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HomeMy WebLinkAbout2018-0226-CRC Open Session Minutes ApprovedCOUNTY OF KAUA`I Minutes of Meeting OPEN SESSION Annroved as circulated 3/19/18 Board/Commission: CHARTER REVIEW COMMISSION Meeting Date February 26, 2018 Location Mo'ikeha Building, Meeting Room 2A/2B Start of Meeting: 3:02 p.m. End of Meeting: 4:40 p.m. Present Chair Carol Suzawa; Vice Chair Jan TenBruggencate; Members: Virginia Kapali, Galen Nakamura (entered at 3:12 p.m.), Ricky Watanabe, and Marissa Sandblom Also: Deputy County Attorney Adam Roversi; Boards & Commissions Office Staff. Administrative Specialist Lani Agoot, Administrator Nicholas R. Courson Excused Absent SUBJECT DISCUSSION ACTION Prior to the start of the meeting, the Commission welcomed newly appointed Administrator Nicholas Courson. Call To Order Chair Suzawa called the meeting to order at 3:02 p.m. with 5 Commissioners present. Communications There were no Communications. Approval of Meeting Minutes of January 22, 2018 Minutes Vice Chair TenBruggencate made the following amendments to the minutes: page 5, first paragraph, replace the word "they" with "that, " and replace "County Council" with "City Council" in both references. Vice Chair TenBruggencate moved to approve the meeting minutes of January 22, 2018, as amended. Ms. Kapali seconded the motion. Motion carried Charter Review Commission Open Session February 26, 2018 Page 2 SUBJECT DISCUSSION ACTION 5:0. Executive Session Minutes of January 22, 2018 Vice Chair TenBruggencate moved to approve the Executive Session minutes of January 22, 2018, as circulated. Ms. Sandblom seconded the motion. Motion carried 5:0. Business CRC 2017-05 Proposed Charter Amendment to Remove the Zoning Board of Appeals Article XIV, Subsection 14.12 — 14.14) (deferred 10123117, 11127117, 12118117, 1122118) Planning Director Michael Dahilig stated that the Zoning Board of Appeals (ZBA) did not appear to be a viable solution for both administrative purposes, as well as the ability to find volunteers to sit on the ZBA. Mr. Dahilig provided the Commission with a copy of the draft language that outlined the idea of having one hearings officer that would serve as the County's appointed hearings officer for administrative and quasi-judicial hearings. He clarified that the language was an attempt to try and meld the existing language in the Charter into a more generic and general authority for the Administrator of the Office of Boards and Commissions to implement and manage. Mr. Dahilig said he has had discussions with Mr. Courson with respect to the Planning Department's management of their hearings officer and contracts, and how those would be moved over to the Office of Boards and Commissions for efficiency and the appearance of impropriety because there tended to be issues with authority and separation of duties when the Planning Department was both appealed upon and administered the hearings officer contracts. Mr. Nakamura entered the meeting at 3:12 p.m. Mr. Dahilig further explained that the Office of Boards and Commissions would not only house the Charter Review Commission Open Session February 26, 2018 Page 3 SUBJECT DISCUSSION ACTION administrative hearings process for the Planning Department, but also the Building Division, the Engineering Division, the Department of Parks and Recreation, as well as other departments that dealt with violations. He said that Section 46-1.5 (24) of the Hawaii Revised Statutes gave the counties general authority to institute administrative civil fines which required due process. Mr. Dahilig added that although the Planning Department was not exclusive to the idea that the administrative hearings process be housed under the Office of Boards and Commissions, he did feel that the Office of Boards and Commissions had intimate knowledge of the administrative functions of many boards and commissions that engage in administrative hearings. Mr. Dahilig concluded by saying the suggested language was a replacement to Sections 14-12 and 14-13 of the Kauai County Charter. Vice Chair TenBruggencate stated that the language sounded like it limited the position to a single individual, and asked if there should be flexibility to expand that position to provide staff for the position. Mr. Dahilig replied that it depended on how the integrity of a hearings officer was viewed by either party. He said the Planning Commission was serviced by two hearings officers due to conflict of interest issues and if the language was not broad enough to accommodate for situations where multiple hearings officers may be needed because of conflict of interest issues, it would make sense to accommodate for that. Vice Chair TenBruggencate suggested that after discussion on the item, the matter be referred to the Commission's attorney to make sure there was enough flexibility in the language to accommodate future expansion if necessary. Ms. Kapali asked whether or not the draft language was a two-part proposal; one, to repeal the ZBA which would be the first Charter amendment and, two, to include a hearings officer in the Office of Boards and Commissions. Mr. Dahilig clarified that the proposal was a repeal and replace type of measure, and that it was