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HomeMy WebLinkAbout09/02/2015 Council minutes COUNCIL MEETING SEPTEMBER 2, 2015 The Council Meeting of the Council of the County of Kaua`i was called to order by Council Chair Mel Rapozo at the Council Chambers, 4396 Rice Street, Suite 201, Lihu`e, Kaua`i, on Wednesday, September 2, 2015 at 8:34 a.m., after which the following Members answered the call of the roll: Honorable Mason K. Chock Honorable Gary L. Hooser (present at 8:44 a.m.) Honorable Ross Kagawa Honorable Arryl Kaneshiro Honorable KipuKai Kuali`i Honorable JoAnn A. Yukimura Honorable Mel Rapozo APPROVAL OF AGENDA. Councilmember Kagawa moved for approval of the agenda as circulated, seconded by Councilmember Kuali`i, and carried by a vote of 6:0:1 (Councilmember Hooser was excused). MINUTES of the following meetings of the Council: July 1, 2015 Council Meeting July 15, 2015 Council Meeting August 5, 2015 Council Meeting Councilmember Kagawa moved to approve the Minutes as circulated, seconded by Councilmember Kuali`i, and carried by a vote of 6:0:1 (Councilmember Hooser was excused). CONSENT CALENDAR: C 2015-231 Communication (08/03/2015) from the County Engineer, transmitting for Council consideration, a Resolution Establishing Truck Restrictions for Nani Street and Leleiona Street, Lihu`e District, County of Kaua`i, State of Hawai`i: Councilmember Kagawa moved to receive C 2015-231 for the record, seconded by Councilmember Kuali`i. C 2015-232 Communication (08/14/2015) from the Director of Finance and the Accounting Systems Administrator, transmitting for Council information, the Inventory Report for the Fiscal Year Ending, June 30, 2015: Councilmember Kagawa moved to receive C 2015-232 for the record, seconded by Councilmember Kuali`i. C 2015-233 Communication (08/19/2015) from the County Attorney, transmitting for Council information, the Quarterly Report on Settled Claims against the County of Kaua`i from April 1, 2015 through June 30, 2015: Councilmember Kagawa moved to receive C 2015-233 for the record, seconded by Councilmember Kuali`i. COUNCIL MEETING 2 SEPTEMBER 2, 2015 There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: The motion to receive C 2015-231, C 2015-232, and C 2015-233 for the record was then put, and carried by a vote of 6:0:1 (Councilmember Hooser was excused). COMMUNICATIONS: C 2015-223 Communication (07/30/2015) from the Prosecuting Attorney, requesting Council approval to receive and expend Federal funds in the amount of $163,000, and approval to indemnify the State of Hawai`i, Department of the Attorney General, for the Sex Assault Prosecution Unit, for the period of January 1, 2016 through December 31, 2016, to create a Sex Assault Prosecution Unit, which will consist of a 0.90 Full Time Equivalent (FTE) Special Prosecuting Attorney and 1.00 FTE Legal Clerk, as well as training, an increase in the contract with the YWCA Sexual Assault Treatment Program, supplies, and equipment: Councilmember Kagawa moved to approve C 2015-223, seconded by Councilmember Yukimura. (Councilmember Kuali i was noted as recused from C 2015-223.) Council Chair Rapozo: At this time Councilmember Kuali`i will be recusing himself as he is an employee of the Young Women's Christian Association (YWCA). With that, I will ask the Prosecuting Attorney to come up. Everyone should have the responses from the questions that were posed after last week's Committee Meeting. Good morning, Justin, and thank you for being here. There being no objections, the rules were suspended. JUSTIN F. KOLLAR, County Prosecuting Attorney: Good morning. Council Chair Rapozo: I guess we can start with your responses, and then we will open it up for questions. Mr. Kollar: We did submit the responses to the questions as received from the Budget & Finance Committee Chair Kaneshiro last week, and I can entertain any questions you may have concerning those responses. Council Chair Rapozo: Let us start with the total number of cases received from the Kaua`i Police Department or other agencies, as it relates to sex assaults. Mr. Kollar: From the time our case management system went live in 2013, including all of the cases that existed at that time that we rolled into the case management system; since the system went live, we have inputted one hundred twenty-seven (127) charges concerning sex assault in the first degree, twenty-eight (28) sex assault charges in the second degree, eighty (80) sex assault in the third degree, twenty-six (26) sex assault in the fourth degree, twenty-six (26) charges arising under non-compliant sex offender registration statutes, nine (9) continuous sex assault of minor under 14, three (3) promotion child abuse in the first degree, four (4) promoting child abuse in the second degree, two (2) promoting child COUNCIL MEETING 3 SEPTEMBER 2, 2015 abuse in the third degree, and one (1) electronic enticement of a child case. As we noted, "A case filed in court may result contain multiple charges," so the total number of charges maybe different from the number of total cases. The total number of cases process per our review of the cases, yield at a total of two hundred (200) sex assault and related cases from July 1, 2013 to current. Council Chair Rapozo: That is two hundred (200)? Mr. Kollar: Two hundred (200) — two, zero, zero. Council Chair Rapozo: That is cases that... Mr. Kollar: That is cases filed in court. Council Chair Rapozo: How many cases came over to your Office from the Kaua`i Police Department (KPD)? I know you have the charges here. Mr. Kollar: Yes, that is two hundred (200) that we took any action on in the Office. Council Chair Rapozo: That includes cases that were not sent to court. Mr. Kollar: Correct. Council Chair Rapozo: And out of the two hundred (200), and I am not talking about the charges, but just the cases, how many cases were charged? Mr. Kollar: One hundred and thirty-one (131). Council Chair Rapozo: On the declined prosecution on your list, you have sixty-nine (69). Mr. Kollar: Yes. Council Chair Rapozo: Are those charges or cases? Mr. Kollar: Cases. Council Chair Rapozo: Those are cases? Mr. Kollar: Yes. Council Chair Rapozo: And the reasons vary because... Mr. Kollar: We cited the most common reasons there that includes, insufficient evidence to prove beyond a reasonable doubt, unable to contact victim, victim does not wish to proceed or cooperate with prosecution, statute of limitation issues, suspect decreased, or suspect unknown. Those are the primary categories that the "declines" would fall in to. Council Chair Rapozo: And cases convicted as charged. COUNCIL MEETING 4 SEPTEMBER 2, 2015 Mr. Kollar: Convicted as charged per our review was five (5). Cases resolved via plea agreement — fifty-five (55). Cases... Council Chair Rapozo: Hang on real quick. Five (5) convicted as charged? Mr. Kollar: Correct. Council Chair Rapozo: What was the next one? Mr. Kollar: Fifty-five (55) resolved via plea agreement. Twenty-four (24) pending or on warrant status, that are open. Six (6) cases resulted in dismissals. One (1) guilty after trial. One (1) not guilty after trial. Then thirty-six (36) pending screening inside the Office. Council Chair Rapozo: And the cases that were plead were from felonies to misdemeanors? Mr. Kollar: There were two (2). Council Chair Rapozo: The other fifty-three (53) were felony to felony. Mr. Kollar: Correct. Council Chair Rapozo: Anyone else have questions? Councilmember Yukimura: Thank you, Justin, for being here, and the quick turnaround on our questions. Mr. Kollar: Sure. Councilmember Yukimura: In your reasons for declining to prosecute, do you know how many were not prosecuted because the victim did not want to proceed or cooperate? Mr. Kollar: I do not have a specific count on that. We track declines and then we have our category of reasons. We do not track declines per specific reason, just because they can vary from case to case. The decision is always based on the total circumstances of the case. A percentage of those sixty-nine (69) would be cases where either the victims moved on with their life and do not want to go through the process of having a court trial or otherwise unwilling or unable to proceed. Councilmember Yukimura: Okay. Council Chair Rapozo: Can I ask a clarification question real quick, Councilmember Yukimura? Councilmember Yukimura: Sure. Council Chair Rapozo: On a case such as a victim not wishing to move forward, is that their call? COUNCIL MEETING 5 SEPTEMBER 2, 2015 Mr. Kollar: Ultimately, it is up to us. We do try to take a victim-centered approach in making the decision. We do not want to do anything that is going to make the victim's life worse, but there are always completing objectives. Council Chair Rapozo: Right. Mr. Kollar: There may be cases where a victim does not want to proceed, but we will say, "This is something that is important enough that we have to proceed anyway." Council Chair Rapozo: In my experience, on a family abuse... Mr. Kollar: Yes, that is where that would most frequently come up. Council Chair Rapozo: But on a family abuse, whether they want to move forward or not, the case goes forward right? Mr. Kollar: Generally speaking, yes. Council Chair Rapozo: But in a sex assault, not necessarily? Mr. Kollar: Not always. We do not want to put the victim through a situation where they are going to be traumatized or put into a damaging situation for them. Council Chair Rapozo: I understand that wholeheartedly, because you do not want to have the victim the agony, but there is also the public safety concern. Mr. Kollar: Correct. Council Chair Rapozo: You have a sexual offender who is not going to be prosecuted. Mr. Kollar: That is why we do maintain the final decision-making authority and we always balance those different factors. Council Chair Rapozo: It would be important for me to know how many of those were declined because the victim did not move forward. I think in many of these domestic cases such as family abuse, once the trigger is pulled and they realized what they have done, they get...and I have seen it so many times. That is why I thought we had the zero tolerance whereas if the evidence is there, we are moving whether the victim wants to or not. Mr. Kollar: Well, if we are talking about domestic violence cases... Council Chair Rapozo: No, I am talking about sex assault. Mr. Kollar: Sex assault cases, we do not have a policy where we will force the victim to go through a trial if they are adamant that they do not want to do that. COUNCIL MEETING 6 SEPTEMBER 2, 2015 Council Chair Rapozo: Wow. Mr. Kollar: But again, it depends on whether we can prove the case through other sources or avenues, or if there are other evidence that will support the case. Council Chair Rapozo: Okay. Is that the same standard that you use for family abuse? Mr. Kollar: Again, with family abuse cases, the decision-making is up to us. If we can prove the case through other avenues or methods, then we do move forward with the case. We do have many domestic abuse cases where the victim does not go forward for various reasons, but we will move forward with the case. If it is a situation where they are going to come in and lie on the stand and we are not going to prove the case through other means, than we have to look at what is the best use of our resources. Council Chair Rapozo: The bottom line for me is the standard or whether or not we move forward on a case for sexual assault should be a lot...we should be moving forward more so on sex assaults because there is a public safety issue versus a domestic violence, which the victim is usually the only victim. Mr. Kollar: Yes, absolutely. Council Chair Rapozo: And if he or she chooses not to, that is their call, but on a sex assault, I do not know... Mr. Kollar: If we have somebody who is posing a risk of danger to the community, then obviously, we would do everything we can to address that problem. Council Chair Rapozo: Councilmember Yukimura. Councilmember Yukimura: I appreciate the dialogue. It addressed the beginning ideas that prompted me to ask the question, thank you. Mr. Kollar: Sure. Council Chair Rapozo: Councilmember Kagawa. Councilmember Kagawa: I have a question relating to the two hundred (200) cases filed in court. Council Chair Rapozo: Councilmember Kagawa, we have two (2) memorandums, correct? Councilmember Kagawa: Yes. Council Chair Rapozo: One is dated August 27th and the other August 28th, so if you could just let us know which one you are referring to. Councilmember Kagawa: I am looking at the August 27th numbers. Is the August 28th responses more accurate? COUNCIL MEETING 7 SEPTEMBER 2, 2015 Mr. Kollar: They should be the same numbers. Councilmember Kagawa: How did you get the two hundred (200)? If I add the one hundred and twenty-seven (127) plus... Mr. Kollar: No, that is the total number of charges that came in from KPD. Councilmember Kagawa: The charges that came from KPD is much higher than two hundred (200). Mr. Kollar: It is going to be higher than the number of cases, because you can have multiple charges go into one case. Councilmember Kagawa: I see. Therefore, you could have one (1) case that has a charge in the first, second, and third. Mr. Kollar: Correct. Councilmember Kagawa: Thank you. On the second page, the one hundred thirty-one (131) that is charged, what columns do I add? Mr. Kollar: That is going to be... Councilmember Kagawa: I know I am not going to add the pending, right, because it is not charges. Mr. Kollar: Not the pending screening cases, correct. Councilmember Kagawa: Okay, if I add the rest, that is still more than...I am not sure which ones to add to get the one hundred and thirty-one (131). Mr. Kollar: That is basically the two hundred (200) minus the sixty-nine (69) declined prosecution. Councilmember Kagawa: Oh, okay. Thank you. Council Chair Rapozo: Any further questions on the responses? Councilmember Yukimura: I have a question. Council Chair Rapozo: Go ahead. Councilmember Yukimura: Your answer to the August 28th response, page 2, and thank you for clarifying what your outcomes are, where you say "Letting the community know of the danger posed by offender," how do you do that? Mr. Kollar: That is by filing the case in the court, and by letting the public know what the dispositions of the cases are. If there is a conviction of a serious case, we will do a media release. Councilmember Yukimura: Okay. I have a question that is may be for Renae, but there is twenty-one thousand dollars ($21,000), is that correct? COUNCIL MEETING 8 SEPTEMBER 2, 2015 Mr. Kollar: Yes, twenty-one thousand dollars ($21,000) under the grant would be to support the Sex Assault Treatment Program at the YWCA. Councilmember Yukimura: And the primary action highlighted was, "Purchase of cellphones," which I understand can really be a big help for those who do not have a place to stay or a landline available. Mr. Kollar: Correct. Councilmember Yukimura: But not all of the eighteen thousand dollars ($18,000) is going to cellphones. Mr. Kollar: Oh, no. Councilmember Yukimura: Can we get an explanation? Mr. Kollar: Sure, I think Renae is here. RENAE HAMILTON, Executive Director, YWCA of Kaua`i: Aloha Council. Thank you for giving me the opportunity to be here. The funds that would be coming to the YWCA would help support our continued crisis-line and crisis counselors ongoing with that, and even more so from this grant, it would help us continue to do outreach and let the community know as Justin was just talking about those efforts, due to a funding decrease that we were just notified of last month of the Attorney General. I have had to suspend our prevention/education efforts. This will help us continue whatever ways possible to do outreach with our crisis workers and continue to be there twenty-four (24) hours a day. Councilmember Yukimura: Thank you. This is a four (4)year grant or one where you can reapply year after year, for three (3) more years. Mr. Kollar: Yes. Councilmember Yukimura: Is that something that the YWCA can potentially get for the next four (4) years? Mr. Kollar: Yes. Councilmember Yukimura: I see that grant funds, at least for the prosecutor cannot be used to pay for existing staff and/or efforts. Mr. Kollar: Correct. Councilmember Yukimura: Does that apply to the YWCA? Mr. Kollar: The anti-supplanting provisions would not let us pay for things that we are already doing and funding through the County. They would let us fund activities that we are not currently doing via our Office. Councilmember Yukimura: They want to see additional services. Mr. Kollar: Correct. COUNCIL MEETING 9 SEPTEMBER 2, 2015 Councilmember Yukimura: In the case of the funding for prevention and education that is certainly not supplanting. Mr. Kollar: No. Councilmember Yukimura: For your Office that is the anti-supplanting as you say, but does that apply to the YWCA? Mr. Kollar: Our contract is with the Department of Attorney General and the anti-supplanting provisions would prevent us from using the grant fund to fund any County activities that we are already supporting with County funds. Therefore, we cannot replace County funds with the grant funds. Councilmember Yukimura: So you are saying that as long as it is not County funds... Mr. Kollar: If it is going to fund something that they are not currently doing or we are not currently doing, than it is not supplanting. Councilmember Yukimura: Right. Mr. Kollar: We cannot use that to reduce the County funds that we are putting into what we are doing. Councilmember Yukimura: Yes, understood. Seeing that one arm cuts off moneys and the other arm are giving moneys is somewhat crazy, but it is for the community that the services will not be cut, but your crisis-line and crisis counselor functions... Ms. Hamilton: They are ongoing, but they do not do any of the outreach efforts that we have done before, and now with our crisis coordinator, we are going to try and use her more for some of the prevention and outreach efforts, which we have not done before. So, that will be new to that program. Councilmember Yukimura: I would not mind if the moneys were used to continue crisis-line and crisis counseling. There should be sustained funding for that. Are there performance outcomes that you are looking at for you folks? Ms. Hamilton: For this particular grant, I know that there is the purchase of the cellphones mainly for victims who may have been homeless. We want to do more outreach to that population for that. We did change our policy from the YWCA that I think helps us serve the community better is with the family violence shelter, so even victims who may be homeless, or victims who have a home, but is not safe for them to return, they are able to come to the family violence shelter for a safe place. We have made changes to our policies and procedures in that way, in trying to include everybody. We are going to look at the numbers in terms of, will there be additional people who will stay at the shelter because of this, since it is a safe place to go to instead of feeling displaced or going somewhere that is not as comfortable or meeting their basic needs. So, we will be keeping track of that as well. Councilmember Yukimura: How many of the sexual assault victims that you provide for are homeless? COUNCIL MEETING 10 SEPTEMBER 2, 2015 Ms. Hamilton: From our numbers we do not really...when they go to the family violence shelter, everybody is considered homeless. We have had three (3) sexual assault victims within the last two (2) years that have gone to the family violence shelter and stayed there for a period of time. Councilmember Yukimura: Of course, the phone would not just be made available to people who are actually homeless, because as you say, even for people who are in a family in a home, they may have to leave that home in order to be safe. Ms. Hamilton: Correct. There are times where we also work with the Department of Human Service, Child Welfare Services, and with the sexual assault/sexual abuse, there are times where the families have been ordered if the offender is the father, step-father, or somebody who lives within the house, and if they are not leaving, there are times where that entire family has gone to the family violence shelter and stayed there. Councilmember Yukimura: How do you measure whether your prevention efforts work? Ms. Hamilton: With our prevention education, we were able to serve three thousand to four thousand (3,000—4,000) students and the community a year with events going into to the classrooms. We did a preempt posttest with the students understanding of consent, understanding...when you talk about elementary school because it is age and developmentally appropriate curriculum that we use. The Department of Education has approved this curriculum, so there is certain questions that are asked per the grade levels to measure their understanding of the topics that were covered such as "safe touch," who would you go to if you have trouble or things like that for the elementary school age. For middle school, it is again identifying who would be their trusted adults or support system, and starting to get into more healthy friendships/relationships. In the high school age is really talking about consent and respect and what does that mean. We do have a series of four (4) or five (5) questions. Council Chair Rapozo: I will interject here because the grant relates to twenty-one thousand dollars ($21,000) that will be direct services to victims, so let us keep the focus on what the twenty-one thousand dollars ($21,000) will be used for. Councilmember Yukimura: I thought Renae said it would be used also for prevention and education. Ms. Hamilton: Not for going into the schools, no. It would just be outreach services in terms of community awareness such as, their efforts. You asked the question of, how do you let the community know about sexual assault, so we would continue those efforts going to events, meeting with groups, but we will not be able to get back into the classroom with the twenty-one thousand dollars ($21,000) funding. We need more money. We had to lay off our prevention educator. Councilmember Yukimura: That was due to the funding cut that just happened two (2) months ago. Ms. Hamilton: Yes. Councilmember Yukimura: How much was the cut? COUNCIL MEETING 11 SEPTEMBER 2, 2015 Ms. Hamilton: It was thirty-two thousand dollars ($32,000), that is also on top of a deficit that the sexual assault treatment program runs anyway, but we do work with grant writing and working with our partners to bring additional funding in. To a short notice, I was not able to just float that program until I knew other funding would be coming in. Councilmember Yukimura: It is amazing how agencies like the YWCA and the bus system has to get really good at joggling grants. Ms. Hamilton: Yes. Councilmember Yukimura: Thank you. Council Chair Rapozo: Councilmember Chock. Councilmember Chock: From my perspective on the numbers you have given, it looks like we definitely need to support, but the three (3) deputies that are already assigned to it, I understand that they will be second chairing and screening, charging, and prosecution of less complex cases. Do you foresee the amount of time that they are currently spending or will be diminished? Mr. Kollar: They will still be participating in the case, but what it will do is take some of the pressure off of the urgency and allow them to get more into the cases. It would be a situation where they are still spending about the same amount of time working on the cases, but they will be able to get a much more in depth experience. Councilmember Chock: Therefore, we are adding to the effort and not taking away from the effort, is my question. Mr. Kollar: Correct, we are not replacing. Councilmember Chock: Thank you. Council Chair Rapozo: Mr. Kollar, this is to create a new sex assault unit. Mr. Kollar: Correct. Council Chair Rapozo: You never had a sex assault unit in your Office. Mr. Kollar: Not a dedicated separate unit dedicated to sex assault cases. Council Chair Rapozo: How many attorneys do you have now? Mr. Kollar: Currently fourteen (14)with one arriving next month for a total of fifteen (15). Council Chair Rapozo: So you have fifteen (15) attorneys including yourself. Mr. Kollar: Correct. COUNCIL MEETING 12 SEPTEMBER 2, 2015 Council Chair Rapozo: And that will bring you to full staff, right? Mr. Kollar: Correct. Council Chair Rapozo: How many attorneys did you have when you started? Mr. Kollar: I believe it was the same number. Actually, we added one, so we had fourteen (14) and we added one (1), it was the vehicular crimes prosecution. Council Chair Rapozo: In your term did you always have three (3) attorneys working on sex assaults or did you have one (1)? Mr. Kollar: Historically, it was primarily one (1) who handled the vast majority of them. Council Chair Rapozo: But in your commentary, you said three (3). Mr. Kollar: Correct, currently we have three (3). The caseload is shared. Council Chair Rapozo: The caseload jumped recently, or... Mr. Kollar: No. Council Chair Rapozo: So, you could still do with one (1)? Could you still handle the sex assault caseload with one (1) attorney as you have done? Mr. Kollar: Theoretically, but I would rather take a team approach at this point. I rather have the unit and then I rather engage in the cross- training so that when there is turnover or if there is turnover, there are others who can step in. Council Chair Rapozo: Last week Councilmember Yukimura asked about outcomes and she touched on it today, and you kind of briefed it up, but last week Jennifer