: Ricky Watanabe, Marissa Sandblom, and Patrick Stack Also: Deputy County Attorney Adam Roversi; Boards & Commissions Office Staff. Administrative Specialist Lani Agoot and Administrator Nicholas R. Courson Excused I Virginia Kapali and Galen Nakamura Absent SUBJECT I DISCUSSION I ACTION Prior to the start of the meeting Administrative Assistant to the County Clerk Eddie Topenio gave the Oath of Office to new Commissioner Patrick Stack. Call To Order Chair Suzawa called the meeting to order at 3:00 p.m. with five commissioners present. Approval of Open Session Minutes of March 19, 2018 Mr. TenBruggencate Minutes moved to approve the Open Session minutes of March 19, 2018, as circulated. Mr. Stack seconded the motion. Motion carried 5:0. Executive Session ES-007 Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a) 4), the purpose of this Mr. TenBruggencate executive session is to consult with the County's legal counsel on questions, issues, status, and moved to go into procedural matters. This consultation involves consideration of the powers duties privileges Executive Session at immunities, and/or liabilities of the Commission and the County as they relate to CRC 2017-08, a 3:01 p.m. Mr. proposed Charter Amendment to Amend Article XIX, Financial Procedures, Section 19.15(C), Watanabe seconded the relating to Public Access, Open Space, and Natural Resources Preservation Fund, expanding the motion. Motion carried rmissible uses of the fund to include the improvement and maintenance of acquired lands or 5:0. Charter Review Commission Open Session April 23, 2018 Page 2 SUBJECT DISCUSSION ACTION property entitlements, and existing public beach accesses. (deferred 11127117, 12118117, 1122118, 2126118, 3119118) ES-008 Pursuant to Hawaii Revised Statutes 02-4, §92-5(a) (4), §92-9(a) (1-4), the purpose of this executive session is for the Commission to approve the Executive Session meeting minutes of March 19, 2018, and to consult with its attorney on issues pertaining to the Commission's powers, duties, privileges, immunities, and/or liabilities as they may relate to this agenda item Return to Open Ratify Commission actions taken in Executive Session for items: ES-007 and ES-008. The meeting resumed in Session Open Session at 3:19 p.m. Mr. Tenl3ruggencate moved to ratify the actions taken in Executive Session for ES-007 and ES-008. Ms. Sandblom seconded the motion. Motion carried 5:0. Business CRC 2017-08 Proposed Charter Amendment to Amend Article XIX, Financial Procedures, Section 19.15(C), relating to the Public Access, Open Space, and Natural Resources Preservation Fund, expanding the permissible uses of the fund to include improvement and maintenance of acquired lands or property entitlements, and existing public beach accesses. (deferred 11127/17, 12118117, 1122118, 2126118, 3119118) Deputy Planning Director Ka`aina Hull stated that the Open Space Commission met on Thursday and upon reviewing the proposed Charter amendment that was approved by the Charter Review Commission, they had some concerns regarding the phrases "and maintenance" and "or maintenance." Their concern was that the Open Space Fund could potentially be used solely for Charter Review Commission Open Session April 23, 2018 Page 3 SUBJECT DISCUSSION ACTION maintenance purposes and not land acquisition. He said there is a recognized need for initial improvements to some of the Open Space Commission's projects and potential accesses that already exist only on maps. Mr. Hull stated that the Open Space Commission has made it their task to — should the proposal be adopted — attempt to secure some form of community organization or commitment from a State agency to maintain the site once the initial improvement was complete. He said the Open Space Commission's recommendation is to remove "and maintenance" from C. I and "or maintenance" from C.3. Chair Suzawa asked if there is projection with regard to the portion of the fund that would be used for improvements to which Mr. Hull said the funds that would be used for improvements to existing coastal accesses would be to identify, survey, and demarcate accesses. He said one problem with existing coastal accesses is that oftentimes homeowners in the area will remove the demarcation; however, he didn't think a large portion of the fund would be needed to improve and/or demarcate coastal accesses. Mr. Hull added with regard to improvements to other property acquisitions, it would be up to the Open Space Commission and ultimately up to Council to approve or deny any proposed improvements. Chair Suzawa stated that she would be more comfortable if the amount to be used for improvements was limited to make sure there would be sufficient funds for acquisition. Mr. Hull stated that he wasn't in a position to object or support putting a cap on the funds for improvements and would have to take Chair Suzawa's concern back to the Open Space Commission for further discussion. He said whether or not the funds are capped, the intention is that if the community feels a particular improvement is appropriate and Council agrees, it would be incumbent upon Council to either approve or deny the proposal. Ms. Sandblom asked Mr. Hull if it was the Open Space Commission's intention to define improvement on a case -to -case basis to which Mr. Hull clarified that should the