not the Planning Department's intention to leave the Charter devoid of any option to provide the Office of Boards and Commissions an option to formally refer administrative hearings over to "something." However, he did recognize that the current Charter amendment was not yielding the volunteer participation necessary to make the ZBA viable. Ms. Kapali asked if the other boards and commissions that processed appeals had their own hearings officers to which Mr. Dahilig provided that the Planning Department's hearings officers were appointed by the Planning Charter Review Commission Open Session February 26, 2018 Page 4 SUBJECT DISCUSSION ACTION Commission and procured using funds appropriated by the County Council. He said the proposal that was put before the Charter Review Commission 2 %2 years ago, with respect to 14-12 and 14-13, was a means to try and rein in hearings officer costs, while at the same time provide clearer authority that was distinct and separate from the Planning Commission. As of today, close to half a million dollars have been accrued in hearings officer costs for contested case hearings, and those costs were going to be a chronic maintenance issue given the higher degree of litigiousness with regard to the decisions made by both the Planning Commission and the Planning Department. Mr. Dahilig stated that the Planning Department's Enforcement Division, which was their newest and largest division, handled hundreds of cases a year, and that the Planning Commission's contested case hearings load was over 30 active cases. Vice Chair TenBruggencate questioned whether or not the hearings officers should be situated in the County Attorney's Office to which Mr. Dahilig explained that there have been some contested case hearings that suggested conflicts of interest with the County Attorney's Office and advised that Vice Chair TenBruggencate's question was better suited for the Commission's attorney in an executive session. Deputy County Attorney Adam Roversi stated that in any administrative hearing, a deputy county attorney would represent a department before the hearings officer. Housing a hearings officer in the County Attorney's Office with all the deputy county attorneys invited allegations of conflicts of interest. Vice Chair TenBruggencate asked whether or not a hearings officer within the Office of Boards and Commissions to handle appeals for a specific department would be in the same position. Mr. Roversi clarified that one of the factors that courts considered when looking at conflicts of interest under the rules of Professional Conflict was the physical layout of offices, and peoples' proximity to each other. The simple fact that a hearings officer in the Office of Boards and Commissions would be in a different set of offices, using a different support staff, created a barrier that would assist in making that determination. Vice Chair TenBruggencate asked whether or not a hearings officer had to be an attorney, and Charter Review Commission Open Session February 26, 2018 Page 5 SUBJECT DISCUSSION ACTION whether or not qualifications should be added to the proposed language. Mr. Dahilig replied that most hearings officers were the result of the Chapter 91 statute in Hawaii Law; however, the statute did not provide qualifications or any type of description as to who could serve as a duly appointed hearings officer. He suggested the question was best put to the Commission's attorney if there were concerns related to issues of liability or defensibility of the Charter amendment. Chair Suzawa asked Mr. Dahilig if the hearings officers in the Planning Department were lawyers to which he replied yes. Chair Suzawa then asked if the Planning Department followed their current procedures for appeals because of the lack of a ZBA to which Mr. Dahilig provided that the Planning Commission had rules, pursuant to Chapter 91 of the Hawaii Revised Statutes, that laid out the due process elements and responsibilities of the various parties in a contested case hearing. He said the ZBA was a shell at this point and had not been able to convene itself to create administrative rules. Whether or not that needed to be reconciled with the individual authorities across the County or could be pulled together in a generalized due process that the rest of the jurisdictional agencies could conform to, was a broad question. Mr. Dahilig read from the proposed draft language, "The Administrator may adopt rules of procedure for the conduct of hearings as they relate to general due process and or specific subject matter. " He explained that certain administrative elements may be required of certain types of hearings; in other cases they may not. As an example, he said that a park's trespassing violation that was given a civil fine may be different from a transient vacation rental violation in terms of what elements of due process were necessary. Mr. Dahilig added that from an operational efficiency standpoint, having the various hearings handled by someone who understood quasi-judicial processes could create the appropriate documentation pursuant to Chapter 91. Vice Chair TenBruggencate suggested adding "or officers " to the second line of the proposed language in order to provide