was here and what was kind of disturbing was her comment that conviction rate was not really necessarily an important outcome. Councilmember Yukimura asked that specific question, "Should it not include improving the conviction rate," and that was not...in what I heard any way, was not a priority and I want to make sure that...and I know in your narrative or communication you say that you will be aiming for conviction and punishment, but is there a desire to improve the conviction... Mr. Kollar: Absolutely, yes, Sir. We are always striving to improve the conviction rate and that is why we want to add resources to this prosecution effort, so that we can get better outcomes when we come to court. Council Chair Rapozo: That is kind of what I was looking for last week, and it is kind of what I am looking for this week and... Mr. Kollar: Absolutely. COUNCIL MEETING 13 SEPTEMBER 2, 2015 Council Chair Rapozo: But I do not see that though. Mr. Kollar: Okay well, I am telling you... Council Chair Rapozo: That is why you are here today. If was not brought up last week, it would have passed last week. Mr. Kollar: Oh, okay. Council Chair Rapozo: But the fact that we are asking for a separate unit, which this Council has been very generous to public safety with establishing units, whether it is the Prosecutor's or the Police Department. But it always comes with an expected outcome of: wanting to increase something; we want to improve service, and this one as I read the document, made no reference to anything other than keeping track and records, and that is your normal job. Mr. Kollar: Yes. Council Chair Rapozo: I know some Members of this Council, and some members of the public feel that we should take all the Federal money that is available, but I do not see it that way. Whether it is you, Public Works, Parks & Recreation. I want to make sure that number one, we need that, and we can do it and get some outcomes. Mr. Kollar: Correct, yes. Council Chair Rapozo: I am not going to just throw good money after bad money. We want to make sure that if we are going to accept this grant because it is a substantial amount of money, that we have a plan going forward, and not just recordkeeping. Mr. Kollar: Absolutely and I apologize it that was not clear, I do apologize for that. Council Chair Rapozo: It is still not here in your narrative and that concerns me. Now, you have to be the salesman, how would you increase conviction rate should this grant be awarded? Now keep in mind what I have heard so far is that you historically had one (1) sex assault attorney, and that is as long as I can remember, or a unit, I believe back in the old days, we actually had a unit. So, if you are asking for one (1) more dedicated unit, what is going to be done differently with this unit that will increase the conviction rate? Mr. Kollar: Well, you got additional resources working on the problem. You got an attorney who will not have other types of cases to work on, they will be able to specialize, be able to work more closely with the detectives, focus more closely with the multi-disciplinary team, share the training with the other attorneys, and gain the training knowledge and education by working with our partners by participating in the development. Council Chair Rapozo: Is that happening now? Mr. Kollar: We do participate in those efforts by adding another unit to specialize in these cases, we will be able to enhance the services that we provide, we will be able to enhance our knowledge base, we will be able to enhance COUNCIL MEETING 14 SEPTEMBER 2, 2015 what we are able to accomplish when we go across the street to court. That does result in better outcomes, including conviction rates, absolutely. Council Chair Rapozo: Any other questions? Councilmember Yukimura. Councilmember Yukimura: This is along the same line of questioning; improving conviction rates. When I look at your results from cases, six (6) were dismissed no conviction because witnesses were not available and there was a non-compliance...and some notice issues that is noncompliance sex offender registration cases... Mr. Kollar: In the cases that were dismissed, of those six (6) cases, two (2) of those were sex assault cases, four (4) of those were cases involving noncompliance sex offender registration issues. They were not cases that involved sexual assaults in those cases. Councilmember Yukimura: Just two (2) were? Mr. Kollar: Correct. Councilmember Yukimura: So in those cases if witnesses were not available, if you are able to develop evidence in other ways, then you can go to trial and possibly win? Mr. Kollar: Possibly, correct, yes. Councilmember Yukimura: And then in declined prosecutions, I mean these would be the two (2) places where additional research, time, attention, skill could increase your conviction rate, right? Mr. Kollar: Correct. Councilmember Yukimura: Where you decline prosecution due to lack of evidence et cetera and admittedly some of them go back to 2007, but those would be the two (2) places where additional focus could improve. Mr. Kollar: Right, when you add staff, you can begin your interventions earlier in the process. You can be there right away to start reaching out to the victims, start following up with the investigators to start putting things together at an earlier stage in the process. The sooner you are able to get the case, the sooner you are able to conduct your follow-ups, then the more effective you are going to be moving forward and that is going to result in more convictions, absolutely. Councilmember Yukimura: How do you express conviction rate? Is it ten percent (10%), fifty percent (50%), or a hundred percent (100%) conviction rate — is that how the number of cases where there are convictions? Is that how it is expressed normally and would you have a target? Mr. Kollar: Yes, your target is a hundred percent (100%). Councilmember Yukimura: What is your rate now? COUNCIL MEETING 15 SEPTEMBER 2, 2015 Mr. Kollar: The way that it is commonly calculated is, if you have a case where you get a conviction, basically the only cases that would encounter cases that get dismissed and cannot be brought back to court. Therefore, cases that are dismissed with prejudice or acquittals after trial and then anything where you do get a conviction whether it is via plea bargain or via trial would be a conviction. Therefore, you want to get that as close to one hundred percent (100%) as possible. Councilmember Yukimura: In number 10 of your answer you talked about performance plans, do you know what those are? Were they included in your grant or is it something you do subsequent to getting your grant? Mr. Kollar: As far as grant tracking and recording processes, we have to generate reports to the Attorney General and all of the suggestions that were made were suggestions that we take to heart. There are things that we can incorporate when we are doing our reporting, and we also can provide those to the Council as well. Councilmember Yukimura: Performance plans are things that you...I am still not clear what performance plans are. Mr. Kollar: Performance plans is your plan for executing the grant. Councilmember Yukimura: Okay. And so that is something you can make available? Mr. Kollar: Sure. Councilmember Yukimura: Thank you very much. Council Chair Rapozo: On the sixty-nine (69), Justin, that goes back to 2007, you have a breakdown on those as far as how many were from 2007, 2008, 2009, or 2010? Mr. Kollar: We would have to go back and do a manual review on those, but the majority of them if they are getting declined, are going to be from around 2012 or so. Council Chair Rapozo: Okay. Mr. Kollar: Because usually if the case comes in and we are not sure if it is a strong case or not, we will do some work and follow-ups to see if we can make it into a stronger case before we make the decision to just decline it. Council Chair Rapozo: And these numbers are all adults and juvenile victims, right? Mr. Kollar: Correct. Council Chair Rapozo: Total. COUNCIL MEETING 16 SEPTEMBER 2, 2015 Mr. Kollar: Correct. The percentage of juvenile sex assault cases that are filed is very small. Those cases, depending on the age of the offender, may be resolved through other family court processes. Ms. Hamilton: I was hoping I could add one thing to that discussion about increasing more positive conviction rates. Part of that is also community efforts of working to dispel some of the miss and miss-conceptions that may be jury members would have as they go into a sexual assault case. The more that we can do in terms of community education and really trying to bring the correct information and facts to the awareness of the general public who are then selected for juries and civil service in that way, it would also help just to be going in terms of a well-informed community. Therefore, those efforts are also important and anything that you can do to continue those efforts, I think would also add to increasing the conviction rate. Thank you. Council Chair Rapozo: Thank you. Renae, you said that last couple years you had maybe three (3) homeless. Ms. Hamilton: Right. When they go to the family violence shelter than they are considered homeless. Council Chair Rapozo: There is a difference between homeless and houseless. Houseless means they cannot go to their house for whatever reason and homeless means they have nowhere to go. Do you folks make that determination whether it is homeless or houseless? Ms. Hamilton: Not really. Not in terms of our definition of when they go to the family violence shelter. Council Chair Rapozo: It is not that many in the homeless community. We had homeless discussion here a few weeks ago and there were some discussions from the homeless community that is occurring and it is a concern. Whether or not they are reporting it, I do not know. A lot of them do not want to have any touch with society, therefore it goes unreported, but I guess for me the question is, how are you handling the communication issue now? Ms. Hamilton: Yes, the family violence shelter also has limited cellphones, but they are limited to only calling 911, which are the help line phones. There are phones at the family violence shelter that they can use, but when they leave that area if they do not have their own cellphone, that is something we have not really addressed. Council Chair Rapozo: Has it been a problem is the real question, because it is amazing how many homeless people have cellphones today. It is like everyone has a cellphones and I am not nitpicking. I am on the same track as Councilmember Yukimura that twenty-one thousand dollars ($21,000) can help services, and is that the wise use of twenty-one thousand dollars ($21,000) for twelve (12) cellphones if we are not going to be issuing out...I just met with a bunch of homeless people at Hanamd'ulu Beach Park, but I would have a hard time finding twelve (12) people today that do not have a cellphone. Is the money better spent in services? Ms. Hamilton: I think that fewer cellphones would be okay too. One issue that could arise with using the cellphone that they have now, it COUNCIL MEETING 17 SEPTEMBER 2, 2015 depends on who their offender is. Normally the sex offender is somebody that they know that they may already have contact with, may already have that cellphone number. In those situations using their own cellphone can be uncomfortable because they could be contacted by the offender. Council Chair Rapozo: They could also block the number. Ms. Hamilton: That is true too. Council Chair Rapozo: Again, many will view this as nitpicking, but I am just trying to find out what is the best use of these funds. Ms. Hamilton: I think twelve (12) cellphones will last us a really long time. We would do fine with fewer and maybe use more of the funds on... Council Chair Rapozo: I am not sure if the grant will allow for that, but that is a question that Justin could probably answer. It is just interesting why twelve (12) cellphones were such a big part of the grant. Mr. Kollar: We put that in there as an example of one particular service that would be provided. Council Chair Rapozo: Therefore, they could use less on cellphones and more for services? Mr. Kollar: If Renae is good with less than less is fine with me. Council Chair Rapozo: The twenty-one thousand dollars ($21,000) would still go to the YWCA? Mr. Kollar: Correct, absolutely. Council Chair Rapozo: Let us say she needs three (3) phones, the excess funds could be used for services? Mr. Kollar: Right. Council Chair Rapozo: Would the supplanting affect her? Once you grant the money out does it affect her at all? Mr. Kollar: Well supplanting provisions are going to apply to any use of the funds, so we would apply the same definition to them because you are always better safe than sorry in that situation. Councilmember Yukimura: I did not hear that you were going to use the twelve thousand dollars ($12,000) just for cellphones. Ms. Hamilton: No. Councilmember Yukimura: Is it not easy to distinguish between those who are coming from a home and those who do not have a home by just asking what their residence address is. COUNCIL MEETING 18 SEPTEMBER 2, 2015 Ms. Hamilton: We absolutely could. I am just saying when we make our reports, they are just considered in terms of being able to be at the family violence shelter, under the definition on the funding that we get...but yes we could. We could make that distinction within our own agency. Councilmember Yukimura: I would think data wise we would be interested in how many...to what level is sexual assault a problem in the homeless community versus sexual assault amongst those who have homes. Just tracking would be useful. Sometimes you never know what your data will actually help you do in terms of shaping programs and being effective in your outreach. Ms. Hamilton: The homeless population is one that we have identified not just on Kaua`i, but Statewide as a population to continue outreach efforts because for may be a variety of reasons that they are sexually assault and they are very vulnerable to sexual assault. It could be reluctant for reporting that crime and then their other needs kind of take priority over reporting that crime meaning, I do not have a place to go to, I do not have food to eat, and what do I do about my children. Some of that plays into effect, but we are trying to increase our outreach efforts and the homeless have been identified underserved population for a while. Councilmember Yukimura: I think that kind of data would help us in our overall efforts with the homeless, just because the more we understand about what is going on and what the issues are, the better we can create programs to address that. Thank you. Council Chair Rapozo: Renae, are you working with any of the organizations that work with the homeless? Ms. Hamilton: Yes. Council Chair Rapozo: Are you apart of their outreach program? Ms. Hamilton: Yes. Council Chair Rapozo: Do you folks have people in the community interviewing? Ms. Hamilton: Not from our sexual assault program, but from our family violence shelter, Diane Wada, who is one of our co-directors who is part of that homeless group. She was active in terms of going out and interviewing the homeless population and bringing that data together. She spent a couple of days doing that. Council Chair Rapozo: The Mayor and myself have been meeting weekly now and meeting with all sorts of organizations and finding out that the homeless problem is actually larger than most believe. One of the problems that we are having right now, and the reason I ask is because in the discussions with all the stakeholders, I did not see the YWCA in there, but I think definitely we need to make you a part of it. Ms. Hamilton: Absolutely and we are part of the bigger group. COUNCIL MEETING 19 SEPTEMBER 2, 2015 Council Chair Rapozo: This was confirmed yesterday, but there is a problem between the homeless community and law enforcement whether it is park rangers or police, there is this problem that needs to be fixed. That problem is the reason why many of these victims, whether it is domestic abuse or sex assault or any type of criminal violence, these people are not coming forward to the police. They do not trust or like the police and I am just curious as to how many victims are out there that we have not identified because there is just, like you said, reluctant. Maybe that is one more component that we have to add on to this movement, because I know of two (2) already that have told me that they have been sexually assaulted and they are not going to call the police. That is ashamed, because to me the victim obviously have their own...they can do what they want, but my concern is we have a sexual predator that is free and that is the bigger concern I have, that we could have more victims. We will definitely be in touch on that aspect. Ms. Hamilton: We would love to be a part of that. Thank you. Council Chair Rapozo: Thank you. Any other questions as far as sex assault and the responses? JADE K. FOUNTAIN-TANIGAWA, County Clerk: Chair, we have one (1) registered speaker. MATTHEW BERNABE: Good morning. I support this acceptance of the funds to open up this unit. I would just like to ask everybody involved that, as Council Chair points out, the sexual predators are out there and even if the victim comes forth, I want to angle this towards the kids because I have daughters and a niece. I know of kids, some of them are eighteen (18) and nineteen (19) now that their step-father has two (2) or three (3) kids. Some of these are five years old. I know other cases where we have teenagers right now, in middle schools, that are pregnant and the guys are out of high school. With all these allocation of resources, I would like to have an aggressive program that works with the schools and hospitals. I know there is Family Court age concerns, and you cannot deal with certain things legality wise, but there has to be a mechanism to...if it has to be DNA (deoxyribonucleic acid) so that we do not have to have the girls come forth, and the father turns out to be twenty-two (22) or thirty (30), as Council Chair points out, that predator should not be loose. There should be a mechanism and this unit should be focused on those tangibles how do we get around having to put the victim on the stand and yet still convict? As far as the YWCA goes, I would like to see them work with the teens to have the teens come forth. If the teens are two (2) fourteen year olds, what are you going to do and how are you going to handle that? I have to deal with that with my own keiki. If we have an out of high school preying on middle school girls or step- fathers having children with their step-daughters, at this point, there has to be something. That is why I support this and hopefully that goes in that direction. I like the discussion and questions. Thank you. Council Chair Rapozo: Anyone else wishing to testify? ALICE PARKER: Sorry, I did not sign up. I am wondering, victims do not like to come forth and there must be a way...like in Children's Justice Center, they interview the kids on tapes so that they do not have to go into a court room. Is it possible that we could do that with adults or with older people so they do not have to face a whole court room. And then I do not know how you get over the predator preying on children in his household, that is usually a man, and the children afraid that they are going to be homeless by themselves because the mother does not COUNCIL MEETING 20 SEPTEMBER 2, 2015 step in...we need to educate the children even more and say, "That is okay, it is not your fault." The other thing is the family shelter. I do not see much definition between houseless and homeless because for instances my daughter had to go to the family shelter back in 1995 because her boyfriend was ready to kill her. Technically, she came from a house or a home, but she could not go back there, so then she became homeless. I do not really see a definition difference between homeless and houseless. Since she has done well and I wish the SOB (son of a b****) would die, but maybe some...my ex did thank heavens because then his step-children are safe now. Thank you. Council Chair Rapozo: Wow, Ms. Parker, harsh words. Thank you very much though. Anyone else wishing to testify? Please, come up. LISA ARIN: Good morning. Council Chair Rapozo: For the new people that are here, you have three (3) minutes. Green will be your time, yellow means there are thirty (30) seconds left, and red is when your time is up. You can come back after everyone else speaks for a second time. Ms. Arin: Okay, thank you. I am a community member. I am hoping that I can shed some light on some of the questions the Council had last week and this week regarding sexual assault prosecution in the Office of the Prosecuting Attorney (OPA). Just for those of you that do not know, I was Kaua`i's Sexual Assault Prosecutor for the past five (5) years until I recently left the OPA at the end of July. During that time, I was the one who was assigned to prosecute and review the vast numbers of sexual assault cases that came into the Office. You saw the numbers, there are quite a few numbers, but I can tell you that I was not always assigned to only sex assault cases. In addition to the vast majority of sex assault cases and just recently Justin had me assigned to sex assault cases, non-compliance sexual offenders, and also to occur criminal caseload for crimes of violence and property crimes. I can tell you from that experience in the Prosecutor's Office that the sex assault prosecutor job should be a full-time job. The numbers support it and the time it takes to successfully prosecute and review these cases, it does require full- time efforts. One of the things that was mentioned that I believe Justin said he would like to do more of, I was doing those things. I was meeting with the MDT, the collaborating agencies... Council Chair Rapozo: What does MDT mean? Ms. Arin: MDT, the multi-disciplinary team, which is all the partner agencies that deal with victims and systems involved in sexual assault: the Children's Justice Center, the YWCA Counselors, and Victim Crisis Counselors, Kaua`i Police Department Investigators, social workers who investigate child sex abuse, scene nurses, Department of Education, Mokihana people, and all the various people that can be involved in a sexual assault case or incident. It does take a lot of time and energy to do all that and in addition to my other duties, I can tell you the conviction rate or the prosecution rate very well would have been able to increase had I been able to devote a hundred percent (100%) or ninety percent (90%) time to those cases. I would also like to address Council Chair Rapozo's question about whether victims wish to proceed with a case or not, that only applies to adult victims in cases where children are involved. I do not want to say that we would force children to testify, because that would not be accurate, but when you have a child in COUNCIL MEETING 21 SEPTEMBER 2, 2015 danger, they are usually in danger from the perpetrator who is most likely a family member. Those cases do go forward. Council Chair Rapozo: Okay, you can come back. Ms. Arin: Yes, thank you. Council Chair Rapozo: Are there any questions for Lisa at this point, or if we can hold the questions until the second round, that would be good. Oh, Councilmember Yukimura, did you have a question? Councilmember Yukimura: Conviction rate, how is that determined? Ms. Arin: For statistics, I am not sure how it is determined, but I did have a part to explain to you how I think successful prosecution should be measured in these types of cases. Councilmember Yukimura: Okay, I will ask you more questions when you come back. Ms. Arin: Okay. Any other questions before I step away? Council Chair Rapozo: Thank you. Anyone else wishing to testify? SHAYLENE ISERI: Good morning Council Chair Rapozo, Vice Chair Kagawa, and Members of the County Council. My name is Shaylene Iseri. I watched with interest the budget meetings and most recently the request for the approval of the JAG (Justice Assistance Grant) grant in creating a specialized sexual assault unit. What irony when we compare the grant request by myself as the former Prosecutor and the current Prosecutor by Councilmember Yukimura. There was absolutely nothing Councilmember Yukimura could find wrong with another grant, which was the P.O.H.A.K.U. grant. All of her intensive and lengthy questions were answered to the fullest degree, yet she easily voted against it with no justification despite the support from attorneys, lawyers, police, former and current defendants, non-profits, church personnel, the elderly, and everyday citizens. Today, we see a much different Yukimura as she votes along with others last week to past the current Prosecutor's grant... Councilmember Hooser: Council Chair, I apologize for interrupting, but I do not think this is on the agenda. I do not think Councilmember Yukimura's comments on the last budget are on the agenda. We are here to talk about the item that is on the agenda, can we maintain the focus on that. Council Chair Rapozo: Point taken. Ms. Iseri: Council Chair, I will get to that, but this is being used as a comparative analysis of what is being presented, and that is addressed to you, Council Chair Rapozo. Council Chair Rapozo: Proceed. Ms. Iseri: As I was saying, it is a much different environment today when the current Prosecutor asks for a grant of a whopping COUNCIL MEETING 22 SEPTEMBER 2, 2015 hundred sixty-three thousand dollars ($163,000) with