proposed amendment be adopted, a recommended ordinance amendment would be required and fin-ther details would need to be flushed out regarding what would constitute an improvement. Chair Suzawa asked if it was difficult to create a percentage for improvements because she felt it would give the community a better sense that the fund would be available for the purpose it was Charter Review Commission Open Session April 23, 2018 Page 4 SUBJECT DISCUSSION ACTION created for. Mr. Hull stated that right now the Open Space Fund has 6.5 million dollars. If 25%, for example, of the fund was used for improvements, it would leave a significant amount for land acquisition. However, currently Council has a draft bill on their agenda to expend 5.6 million dollars for a parcel at Black Pot Beach Park, which would fairly deplete the fund, leaving very little for improvements based on a 25% cap. He added that he couldn't speak to a specific percentage amount for a cap, but if the Charter Review Commission wanted to propose a specific percentage, he would take the proposal to the Open Space Commission for their input. Ms. Sandblom stated that when the proposed Charter amendment first came before the Charter Review Commission, a 25% cap was discussed. She said part of the discussion was that checks and balances exist to ensure that the fund wouldn't be abused. Mr. Hull said the checks and balances are that any appropriation of funds for improvements would have to be agendized, go through a budgetary process, a public hearing, a committee referral at Council, action at the committee, and then sent to full Council for decision -making. He said the Open Space Commission understands that the proposed amendment is the process they need to move forward with acquisitions because there have been hurdles in the past where an acquisition may have been possible but there was no ability to improve the site; therefore, it would be an acquisition in which the site would remain derelict. Mr. TenBruggencate asked for further clarification regarding the proposed acquisition of the Black Pot Beach parcel to which Mr. Hull explained that the acquisition was initiated at Council in Executive Session while dealing with the condemnation proceedings of another parcel in that area, which is why, during the negotiations, it couldn't be referred to the Open Space Commission because it was confidential. Once a settlement was reached, the proposed acquisition went on Council's agenda and the Open Space Commission found out about it. He said the Open Space Commission Chair voiced his opposition to the proposal taking place without the Open Space Commission's review. Council then forwarded their proposed draft bill to the Open Space Commission for review, and the Commission made a recommendation that the proposal for the acquisition is in -line with four of the Open Space Fund's objectives and recommended approval of the acquisition. Mr. Hull added that the recommendation includes that any acquisition should not exceed the assessed valued of the property, and anything beyond the assessed value should come Charter Review Commission Open Session April 23, 2018 Page 5 SUBJECT DISCUSSION ACTION from another funding source. Mr. TenBruggencate, moved to amend CRC 2017-08 by removing "for maintenance" in C.1 and "or maintenance" in C.3. Mr. Watanabe seconded the motion. Motion carried 5:0. CRC 2017-13 Proposed Charter Amendment allowing the Salary Commission complete authority to establish the salaries of all elected and appointed officials. (deferred 1122118, 2126118, 3119118) Mr. TenBruggencate stated that he recalled from the last meeting that Human Resources Director Janine Rapozo was satisfied with the decision that the Commission not add language into the Charter referring to County agencies that are not in the Charter and allow the Salary Commission the latitude to add those positions as they see fit. Mr. TenBruggencate moved to approve CRC 2017-13. Mr. Watanabe seconded the motion. Mr. Courson provided that 23.01(D) doesn't have a list of Chartered department heads and read the following: "(1) The term officer shall include the following: mayor, prosecuting attorney, and members of the council; (2) Arty person excluded from Chapter 76, HRS and the position classification plan who is appointed as administrative head of any department or agency of the county or as a member of any board or commission; (3) Deputies appointed by the administrative head of any department or agency of the county who are excluded from Chapter 76, HRS and the position classification plan. " Mr. TenBruggencate stated that based on the language provided by Mr. Courson and the legal opinion that was given to the Salary Commission, the agencies not included in the Salary Commission's list should be included. Charter Review Commission Open Session April 23, 2018 Page 6 SUBJECT DISCUSSION ACTION Mr. Courson said that interpretations differ with regard to who is excluded from Chapter 76, civil service law, and what exclusion means. He said he has never seen a legal opinion or the logic, but if those positions — specifically the Executives on Aging and Transportation — could accurately be described as excluded from collective bargaining and administrative heads, they would fall under the definition of officers as defined. Ms. Sandblom stated a