the flexibility to expand as demands changed. Mr. Dahilig agreed that that would provide the Administrator flexibility and a variety of tools at his disposal. Given the Commission's earlier discussion regarding conflicts of interest, as well as the subject matter, he could see where Vice Chair TenBruggencate's suggestion was relevant. Charter Review Commission Open Session February 26, 2018 Page 6 SUBJECT DISCUSSION ACTION Ms. Sandblom asked whether or not the Planning Department would still need hearings officers if the proposed repeal/replace option was adopted to which Mr. Dahilig replied probably not; however, it was incumbent on each of the different agencies or the County Council to either mandate that the hearings go to the hearings officer, or that each of the boards and commissions or directors elected to send cases over to them. He added that the Planning Commission would probably want some degree of flexibility to be able to retain hearings officers if necessary. Vice Chair TenBruggencate asked if the proposed language prevented the Planning Commission from hiring a hearings officer to which Mr. Dahilig said no. Mr. Nakamura commented that the proposed language mentioned park rules violations and asked Mr. Dahilig if he knew how those violations where handled to which he replied no. Mr. Dahilig said that the hearings officers in his department have also handled cases for the Department of Water. Administrator Nicholas Courson stated that the Kauai Police Department is considering the idea of a hearings officer because they are looking into acquiring towing services which would require due process. Mr. Roversi commented that the Driver's License Division, on occasion, held contested case hearings as well. Vice Chair TenBruggencate asked whether or not the proposed language allowed the County Council to assign appeals to a hearings officer by ordinance for other departments when necessary to which Mr. Dahilig replied that was the intent; however, he would leave it up to the attorneys to provide specific language. Mr. Watanabe stated that the agenda item was posted incorrectly because the item was specifically about repealing the ZBA, not about replacing language. He suggested deferring and reposting the agenda item correctly. Vice Chair Charter Review Commission Open Session February 26, 2018 Page 7 SUBJECT DISCUSSION ACTION TenBruggencate moved to refer CRC 2017-05 to the Commission's attorney for consideration, and repost the corrected agenda item on the next meeting's agenda. Mr. Watanabe seconded the motion. Mr. Nakamura moved to amend the main motion by requesting the Commission's attorney research the processes of other counties. Vice Chair TenBruggencate seconded the motion. Motion carried 6:0. Motion carried 6:0. Chair Suzawa called for the vote on the main motion as amended. CRC 2017-03 Proposed Charter Amendment to Remove Article IX relating to the Public Defender (second consideration and final approvals Vice Chair TenBruggencate moved to approve CRC 2017- 03 for placement on the 2018 ballot. Mr. Watanabe seconded the Charter Review Commission Open Session February 26, 2018 Page 8 SUBJECT DISCUSSION ACTION motion. Ms. Kapali moved to amend the main motion by amending the ballot question by adding a comma after "county council", followed by "by ordinance ", followed by a comma. Ms. Kapali clarified her motion by saying that when she read the proposed ballot question, it sounded as if the County Council could provide legal counsel. Mr. Watanabe agreed. Chair Suzawa stated that as a layman, with the way the proposed ballot question was written, she would vote "no" because she wanted counsel to be provided to anyone who couldn't afford it, and that she wanted to add "because it is rendered to be obsolete by mandated state statutes. " As a point of information, Mr. Roversi stated that the title, ballot question, purpose, and the background are provided in the public education materials that the Commission is required to develop and distribute as widely as possible. Chair Suzawa commented that the reality was that people would, for the most part, only look at the question. Mr. Roversi added that the Commission had the final authority regarding the ballot question language; however, as he previously opined at past meetings, it was important that the ballot questions were objective without a lot of qualified language attempting to convince voters to vote a certain way. He said the hope was that voters would educate themselves with the materials provided by the Commission before they vote. Ms. Sandblom commented that whether you are for or against the proposed Charter amendment, the fact is that Article IX is obsolete. Vice Chair TenBruggencate suggested adding the following language to the end of the proposed Charter Review Commission Open Session February 26, 2018 Page 9 SUBJECT DISCUSSION ACTION ballot question: "[A]s this function is already provided by the state. " He said he didn't feel the added language would sway voters in a bad way. Mr. Watanabe commented that the ballot question was already clear as it was written. Ms. Kapali stated that her motion to amend failed due to the lack of a second. Vice Chair TenBruggencate moved to amend the main motion by amending the ballot question by replacing the question mark with a comma, and adding "as this function is already provided by the state ", followed by a question mark. Mr. Nakamura seconded the motion. Motion carried 6:0. Motion carried 6:0. Chair Suzawa called for the vote on the main motion as amended. CRC 2017-04 Proposed Charter Amendment to Remove Article XXX relating to the Electric Power Authority (second consideration and final approval Vice Chair TenBruggencate recused himself from this agenda item. Mr. Nakamura moved to approve CRC 2017-04 for placement on the 2018 ballot. Mr. Charter Review Commission Open Session February 26, 2018 Page 10 SUBJECT DISCUSSION ACTION Watanabe seconded the motion. 