the Prosecutor not even being present to answer any questions and the First Deputy and the Grant Coordinator was unable to answer the most basic question. This definitely highlights communications issues within that Office. All of the prior discussions today is totally irrelevant because the grant has already been submitted in violation of the law. You folks were told last week that and we got crucified by Councilmember Yukimura in the past, when I was serving as the former Prosecutor, for submitting a grant application without coming to this body. I would hope that this Chair unlike the last Chair takes the same route in submitting this violation for review by the appropriate law enforcement agencies. This Prosecutor applied for the grant without this Council's approval, and what is more egregious is he was the County Deputy at the time when he alleged that I was violating the same thing. He was well aware of the law and he purposely violated it. This is a huge problem because again what I am telling you is that there is a reason for the inherent checks and balances, because you come to this Council and you get input by the community, and the Councilmembers who are given under the law the oversight the responsibility to review and vet out all the requests for grant such as this, especially a hundred sixty-three thousand dollars ($163,000) in grants. I spoke with the Attorney General's Office who is currently reviewing the award recipients, therefore all your discussion is not part of the grant. If you look at the grant, this is the worst grant that I have ever seen, and all of you who worked in non-profits know what a grant look like. I have worked on hundreds of grants, I have submitted them, I have done them myself, I have implemented them, monitored, and have done reports. Here, the problem what is noted... Council Chair Rapozo: I am sorry, you can come back after... Ms. Iseri: I will go into the problem statement when I get back. Council Chair Rapozo: I was trying to take quick notes over here. Anyone else wishing to testify for the first time? Second time? Please. Ms. Arin: Good morning again. Going back to the issue of going forward in cases where victims do not wish to prosecute, that is another reason why a strong sex assault prosecutor is important and a full-time, someone who knows what they are doing with sex assaults, because you never want to force a victim of sex assault to go through the process, if they are too traumatized. However, I can tell you from my personal experience that strongly encouraging, having the victim feel confident in you and the process does yield more people feeling comfortable with going through the process and cooperating. That is very important. As far as conviction rates or measuring what is in fact a successful prosecution, conviction rates are important, however, I can tell you that sex assault victims even when they are cooperative or willing to go through the process do not want to testify at a jury trial in front of strangers. It is subject matter that they do not even want to talk about with their own family and friends, let alone in front of strangers and the perpetrator. So, if you have a case, for example sex assault in the first degree and the defendant and its counsel will agree to a plea bargain offer a reduced charge of sex assault second or third and take ten (10) or fifteen (15) years in prison, instead of twenty (20) in which he might get after a trial, that is a successful prosecution right there. If you go to trial, not only does the victim has to go through with the jury trial, but you take the risk that the members of the community, if there is not DNA evidence or some thing that they really want to latch on to, that they could find the sex offender not guilty and he does not spend any time in prison, he is not required to register as a sex offender, or complete sex offender treatment programs. Therefore ten (10) or COUNCIL MEETING 23 SEPTEMBER 2, 2015 fifteen (15) years instead of twenty (20) is still a win. The paroling authority is not even going to consider an inmate for parole if they do not do well in prison including successfully completing the sex offender treatment in prison, so they are more likely to get a maximum type sentence, and if they do get release on parole, it would be with strict supervision and continued sex offender treatment. Therefore, same convicted as charged does not necessarily measure it in sex assault cases because of the difficulty of the cases themselves and the other challenges of the victim...but you still get a good result, you get a lengthy prison term, accountability so the community would be aware of who the sex offenders are in the area, so they would have to register and then if they do not register, they are facing prosecution for being noncompliant with the laws later on. Council Chair Rapozo: Thank you, Lisa. I think the bigger concern for me was not so much the plea bargain down, providing that they...it is not such a drastic reduction that they do not go to jail when they are supposed to go to jail, or in some cases where they may be not required to file as a sexual offender. I am hoping that that is not happening. Ms. Arin: Right, and I think Justin did bring the numbers on that...however many there were, I think he said only two (2) were reduced to misdemeanor's, so any felony sex assault is going to be a registerable offense. The misdemeanor's may or may not be depending on which subsection of misdemeanor's sexual assault they plead. That brings me to another point, there are about another percentages of sex assault cases that I did not hear in his numbers; violation of privacy is also a sex offense and would require registration upon conviction. I want to say that there is at least approximately ten (10) of those cases in the system over the last few years. Council Chair Rapozo: Is that like a Peepy Tom? Ms. Arin: Well, looking through a window may or may not be. It is more like... Council Chair Rapozo: Video. Ms. Arin: Persons who plant videos in bathrooms and other private areas to invade someone in a stage of undress or view their private parts. Council Chair Rapozo: Thank you. Councilmember Yukimura: Thank you, Lisa. Your explanation of why a charged conviction rate does not give the whole story, is very helpful. When you say prosecution rate, does that mean the number of cases that are sent to the Prosecutor, but not taken forth? Ms. Arin: Prosecution rates? Councilmember Yukimura: Yes, you said conviction rate and prosecution rate. Ms. Arin: Conviction rate would mean people being convicted, and prosecution rate would be those cases we are able to go forward on. COUNCIL MEETING 24 SEPTEMBER 2, 2015 Councilmember Yukimura: Right. Ms. Arin: So I believe what I was referring to is if an experienced person were able to do a ninety percent (90%) or a hundred percent (100%) of their time to sex assault, that I believe the prosecution rate would increase, and if the person is doing the job properly, they should also see increased successful prosecutions. Councilmember Yukimura: Right, so you are in favor of this grant? Ms. Arin: Yes, because I think it is necessary. The one question I have which some of you raised last week, we have not seen that it should necessarily be an additional position whether or not the other fourteen (14) or fifteen (15) deputies in the Office have too many cases, I think is a different question for you folks. I do not have the statistics, so that is something that is a valid concern. Therefore, I am supportive of having the ability of having one (1) person or have a focus or two (2) people doing two (2) separate areas of sex assault; child versus adult or something like that, but having people dedicated and trained that are enthusiastic, strong, and well trained. Councilmember Yukimura: What kind of performance measures would you suggest that would be appropriate in terms of what this unit would aim for and also would be good measures for determining whether the moneys are well spent. Ms. Arin: I think that successful prosecution is one (1) way, number of cases reviewed, number of cases reviewed and collaborated with the investigating agencies because I think that at times that is where there has been some falling down on the job that maybe the Prosecuting who is handling the case does not have the time or does not take the time to talk to the detectives involved or the social workers. The social workers obtain lots of information on cases that people never mention to police officers and so the collaborative effort is essential in these types of cases and it leads to the discovery of possible of different witnesses and information. Councilmember Yukimura: So what you said was helpful, but successful prosecution though, is not necessarily...that was your first performance target. Ms. Arin: Right, I think that is important. Councilmember Yukimura: And that is not necessarily based or measured by conviction rate as charged, right. Ms. Arin: But I think that... Councilmember Yukimura: But it might be measured by number of sexual offenders put away for a long period of time. Ms. Arin: Or convicted by felonies and required to registered as sex offenders. I find that in a small community like this now with the internet available to most people, people get it on their cellphones too that if they want to know who the sex offenders are in the community, they can find out on the state's website. COUNCIL MEETING 25 SEPTEMBER 2, 2015 Councilmember Yukimura: I have some issues with that because for those sex offenders who want to reform, there is no way...they cannot find a home or get a job. It is really hard. That is another matter to discuss. Ms. Arin: If they are truly reformed, they do have a mechanism to petition the court to try and...depending on what kind of crime they have committed, to try and have the court set aside their registration requirements, but it takes proving that they have reformed. I still do not think that outweighs the public's right to know that their family is living next door to a person that has been convicted of sex offense. Councilmember Yukimura: I agree and it is very hard for people to live or succeed because it is hard to find a house and it is hard to find a job. Ms. Arin: I have also seen people in this community that have gone to prison and then the sex offender treatment program, and are honestly making efforts to be employed by various restaurants and businesses in the community. While they are not going to be employed at places that are not appropriate for a sex offender to be, they are getting employed and Kaua`i is a special place and people do feel that people can reform and give people second chances here more so than I think other places. I am not sure that the registration is quite that big of a problem for the sex offenders. I know that it is a perceived problem, but I can tell you that the sex offenders that get on parole have jobs before they get out on parole, so they are being employed by someone in construction, yard work, restaurants, and things like that. Councilmember Yukimura: I am not suggesting that that condition should be removed. Ms. Arin: Okay, good. Councilmember Yukimura: But I am aware of some of the issues for those who are trying. Your answer does help in terms of defining performance standard for successful prosecution, and I appreciate that. Ms. Arin: Thank you. Council Chair Rapozo: Thank you. Anymore questions for Lisa? If not, thank you. Anyone else wishing to testify for the second time? Ms. Iseri: As I was beginning to mention, I really would like to question how many of you actually read the grant application, because the first thing that you would notice in "The Problem" statement is nowhere is the word "Prosecutor" or "Legal Clerk" for which the unit is being created is even mentioned. Not at all. In over ten thousand (10,000)characters, two and a half(2.5)pages, single- spaced, nothing...every other agency is mentioned, you have legal aide, crisis counselor, YWCA, DHS, and multiple other agencies, but nowhere is it found what the role of this unit's prosecutor and legal clerk is going to do. That is blatant error in a grant. I mean this grant will never get approved because it is so improper. When you look at goals and objectives. The goal is to provide efficient and effective prosecution and increase services. Again, is it not the job of every prosecutor, to do that, and how long? What is the time constraints? Are we doing this in thirty (30) days? Are we reviewing case files in thirty (30) days? Are we charging in thirty (30) days? Are we charging or making charging decisions? Are we making charges that COUNCIL MEETING 26 SEPTEMBER 2, 2015 are high and then we go to court, as Councilmember Yukimura was trying to refer to as conviction rates are not that important. They are absolutely important because the prosecutor has the sole discretion to determine what the charge is going to be. If you are the Prosecutor and you are going to charge a sexual assault in the first degree, then you better charge and make sure that that person pleads to it, unless there are other problems. If you prepared enough, you make that call. So, you are the Judge and the Jury. You make the charge that you are going to charge, and then you go in and reduce it to a misdemeanor, that is outrageous because that affects defendants. Their bail which was initially set at a hundred thousand dollars ($100,000) as a sex offender and a misdemeanor would have been a hundred dollars ($100). Do you see how much money the defendants go through and then when they come up to court and the charges are reduced, we look at the conviction rate, it is almost outrageous, from ninety-seven percent (97%) that we had in 2012, we look at the Prosecutor's rate today, and it is less than two percent (2%) on what he provided. Less than two percent (2%) of the cases are convicted as charged even though the Prosecutor decides what the charges are going to be. This is not a surprise. That Office is being run extremely inefficient especially with respect to prosecutions of sex assaults. If you look at "Performance Indicators/Outcome Measures," I believe Lisa Arin touched upon that, there is a contract that will expand services, there is no MOU (Memorandum of Understanding) attached, and there is no indication of what the service is going to provide. Twelve (12) pre-paid cellphones, there is no mention of any homeless need in the Problem Statement, that is supposed to capture your attention. Absolutely no mention of any idea of if we even have a homeless victim that needs services, and twelve (12), where did that number come from, arbitrary. A lot of the things that are mentioned in this grant is just arbitrary. Ninety percent (90%)prosecutor, why ninety percent (90%) and why not a hundred percent (100%) prosecutor to fulfill the role in this regard? There are so many errors in this...and I will close with that, that there are so many errors in this grant and again it is irrelevant because it has already been submitted and none of what you say is going to have any impact on this being awarded. Council Chair Rapozo: Thank you. Any questions for Ms. Iersi? I just had a question as you brought up the homeless, was that an issue in the former, in your term? Ms. Iersi: Never. Council Chair Rapozo: We did not have any... Ms. Iseri: Not homeless victims who needed cellphones. Council Chair Rapozo: No, I mean just in general, as far as homeless people that were subject to sex assault. Ms. Iseri: There was one (1) case that I recall of a family that lived out in Hanapepe Salt Ponds, but that really was the only family that were living in a tent in a vacant lot, with respect to homeless, but like I said the Problem Statement is what grabs the attention of the persons who awards grants. There is not even the word homeless mentioned in that two and a half (2.5) single-spaced narrative. Council Chair Rapozo: Any other questions for Ms. Iseri? If not, thank you very much. Anyone else wishing to testify? COUNCIL MEETING 27 SEPTEMBER 2, 2015 The meeting was called back to order, and proceeded as follows: Councilmember Kagawa: I am troubled by the double-standards of treating grant applications by this body, not this current body, but I remember watching the proceedings of the P.O.H.A.K.U. grant application and I saw Ms. Iseri just get hammered by several Councilmembers. I will not mention names, but for the Chair at the time to allow that to happen, and now we have other grant applications that did the same thing, they submitted the grant prior to coming to Council, and then it is not an issue. It is not a good practice of this Council, but I think we need consistency. If we are going to hammer somebody because they are not submitting the grant application properly, than let us hammer all of them, and not hammer based on personalities or what have you. As far as the grant itself, I think we need to do what the community needs and I think sexual assault, no doubt, is a major problem that needs whatever help it can get. Justin, Mr. Kollar, was elected by the community and I think he has written a grant that he believes can help his Office as manager and my job here is not to play politics and to do what is right for the community. If he says that this can help his Office treat this problem, then I will support it. Again, I am troubled what I witnessed, I did not hear about it, I watched and I was just blown away by that previous Council that really went after her hard on something that should not have been gone as hard as. I just feel like hopefully this Council can take the highroad and just stay out of the Prosecutor's race and focus on our job. Our job is to run the County Council business, and not to play politics with the Prosecuting Attorney election. Thank you, Council Chair. Council Chair Rapozo: Thank you. Councilmember Hooser. Councilmember Hooser: I want to echo to a certain extent what Councilmember Kagawa said. I did not see anyone here at this table playing politics today. I saw the politics being played by members of the community coming forward and raising those issues. What happened four (4) years ago to an entirely different Council and conversation, I do not think is relevant and it should not even brought up here. It is not on the agenda. It is not relevant, except in the political sense. I think we all need to acknowledge and it is one (1)year away from the primary election and we have to be very careful about going down this path with the Prosecutor's Office in particular, but others as we go forward. For ourselves and the community, we cannot and should now deny...in fact should encourage candidates to give testimony, but when you have the former candidate and loser of the election hammering away and then you have the new candidate of the Prosecutor's Office testifying, it just sets the stage...hopefully it does not set a stage for future discussions. Again, I think any deficiencies that any member of the public sees in the Prosecutor's Office, they should feel free to come and tell us about those, and it should not be restricted just because you are a candidate. The discussion here today, to me, was not a positive one. It does not add to the environment of positive dialogue in our community and then we should be very cognizant of this as we move forward. Council Chair, I count on you to interrupt speakers when they bring up actions, motivations, or character issues of Councilmembers or anyone in the public. Some statements were made today that the Prosecutor knew something was wrong and he did it anyway, that is inappropriate. No one knows that. We need to get a rein on this right away. We have a year before the primary election, we need to set a good example for our community, and the dialogue that comes forward at this table is important and we should honor that. Thank you. Council Chair Rapozo: Anyone else? Councilmember Chock. COUNCIL MEETING 28 SEPTEMBER 2, 2015 Councilmember Chock: I agree we should get these proposals in on time so that we can vet them properly, but the bottom line is that we need this money and position, therefore, I am voting for it. Thank you. Council Chair Rapozo: Anyone else? Councilmember Yukimura: First, to this proposal, I believe it was a major oversight not to submit this grant prior to us, prior to its submission to the grant maker, or the entities soliciting the grant, which is the Attorney General and I hope that this will not be repeated again. I believe this is addressing a problem that needs to be addressed and I feel that the Office has been amenable to some of the questions and issues raised by this Council. I appreciate that because these questions have been raised in genuine sincerity in terms of how to get the job done, how to fight crimes, and how to reduce the innocents of sexual assault in our community. I take offense at the accusation that my questioning was politically motivation in either case before the former Prosecuting Attorney or this present Prosecuting Attorney. If you review my questioning of Ms. Iseri-Carvalho, you will see that it is just the same as my questioning of Mr. Kollar. I am asking exactly the same kind of questions that I always do about goals, outcome, outcome measures, and process. I have been consistent in looking for the best way to solve the problems of this County. With that, I will be voting to approve this grant application. Council Chair Rapozo: Anyone else? Councilmember Kagawa: The rhetoric is if you read the minutes, and we have those minutes of that grant application with the POHAKU, you read the minutes and line of questioning, you will see that that grant application and this grant application is completely apples and oranges. So what happened four (4) years ago, yes, should we be talking about it? Shaylene brought it up and I think when the speaker brings it up, we have to address it, if is relevant or true. I am just saying I witnessed that questioning. We had how much deferrals and hours of hammering of a grant and this one takes two (2) hours. There is a big difference and to deny it, I say, let us look at the minutes. Anybody who has a question, go look at the minutes, look at the line of questioning, and you tell me whether politics was not played out four (4) years ago. Thank you. Council Chair Rapozo: Councilmember Yukimura, your second time. Councilmember Yukimura: Yes, I do not think we need to get into the details, but if Councilmember Kagawa wants to go there, I will. The POHAKU project was ill-conceived... Council Chair Rapozo: Councilmember Yukimura, hang on, he is talking about the... Councilmember Yukimura: Excuse me. Council Chair Rapozo: No, you excuse me. He is talking about the process and the line of questioning and not the program itself. Councilmember Yukimura: But that was underlying the process. The reason why there was so much extensive questioning was because it was poorly conceived and it was done with making private contracts with entities before there was before any...there were improper procurement processes that went through and COUNCIL MEETING 29 SEPTEMBER 2, 2015 the POHAKU project is successful on Maui because they have social workers and programing... Council Chair Rapozo: Councilmember Yukimura... Councilmember Yukimura: Excuse me, this issue was brought up. Council Chair Rapozo: Recess. There being no objections, the Council recessed at 10:00 a.m. The meeting was called back to order at 10:07 a.m., and proceeded as follows: Council Chair Rapozo: Councilmember Yukimura. Councilmember Yukimura: The questions that were being asked during the POHAKU project were valid questions because there were procurement problems and the program was ill-conceived. I was in Maui two (2) months ago, talking to the police department about the POHAKU project, because it is a highly recommended project, but the project that Ms. Iseri-Carvalho constructed or framed when it was under her Office was totally different from the project that exists in Maui. There were major defects in it and we were asking questions about it that were legitimate questions that are part of the Council's oversight functions. And so, yes, go and look at the minutes and see whether my questions were illegitimate, because I think you will find that they were not and they were of the same nature of the questions that I have been asking Mr. Kollar about program effectiveness and about performance outcomes. Council Chair Rapozo: Thank you. Anybody else? If not, Councilmember Yukimura wanted that extra time to discuss POHAKU, I do not think POHAKU is even an issue. I think the issue raised by Councilmember Kagawa was that process and how four (4) years ago the line of questioning...I think the POHAKU grant was about thirty thousand dollars to forty thousand dollars ($30,000 - $40,000) and it took thirty to forty (30 — 40) hours of Council time, a probably record number of deferrals. Councilmember Kagawa may had watched it, but I was present. The simple difference is at that time the Council wanted to find ways to not support it. That was the bottom line. If you look hard enough at anything, you will find some deficiencies. Councilmember Hooser brought up the issue of playing politics or rhetoric and yet his whole testimony was exactly that. He did not talk about the subsidence. He talked about what we should and should not do. What the Chair should and should not do. I tell you right now, I sat through Bill No. 2491, numerous hours and public testimony ripped us apart, called me "child killer," and no one stopped him. The