key point is that the amendment also includes the addition of the Director of Human Resources and the Director of Finance to ensure the Salary Commission doesn't set inappropriate salaries. Mr. Stack voiced his concern that the amendment would allow the Salary Commission "complete" authority, saying that complete authority is not something that works in a democratic society. Mr. TenBruggencate provided clarification regarding the proposed language, saying that for many years the Salary Commission has gone through a long process of comparing salaries, doing research, and providing salary recommendations to Council for approval just to have Council reject their proposals. He said the goal is that once the Salary Commission goes through their process, their recommendation becomes law without Council's approval. Mr. Courson provided that the Salary Commission would only have the complete authority to set a maximum salary; the actual amount that any person would get paid would be at the discretion of their respective appointing authority. Ms. Sandblom stated that the Commission had concerns when the amendment was initially proposed and through the course of discussions and opinions, the language is more to nullify a potential political problem. She said when you look at the proposed language, also inserted was the need to have the Director of Human Resources and the Director of Finance as part of the process. Mr. TenBruggencate said the word "complete" is to make it clear that the authority is no longer shared with Council; however, he wouldn't object to removing "complete" from the proposed Charter Review Commission Open Session April 23, 2018 Page 7 SUBJECT DISCUSSION ACTION amendment. Mr. TenBruggencate moved to amend CRC 2017-13 by removing the word "complete." Mr. Stack seconded the motion. Motion carried 5:0. Motion, as amended, carried 5:0. CRC 2017-14 Proposed Charter Amendment to Amend Article VH, Subsection 7.06 by giving the Mr. TenBruggencate Administrator of the Office of Boards and Commissions the authority to appoint or procure a moved to approve CRC hearings officer for the County of Kauai (deferred 3119118) 2017-14. Mr. Watanabe seconded the motion. Motion carried 5:0. Announcements Next Meeting: Monday, May 21, 2018, 3:00 p.m., in the Mo'ikeha Building, Meeting Room 2 A/B Adjournment Chair Suzawa adjourned the meeting at 4:15 p.m. Submitted by: Lani Agoot, Administrative Specialist Reviewed and Approved by: () Approved as circulated. () Approved with amendments. See minutes of meeting. Carol Suzawa, Chair 1. Proposed Charter Amendment to remove Article IX relating to the Public Defender Ballot Question: Shall the Charter be amended by repealing Article IX, which sets out a right to assistance of counsel, and authorizes the County Council to provide legal counsel for any person who is financially unable to afford one, as this function is already provided by the State? Shall the Charter be amended by repealing Article IX, Public Defender, as this function is already provided by the State? Purpose: The Public Defender section of the Kauai County Charter was rendered obsolete when the State Constitution in 1968 mandated that the State Legislature in 1971 established the State Office of the Public Defender. This amendment would therefore remove an outdated and unnecessary article from the Charter. Background: The right to assistance of counsel in State court proceedings is guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution. Article IX of the County Charter, relating to the establishment of a County Public Defender, was adopted in 1968 as part of the original County Charter and has never been subject to amendment. Following the ratification of the County Charter, Article 1, section 14 of the Hawaii Constitution was amended to provide that the State "shall provide counsel for an indigent defendant charged with an offense punishable by imprisonment." Thereafter, in 1971 the Hawaii State Legislature enacted Act 185, now codified as Hawaii Revised Statutes (HRS) § 802. Act 185 established a State statutory right to legal representation as well as a State Office of the Public Defender and a statewide administrative system for the appointment of legal counsel as required under the law. Because the State has established a State Office of the Public Defender and a statewide administrative framework to provide legal counsel, the County Council has never found it necessary or proper to establish a County Public Defender by ordinance. In 1971 the State established an Office of the Public Defender and a statewide system for the appointment of legal counsel as required under the law. As such, the County Council has never found it necessary or proper to establish a County Public Defender by ordinance. CRC 2017-03 2. Proposed Charter Amendment to remove Article XXX relating to the Electric Power Authority Ballot Question: Shall the Charter be amended by repealing Article XXX, Electric Power Authority, which empowers the Council to create an electric power authority by ordinance? Purpose: The purpose of this amendment is to remove the article empowering the Council to establish an electric power authority by ordinance, since the Kauai Island Utility Cooperative has competently managed and operated Kaua`i's electrical power system, and delivered electrical