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 or those lands or property entitlements (deferred 11127117, 12118117, 1122118) Deputy Planning Director Ka`aina Hull and Open Space Commission Specialist Nani Sadora were present on behalf of the Open Space Commission. Mr. Hull stated that after previous discussions with the Charter Review Commission and Commissioner Nakamura's suggestion to expand the language to include existing public accesses or open space in the proposed amendment, the Planning Department wanted to also utilize the monies to not only maintain certain sites, but to also make physical improvements when necessary. The original proposed language read: "The monies in this fund shall be utilized for purchasing or otherwise acquiring lands or property entitlements and the corresponding maintenance of those lands or property entitlements..." The new proposed language would read: "The monies in this fund shall be utilized for purchasing or otherwise acquiring lands or property entitlements and any corresponding improvement and maintenance of those lands or property entitlements..." He said the amended language would allow the fund to be utilized for maintenance and improvements of any lands that were acquired with the Open Space Commission fund. Mr. Hull explained that there are public accesses that exist only on paper, identified by either tax map keys or with the Bureau of Conveyances, but are not demarcated when you went to the physical site. He said the Open Space Commission conducted a study several years ago that identified those sites; however, they are unable to use the fund to physically identify the sites for the public. Mr. Hull said in discussing the proposed language with his department and the County Attorney's Office, there was some hesitation from all parties with regard to using the fund for any open areas or public lands because, for instance, the administration could use the fund to maintain all County parks. He clarified that the intent was to utilize the funds to identify and demarcate public accesses to coastal areas, and that the Charter Review Commission Open Session February 26, 2018 Page 11 SUBJECT DISCUSSION ACTION language was particularly narrow for existing public lands in order to protect the integrity of the fund to be used for the purposes for which it was originally created. Ms. Kapali asked if the funds for improvements were only for properties acquired by the Open Space Commission. Mr. Hull explained that there were two potential ways to deal with improvements; one, improvements of only those properties acquired by the fund and, two, if they are existing public properties in coastal pedestrian accesses. Ms. Kapali stated that whoever created the coastal accesses should pay for the demarcation and/or maintenance and asked why the Open Space Commission was considering those accesses. Mr. Hull clarified that under the current subdivision ordinance, landowners were only required to convey the access with the Bureau of Conveyances. The access is put on a map and states it is for the purpose of pedestrian access to the coast. The subdivision ordinance does not mandate that the landowner demarcate or maintain the access. Mr. Hull added that the Planning Department was considering revamping the subdivision ordinance to require that landowners, at the very least, demarcate public accesses to the coast, and possibly provide maintenance as well. He said large-scale developments that require a Class IV Zoning Permit and Use Permit, which are discretionary permits, have to go before the Planning Commission and conditions can be imposed to ensure the needs of the community are met given the nexus of the project and what it would entail in a coastal area. Mr. Nakamura asked whether or not the accesses were easements to which Mr. Hull replied that a vast majority were easements; however, there had been some scenarios in which the property owner conveyed it to either the State or the County, but if wasn't in the State or County's parks master plan, it wouldn't get the afforded resources to maintain it. He said there were some accesses within the County, but they were not maintained because they were never wrapped up within the Department of Parks and Recreations' plan to prioritize resources for the accesses. Ms. Sandblom inquired about the possibility of imposing a cap on funds used for maintenance that was suggested by Chair Suzawa at the previous meeting to which Mr. Hull provided that while the Department was