public has a certain latitude to say what they want to say, so again, consistency across. The other issue that Councilmember Kagawa brought up was, "Did we make a big issue that the fact this grant application came in after to the Council it was applied for," that was a huge issue in the past, major issue. Go look at the minutes, I told you that I was present, and I will tell you that it is inconsistent the way this is being handled and the last ones were being handled. And not just with prosecutor's, but that needs to be addressed. I read the statute last week at the Committee Meeting, and we will find out what the Council did back then and this Council will do the same thing. I cannot remember what we did, I believe we may have sent it over some place to get an opinion, but I do know that there were several request by members of this Council to go to Ethics. We will proceed whatever we did back then, we will do it with this one to be consistent. I will tell you there is a lot of COUNCIL MEETING 30 SEPTEMBER 2, 2015 truth to what Councilmember Kagawa has said and no one can dispute that. Whether Councilmember Yukimura says that the intentions were legitimate or not, it does not matter. It is the perception and it is very clear that this process today is entirely different than it was a few years ago. Last year the County Attorney came up and he wanted to create a litigation team, a new team, he wanted to get more money, and we said no. We believed that they could do it within the resources they had been provided. We believed that the management...I will not say, "We," but "I" believed that that management of that Office was so inefficient that they were not running things properly. I am going to support the grant today, obviously, and I will tell you that Lisa provided quite a bit of clarity as far as prosecution rates versus conviction rates, which is not explained in the grant. I appreciate what I call the "field view" of what happens in sexual assault prosecutions. Really, you cannot have a sexual assault prosecutor just working property crimes, violent crimes, and all of these things. You need to have a dedicated prosecutor when you are dealing with sexual assault. Much like in the Police Department. Thank goodness we do not have enough murders to justify a homicide unit, but you have to have a detective that is an expert in homicide. We just do not have the numbers to justify a whole unit, but I believe we do have the numbers to justify the unit as far as sex assault. We have run this County from Mike Soong's time, when Mike Soong created the first sex assault unit and ever since than we had a dedicated attorney for sex assault. I believe it can be done. My concern with any grant request is that what happens when the grant runs out. Is the County obligated or can we restructure the Office so we can accommodate these needs? That is the questions I ask, that is our job, not just to say, "Yes, approve." If people feel that that is our job, then we can just take this part of the process and say, "If you need the money and the federal government is going to give it to you, take it." That is not our job. Our job to make sure that our departments are running efficiently as possible and making sure that we are getting the conviction rates. I am not very pleased with the numbers. I think that definitely needs to be worked on. I am not going to sit here and deny the request of a program that may enhance the numbers and that is what we are going to hope for and we will have Justin back at the budget and at least give us a briefing on the progress of this program. With that... Councilmember Hooser: Chair? Council Chair Rapozo: Yes. Councilmember Hooser: I would like to speak again. Council Chair Rapozo: Go ahead. Councilmember Hooser: Since you called myself out as well as Councilmember Yukimura and you suggested that she was asking for additional time to discuss POHAKU, and this whole conversation politicized because the former Prosecutor attacked Councilmember Yukimura and brought up something that happened four (4)years ago, that is not relevant or not on the agenda. Councilmember Kagawa as a cheerleader to that, cheered on more, and then Councilmember Yukimura asked for an opportunity to defend herself. That is why this was politicized. No one else brought up that issue except those people and then you of course pile on. I suggest that we all look forward and stop talking about the history and talk about what is in front of us. It does not do any good to have these conversations and I wish in retrospect it would have been stopped when it started when Ms. Iseri raised the issue and started addressing Councilmembers by name and criticizing the motivations, character, and actions of something that occurred four (4) years ago. It COUNCIL MEETING 31 SEPTEMBER 2, 2015 is not relevant, it is not on the agenda, it has no business at this table in discussion, and it has just been disruptive. Thank you. Council Chair Rapozo: Okay. Everyone can have their own opinion. I will say that the issue at hand as I saw it was the fact that a grant was submitted... Councilmember Hooser: Are we all going to get an additional time to speak, Council Chair? Council Chair Rapozo: No, you get two (2) times, this is my second time. Councilmember Hooser: Your five (5) minutes are gone. Council Chair Rapozo: Is my five (5) minutes gone? Okay, my five (5) minutes are up, thank you very much. Roll call. The motion to approve C 2015-223 was then put, and carried by the following vote: FOR APPROVAL: Chock, Hooser, Kagawa, Kaneshiro, Yukimura, Rapozo TOTAL— 6, AGAINST APPROVAL: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: Kuali`i TOTAL— 1. Council Chair Rapozo: Let us take a caption break because I believe the Prosecutor has a presentation for the next item, is that correct? So, you can get set up, we will take our ten (10) minute caption break, fifteen (15) minutes early so that we can go straight to lunch. There being no objections, the Council recessed at 10:15 a.m. The meeting was called back to order at 10:25 a.m., and proceeded as follows: (Councilmember Kuali`i was noted as present.) Council Chair Rapozo: We have two (2) related items and the next item on the agenda is C 2015-226, which was from the last Committee Meeting which is the grant for the Cold Case Unit, but C 2015-237 is a new posting for a briefing on the unit itself. I would ask that we take C 2015-237 first so the Prosecutor can do his presentation and then we can take all our questions and comments. We will receive that and then go straight to C 2015-226 so that we can vote on the approval of the grant. There being no objections, C 2015-237 was taken out of order. C 2015-237 Communication (08/27/2015) from Council Chair Rapozo, requesting the presence of the Prosecuting Attorney, to provide a briefing on the Ke `Ahi Pio`ole Cold Case Unit and an update on the cases outlined in the Fiscal Year 2014 Edward J. Byrne Memorial Justice Assistance Grant (JAG): Councilmember Kagawa moved to receive C 2015-237 for the record, seconded by Councilmember Yukimura. COUNCIL MEETING 32 SEPTEMBER 2, 2015 There being no objections, the rules were suspended. Mr. Kollar: Thank you for the opportunity to come in here today and just give you a short briefing on the short briefing on the Cold Case Unit. It is an opportune time to do so as we are in month thirty-five (35) of the unit's existence. I just wanted to bring you up to speed on where you are and what we have been doing. The name of the unit does translate as the "Light that never goes out," that is Hawai`i's first prosecutor-directed cold case unit. It is dedicate to investigating and prosecuting unsolved homicides, suspicious missing persons cases, and suspicious unattended death cases. Collaborators in the unit include: the Office of the Prosecuting Attorney, the Kaua`i Police Department, the Department of the Attorney General (AG), Federal Bureau of Investigation, as well as our outside forensic laboratories, and other outside experts that we contract with as part of the unit. Activities of the unit include the investigation of the aforementioned categories of cases as I described. The administration of the grant itself, meaning the reporting to the AG as well as the control of the funds. Monthly meetings that the stakeholders participate in and then of course the reports back to the funding entity. I will give you a rundown of the cases that are on the current Cold Case roster. Of course because these cases are under investigation at different stages of the process, I cannot get into the details of those investigations either here or in Executive Sessions, but I will tell you what cases are on the list because I think that is helpful information, it is helpful to the community as well to know what cases we are looking at. The fact that a case is on this list should not be taken to indicate that it is at any particular stage of the investigation or that any particular thing is happening or will happen in the case, only that it is something that is on the unit's radar screen. Starting from the oldest case, it was the January 1975 murder of Mary Ellen Ulna. The March 1978 homicide of Emma Hamada, which the case was recently closed by the unit. The April 1978 murder of Margaret McCann. September 1978 of Annette Hrostowski. The June 1979 murder of Paul "Sonny" Featherman and Nancy Baugh. March 1981, the murder of John and Michelle Klein. January 1983 murder of Keith Williams. August 1988 murder of Mario Gasmen. December 1988 murder of Dennis Wooten. March 1996 murder of Carlo Morandi. The October 1996 death of Jerry Lujan. Lisa Tamashiro in April of 1991. Joyce Fox in July of 1992. Emilia Baron, October 1989. Carlos Mangayayam and Margarita Agbayani in September of 1991. Daren Singer, August 2000. Lisa Bissell, April 2000. Nancy Jones, May of 2000. Walter "Fig" Mitchell in June 2002. Sandra Galas, June 2006. The most recent cases, Daniel Bonanno, November 2009. Lauren Kagawa, August 2009, and Amber Jackson, of course in June 2010. Those are the cases currently on the roster. The roster does change. We have added a number of cases, mostly as a result of our review of outstanding suspicious missing persons cases. I did want to include this grant that shows the breakdown of the funds that have been expended so far pursuant to grant activities. We are in the second incarnation of the grant right now. Although the grant has been in existence for more than two (2) years, it shows up as two (2) separate grants, one of which was extended. For overtime in the first year of the grant, fourteen thousand ninety-four dollars and thirty-four cents ($14,094.34). In the second year, one hundred fifty-eight dollars and thirty-six cents ($158.36). We have made the decision to shift more of the emphasis towards using the funds for forensic testing of evidence. Therefore, witness interviews, sixty-five hundred eight dollars and two cents ($6,508.02) in the first year, twenty-two hundred eight-six dollars and five cents ($2,286.05) in the second year. Training, forty-four hundred thirty-eight dollars and twenty-nine cents ($4,438.29) COUNCIL MEETING 33 SEPTEMBER 2, 2015 in year one, and sixty-seven hundred thirty-eight dollars and fifty-four dollars ($6,738.54) in year two. Englert, which is Rod Englert and Cheryl Kanzler, a forensic consulting firm that we contract with, fifty thousand seven hundred and fourteen dollars ($50,714) in the first year, and six hundred three dollars and nine cents ($6,003.09) second year of grant funds. BODE, which is a laboratory that performs DNA analysis of the forensic evidence analysis, sixteen thousand dollars ($16,000) in year one, and currently we have a contract with them which we have expended twenty-four thousand dollars ($24,000) under year two. Other DNA forensics which is services performed by other laboratories that we contracted with, eighty-one hundred forty-nine dollars and twenty-eight cents ($8,149.28) under year one of grant funds. Supplies, you see nineteen hundred eleven dollars and fifty-eight cents ($1,911.58) and then four hundred twenty-six dollars and one cent ($426.01) in year two. Conference costs, which would be the costs of the investigators who go to the conference would be nine hundred and ninety dollars ($990) in year one, and six hundred dollars ($600) in year two. So you can see the totals for year one of the grant is one hundred two thousand dollars eight hundred five dollars and fifty-one cents ($102,805.51) and year two is thirty-nine dollars six hundred twelve dollars and five cents ($39,612.05). Total received grant funds so far under both incarnations of the grant is one hundred ninety-nine thousand three hundred five dollars and fifty-one cents ($199,305.51). Total expended one hundred forty-two thousand four hundred fifteen dollars and fifty-six cents ($142,415.56), and total remaining funds are fifty-six thousand eight hundred eighty-seven dollars and ninety-five cents ($56,887.95). Therefore, there is a substantial pool of money left in the grant funds. I do have some other statistics as far as grant activities. Total number of interviews conducted is one hundred and seventy (170). Total number of evidence items examined for forensics, eighty-one (81). DNA samples for comparison, thirteen (13), and evidence submitted for DNA testing is thirty-five (35) items to BODE and plus one to the Federal Bureau of Investigation Laboratory. Thank you for allowing me to brief you on the activities of the grant, and I am happy to answer any questions you have at this time. Council Chair Rapozo: Any questions? Is there not a Kelekoma case on the... Mr. Kollar: Yes. there is a Kelekoma case that we have looked at, at different times under the grant, yes. Council Chair Rapozo: But it is not listed and I am just wondering, because I thought I have seen it referenced in articles in the past. Mr. Kollar: It is a case that is outstanding. Council Chair Rapozo: But not being looked at under Cold Case? It is just a yes or no. It is not on your list, and I am assuming that it is not. Mr. Kollar: Correct. Council Chair Rapozo: Okay, and I know we cannot get into details but... Mr. Kollar: Yes. We are happy to take another look at it if the opportunity presents itself. COUNCIL MEETING 34 SEPTEMBER 2, 2015 Council Chair Rapozo: Again, I do not know anything about the specifics, so I do not know what requires...before you send it to Cold Case and I am not going to ask you that question here, but I am assuming that there are some requirements of a case to make it a Cold Case. Mr. Kollar: We have our guidelines, yes. Council Chair Rapozo: As far as the cases go, is there any significance to the order that you have listed the cases? Mr. Kollar: No. Council Chair Rapozo: Because I know it is not in alphabetical and it is not in chronological, so it was... Mr. Kollar: We tried to go roughly in chronological, I know that somewhere in the middle there was some that got out of chronological order, but yes. Council Chair Rapozo: Okay. Any other questions? Councilmember Yukimura: You said you have your guidelines, is that something that can be made public or is it something better reserved for Executive Session? Mr. Kollar: The guidelines, we would not share outside of law enforcement just because they are flexible and they could affect cases. Councilmember Yukimura: Cases under investigation. Mr. Kollar: Correct. Councilmember Yukimura: Okay. We are going into Executive Session. Council Chair Rapozo: If we need to. We were advised by OIP (Office of Information Practices), initially I had requested a posting, but OIP says the discussions need to be out in open. I heard from Justin in his presentation that even if we go into Executive Session, he is not at liberty to discuss the investigative issues. Mr. Kollar: Correct. Council Chair Rapozo: Which I can understand. Mr. Kollar: There is nothing I can share in there that I cannot share out here. Council Chair Rapozo: And that is all I need to know. If we are going in and then you say, "I cannot respond or answer," then we are not going in. Mr. Kollar: Thank you. Council Chair Rapozo: But if you have any questions, ask him now and then if there is anything that he can answer in Executive Session that he cannot answer out here, then we will go, but if not, we will not go in. COUNCIL MEETING 35 SEPTEMBER 2, 2015 Councilmember Yukimura: In the Emma Hamada case, you just closed it. Mr. Kollar: Yes. Councilmember Yukimura: Because the defendant is deceased? Mr. Kollar: The two (2) suspects identified are both deceased. Councilmember Yukimura: When did that happen? Mr. Kollar: Recently. Or not...well the case was closed recently. Councilmember Yukimura: When did the suspects past? Mr. Kollar: It would be in the fairly distant past. Councilmember Yukimura: So why was this case kept open? Mr. Kollar: Because the investigation had not been concluded. The suspects had not been identified to the point where we knew who we would charge with the case. There was work left to be done on the investigation. Councilmember Yukimura: That makes no sense to me as someone who lived through this time, when the suspect was... Council Chair Rapozo: I am sorry, which case is this? Is this the camp? Which case is the Hamada? Councilmember Yukimura: I do not even talk about it. Council Chair Rapozo: You brought it up, Councilmember Yukimura. Councilmember Yukimura: I know, but that is...I mean I felt that it would be appropriate in Executive Session. Mr. Kollar: There is nothing I can tell you about the case in there that I could not tell you out here. Councilmember Yukimura: Okay, the suspects were only recently determined, is that what you are saying? Because if your criteria is that the case closes when the suspects die, then why was it closed when the suspects died unless the suspects were only recently determined. Mr. Kollar: The case closes when the investigation has been completed and we have determined that there is nothing to be done on the case. When we started looking at the case, there was investigation that was left to be done, we got to a point with it where we would determine that everything that could be done had been done, and the people that we would prosecute are deceased. Councilmember Yukimura: Do you continue investigations when all the suspects have died? COUNCIL MEETING 36 SEPTEMBER 2, 2015 Mr. Kollar: It depends if there is still work to be done on the case. If there are other avenues or other leads to be followed up on, we continue following up on those leads until everything is exhausted. Once that is exhausted, then the case would be closed. Councilmember Yukimura: Okay. You have brought to prosecution one (1) case, since this project started. Mr. Kollar: Yes. Councilmember Yukimura: How much did it cost of these moneys to bring that one (1) case to prosecution? Mr. Kollar: I would not be able to get into the details of how much was spent on each specific case, I could get involved with describing details of the case. Councilmember Yukimura: I do not want any details, I just want the amount spent. Mr. Kollar: It was a significant portion, but I cannot get into specifics. Councilmember Yukimura: But you can give us the amount spent, that is not...I am not asking for what it was spent on. I am just asking for the amounts spent. Mr. Kollar: Yes, we could go back and pull that number, yes. Councilmember Yukimura: Alright, so that is my question because I want to know what it takes and I am sure it varies from case to case. Mr. Kollar: Correct. Councilmember Yukimura: But it would be helpful and I believe that is public record to know how much of this grant money was spent on the case that was brought to prosecution. Mr. Kollar: Okay, sure. Councilmember Yukimura: Thank you. Council Chair Rapozo: Any other questions? All of these cases have a suspect or suspects identified. Mr. Kollar: No. Council Chair Rapozo: Not all? Mr. Kollar: Not all. Council Chair Rapozo: Because some of these cases, Ulna 1975, that was like forty (40) years ago, we have a suspect on that who is still alive? COUNCIL MEETING 37 SEPTEMBER 2, 2015 Mr. Kollar: I cannot get into that. If it is on the list, it is because there are still some things we believe we can do. Council Chair Rapozo: And the fact that the suspect has died, should not in itself be the end of the case because a suspect is only a suspect until he or she is convicted. Part of bringing closure to the family, I think, would be important as well. Mr. Kollar: Yes, absolutely. Council Chair Rapozo: We have a lot of innocent murders in prison, yes, would you agree? I am not talking about Kaua`i, but nationwide you see people get released after fifteen (15), seventeen (17), or twenty (20) years because of new evidence. Mr. Kollar: That definitely happens. Council Chair Rapozo: I guess my point is that just because they are a "suspect" does not mean that they were the ones that at this time committed the crime and the fact that our suspect passes away, may not be in it of itself justification to close the case. Mr. Kollar: Correct, and if there were information came up that there was something else we needed to look at, we would always do that, absolutely. Council Chair Rapozo: Okay. Any other questions? I know there were some questions last week...I am trying to understand your chart. What year of funding is this? Let us go back to the beginning. When did Ke `Ahi Pio`ole start and was that with grant funding? Mr. Kollar: Thirty-five (35) months ago is when the grant first came about. It was before... Council Chair Rapozo: Thirty-five (35) months ago. Mr. Kollar: It was before my time, so I am not sure what was being done before that. Council Chair Rapozo: Okay. When you took over, was it grant funded? Mr. Kollar: Yes. Council Chair Rapozo: It was already grant funding. Mr. Kollar: Yes, the grant was in existence. Council Chair Rapozo: The same grant you are asking for today. Mr. Kollar: Correct. COUNCIL MEETING 38 SEPTEMBER 2, 2015 Council Chair Rapozo: When you are saying the first year of funding in your chart, that does not necessarily mean the first year for the program. Mr. Kollar: The first calendar year, correct. It is the first year of grant funds. Council Chair Rapozo: What year was that? Mr. Kollar: The first year was 2012 utilizing Fiscal Year (FY) 2010 funds. Council Chair Rapozo: So the first year column is 2010, calendar year. Mr. Kollar: 2012 calendar year, 2010 FY JAG funds. Council Chair Rapozo: So FY 2010-2011, right. Mr. Kollar: Jamie. Council Chair Rapozo: Yes, why do you not come up, Jamie, because I am just trying to understand...I am trying to get a date referenced here. The first year, the first chart, we are looking at a hundred and two thousand eight hundred and five dollars ($102,805), what program year was that? JAMIE OLIVAS, Grant Coordinator: I believe it was 2010 FY JAG grants. The grant started April 1, 2012. Council Chair Rapozo: So April 1, 2012 through May 30... Ms. Olivas: No, we did some extensions of the grant. I believe it ended July 2014. Council Chair Rapozo: Is it two (2) years? I am not concerned about the grant terminology, I am just trying to figure out what the program period... Ms. Olivas: Right, it expanded over a two (2) year period. Council Chair Rapozo: A little over a two (2) year period. Ms. Olivas: Right, with the same amount of... Council Chair Rapozo: So are you saying that the hundred and two thousand eight hundred and five dollars ($102,805) was for a two (2) year period? Ms. Olivas: Yes. Council Chair Rapozo: Because that is not what the chart says, and that is why I am confused, because if you go to the second year, it is drastically reduced. I am assuming that the second year in your chart, thirty-nine thousand six hundred ($39,600)... COUNCIL MEETING 39 SEPTEMBER 2, 2015 Mr. Kollar: Those are the funds that we are currently expending. Those are the grant year funds that we are currently expending. Therefore the fifty-seven that is left is under that grant period. Council Chair Rapozo: The current that we are in. Mr. Kollar: Correct, yes. Council Chair Rapozo: And this grant application is to basically extend...renew... Ms. Olivas: Right, additional funds. Council Chair Rapozo: Okay, so the hundred and two thousand eight hundred five dollars ($102,805) is from April 1, 2012 to July of 2014. Ms. Olivas: Correct. Council Chair Rapozo: And then the current year is from, I am assuming August 14 to present. Ms. Olivas: Yes. Council Chair Rapozo: And that goes until when? If it does not extended, if we are looking at right now, if we took a snapshot today, when does this grant expire? Ms. Olivas: March. Council Chair Rapozo: Of 2016. Ms. Olivas: Yes. Council Chair Rapozo: Therefore the thirty-nine thousand six hundred ($39,600) is what we spent so far. Ms. Olivas: Correct. Council Chair Rapozo: And we have some remaining funds that will carry us through March. Mr. Kollar: Correct. Council Chair Rapozo: And this grant application is going to take us from April forward. Mr. Kollar: Presumably. Ms. Olivas: Yes. Council Chair Rapozo: For one (1) more year. Ms. Olivas: It could be. COUNCIL MEETING 40 SEPTEMBER 2, 2015 Council Chair Rapozo: Because it is ninety-five thousand ($95,000), right? Ms. Olivas: Yes. Council Chair Rapozo: Okay. Any other questions? If not, thank you. Any registered speakers? Ms. Fountain-Tanigawa: We have one (1) registered speaker, Alice Parker. Ms. Parker: Now I forgotten what I was going to say. The wisdom of ages, right. I think we do need to solve old cold cases, it gives the community rest and the