power to Kauai in an economically viable manner, for more than a decade and a half. Background: Article XXX was approved by the voters in the 2002 general election. The County Council proposed Article XXX as a Charter amendment in response to the proposed sale of Kauai Electric Company to the Kauai Island Utility Cooperative (KIUC). Article XXX empowered the County to intercede in the event that the sale of Kauai Electric to KIUC collapsed, or if KIUC had problems in providing electrical services. In September of 2003, the Hawaii Public Utilities Commission (PUC) approved the sale of Kauai Electric to KIUC. Since 2002, KIUC, Hawai`i's only member owned electrical cooperative, has managed and operated the electrical power system on Kauai. CRC 2017-04 3. Proposed Charter Amendment to remove the Zoning Board of Appeals (Article XIV, Subsection 14.12 - 14.14) Proposed Charter Amendment to amend Article XIV, Section 14 by removing the Zoning Board of Appeals Ballot Question: Shall Article XIV, Planning Department, Sections 14.01, 14.03, 14.12, 14.13, and 14.14 be amended by removing the Zoning Board of Appeals? Purpose: This amendment would remove the Zoning Board of Appeals. Background: The Zoning Board of Appeals was created in the 2016 election, but has proven difficult to enact. It would require seven volunteers to work approximately 16-25 hours weekly and the county has been unable to recruit capable volunteers willing to make such a time commitment. Thus, the Zoning Board of Appeals has never been seated. CRC 2017-05 4. Proposed Charter Amendment to amend Article XIX, Financial Procedures, Section 19.15(C) by adding language to include corresponding improvement of those lands or property entitlements Ballot Question: Shall Article XIX, Financial Procedures, Section 19.15(C) be amended to permit the Public Access, Open Space, Natural Resources Preservation Fund to be used for improvements? Purpose: This amendment would allow the Public Access, Open Space, Natural Resources Preservation Fund to pay for improvements to acquired lands or entitlements. Background: The Public Access, Open Space, Natural Resources Preservation Fund ("Fund") currently may be used for acquisition of land and public easements. County officials have expressed concern about making acquisitions without funds to make those properties suitable for public use. This amendment would allow the Fund to be used to improve those properties, including improvements to existing pedestrian shoreline easements. This amendment would not authorize use of Fund proceeds for regular maintenance. CRC 2017-08 5. Proposed Charter Amendment to amend Article XXIX allowing the Salary Commission authority to establish the maximum salaries of all elected and appointed officials Ballot Question: Shall Article XXIX, Salary Commission, Sections 29.01 and 20.03, be amended to authorize the Salary Commission to establish the maximum salaries of all elected and appointed officials, and shall the Director of Human Resources and the Director of Finance be ex-officio, non -voting members of the commission? Purpose: This amendment would give the Salary Commission sole authority to set maximum salaries. It also adds as advisors to the commission the Director of Human Resources and Director of Finance. Background: Currently, the maximum salaries of county elected and appointed officials under the charter are recommended by the Salary Commission, subject to rejection by the County Council. This amendment would make the Salary Commission's recommendation the final step, subject to the right of appointing authorities to set actual salaries at less than the maximum. Any change in County Council salaries would still take effect in the next Council term. In addition to the seven volunteer members of the Salary Commission, the Director of Human Resources and the Director of Finance would be established as ex-officio, non -voting members to provide information on subject -matter and cost matters. CRC 2017-13 6. Proposed Charter Amendment to amend Article VII, Section 7.06 giving the Administrator of the Office of Boards and Commissions the authority to appoint or procure a hearings officer for the County of Kauai Ballot Question: Shall Article VII, Mayor, Section 7.06 be amended to authorize the Boards and Commissions Administrator to appoint administrative hearings officers and to adopt administrative rules for the conduct of contested case hearings? Purpose: This amendment would allow the Boards and Commission Administrator to appoint one or more hearings officers to oversee contested case hearings, and to establish the rules under which those hearings would be carried out. Background: County agencies hire outside hearings officers at significant expense to handle Planning Department zoning appeals and other county contested cases. This amendment would allow the appointing of dedicated hearings officers to handle such issues. Hearings officers can be attorneys or others qualified in handling appeals. The appointing authority would be placed with the Boards and Commissions Administrator to avoid conflicts with agencies that might be parties to contested case hearings or advocates for parties. This change is envisioned to improve the efficiency of the hearings process, provide for faster resolution of issues and reduce cost. CRC 2017-14