not adamantly against the idea, the Department felt that given the cost of coastal properties on Kauai, placing a cap could potentially prohibit the Commission from being able to Charter Review Commission Open Session February 26, 2018 Page 12 SUBJECT DISCUSSION ACTION implement infrastructure or projects deemed necessary. Mr. Nakamura commented that any monies used would have to go through the budget appropriation process and require approval from the Mayor and the County Council. Mr. Hull agreed, adding that the Open Space Commission was an advisory body to the County Council, and that the County Council had to go through a public hearing process and analysis to determine whether or not they were going to expend those funds. He reiterated the concern that imposing a cap could put the Open Space Commission in a position whereby they had to say they could not prioritize the implementation of infrastructure or maintenance at a particular site because the funds had run low. Ms. Kapali shared that she liked the idea of providing the Open Space Commission the flexibility to provide maintenance for lands they had acquired. Vice Chair TenBruggencate agreed, and said he felt the Open Space Commission should have the authority to make those decisions. Mr. Hull stated with regard to previous discussions about the possibility of funding a salary position for the maintenance of the sites, the Department didn't feel it was necessary based on the lack of projects and the fact that the Open Space Commission program was still relatively young. He said anything that would require long-term maintenance could be addressed in the Department's budgetary process with the County Council. Ms. Kapali commented that she would have reservations about adding another salaried position for maintenance. Mr. Hull added that the Department, on behalf of the Open Space Commission, did not want to put a salaried position in the proposed Charter amendment because they felt there would be a risk of the amendment not passing. Vice Chair TenBruggencate agreed, saying that funding a new position would have to be approved by the County Council; however, the County Council could create a position without a Charter amendment. Mr. Hull questioned whether or not the proposed language submitted to the Commission that included "improvements" had been properly agendized for Sunshine Law purposes. Mr. Roversi said technically it was not, and suggested the proposed Charter amendment with the additional language be deferred and properly agendized. Charter Review Commission Open Session February 26, 2018 Page 13 SUBJECT DISCUSSION ACTION Vice Chair TenBruggencate pointed out that there were two proposals before the Commission with the same number which was problematic. He added that the second proposal had two changes as well as numbering issues, and asked Mr. Hull to make the appropriate changes for next month's Vice Chair meeting. TenBruggencate moved to defer CRC 2017-08 to the next meeting. Mr. Nakamura seconded the motion. Motion carried 6:0. CRC 2017-13 Proposed Charter Amendment allowing the Salary Commission complete authority establish the salaries of all elected and appointed officials (deferred IZLI8I Mr. Nakamura stated that the proposed language would revise the current structure of the Charter and allow the Salary Commission to set salaries for all elected and appointed officers, as well as add the Director of Human Resources and the Director of Finance as ex-officio members of the Salary Commission. First Deputy County Attorney Matthew Bracken stated that he was the attorney assigned to the Salary Commission and has been for the past three years. He said the Salary Commission didn't look at people when determining salaries, they looked at positions and used past studies, received public testimony, and looked at comparable salaries in different counties within the State of Hawaii and throughout the Unites States. Once the Salary Commission's work was completed, they prepared a salary resolution and sent it to the County Council. He said sometimes the County Council would request reports and when the Salary Commission submitted those reports, the Council has kind of torn those reports apart and did their own analysis and essentially disagreed with the Salary Commission. When the Salary Commission didn't provide reports, the County Council basically said the Salary Commission didn't do any work and voted the salary resolution down. In addition, some councilmembers, being fairly confident they would be re-elected, have voted down salary resolutions because they didn't want to vote on their own raises. Mr. Bracken said that his Charter Review Commission Open Session February 26, 2018 Page 14 SUBJECT DISCUSSION ACTION own personal observation was that there was a morale issue on the Salary Commission because going before the County Council was a difficult experience for the members. He said when the salary resolutions go to the County Council, they kind of become a political issue, and that in the past, councilmembers have attended Salary Commission meetings and stated they would not vote on a particular salary resolution because they didn't feel certain people deserved raises. Because of this, the Salary