victims peace. Thank you. Council Chair Rapozo: Thank you, Ms. Parker. I see Mr. Bernabe making his way up. Mr. Bernabe: I also support it. I put myself in the position, if I was murdered or something happened to me, I would like them to keep looking. Not to mention that we are taking Sandy "G's" case to prosecution also, I saw it on the list. Mr. Taylor: One of the things that is troubling in many areas of County's operations are when you are talking about grant money and how it is being spent in any department, it does not make any difference, it really is important to having a good, well-educated staff. When you have a department like the Prosecutor's Office that gets into some really strange and important detail in how to maneuver and work with that detail, it is very important. To my understanding the turnover in the personnel in that Office, in the last two (2) or three (3) years, over ten (10) of the more senior investigators are gone. Five (5) of them in the last two and a half months, so I think this is an important thing that needs to be looked into. Why are we having this kind of a turnover and how does that play into how grant money is being used? Anybody knows that inexperience is going to take more time and effort to accomplish anything and so there is a real connection between a well-seasoned staff and a new staff that maybe is not as experienced and knowledgeable. It is just going to take them longer to do anything. Along with looking at all of these grants and the whole operation, I think that it is time to take a good look at the whole operation of the Prosecutor's Office and ask, "What is going on?" What is there this kind of turnover? Thank you. Council Chair Rapozo: Thank you, Ken. I do not know if you were here last week, but Councilmember Kagawa had raised that issue and it is on the next week's meeting, I believe the Committee Meeting, or maybe the next Committee Meeting after that. It is going to be addressed per Councilmember Kagawa's request. Anyone else wishing to testify? MELINDA MENDES: I am not here to get into politics of things. I actually was a Prosecutor here until the end of July. I was assigned to the Cold Case Unit. I also handled murders in the Office. It is unfortunate right now there is currently no attorney who has experience in doing murder cases, but what I can tell you is regardless of the issue and I am glad that it is being addressed at a later time, I am here to talk about that this grant regardless of who started it, regardless of what the politics of how it is going is that there are dedicated individuals within that unit COUNCIL MEETING 41 SEPTEMBER 2, 2015 with both the Police Department personnel and investigators who are working actively behind the scenes on these cases. I know this, because I was not only requested to be assigned to that unit, I actively worked on cases within that unit with the investigators, including the police department. I cannot get into the details and will not get into details even in Executive Session, but what I can tell you though is that this grant is being utilized well and it is moving cases forward. I know there were some cases that were mentioned and listed, but that is not the complete list. I know this, because I created the list. I worked off other lists that were done and the current list that is being worked on does not just include these, it includes other cold case murders as well as missing cases. Although they talk about some of the cases that are listed, what actually is happening behind the scenes is that when there are things that come up, they are worked on, and so it is not just that bunch of cases. There are other cases as they come up, they are worked on. In know that there was one (1) case that was mentioned, that is also one of the case's that is being worked on. I would say that it would be inaccurate to say that it is not actively being looked at because I know that, as well as other cases are. I am here today to support that this funding should continue because although unfortunately some of these units end up getting utilized for political gain, the fact of the matter is that they are making progress on each and every one of these cases. What I can answer, I would be happy to answer behind Executive Session, but you know where I stand as far as this concern. Thank you. Council Chair Rapozo: We have a question. Councilmember Yukimura. Councilmember Yukimura: Thank you, Ms. Mendes. Are you in the Office or no longer in the Office? Ms. Mendes: I resigned effective July 31st, and now in private practice. Councilmember Yukimura: Okay. Ms. Mendes: I am here as a community member. Councilmember Yukimura: I appreciate you coming out, especially since you are no longer involved, but you still have this commitment as a citizen to justice and your background makes you a very credible testifier. I appreciate your non-political commitment to coming forward. Ms. Mendes: Thank you. Council Chair Rapozo: Any other questions? You said there were other cases that are being worked on that is not on the list, why would they not be on the list? If you created the list, why would they not be on the list? Ms. Mendes: There was a case created that included...went through...in fact I would go to the old newspapers trying to look up cases, every case that we could conceivably think of that people had not brought up, that were not only old missing cases, but also what we believed were homicides that were not completely investigated, there was no suspect, or nobody was brought to prosecution on. Therefore, we put them on the list, but what happened was is I do take credit for the work of other individuals because what was happening is investigators as well as police department personnel would get leads and they would work on them. They did COUNCIL MEETING 42 SEPTEMBER 2, 2015 not just include these, but they would include other cases. These were the cases that...I do not want to use the word "priority" because I might be using it wrong, but that are on the forefront and actively being looked at. What I am saying and suggesting is that these are not the only cases that are being looked at by the Cold Case Unit, and I believe Justin would concur with that. Council Chair Rapozo: Is there any harm in providing a complete list? I bring this up because last week as we were having the discussion, one of our regular observers of the County Meeting's, Mr. Lonnie Sykos, and he E-mailed us when I was talking about having this in Executive Session. He E-mailed us saying, "You folks should have the discussion in open session, so that public...you know a lot of these cases are very old, and a lot of these cases may have witnesses that in the past were reluctant to come forward, but maybe now as they get older, as things in their life changed, they may be willing to come forward. It is basically triggering the memories of everybody of how many real cases are out there. Therefore, unless it is detrimental to the case, we may be so close to getting a suspect or arresting someone, but is there a problem putting all the names. I brought up the Kelekoma's case only because it cannot be that long ago in a Cold Case article that...rarely do I read The Garden Island, but I did, and I remember reading that girl's name in an article about cold case. I was just surprised not to see it on here. I am not asking about that case, I am just saying in general, is it detrimental to not allow the public...or let the public know of all the cases, even the ones that we are not working on. Ms. Mendes: The reason why I responded to that is because it was addressed and to be totally accurate it needed to be addressed to that specific case. It is an active missing case. Council Chair Rapozo: Right. Ms. Mendes: Let me get generic, while I was indicating that some cases may not be full time actively looked at, when leads come up they are still looked at. Because of the work that is being done, I think it is important to take a step back and think about that before I answer that question and I think that question needs to be answered by the head of the department, since I am no longer with it. I do not feel it is appropriate to respond to that. I consider that list a work product of the department, therefore I leave it to those in the position to answer that question. Council Chair Rapozo: I remember every so often the paper would run stories of Kaua`i's cold cases and they had it all and they were asking the public...you know a big component of solving these old cases is the public, witnesses, someone who saw or heard something. I could not recite back to you all the cold cases that I last saw in the paper because obviously I do not know, but...and maybe that is something that the paper can do, is run something. We have to reach out to the public for information. Ms. Mendes: Council Chair Rapozo, what I can tell you is that I agree fully with your remarks and I think if the public has...they remember something and they would like to come forward, it is important for them to call the police department or the investigators. There is a website for the Cold Case Unit and I believe it is still active that they can respond to. Council Chair Rapozo: Any other questions? COUNCIL MEETING 43 SEPTEMBER 2, 2015 Councilmember Yukimura: In the grant application there is a statement that says, "The incredibly high volume of unsolved homicide cases raises a high concern for safety." I asked the Prosecuting Attorney's Office what was the basis for the statement and was told that it was in a prior grant application, but do you have any background of this statement? Ms. Mendes: I was a prosecutor under the previous administration and even though I had about a half a dozen murder cases experience, I was not working on that unit, under the previous administration and I only worked under the unit under the current administration after being asked if I could be assigned to that when I was handling the Hilario case. No, I do not have a response to that, I think you need to talk to whoever did the grant. Councilmember Yukimura: I do not object to the statement if it is backed up by statistics, but if it is just to create fear, it is not good. Ms. Mendes: Like I said I had nothing to do with that statement, but what I can tell you is to me even one (1) unsolved homicide is one too many. We do have much more than one (1) unsolved homicide here, so it is a community safety concern, but I have nothing to do with that statement. Councilmember Yukimura: Okay. Thank you. Council Chair Rapozo: Would you agree with that statement? I think you said it right, one (1) unsolved murder is too many. Ms. Mendes: Yes. Councilmember Yukimura: Well, but that is different than saying... Council Chair Rapozo: Councilmember Yukimura, hold on. Let her answer. Councilmember Yukimura: ...an incredible high volume. Council Chair Rapozo: Councilmember Yukimura, you have a problem with just...I have the floor, I have asked the question, and she is answering. Please do not interrupt. Ms. Mendes: I stand by my answer, that is how I will respond to that question as well, Chairman. Council Chair Rapozo: Okay, I am not debating with you, Councilmember Yukimura. I am just asking another question, and there is no need to justify what you said. Councilmember Yukimura: I am not debating either. Council Chair Rapozo: Thank you, Melinda. Do you have another question? Councilmember Yukimura: Yes. Council Chair Rapozo: Go ahead. COUNCIL MEETING 44 SEPTEMBER 2, 2015 Councilmember Yukimura: An incredibly high volume of unsolved homicide is a comparative and so that is what I am trying to understand. It is a statement meaning compared to other places, it is a high volume. Does that reflect your conclusion about homicide cases on Kaua`i? Ms. Mendes: I stand by the answer that I gave earlier with respect...what I can tell you is that this unit is warranted based upon the... Councilmember Yukimura: I am not questioning the warrant. The merit of the unit. Ms. Mendes: I am not going to get into semantics then. Council Chair Rapozo: She just wants you to agree with her. Councilmember Yukimura: Now you are interrupting, thank you. Ms. Mendes: I am not going to get into semantics. I did not write that or do not know why it was written, but what I can tell you is, is that I believe we have enough unsolved homicides to warrant this unit. Councilmember Yukimura: I totally agree. Thank you. Council Chair Rapozo: Thank you, Melinda. Any other questions for Melinda? If not, thank you. Anyone else wishing to testify? Ms. Iseri: I have a question. Is this on the presentation or are we now on the item for the grant? Council Chair Rapozo: We are going to do both. We are discussing both. Ms. Iseri: Is it appropriate to come at this time to discuss the grant? Council Chair Rapozo: Or you can come up when we address the grant, right after we do the discussion. Ms. Iseri: Yes, I will wait for the grant. Council Chair Rapozo: Any other discussion on the presentation? The meeting was called back to order, and proceeded as follows: Council Chair Rapozo: We already have a motion. Any further discussion? The motion to receive C 2015-237 for the record was then put, and unanimously carried. COUNCIL MEETING 45 SEPTEMBER 2, 2015 C 2015-226 Communication (08/03/2015) from the Prosecuting Attorney, requesting Council approval to receive and expend Federal funds in the amount of $95,535, and approval to indemnify the State of Hawai`i, Department of the Attorney General, for Ke `Ahi Pio`ole, also known as the Cold Case Unit, for the period of January 1, 2016 to December 31, 2016, to continue the work involved in solving the island's cold cases. The funding will be utilized for consultants, overtime for Kaua`i Police Department Detectives and the Office of the Prosecuting Attorney's Special Investigators, training, travel for interviews, DNA submission, digital photographs and/or transcripts, and office supplies: Councilmember Yukimura moved to approve C 2015-226, seconded by Councilmember Kuali`i. Council Chair Rapozo: Are there any questions for the Prosecutor's Office as far as the grant is concern? At this time, we will suspend the rules, and anyone wishing to testify on the grant itself. This is the grant for ninety-five thousand five hundred and thirty-five dollars ($95,535)to continue the Ke `Ahi Pio`ole grant. There being no objections, the rules were suspended. Ms. Iseri: Good morning. I am here to testify wholly supporting approval of this grant. This was an innovative program that began under my administration back in April of 2012. It was personally handled by the Prosecutor, myself, who was qualified to handle murder trials and were often consulted by the investigators, by expert witnesses, by Honolulu Police Department (HPD) technicians regarding the strategy and the direction of the investigation of these cold cases. We did successfully bring forward under my administration the one and only indictment back in 2012 and the concern that I have however is that it has been three (3) years ago since we indicted Mr. Galas and yet there has been no closure for the family. Currently, there is no one in the Office that has the expertise to bring to trial a murder case. This results in huge negative impacts to the victims for not only failure to prosecute timely, but also there is no closure and everyone here, I believe, is familiar with the heartaches shared among all of us by Mr. Mendonca. There has been numerous continuances under this administration. Normally a case is brought to trial within a period of six (6) months or else the case gets dismissed, however, this Prosecutor has stipulated and agreed to all of these numerous continuances to the detriment of closure for the family. It says, "Trial has been set for the beginning of 2016," actually trial was set back three (3) years ago, and has been continued numerous times. Again, it brings concern that was previously brought up by the former testimonies about the concern of the Office in handling these types of cases that require very technical and very qualified individuals, because you only have one (1) shot when you go to trial, and that is your shot. You need to have the best prosecutors and with the most qualified people leaving, there really is not anybody to handle this case. In respect to Councilmember Yukimura's cost, I would like to have seen the hundred sixty-three thousand ($163,000) that they were asking for this grant as opposed to even the sex assault because we already have three (3) Prosecutors handling sex assaults. This is a minimal amount, ninety-five thousand dollars ($95,000). If you recall, DNA is incredibly expensive and it has only been around since 1986, I believe was the first case, and it has only been the mid to late 1990s that we really gotten very capable of determining DNA with little pieces of DNA, such as, blood spots, there are various types... Council Chair Rapozo: I am going to have to stop you there. Anyone else wishing to testify on this? No one else, you can continue. COUNCIL MEETING 46 SEPTEMBER 2, 2015 Ms. Iseri: It is incredibly expensive. While we do have an HPD laboratory (lab), we also need accreditation in order to get the type of evidence introduced in court from labs that do DNA. It is a highly sophisticated process and it definitely needs the dedication of a very highly skilled attorney to handle this case. I would suspect that this will in essence continue, like I said having just one case solved is way too little given the amount the it is still outstanding and given the length of time that this grant has been in existence. But, it is not only to get it charged, it really is to get some closure for the family and that there is a trial in this matter where the community is able to assess and decide on the guilt and innocence of the person charged. It is not only difficult for the family, but it is also difficult for the defendant because there family wants some kind of disposition as well. I hope with the encouragement of this grant, that there will be someone specially assigned to handle the Galas case and that it be prosecuted successfully as I was the attorney that reviewed all of the evidence in this matter. There are thousands of documents and there are also numerous items that were sent for DNA and the case really started with getting the successful indictment with the inception and creation of this grant. Thank you. Council Chair Rapozo: Thank you. Any questions? When this was created in 2012, is was not with the grant or it was with this grant? Ms. Iseri: It was with the grant. That was the beginning of...and that was one of several that I noticed that are still on the list that was worked upon three (3)years ago when I was in the Office. I believe Councilmember Yukimura had asked about the language placed into the grant, all of the grant application, there is a grant coordinator and those questions should not really be addressed to the attorneys, but they should be addressed to the Department Head as well as the Grant Coordinator who submits this grant for approval to the Attorney General's Office. I would hope to add that in the goals and objectives, and I do now know if this was also another grant that was submitted prior to Council approval, I believe so, because it is for the same type so it is not only one violation, but two violations. Not only in the goals and objectives they have, "Bring criminal charges,"but that there is a successful disposition to those cases, which would incorporate conviction rates and again it is incredibly expensive, but there is really no cost to determining a person's guilt especially in a homicide case. I echo that previously raised by Ms. Mendes. Council Chair Rapozo: Councilmember Yukimura. Councilmember Yukimura: I just want to thank you for your initiative in creating this program, because I can see it is very important. Thank you. Council Chair Rapozo: Thank you very much. Anyone else? The meeting was called back to order, and proceeded as follows: Council Chair Rapozo: I just want to say that some of these cases are very old and I will reiterate what I was trying to say that I think we have to keep it in front the people. I think we have to keep the people reminded about these cases as Mr. Sykos had recommended because a couple of these cases I actually was actively involved in when I was in the department and when I see the names up again, it brings back the recollection of the investigations and "so close and yet so far," is the clique that comes to my mind when I see it. At that time it seemed like we had the suspects and over time you just cannot build the case. We did not have the resources back then that we do today, and this type of case units are vital because you can bring COUNCIL MEETING 47 SEPTEMBER 2, 2015 the case back. I can assure you that the investigators have not divulge information to me, but they have basically told me that they are making a lot of head way. I wait for the day that indictments are handed down, these people are brought to justice, and the families get their closure. These types of units, this grant, is vital for that and I look to the Prosecutor to make sure that these things are done and we do allocate the resources necessary because as the testifier said, it does not just affect the victims and their families, it also affects the suspect defendants and their families as well. I will obviously be supporting this and hopefully we can get some progress in the next year. Any further discussion? Councilmember Yukimura. Councilmember Yukimura: The moneys are clearly needed and I appreciate the fact that the Prosecutor has gone forward to get the moneys. I do not appreciate that the grant was put forward for our approval after it was submitted, therefore again, I hope this will not happen again. I do want to commend the former prosecutor for starting this program and I too hope that we will see some results and that it makes a lot of sense to include under goals and objections and performance standards, the successful disposition of these cases, therefore not just the charges, but the actual results in the trial that will bring closure. Council Chair Rapozo: Any other discussion? The motion to approve C 2015-226 was then put, and unanimously carried. C 2015-227 Communication (08/11/2015) from Councilmember Kuali`i, requesting agenda time to discuss and approve for inclusion in the 2016 County of Kaua`i and Hawai`i State Association of Counties (HSAC) Legislative Packages, a proposed amendment to Section 387-2, Hawai`i Revised Statutes (HRS), that would increase Hawai`i's statewide minimum wage to $15.00, effective January 1, 2019: Councilmember Hooser moved to approve C 2015-227, seconded by Councilmember Kuali`i. Council Chair Rapozo: Is anyone here wishing to testify on item C 2015-227? Ms. Fountain-Tanigawa: Council Chair, we have two (2) registered speakers. There being no objections, the rules were suspended. Councilmember Kagawa: I have a process question. Council Chair Rapozo: Yes, sure. Councilmember Kagawa: We have a related resolution as well that is coming up. I am wondering if this testimony can be taken as testimony for the accompanied Resolution as well. That way we ensure that the public gets their say on both matters because both matters are related. Council Chair Rapozo: The actual Resolution will be going to a public hearing first. The actual Resolution that is attached or related is not on today, it will be on after the public hearing, but no doubt, your testimony today will influence the Councilmembers as they deliberate the Resolution going forward. COUNCIL MEETING 48 SEPTEMBER 2, 2015 TYLER RODIGHIERO: I am representing KaiKini Bikinis. I have been on Kaua`i since 2003. I resubmitted my wife's testimony from last week. I actually heard this one today and it inspired me, "Minimum wage is not a living wage," I think we all know that. But minimum wage is the starting wage, when you get out of high school, you are building up to get to a living wage. I do not think we should start everyone at that living wage. We work our way to there. If I am training somebody in the manufacturing setting, I do not want to pay them living wage to train, that is a temporary thing. I am going to bring up to a more a living wage with the benefits and all that come after that. In pertaining to my wife's company as well, when we train somebody, I am going to have to pay my people now fifteen dollars ($15) if this goes through, and then I am going to have to pay the people being trained fifteen dollars ($15), which is not fair. In any company too, if I have to pay everybody fifteen dollars ($15), what about the people who were paid fifteen dollars ($15) that are way over qualified than that person who is getting fifteen dollars ($15), now everybody gets a pay increase in the whole company. The whole company is going to get affected, and not just that one grade of employees or pay grade of employee per say. For the most part, I think this should be on a federal level so as a state we could compete with other states. If we are doing such an abrupt jump at a state level, that makes it so, "How does the state complete business wise with other states out there." We have fifty-two (52) states, we are competing with fifty-one (51) states for bringing businesses in, compete, give more jobs to our County's. Another thing is manufacturing. We push "Made in Hawai`i," it is a big thing. You folks all push that, you folks are all for it. This would pretty much squash that as a competitive thing to be even competitive to be manufacturing as a state. I am fully against this as it is written today. I think if you folks could put something in there stating that manufacturing be completely separate, also farming, I believe is another one. We have so many small farmers, and so much land on the farm that we are not farming, this would make it a lot tougher. It looks like I am running out of time, but that is pretty much where we stand on that and I am going to keep testifying on this matter and trying to at least give manufacturing as the focal point of this, that this is a huge hit for us to compete in the world-wide market place. It takes manufacturing in Hawai`i out of the picture for the most part. It would be very hard for the company to compete. And the big jump, other states are not jumping at that level. They jump may be at a dollar per year. Council Chair Rapozo: You can come back after everybody has testified. Any questions? Next. SANDY POEHNELT: Good morning. I own The Right Slice Pie Shop, please bear with me, public speaking is definitely least favorite thing to do. My growing small business has been ranked among the top fifty (50) fastest rising businesses in the State of Hawai`i for the last two (2) years, but that certainly does not mean that my business would survive at minimum wage hike to fifteen dollars ($15) or more. In the nearly six (6) years that we have been open, I have gone from working along to adding my first employee in 2010, to five (5) employees when we opened our first retail location in 2011, and expanding to twelve (12) staff when we opened our second location in 2014. Currently, we have fourteen (14) employees and are looking for two (2) more, but who am I kidding, we are constantly looking for good employees. We are looking for skilled employees and we do not pay minimum wage. We have never paid minimum wage, and I really do not want to pay minimum wage. In my opinion minimum wage is not meant to be living wage. It is a chance to get your foot in the door to make a little bit of money and learn some valuable skills. It is also to show your employer what you are capable of. An employee who shows ambition, motivation, and a desire to learn should be able to move up the ranks in COUNCIL MEETING 49 SEPTEMBER 2, 2015 most any field. Personally, I do not feel anyone is stuck at a minimum wage job. You as an individual have a choice to make and there are always options. They may not be your first choice, they may not be your dream job, but there are always options. We must take it upon ourselves to grow as an individual, if you can intern you can go back to school, you can go and do on the job training and job shadowing. We even have ETF (Employee Training Fund) that will help pay for your continued education courses. There are always opportunities to improve your situation, it is up to you to work within these options and create your own path. The path is not always straight and narrow, it is not always the path that we envision, but the path is always changing. My path is certainly not what I envisioned when I started my business. Back to my business when I first realized that I could not keep up on my own, and had to bring on employees, I vowed to myself that I would take as good of care of those employees as I could afford. In my mind that meant a decent wage, medical, dental, vision, and prescription insurance and not just minimum coverage, but good coverage. It also means retirement, vacation, and soon profit sharing. I know that a happy employee is an employee that will stick around for a long time to come. I have employees that have been with me three (3), four (4), and five (5) years. Nearly all of my employees have been with me a year. With a great increase of fifteen dollars ($15) an hour that means that I am going to be paying fifteen (15)...not fifteen ($15), I am paying fifteen dollars ($15) now, that means I am paying twenty dollars to twenty-three dollars ($20 - $23) an hour. I do not know that we can afford that. I have more, but I see that I am almost out of time. Council Chair Rapozo: You can come back. We have a question here from Councilmember Yukimura. Councilmember Yukimura: Thank you so much for being here. You mentioned ETF to pay for more education and I just wanted to understand that reference. Ms. Poehnelt: ETF funding is something that if I was not on the workforce development board I probably would not know about it. It is a program where through your workplace, ETF will pay for half of some of your continuing education tuition. Councilmember Yukimura: What does ETF stand for? Ms. Poehnelt: Education Training Fund, right? Employee Training Fund. Councilmember Yukimura: Employee Training Fund, is that a federal fund? Ms. Poehnelt: I am unsure if it is federal or state. State. Councilmember Yukimura: Okay, thank you very much. Councilmember Kuali`i: Congratulations on being in the top fifty (50) fastest growing. You said you had fourteen (14) employees now and you are looking for two (2) more. You also said that you do not pay the minimum wage. What is the lowest rate that you do pay? Ms. Poehnelt: The lowest wage we have on the staff at this point in time is eight dollars and fifty cents ($8.50). COUNCIL MEETING 50 SEPTEMBER 2, 2015 Councilmember Kuali`i: And that is for what position? Ms. Poehnelt: That is for a store clerk. Councilmember Kuali`i: When you said that you are currently paying fifteen dollars ($15), you mean that is what it costs you with all the other... Ms. Poehnelt: No, we have employees with all different rates of pay, so what I was trying to say is that an employee that I am paying fifteen dollars ($15) today with this hike in minimum wage, I will have to pay twenty dollars to twenty-three dollars ($20 - $23) an hour to keep them... Councilmember Kuali`i: Relatively higher than the lowest paid. Ms. Poehnelt: Exactly. Councilmember Kuali`i: You take advantage of this ETF funding? Ms. Poehnelt: I do. Councilmember Kuali`i: You pay half and then you get funding for the other half to train their employees so they can get promotions. Ms. Poehnelt: I do. Councilmember Kuali`i: The only other thing is that this original proposal when the Legislature looks at it and they probably will because they do year after year, they could distinguish between smaller employees and larger employees, and with fourteen (14) employees, you would probably clearly be in a grouping. Were you aware of that? Ms. Poehnelt: I was not aware of that, but in my opinion that is going to deter a small business from growing into a large business. Councilmember Kuali`i: Because at some point there is a cutoff...and then the last thing you talked about the minimum wage not being meant to be a living wage. Do you have ideas on what the living wage should be as far as how you define it and what amount you would put on it? Ms. Poehnelt: I do, in my opinion I would say a living wage here is going to vary depending on if you are married, single, if you have kids, but I would say an average of twenty-one dollars ($21) an hour — a minimum/livable wage to pay rent here in Hawai`i, with our high cost of living. Councilmember Kuali`i: So maybe rent for a single person. Ms. Poehnelt: Single or married, yes. Councilmember Kuali`i: I do not know if you are aware that the National Low Income Housing Coalition concluded that it would take thirty-one dollars and sixty-one cents ($31.61) an hour for a family of four (4); two (2) parents and two (2) children, to afford housing in Hawai`i. Thank you. COUNCIL MEETING 51 SEPTEMBER 2, 2015 Councilmember Kagawa: Next speaker please. MARK PERRIELLO: I am the President at the Kaua`i Chamber of Commerce. Thank you for your time today. First, I would like to say that I stand on the testimony that was submitted to you electronically, which I hope you all have a copy of. Today, I wanted to share the perspective of a business owner who was unable to make it today, but who wanted you all to hear his thoughts on Bo French from Brennecke's Catering and Deli. These are his words. "I am disappointed in the latest bills before the Council to raise the minimum wage again in 2019 to fifteen dollars ($15) an hour and requiring employers to pay for medical and sick leaves for hourly employees. There are very few employees in our company that are paid minimum wage, unless they are on commission or earn additional wages in gratuities. My staff works really hard and I would put our team head to head in attitude and performance. The proposed bill is unfortunately consistent with making our workforce less productive. We do a lot for our community; donations for special interest groups, youth projects and developments, incentives for management and hourly staff, certificate of appreciate to local businesses and their staff, to name only a few. We are able to maintain our facility, do the repair and maintenance that attract people to our locations which because we are so visual make our island look good for our visitors. Remember we just put in over five hundred thousand dollars ($500,000) to upgrade the Po`ipu Beach Park wastewater system. It is an improvement which pretty much goes unnoticed, but is also important to the health and welfare of our community and visitor industry. These are things that would definitely be cut in to as far as budgeting with additional increase in payroll expense. The wage-based is only the tip of the compensation iceberg, insurance, workers' compensation, FICA (Federal Insurance Contributions Act), everything is built around the annual cost of labor, and we are a labor intense business employing almost one hundred (100) workers from waiters, kitchen staff, sandwich makers, sales people, maintenance personnel, clerical, secretaries, and management in several levels. I wish I was there to talk to the Council face to face because you know how passionate I am. Please pass this letter along to all Councilmembers, as I know they will do their best. Mahalo, Bo French." Thank you. Council Chair Rapozo: Thank you. Any questions? Councilmember Kuali`i: In your written testimony, you provided that the chamber members, seventy-five point three percent (75.3%) already offer employees some form of paid sick leave or paid time off. Can you defined paid sick leave or paid time off? Just tell me the lowest level. Mr. Perriello: Unfortunately, I cannot. We did not get to that level of specificity in the questions that we asked. Councilmember Kuali`i: So, if the bill was to provide that level it could already be covered. Mr. Perriello: It could. I think that the point that we were looking to make was the businesses in Kaua`i are already offering some form of paid sick leave or paid time off to their employees. In many ways this is a solution in search of a problem. Councilmember Kuali`i: And then another more general question, because the last time you testified that the Chamber here on Kauai has four hundred and fifty (450) members, I think is the number you used, and the Chamber of COUNCIL MEETING 52 SEPTEMBER 2, 2015 Commerce Hawai`i told us of their membership statewide, eighty percent (80%) of their members have twenty (20) or fewer employees. Do you know what percentage of your four hundred and fifty (450) members have twenty (20) or fewer employees? Mr. Perriello: That percentage should have been included in the written testimony and it is escaping me off the top of my head, I apologize. Councilmember Kuali`i: Unless there is more than this. Mr. Perriello: Oh, that was...I think information that perhaps I provided to one of the Councilmembers directly. Councilmember Kuali`i: Okay. Mr. Perriello: Which I can provide to the whole Council. Councilmember Kuali`i: But you do not know it off the top of your head? Mr. Perriello: I do not know it off the to of my head. Councilmember Kuali`i: Okay, we will get it. Thank you. Council Chair Rapozo: Your membership is broken down by businesses as well as individual though, right? Mr. Perriello: That is correct. Council Chair Rapozo: Therefore, you may not have four hundred fifty (450) business members, because you do have individual members. Do you know what that breakdown is? Mr. Perriello: We do have four hundred and fifty (450) business members, and we have about six hundred and fifty (650) members all together. Council Chair Rapozo: Thank you very much. Councilmember Hooser: Good morning. I find it interesting that thirty-five percent (35%) of your members support increasing the minimum wage to fifteen dollars ($15) an hour. Is that thirty-five percent (35%), do you know whether they are small or large businesses or are they individuals? Mr. Perriello: We did not do that analysis. Councilmember Hooser: Okay, thank you. Council Chair Rapozo: Any other questions? Are you going to stay here for the rest of the meeting?Are you going to testifying at the other items as well, because I know you are a busy man, so I will allow questions that go into the next item, if in fact you are leaving, but if you are going to be here to represent the Chamber then we will proceed as we normally do. Mr. Perriello: I should be here. Thank you. COUNCIL MEETING 53 SEPTEMBER 2, 2015 Council Chair Rapozo: Anyone else. Mr. Bernabe: I would just like to point out that it is kind of awkward that the thirty-five percent (35%) that are willing to go worth with this have no statistics to support them in their commerce. Maybe they have to reevaluate working with the complete hundred percent (100%) and not just the sixty-five (65) that does not want to do it. I want to point out publically that this myth that minimum wage workers are high school students. We know that not just here, but nationwide, that the age of minimum wage and low skill job workers are going up. That is the myth that we have to break, because I worked at Duke's Kalapaki Beach, Kaua`I, and I know there are still a married couple still working there as dishwashers. They have three (3) jobs each. They look like they never sleep. They are always working because they have kids and they have grandkids. If they add a little more per job, and some of these jobs they have been there so long that they do make more than minimum wage, but not much. That brings me to my second point. We are talking about 2019 and we get businesses testifying, how are they going to justify or rationale that, "My long time value employee, how do I explain to them that this unqualified new worker is going to get slightly under you, equal, or even in some cases testify like Kaua`i Kookie, more, that is ridiculous. If you really value them, they should be earning an almost livable wage of something like twenty dollars ($20). I have a small business and every once in a while I contract a job that is bigger than I can handle, and I hire folks, grounds men, because I am handicapped and I am old, so I do the cutting and I have grounds men. I pay that grounds men sometimes twenty-five dollars ($25) an hour. I could say, "You deserve twelve dollars ($12) an hour," but I do not. If you really value the workers that you folks coming out here and saying, "We value our long time workers, and how are we going to explain to them that this unqualified new guy is going to get slightly under you, same, or slightly above you." That is a bad argument. It is embarrassing. I would not even use that argument. Options is not true. I have to go to a doctor's appointment, so I hope we will go through this again, but I want to talk about options. It is not true of an argument about "always have options." I will come back. I will even be late for my appointment. Council Chair Rapozo: That is dedication. Thank you. Anyone else wishing to testify on this? This is the fifteen dollars ($15) increase. A lot of the people think that this Council is having a discussion to increase the minimum wage and I need to clarify that this Council does not have the authority and that this is really simply to move this discussion basically to have the discussion at the State Association of Counties level. You are basically approving the move and moving it to HSAC to have discussion. This is not to increase the minimum wage. SANDY KATO-KLUKE: Good morning. I am here on behalf of the Board of Directors for the Kaua`i County Farm Bureau. They have voted unanimously to oppose the fifteen dollars ($15) minimum wage, because it would be detrimental to our small farmers. They cannot afford fifteen dollars ($15) an hour. Also we stand on the same thing with the Hotel Association on the prior testimony we gave last week, the written testimony and what I said as a small business owner. I have talked to other small businesses at the farmers market and they all said that fifteen dollars ($15) an hour is not even what they pay themselves now. They asked, "How can we pay a minimum wage in 2019 of fifteen dollars ($15) an hour. I ask for your consideration in voting against it. Thank you. COUNCIL MEETING 54 SEPTEMBER 2, 2015 Council Chair Rapozo: Any questions for the speaker? If not, thank you. Mr. Taylor: Fifteen dollars ($15) an hour minimum wage is certainly not a livable wage. To make rent at six hundred and fifty dollars ($650) a month, takes fourteen dollars and ninety cents ($14.90) an hour to make it under the thirty percent (30%) of your total income. To have a livable wage you have to be up twenty-six dollars ($26) or more per hour. I think it is long overdue. It is unfortunate that it is going to have some effects on some businesses, but the young lady that spoke earlier has done a good job, she has grown and paid above minimum wage which is wonderful. By the way, when most people think about pie, they think about desserts, but she makes a fantastic chicken pot pie, if you have not tried it, you should. I highly recommend it. I highly recommend that you approve sending this resolution on to the state and see where it goes from there. Thank you. Council Chair Rapozo: Any questions for Ken? Ken, I know you had a business on the mainland, I believe you had a landscaping business. How many employees did you have? Mr. Taylor: At one time, with three (3) businesses, about fifty (50) employees. Council Chair Rapozo: In the landscaping? Mr. Taylor: It was landscaping, hotel nursery operation, and I also had a restaurant. Council Chair Rapozo: And total fifty (50) employees. Mr. Taylor: About fifty (50) employees. Council Chair Rapozo: Between all three (3) businesses? Mr. Taylor: Yes. Council Chair Rapozo: Did you have minimum wage employees back then? Mr. Taylor: I always started my employees at fifty percent (50%) above minimum wage. Council Chair Rapozo: If you were forced to double the minimum wage, would you survive? Mr. Taylor: I would have made it work. Council Chair Rapozo: How? Mr. Taylor: There are a lot of things... Council Chair Rapozo: I am not trying to be critical. Mr. Taylor: When costs go up, you have to become more efficient. COUNCIL MEETING 55 SEPTEMBER 2, 2015 Council Chair Rapozo: I know. I tried and I lost my business, but I tried. What example would you give? Let us just take the landscaping component of your business. Mr. Taylor: In my particular situation I was sort of in an area that is very similar to being here on the island, in fact we used to refer to the area as an island in the sea of California, because we were so separated from north, the next city up was sixty-five (65) miles away and south was fifty (50) miles away. We made the business within our geographical area where if you do down to the Los Angeles area, people that were doing the same kind of thing I was doing, they are running everywhere from San Diego to Fresno. You can expand your territory, your area... Council Chair Rapozo: I am trying to visualized, because when you are expanding your area you are hiring more employees at double the rate. I am just trying to find out how do you make it work. Unless you are enjoying substantial profits that you can absorb that, how else do you do it. That is where I am challenged with this. Because you said that unfortunately some businesses will go away, and it find if it is not your business. Mr. Taylor: I understand that. When your cost go up, regardless of what it is, you have to do more business in order to bring in more dollar, and there comes the situation... Council Chair Rapozo: Therefore, your solution is that you would have to expand your business and create more cash flow. Mr. Taylor: Sure. I took a look one time and asked myself, "What would it cost me to close the doors for one (1) month?" All of the activities that I cannot get rid of: insurance, telephones, and all these kinds of things, and so on — twenty-five thousand dollars ($25,000) to be closed for one (1) month. Council Chair Rapozo: I understand. Mr. Taylor: And that meant every money that you are in business —that is twenty-five thousand dollars ($25,000) you had to make before you paid any salaries or anything. Council Chair Rapozo: Okay, that is fair. You have lived it, so I appreciate the information. Thank you. Mr. Taylor: Thank you. Council Chair Rapozo: Anyone else wishing to testify? Ms. Parker: Ken brings up an interesting point, expand the business, but the area he was in is an affluent area. If you have low income areas, I am not sure how are you going to handle it. I think people deserve a decent wage, but I do not know how. Thank you. MARYNEL P. VALENZUELA: I am the president and owner of a small business on Kaua`i called Inkspot Printing. I am here today not only for my business, but also to represent other small Filipino businesses and business owners on Kauai. COUNCIL MEETING 56 SEPTEMBER 2, 2015 My goal as a woman in business is simply to provide employment successfully and have a sustainable business. I have been in this type of business for nearly two (2) decades, yes, I started when I was nine. Other believe that having your own business is fun and very easy, however, we do have our own struggles. We work hard and long hours, just so that we can survive and our most important consideration is to ensure that our employees get paid first. My business has been operating for over twenty- five (25) years now. I managed it for at least twelve (12)years, twelve (12)years under my ownership, and basically eighteen (18) years all in all while I was there. While we started conservatively with six (6) people to twelve (12) full-time employees during the peak of economy between 1994 to 2012. Presently, I have nine (9) employees, adding myself and my husband, that makes it eleven and a half(11.5). We have seven (7) full-timers right now with full benefits, and two (2) others that fluctuates from part-time to on-call position. All of my employees that we have right now has been employed there for at least twelve (12) years. In service to the community, we have also offered job mentoring for high school students as well as job shadowing from different high schools on Kaua`i. We have also hired unskilled and inexperienced students and trained them on the job. There were three (3) from the past whom we hired, maybe at minimum...actually it is a little higher than the minimum wage, they left for college, they did really well in college, in fact, they were better than the freshmen because they had job training before they went to school. When they come back to Kaua`i, we offer them jobs while they are visiting. It could be a contract labor or on a casual basis. We take special attention to provide and support whenever they are... Council Chair Rapozo: Marynel, I am sorry, I have to stop you there, that is your first three (3) minutes. Anyone else wishing to testify on this? You can come back on the second run. Ms. Valenzuela: Okay. Councilmember Kuali`i: I have a question. You stated you have nine (9) employees and ten and half(10.5) with you and your husband. Ms. Valenzuela: Eleven and a half(11.5). Councilmember Kuali`i: And seven (7) full-time with benefits. Do you pay any of your employees minimum wage? Ms. Valenzuela: Higher than minimum wage. Councilmember Kuali`i: What do you pay the lowest position and what is the name of that position? Ms. Valenzuela: Right now, it is nine dollars fifty cents ($9.50) and doing bindery help. Councilmember Kuali`i: Thank you. Council Chair Rapozo: Any other questions? Thank you. You can come back after on the second time for three (3) more minutes. Hello, Santa. PHIL "SANTA" WORWA: I have an entertainment business here, I guess you would call it, and I just want to mention where my background comes from. I worked for a company that was contracted with Costco to feed you samples and COUNCIL MEETING 57 SEPTEMBER 2, 2015 every time is a real negotiating thing, especially for the group of people that we have. Most of my employees were all over fifty-five (55) years old. High with insurance problems because of injuries and things like that, but they only wanted to make so much income, probably about eighty percent (80%) of them. They can only make so much money underneath their social security program fixed income. Even a quarter an hour was negotiated with Costco and they kept us keeping our expenses down as much as we could. When I left ten (10) years ago, I was doing a half a million of demonstrations a year and fifteen dollars ($15) an hour would just be crushing to those people who just need that extra income, that enjoy just being out there, I mean we very seldom had people under thirty-five (35) except for maybe students that maybe needed the flexibility of that. But to go to fifteen dollars ($15) an hour, that means I would charge an extra thirty dollars ($30) to the vendor, the manufacture pays for all of those demonstrations. All of a sudden that whole business would tighten up and I have done