Commission has cut up salary resolutions so that at least some people would get raises. Mr. Bracken stated that the Salary Commission completely supported the proposed Charter amendment. Ms. Sandblom asked whether or not the word "complete " needed to be included in the proposed language. Vice Chair TenBruggencate said no, that the language did say that without the added word. He said it would be wrong to add "complete authority" because the Mayor or the County Council, in the case of the County Clerk, still had the authority to pay them less. Mr. Nakamura said the proposed language repealed the County Council's authority, and that the structure of the proposed language followed other counties. Ms. Sandblom stated that she felt the proposed amendment had to be one item because having the Director of Human Resources and the Director of Finance serve as ex-officio on the Salary Commission was very important for the overall fiscal responsibility. Chair Suzawa asked for clarification regarding Section 23.01 D of the Charter because other counties defined exactly who they were going to provide raises for; however, the Kauai County Charter did not. Mr. Roversi provided that as a matter of past practice and in interpreting the Charter, the Salary Commission's annual resolution included virtually all department heads and elected officials except the executives in Transportation and Aging; traditionally those salaries were set by the Mayor and Council's appropriation process as opposed to the salary resolution. Chair Suzawa stated that when she read Section 23.01 D, it was unclear what positions the salary resolution included and asked whether or not that could be made any clearer. Mr. Roversi said that the Salary Commission had a list of the department heads and elected officials that were part of the Charter Review Commission Open Session February 26, 2018 Page 15 SUBJECT DISCUSSION ACTION salary resolution. He said the difficulty in 23.01 was that it involved State civil service law, which meant the County was at the mercy of civil service laws as defined by the State legislature, and civil service positions were automatically excluded from the authority of the Salary Commission. He added that civil service laws could change over time and adding a list could put the County in conflict with State civil service law; if the State laws changed, the list would be stagnant. Ms. Sandblom asked if a list of the positions the Salary Commission had authority over could change over time because some positions were at the mercy of other factors to which Mr. Roversi replied that was his understanding; however, he could provide a more satisfying response at a future meeting. Vice Chair TenBruggencate asked why the Aging and Transportation executives were not included, and whether there was language that could be inserted that would include them to which Mr. Roversi said he could further explain the issue in an executive session at a future meeting. Chair Suzawa asked whether or not the Charter could make reference to the Salary Commission's list of positions to which Mr. Roversi clarified that under Section 23.01 D, every department head and appointed position should be on the list unless they are exempt by State law. Vice Chair TenBruggencate stated that if there was no further discussion, he suggested the item be deferred to the end of the agenda, following an executive session. Ms. Sandblom asked whether or not the Salary Commission fully supported the proposed Charter amendment as written to which Mr. Bracken said he had seen the language, however, the Salary Commission had not discussed the specific language; only the concept of which they were in full support. Chair Suzawa asked Mr. Bracken for comments regarding the addition of the Director of Human Resources and the Director of Finance as ex-officio members of the Salary Commission to which Mr. Bracken stated that he personally thought it was a good idea, and that the Salary Commission had, in the past, looked at whether or not the County could afford the raises and invited the Director Charter Review Commission Open Session February 26, 2018 Page 16 SUBJECT DISCUSSION ACTION of Finance to the meetings. He said the Director of Human Resources would also bring valuable insight and was familiar with job descriptions. Mr. Nakamura moved to approve CRC 2017-13. Mr. Watanabe seconded the motion. Mr. Roversi suggested that an executive session for the item be placed on the next meeting's agenda. Vice Chair TenBruggencate moved to amend the main motion by adding the item be referred to the Commission's attorney for review, and to provide a report at the next meeting in Executive Session. Mr. Nakamura requested that the Director of Human Resources be invited to the next meeting. Chair Suzawa called for the vote. Motion carried 6:0. Announcements Next Meeting: Monday, March 19, 2018, 3:00 p.m., in the Mo'ikeha Building, Meeting Room 2 AB Adjournment Chair Suzawa adjourned the meeting at 4:40 p.m. Submitted by: Reviewed and Approved by: Charter Review Commission Open Session February 26, 2018 Page 17 Lani Agoot, Administrative Specialist () Approved as circulated. () Approved with amendments. See minutes of meeting. Carol Suzawa, Chair