it before, have to say that I have to cut back on employees, I cannot do the raises right now, the insurance is really expensive. We had to do a three (3) week background check on every employee and most of the employees are pretty topnotch people, a lot of business people that have retired that just want to have some action out there and then they feed all of you folks. Therefore, it is like a free meal all of the time. It is a challenge for a guy like me who had been involved in a large business, that I would not want to negotiate that, going to my corporation, Costco, to contract that out. It would just be cost ineffective for me. I would not want to go tell these people that we are done and until these manufactures decide, they have enough for the budget or Costco loosens up a little bit, I am not talking for Costco Wholesale here, but this is just my experience as a large manager of huge amount of people that were decided and could lose their jobs because of that. Any questions? Councilmember Kuali`i: You operate a business here on Kaua`i. Mr. Worwa: Correct. Councilmember Kuali`i: What is the name of the business? Mr. Worwa: It is called "Santa in Paradise." Councilmember Kuali`i: What is the number of employees that you have? Mr. Worwa: I have no employees except for myself. It is kind of a semi-retired business that I am in right now. I do some consulting for manufactures that go into Costco, because I used to be a food broker as well, so that was tied in with demonstration company. We were an exclusive contract to Costco, a separate company, but we were a food broker. Any time you developed a new product, you would have to do demonstrations because that is where the sales, and the best exposure for those manufactures because that is an immediate response. When you eat something, you say, "Oh boy, that was really good," you are buying it right off the spot. Councilmember Kuali`i: I am not sure I understand. Are you the local representative of a national company? Mr. Worwa: No, all I am doing is I have been listening and of the experiences that I have had before, I am not in the contracting negotiating part of it. I just see that how many people that I have hired in the past and in my experience, and now the demonstrations run two million a year that they have those COUNCIL MEETING 58 SEPTEMBER 2, 2015 demonstrations, and it is all over the world. A big increase like that would just be incredible. Now, when we came on island here, we had a two dollar ($2) increase over our normal starting wage, because all you had to know was putting a microwave together. Councilmember Kuali`i: Do you know how many employees are hired by the demonstration company here on Kauai? Mr. Worwa: Well each building usually has anywhere from forty (40) to fifty (50) people per building part-time, and then you times that by nine (9) buildings here in the state. Councilmember Kuali`i: Do you know if they pay the minimum wage? Mr. Worwa: We pay above the minimum wage. We have to do that with the negotiating with Costco. We have to be competitive. Councilmember Kuali`i: Do you know what that rate is, approximately? Mr. Worwa: I do not know exactly what it was, but when we started here we were two dollars ($2) over our minimum — we started at twelve dollars and seventy-one cents ($12.71) an hour for demonstrations. Councilmember Kuali`i: Twelve dollars and seventy-one cents ($12.71)? Mr. Worwa: Yes. We have to stay competitive too with the hourly wage that Costco would have. It is a different employment population pool, let me put it that way. Councilmember Kuali`i: Thank you. Council Chair Rapozo: Thank you. Anyone else wishing to testify for the first time? Anyone wanting to speak for the second time? Matt. Mr. Bernabe: Before I tell my little story, I want to point out two (2) things that I just heard. One, the farmers bureau just made my point that selling to farmer's markets is unsustainable and they better start exporting and making a better plan...if they cannot even pay themselves to farm, that is a failed plan. Fail that farm and let somebody take it over with a real farming plan, and that is how business works, I am sorry. Second, if you are already paying two or more dollars, currently, do you folks realize that the minimum wage is going to be ten dollars and ten cents ($10.10) at that point and you are going to be more close to fifteen dollars ($15) then you already know — if you are already paying for than the minimum wage now. We all heard testimony today. Now, about options. When I got my tax returners and I realized seven (7) to eight (8) years that I was only making sixteen thousand to seventeen thousand dollars ($16,000 - $17,000) and putting in an average of fifty (50) hours a week, my other part-time job was that I raised my kids. My wife went to work in the day, I cooked at night. My wife and I were struggling, so we decided to take the risk and me go back to college and become a nurse, and we struggled. Not everybody can do that. We barely did not make it because of that. Obviously, I got run over and things changes, we adapted, but that is how we are. COUNCIL MEETING 59 SEPTEMBER 2, 2015 Options to change is not as simple as these testimonies today make it sound. They are not in reality. That is all I want to say on that. I have to go. Council Chair Rapozo: Thank you, Matt. Anyone else? Ms. Poehnelt: Again, Sandy Poehnelt. One point that I wanted to make was that the fifteen dollars ($15) an hour, that is not what we are only thinking of as a small business. We are thinking of the insurance. When I pay insurance for a full-time employee, that is three dollars and fifty cents ($3.50) an hour, additional above their wage. Then you have to think about workers' compensation, disability, taxes, therefore that is an additional eighteen to twenty-four percent (18% - 24%) above their wage. When we talk as a small business about what we are paying our employees, it is not just the dollars in your pocket, it is not just what their paycheck shows, it is all that additional income that we are providing for them. When the minimum wage goes up, of course we are going to raise our rates, whether it goes up to ten dollars and ten cents ($10.10) or whether it goes up to fifteen dollars ($15), we are going to make sure that our employees at The Right Slice are taken cared of because is what we are about. But you have to realize that if we are going to pay our dishwashers fifteen dollars ($15) an hour, you no longer getting a five dollars ($5) piece of pie, it is just not going to happen. We can cut our food cost as much as we can, but we cannot cut our electric bill, water bill, there are a lot of things that we do not have control over. The prices are going to go up — that is just how it is going to be. We can do everything in our power, as a small business owners, to reduce our overhead, but something has to give and the first thing that is going to give in my business is these full-time employees that I am not giving vacation, medical, dental, vision, retirement, matched retirement, that is all going to stop, because if we have to dedicate that money to their basic wage, we are going to pay them twenty dollars ($20) an hour instead of fifteen dollars ($15), there is no more matched retirement, no profit sharing coming up in the future. It is what it is. They are going to lose benefits; they are going to make more money; and they are going to have to come up with those benefits on their own. That is important to me as a small business person. The other thing that I wanted to point out is being a part of the Kaua`i Workforce Development Board, I have been on the board for a few years, every time we meet with the board, we discuss the state of our specific areas of the community, whether it is agriculture, tourism, retail, banking, government, whatever it is — every time we meet, we discuss how things are going. I can tell you every meeting that we have people are looking to hire. People are looking for good, qualified employees, so there are jobs out there and these are not jobs at minimum wage. I think we need to invest a little bit more in education. We need to get our children a little bit more life skills and bring them into the market with more knowledge what they are getting in to and take the time and initiative to help retrain the adults that need a little bit help to get of those minimum wage positions. I do understand that it is not just high school kids. That is it. Council Chair Rapozo: Thank you. Any other questions? If not, thank you very much. Mr. Perriello: I just wanted to answer Councilmember Kuali`i's question about the percentage breakdown of our members and the business and size of their outfit. According to our most recent inquiries, basically sixty percent (60%) are businesses that employ twenty (20) or fewer people, and forty percent (40%) employ more than twenty (20). Council Chair Rapozo: Thank you. COUNCIL MEETING 60 SEPTEMBER 2, 2015 Mr. Taylor: My understanding is that the County has thirteen hundred (13,000) employees and only nineteen (19) of them are paid under fifteen dollars ($15) an hour. Why are you all so free with the taxpayers money? That is a question. Because it is livable wage that you are looking for. You are looking for people to stay and be competent employees. You have a situation where it is not their money, so you can spend it and if you need more, you just raise the taxes. Business, I know, does not have that luxury, but it is still an important thing because we are subsidizing businesses. We talk a lot about how important business is, but is small business important when we have to subsidize it to keep it in business? It is a question that we need to address and I think it is time to realize that wages have not kept up with cost. It was not that many years ago in my life that I could buy a cup of coffee for a dime, some places a nickel. Today, the cheapest is one dollar ($1), two dollars and seventy-five cents ($2.75) is not out of line — for a cup of coffee. This is why it is important. We should have an automatic scale on minimum wage, just like on a lot of other things but we have not done it. We sit here and talk a lot about affordable housing, but we do not pay a wage that makes anybody eligible to go out and rent a house that is available. That is where the subsidies come in and that is what we are doing, we are subsidizing business to keep the wages down, which is not right. We need to do the right thing for everybody and the right thing is to eventually get people up to a minimum wage. Council Chair Rapozo: Thank you, Ken. Any questions? If not, thank you. Marynel, did you want to finish up? Ms. Valenzuela: I just wanted to add also that I do not completely oppose the idea of increasing minimum wage, however the fifteen dollars ($15) in about three (3) years is just too fast or too soon for me. In addition to paying the above required. base wage plus providing the medical right now; we provide medical insurances, sick leaves, profit sharing, that is more than twenty dollars ($20) per hour right now for me. I believe that increasing the minimum wage can be revisited each year and be given a consideration and base it on our economic situations. We always say we cannot be comparing apples to oranges, like the situations in L.A. and Seattle. We hope to continue to provide employment and job security on the island, however, I believe that it is only fair that we as business owners should also be given the consideration and the opportunity to survive during this time economic times. Small businesses are what makes this island unique, especially because it is the Kaua`i's spirit of aloha that demonstrates how we can help each other out. We should continue our commitment to provide jobs and service to Kaua`i people for as long as we can, and the fifteen dollars ($15) minimum wage for me, including smaller other businesses that keeps the heartbeat of keeping Kaua`i families living sustainably. It is sad to say that we may not be able to provide employment having this minimum wage too soon. I might end up just doing my own job with my sisters and my family, therefore meaning less job opportunities for people out there, less work, for less taxes. In closing, I just want to stress that let us see the effect of the ten dollars and ten cents ($10.10) starting minimum wage first and let the business owners also decide on the ones who we should be rewarding the additional pay raise each time. Thank you for the opportunity to speak today. Councilmember Kuali`i: What did you mean by, "Revisit each year," because you said that after you talked about drastic increases versus gradual increases. Do you see the eight dollars and fifty cents ($8.50) January 2016, nine dollars twenty-five cents ($9.25) January 2017, and ten dollars and ten cents ($10.10) January 1, 2018 — do you see that as gradual enough? COUNCIL MEETING 61 SEPTEMBER 2, 2015 Ms. Valenzuela: Right, but going from ten dollars and ten cents ($10.10) and then fifteen dollars ($15) within a short period of time, I think that is where I am more concerned about. Councilmember Kuali`i: If we revisit each year, could that also mean that same kind of gradual increase each year, you would be supportive of that. In 2019 and 2020 it continues that rate of growth, which I think is probably eight percent (8%) or something... Ms. Valenzuela: I may be able to consider that because every business and every individual has a different situation. At this point I am just being realistic to what I have. Our business has been okay for a long time, but this past five (5) years, I would say, has been the toughest of all. Councilmember Kuali`i: The only other thing would be instead of the eight percent (8%) gradual increase, if it was an automatic cost of living increase, which may be that happens at about one percent to three percent (1% - 3%) each year, would you consider that too? Ms. Valenzuela: We can revisit that again when we get there. Councilmember Kuali`i: Thank you. Ms. Kato-Kluke: Are you going to require businesses that have tipped employees to have the fifteen dollars ($15) minimum wage and if so, are you going to tap all tip employees on the tips that they are making? Not all tip employees get tapped right now; the bartenders, bellmen, housekeepers do not, people that do houses that get tipped, at the airport — how do you plan to manage fifteen dollars ($15) an hour plus taxing them on tips? Are you not going to include tipped employees? Council Chair Rapozo: I will allow Councilmember Kuali`i to respond as far as the Resolution itself. Councilmember Kuali`i: The Legislature and the bill that was passed prior includes a tip credit. It is likely that if they were considering further increases for 2019 and 2020 and further that would also revisit the tip credit. The tip credit in the next three to four year span: 2016, 2017, 2018, and 2019, does increase which is an amount that can be paid lower than the minimum wage to tip earners. I would imagine that the Legislature would continue to look at that. Ms. Kato-Kluke: Therefore the tip employees would be at a different minimum wage. Councilmember Kuali`i: At a lower rate. That is how it is now. Ms. Kato-Kluke: So, that would stay like that if this thing... Councilmember Kuali`i: The Legislature decides ultimately. If we went to some other system like a tiered system, if you will, with different rates, they might have the lowest rate include the tip employees and then they might do away with the tip credit. Those details ultimately will be decided by the Legislature. COUNCIL MEETING 62 SEPTEMBER 2, 2015 Ms. Kato-Kluke: Okay. Councilmember Hooser: Good afternoon. You testified earlier the Farmer Bureau unanimously opposed, but it is my understanding that the farm workers are exempt from the minimum wage federal and state requirements. Ms. Kato-Kluke: That is what I understood too, but that they were concerned that this would affect them, so that is the reason why they voted against it. I talked about the people that were at the farmers market, we are value added so we are not exempt. Councilmember Hooser: But farm workers, I believe are, I just wanted to put that out there. Ms. Kato-Kluke: Right, we want to make sure that it stays like that. Thank you. Council Chair Rapozo: Any other questions? If not, Ms. Parker. Ms. Parker: All tip income is supposed to be reported and if it is not reported, the IRS (Internal Revenue Service) does surveys in industries and determines a standard and assumes that. Thank you. Council Chair Rapozo: Thank you. Anyone else wishing to testify? The meeting was called back to order, and proceeded as follows: Council Chair Rapozo: Further discussion? Councilmember Chock: I had said last week that I want to support this to move forward because I believe that the discussion is warranted at the state level. I think we are behind, so we need to come up with a plan on how to move forward. I think we are on that track and we need to even look forward, down the road. However, I know also that just to send a message that, "Can you please have this discussion," is unlikely at this point. Whatever we send over be given the process that we go through, will go to...not only to HSAC, but all the other Counties and then back before it even gets looks at and discuss at the State level. That typically results in watering down. I value where we want to make the request and also what Councilmember Kuali`i have done here which is saying, "Look at this," in this expanded version which is where we are getting the fifteen dollars ($15) of which I question. In addition I did receive additional information which was shared through Councilmember Kuali`i and the Chamber of Commerce on those employees numbers and also the sizes of businesses. For me what it comes down to in order to support it is where can we as a Council really come to an agreement on what can move forward and get to a point where the discussion does occur. I am very open to where that is. In the process what I did...in just in response to last week's discussion was put together another amendment, but I also wanted to hear first before introducing that amendment on where we might sit in moving forward. Councilmember Yukimura: I want to respond to Councilmember Chock's point, but I do not want to count as part of my discussion. Council Chair Rapozo: Then do not respond. COUNCIL MEETING 63 SEPTEMBER 2, 2015 Councilmember Yukimura: Well that is a really arbitrary curtailment of discussion because he has raised an issue that is legitimate and we should be able to discussion, but is not part of the overall discussion of the issue. This is not us giving our positions, we are talking about different possibilities, therefore I do not believe it is part of our last... Council Chair Rapozo: Your time is running...just to let you know that your time is running. I would suggest you get to your point. Councilmember Yukimura: This is not...I am asking for permission to speak in understanding what the rules are. Council Chair Rapozo: Do you have a question for him? Councilmember Yukimura: None of this should be...this is a point of inquiry and none of this should be counting. Council Chair Rapozo: Okay, let us have discussion on that once again. Councilmember Chock. Councilmember Chock: Would it be better that I introduce the amendment and give us an opportunity to discuss it? Council Chair Rapozo: Yes, if we are going to have amendments, let us do it before we get into discussion because that is the whole purpose, right. Discussion is when you make your closing comments and that is when we move it on. If there is going to be an amendment, then let us introduce the amendment so that we can have that discussion. Councilmember Chock moved to amend C 2015-227 as circulated, and as shown in the Floor Amendment which is attached hereto as Attachment 1, seconded by Councilmember Kuali`i. Councilmember Chock: It takes the discussion from last week and instead of two (2) tiers, I have created three (3) tiers, what I call small, medium, and large size businesses here into consideration with the scaled approach to the wage. It ranges where we left off at ten dollars and ten cents ($10.10) to fifteen dollars ($15). You will see that it is the large businesses would fall under the category of gross annual dollars of one million two hundred fifty thousand dollars ($1,250,000) and the medium size from five hundred thousand dollars ($500,000) and up, and then everything else below that. If there is an incremental increase from eleven dollars ($11) to twelve dollars fifty cents ($12.50) to fifteen dollars ($15) and it also starts in January of 2020, instead of 2019. These were considerations based on what I took from testimony last week. In addition, there was some verbiage that was added to the justification that I believe would soften the approach that we are having in wanting to have the discussion and looking to facilitate fairness in moving forward for our employees. Council Chair Rapozo: Any further discussion? Councilmember Kagawa. Councilmember Kagawa: I did not hear any testimony from the business owners last week or this week as to being in support of a tiered approach. The word I heard from the business owners are that the state has increased the COUNCIL MEETING 64 SEPTEMBER 2, 2015 minimum wage and they understand that is the law and that is to come and let us see how that takes effect on the businesses. I have not heard one (1) business say, "Tax the folks that make over one point two million, fifteen dollars ($15). If you make between five hundred thousand, you should pay them twelve dollars fifty cents ($12.50), and eleven dollars ($11) for people who make less than five hundred." I have not heard any small business owner say that they are in favor of that. I just heard them basically say that they are concerned about this act to move, or to say from the Kaua`i County's perspective that we support going up to fifteen dollars ($15). I heard that an action like this could put a negative effect on their business and future. I did not hear anybody say they are for a tiered approach, so if this is your approach, fine, but I did not hear any testimony saying that they supported a tiered approach. Please share that with me, if there was. Council Chair Rapozo: Councilmember Chock. Councilmember Chock: What I did hear is that people are in agreement that there should be a continued look at wage increases and that is why...coming to some solution, which nothing was proposed thus far, this is what is being put forth. That is the reason for it. Like I said earlier, I am happy to start the discussion at any level that any Councilmember would like to come to any collaborative decision moving forward. Therefore, I would like to hear it. Thank you. Council Chair Rapozo: Any other discussion? Councilmember Yukimura. Councilmember Yukimura: If there is anything we have learned from this proposal it is how complexed the economic environment is on Kaua`i and in Hawai`i and how there are so many different parts and there could be so many unintended consequences of our actions. Even though people have said we are not raising the minimum wage, we are proposing to raise the minimum wage and by starting the conversation, the purpose is to move us to an increase. We cannot flippantly say, "What are we going to do here does not matter that much. All we want to do is start a conversation." And then on the other side say, "But we want to raise it to fifteen dollars ($15) or twelve dollars ($12) or whatever it is." Unless what we are doing here makes a difference, we should not be doing it. We are trying to move towards some kind of an impact and if we are taking a position, it has to be a well-informed position and we have to have vetted all the possible consequences of it. One of the things about this particular proposal, which the business community has not seen is setting by 2020, eleven dollars ($11) per hour for employers whose annual gross volume of sales made or business done is less than a half a million, twelve dollars and fifty cents ($12.50) per hour for employers whose annual gross volume of sales is between a half a million and one point two million, and fifteen dollars ($15) for employers whose gross annual dollar volume is over one point two million. We need to hear from the business community about how they are going to be impacted by this. We have not done that and it would be unfair to ask them to react to this today and only the people here in this room. If we want to move ahead with this and I acknowledge that this does try to address some of the issues that have been raised, we need to set this for public hearing and give people time to respond to it. My conclusion is we are not ready to move ahead on this. We are not ready to propose it to HSAC. We have not even gotten our position clear on it. I feel that it is irresponsible to take a position just for the sake of sending it out to HSAC. We need to be really clear about what we stand for before we send it up to HSAC. COUNCIL MEETING 65 SEPTEMBER 2, 2015 Council Chair Rapozo: Thank you. Anyone else? Councilmember Kaneshiro. Councilmember Kaneshiro: We had this conversation last week also because we had a similar amendment come through which was a tiered approach and my feeling is the same as it was last week. It is a little premature for us to be able to try and do this tiered approach because we heard it even from the small business owners. Are we setting a disincentive? What is the economic impact? Are we preventing a worker from making a dollar more because they are going to pay all their workers a larger minimum wage? The economic impact of doing this, there are impacts and I do not think we had time to vet it. Again, I support minimum wage increases, but for us to be trying to solve it here, I do not think it is the right spot. To try and throw out numbers and say, "Maybe this will work in 2019 or 2020," is very premature. The State will set the limit, we wait and see how that has impacted the economy and businesses, and then as we get closer, we will see if we want to increase it or do a tiered approach like this. For us to try and solve it now is premature and I will not be supporting it. Council Chair Rapozo: Councilmember Hooser. Councilmember Hooser: I want to thank the introducer, Councilmember Chock, for his attempt to collaborate and to reach out to find a solution to accommodate some of the concerns. I want to point out that the Chamber of Commerce reports that thirty-five percent (35%) of the members support it as is without any changes. We are only fifteen percent (15%) away from half of them supporting this issue. I think the conversation is an important one. I think just as a result of the conversation that we are having now, more employers and employees, are having this conversation at home and business and consequently people are getting paid more, just as a result of this conversation. I feel that this conversation needs to continue. It is unrealistic that what we pass here is going to be the end and it is not going to happen. It would be change at HSAC, assuming it gets there, and I hope it gets there because it is an important conversation to have. If it makes it to HSAC, it will come back to us, as my understanding, and we will get another shot at the bite of the apple, so to speak. If it makes it all the way through than the Legislature will be the final decision makers. For me the main point is that we make a solid statement saying, "We believe that workers, especially those at the very low end of our economic scale, are valued and supported." Fifteen dollars ($15) an hour is a reasonable approach, it is not a living wage. It is a reasonable approach. Most of the testimony, if not all of it, even from the major big businesses have said that it is too much all at once. If members are not pleased with the proposal that is on the table, I would suggest that we offer further amendments or a substitute amendment that carries the line of thought that the introducer, Councilmember Kuali`i mentioned in passing or maybe not in passing earlier, that we take the same rate of growth that is built in right now, to the ten dollars and ten cents ($10.10) and carry it forward until we get to fifteen dollars ($15) and include the cost of living allowance after that. That will put that fifteen dollars ($15) way out and will carry a rate of increase that has already been shown to be acceptable by the Legislature and will work to a larger extent the counter of the concerns that are being expressed by the vast majority of the people who have testified. I would like to see a way that we could make this work and not all the reasons why it would not work. That is another proposal that I would be happy to ask staff to work on if there is support for it. No sense having the staff go through all the work if there is not going to be support for it. Thank you. Council Chair Rapozo: Councilmember Kuali`i. COUNCIL MEETING 66 SEPTEMBER 2, 2015 Councilmember Kuali`i: I do want to thank Councilmember Chock for putting this forward. I would say that it is being responsive to much of the testimony that we heard, especially from our very small businesses with twenty (20) employees or less. Many of them have said that they support the principle behind gradually increasing the minimum wage over time, but they just felt that to jump from ten dollars and ten cents ($10.10) to fifteen dollars ($15) in that short period of time was too much and too drastic. By having the tiered approach in fact, sixty percent (60%) of our businesses that are small businesses would be on that lowest tiered and the increase would be to eleven dollars ($11) in January 1, 2020. From January 1, 2018, the ten dollars and ten cents ($10.10)would increase only another ninety cents ($0.90) in two years. That to me addresses even what Marynel was talking about for her printing company that a gradual increase is okay. Yes, this is still a long way from a living wage, but it is increasing the minimum wage. To get to fifteen dollars ($15) that would be half of the thirty-one dollars and sixty-one cents ($31.61) an hour that it takes for a family of four (4) to afford basic housing in Hawai`i. We all know that both parents are both working most of the time. That at a minimum wage would get them pretty close to that amount — being able to afford housing. This is a start. It is breaking it down into detail that hopefully Councilmembers can support because the original of the intent of the initial proposal motion was to leave the details to the Legislature because they are going to iron out the details and provide additional studies about how they can get to that further point, but at some point in the next year or two, the Legislature has to address the years 2019, 2020, 2021 because that is right around the corner. Year after year, we have to recognize and deal with the fact the our minimum wage is lagging behind at poverty levels and any employer wants to support their employees as much as they can, and we have heard that from a lot of the small businesses on how they already pay higher than the minimum wage, because they recognize too that the minimum wage is poverty wage. I can support this fully. I know that the Legislature and HSAC would probably iron out more details and ultimately the Legislature would come to more detail than what we are trying to provide here. Thank you. Councilmember Kagawa: Councilmember Chock, where did you get these tiered totals from? Did you get it from Seattle or some other State? Councilmember Chock: Just the idea of the tiered approach came from what was passed out last week, which is the Minnesota... Councilmember Kagawa: And Minnesota is one of the cities who adopted the fifteen dollars ($15)? Councilmember Chock: No. Councilmember Kagawa: So they do not adopt it, but they propose this idea and we take it. Councilmember Chock: No, no...let me just say that the model is what was taken from. The scale is different of course. Councilmember Kagawa: But the State of Minnesota has not adopted it. Councilmember Chock: No, I am not saying that they have not adopted it, I am saying that the model was adopted, the amounts are different based on what was passed out last week. Therefore to answer your question, much of what COUNCIL MEETING 67 SEPTEMBER 2, 2015 was in the amendment is based on the figures that were provided from DLIR (Department of Labor and Industrial Relations) just in terms where the different businesses sit in size and gross annual income. That is how I created the three (3) tiers. Councilmember Kagawa: So you just took it from a small business model... Councilmember Chock: These are statistics from DLIR, I think they were passed out maybe for the Kaua`i information, but I am happy to share... Councilmember Yukimura: Explain DLIR. Councilmember Chock: Department of Labor, actually I think this is Councilmember Kuali`i's, therefore I do not know if I can share that. I can pass that on to you just in terms of where the information came from. Council Chair Rapozo: We are at our lunch break right now, I am not sure if there will be other amendments, and I do not think we can wrap this up in the next few minutes. We will finish up with you, Councilmember Kuali`i, and we will take our lunch break. Councilmember Kuali`i: I will add a clarification and then provide both copies of data. The Department of Labor and Industries Relations provided data on employers and the numbers of employees. They did not have annual gross sales data, that came from an organization called Info-group that is compiling data. DLIR does not keep gross annual sales data, they just keep data on the number of employers and the numbers of employees. This proposal is based on gross annual sales, therefore it would be this piece, as opposed to the other piece which talks about the number of employees, but you can do it either way. I will pass copies around over lunch. Councilmember Kagawa: Is this Info-group reliable? Is it a well-known company for giving accurate information on sales type of statistics? Councilmember Kuali`i: The only thing I would answer with is they are only providing information on the data that they were able to obtain. There is, if you noticed, I do not know if you have it in front of you, six hundred and thirteen (613) statewide, they have Kauai data and State of Hawai`i data—nine thousand two hundred and sixty-six (9,266) businesses for which they do not have gross annual sales. We will just do copies. Council Chair Rapozo: Yes, staff can provide copies to everybody. Let us take our lunch break at this time. There being no objections, the Council recessed at 12:32 p.m. The meeting was called back at 1:38 p.m., and proceeded as follows: Council Chair Rapozo: We are on item C 2015-227. Councilmember Kuali`i: I will just explain the three (3) handouts that you have with the data. One from DLIR and in fact the two pages with the number of employers and the number of employees, it goes from March 2011 to March 2015, and COUNCIL MEETING 68 SEPTEMBER 2, 2015 I guess it is their quarterly information. There is the number of employers broken down by the amount of employees: ten (10) or less, twenty-five (25) or less, fifty (50) or less, one hundred (100) or less, and more than one hundred (100). There is also that same breakdown, but with the number of employees, but we were just looking at the number of employers because of the number of employees for those employers by those categories. And then the other one was the gross annual sales. In fact the Info- group, the data that we got that I collected with staffs help, DLIR uses this national data base, their research and statistics office. We got this at their recommendation because they do not keep the gross annual sales, only the number of employers and number of employees. The one thing to note about the gross annual of sales is that it breaks down into...there is a column for Kaua`i with a total of three thousand eight hundred and four (3,804) employers and then the State of Hawai`i for fifty-four thousand six hundred and ninety-four (54,694) employers. But in each case there is a significant amount of missing data, if you will, for Kaua`i out of the three thousand eight hundred and four (3,804), six hundred and thirteen (613) are unknown — they do not have the sales data. For the State of Hawai`i out of the fifty-four thousand six hundred and ninety-four (54,694), they do not have the data for nine thousand two hundred and sixty-six (9,266). The percentages are also based on the total, including the amount that they do not have data for, so whatever those percentages are, it is probably some amount higher than that, if they got the data. It is still a good representation of eighty-three percent (83%) of the total employers whether it be Kaua`i or the State of Hawai`i having data for them. Councilmember Kagawa: I have a question on the graduated step of income for three different levels of minimum wage. For a person who works as a cart- gatherer at Walmart, because Walmart sales would be over one point two million, they minimum wage would be fifteen dollars ($15) an hour, but if you work for The Right Slice and you are a pastry chef, your pay would be may be less than fifteen dollars ($15) an hour. How is that fair? How does that promote non-skilled laborer from trying to be in a position of skilled laborer with chances of moving when they will say, "Why should I go and learn how to make pies, I can make more just retrieving carts." Not to put down any profession, but I am just saying that with that graduated level, we are saying, Walmart employees, you get a minimum of fifteen dollars ($15) an hour, and The Right Slice, you folks employees are at eleven dollars and fifteen cents ($11.50), and if you are skilled, you are going to pay those with experience more, but still I cannot figure out how does that incentivize somebody from picking up a skill or trade and wanting to stay in there when the salary is at that different level. Do you have any response to a situation like that? Councilmember Kuali`i: I guess the only basic response I would give is that no setting of different wages could create total fairness across all industries and that people ultimately will make their decisions on what jobs they go after based on what amount they can get paid for what amount of skill or education they have to undertake to qualify for that. (Councilmember Yukimura was noted as present.) Councilmember Kuali`i: Yes, there would probably be, I forget the word that you use, but inequities, if you will, because no, I do not believe any setting of different wages especially in a tiered approach can create equity across all industries. Councilmember Kagawa: Where would the County of Kaua`i stand...because we are not in the private business of sales, would we be...because we COUNCIL MEETING 69 SEPTEMBER 2, 2015 are a multi-million dollar operation, do we qualify as "above one point two million" therefore our summer hires workers, either high school or college, would be making fifteen dollars ($15) an hour with the summer fun program and you have employees with less than one point two million dollars in sales, making less. Councilmember Chock: Just to follow-up on the first question and I agree there are a lot that could and should be vetted out in terms of details. As we had looked upon last week, there are multiple tiers that were considered in the example that we showed, but I think also the reasoning to support...just to follow-up with what Councilmember Kuali`i is saying is that this was created specifically to address the concerns of small businesses and the unfairness that they have to go through also in trying to keep above water. Council Chair Rapozo: Any other discussion on the amendment? Councilmember Yukimura: I am not able to support the amendment at this time given that we have not gotten any input or discussion from the business community or the workers. I am okay with a deferral of this matter if people want to work on it and get the input from the Chamber and others. Let us fully vet the possibilities. I do believe that a more gradual increase over time is acceptable. I think the tiered thing is very necessary, but where you draw the lines is a very tricky thing. I think that the training rate...I do not think there is a training rate, right, yes...and youth rate are important distinctions that Minnesota found valid. If we want to really pass something, we have to work out those details, in my mind. Council Chair Rapozo: Any other discussion on the amendment? Are there anyone in the audience wishing to testify on the amendment? Have you seen the amendment or gotten a copy of it? There being no objections, the rules were suspended. Ms. Poehnelt: If we have the tiers, what incentive is there for a business owner to grow your business? If we start in the bottom tier, but we know as soon as we hit that half a million in sales, we are basically going to be penalized ten percent to twelve percent (10% - 12%) in our payroll. What is the incentive in this "sort of a program" for a small business to grow in to a larger business? Council Chair Rapozo: Thank you. Any questions? That is what was brought up last week at the Committee Meeting, that was a concern, and as a small business owner the fact that your...and this is a question, the fact that your increase in sales, does it necessarily correlate with the increase in profits? Ms. Poehnelt: It does not. Council Chair Rapozo: Correct, so I think that is important to understand also. Every business is different and there is no direct correlation to the gross sales versus net profits. Ms. Poehnelt: I have one other question for clarification. We were talking about the livable wage earlier and what was the number you had stated, thirty-one dollars ($31)? COUNCIL MEETING 70 SEPTEMBER 2, 2015 Councilmember Kuali`i: I think it was thirty-two dollars and sixteen cents ($32.16). Ms. Poehnelt: So, that is for a family of four, is that two parents wage together? Councilmember Kuali`i: I was just saying that if they both were working minimum wage jobs and they were both making fifteen dollars ($15), that would still only get them to thirty dollars ($30) total, which is less than the thirty-one dollars and sixty-one cents ($31.61) an hour, which the Nation Low-Income Housing Coalition says you need in Hawai`i, for a family of four (4); two parents, two (2) children, to afford housing. Ms. Poehnelt: And that is for Hawaii, and not federal? Councilmember Kuali`i: Yes. Ms. Poehnelt: Okay. Councilmember Kuali`i: Therefore, your figure of twenty-one may be right for a single person. Ms. Poehnelt: Yes, twenty-one per person is what we generally discuss. Thank you. Council Chair Rapozo: Ms. Parker. Ms. Parker: I believe that the Council passes a broad measure and sends it to the State Legislature and let them work out the minutia; that is my feeling. Thank you. Councilmember Yukimura: When you say, "Broad measure,"what are you thinking of? Ms. Parker: The tiered measure, but not going any more finely scripted than that. The tier that Councilmember Chock presented is fine, but not to go into fine details because the Legislature can work that out. That is what we pay them for, right? Councilmember Yukimura: Well, we could say that and not send them anything either. What about the concerns of the businesses about how you would be discouraging businesses from growing? The previous speaker talked about and it was raised last week as well that if you set these tiers then when a business succeeds in growing past the tier limit that would incur a greater percentage of increase for labor. Ms. Parker: Yes, that is the price of growing. Councilmember Yukimura: And then the Chair raised the issue about that would be fine if profits grew correlated to growth. Ms. Parker: Right, because they still make more profit, I believe. Council Chair Rapozo: Anybody else? Mr. Sykos. COUNCIL MEETING 71 SEPTEMBER 2, 2015 LONNIE SYKOS: The minimum wage is not a tax and it is not correct to look at it as if it is a tax on business. Wages are a business expense. If we go back thirty (30) years or so, we see the increase in record profits in corporate America match the amount of money that would have gone to the labor force if following the percentages that have occurred in the past had continued then we would not be having discussion today. Therefore, what has happened is all of the value of the increase of productivity in the last thirty (30) years have been taken away from the labor force. To support poverty level wages implies that you support either having starving, hungry, ruthless, ill people on the streets or you do not want to have people that are impoverished and thus you are going to provide a social safety net. The question here is, which is the most cost effective way in our economic system to ensure that the members of the public as a public safety matter, as a public health matter, as a path to having social peace in the Country. Which is the best way to see that people have a roof over their head, enough food to eat, and access to medical care when they get sick? Should that be done by putting them into poverty and keeping them in poverty with poverty level wages that the government tacitly supports and tax everybody else, tax someone, tax the poor, increase the excise tax on Kaua`i so that poor people have even less money that they do today, and then run that money through the government that will suck thirty percent to forty percent (30% - 40%) out of it in administrative cost and then turn around and give food stamps and housing. This is a Ponzi scheme. Wages have to go up. There is no other economic reality that makes sense. The question is how do we encourage wages to go up and of course the business world is going to be opposed to any increase in business cost. Thank you. Council Chair Rapozo: Thank you, Mr. Sykos. We have a question. Councilmember Yukimura. Councilmember Yukimura: Lonnie, do you feel that the statistics you cited about corporate profits applies to small businesses on Kaua`i? Mr. Sykos: I believe that they are intertwined as a manufacturing an old school capitalist, not a financier capitalist. My believe is what appears to be the burden on small businesses is from one perspective, but if the wages went up at say Walmart, who certainly can afford to pay more, their profits, the amount of wealth that is owned by Walmart is staggering. So, if Walmart raised their wages, if McDonalds raised their wages, there would be a more money go into the economy and the people today who would love to buy a slice of her pie, but cannot afford to, conceivably would have money to do so. They are interconnected, I think as this process were to start that tiering might be a practical way to deal with problem, but if businesses cannot figure out how to make a profit and survive in the real world, they deserve to go out of business, so that it makes room for somebody else to come in who can make a profit. You cannot protect all businesses from failing. Councilmember Yukimura: I do not think we are talking about protecting businesses. This Office of Budget Management says that, "Of the thirty million dollars ($30,000,000) that would be increase earnings, only nineteen percent (19%) of the thirty-one billion dollars ($31,000,000,000) would accrue to families below the poverty level." Mr. Sykos: But here is the problem, Councilmember Yukimura. When you talk about families below the poverty level, are you excluding all of the people who are single? COUNCIL MEETING 72 SEPTEMBER 2, 2015 Councilmember Yukimura: No, poverty level goes by size of family. Mr. Sykos: What is going to occur here is the same as what is going to occur nationally. The goal is not to have a major part of our labor force living on the edge poverty. I do not believe for any group of Americans, that is our economic goal. The question is, how to raise an out-of-poverty without devastating the economy? Councilmember Yukimura: Therefore, the question is... Mr. Sykos: And we are rich. Our Country is a wash in cash, that is in the news all the time. Council Chair Rapozo: Hang on. Wait for the question. Councilmember Yukimura: Is the minimum wage the only way to raise...and is it in fact the most effective way to raise families out of poverty? The budget report also states that actually raising the minimum wage is going to result in some low-income families losing jobs entirely. Mr. Sykos: Some people will lose their jobs entirely, but some people will lose their jobs entirely regardless. Councilmember Yukimura: No, it is not those people. Council Chair Rapozo: Do not feel compelled to answer. It is some complex questions and some that I share as well. Councilmember Yukimura: It is complex. Council Chair Rapozo: I think that report has a lot of validity and there is a cause and effect that we have to assess. Any other questions for Mr. Sykos? Thank you. Mr. Sykos: Thank you. Mr. Bernabe: I am going to bring you back to Kaua`i and I am going to use a little bit analogy here. When the price of tuna went up, two (2) fish markets that we probably all eat at had to deal with it, and one, they raised the prices at Pono Market and at Fish Express, they took the poke off the plate and they replaced it with chicken long rice. That is an adaptive financial plan. Guess what, when the tuna went down in value, they left it like that, therefore they are making more money. I just want to say that because that is an example of what we are talking about here. Council Chair Rapozo: Any further testimony? The meeting was called back to order, and proceeded as follows: Council Chair Rapozo: We are on the amendment. Councilmember Yukimura. Councilmember Yukimura: Council Chair, I am willing to move to defer so that more work can be done on this. COUNCIL MEETING 73 SEPTEMBER 2, 2015 Council Chair Rapozo: Well we are only on the amendment yet. Councilmember Yukimura: I know, but... Council Chair Rapozo: Therefore, we need to address the amendment. Councilmember Yukimura: But if we are going to take time to do more research we could do that now and stall any more conversation until we come up with other proposals. Council Chair Rapozo: As far as the HSAC package, we will not make it. We have to address this today otherwise it will not make the time limit for the HASC package. We have to vote something today, because I believe the deadline is on the 11th, if I am not mistaken. Councilmember Kagawa: I cannot support this amendment nor the communication, nor the resolution. In my earlier part of life, I was an accounting manager for a company called Business Decisions Hawaii which is located in Hanapepe. We focused on doing financial statement, preparation, tax returns, and what have you for a lot of small businesses on Kauai, including some large one such as Lappert's Ice Cream and Poipu Shores Hotel. The bottom line is that a lot of the small businesses that we handled and I am sure that these are pretty much the same; this is back in 1990, are pretty much the same. Some businesses do make profits, but in following years, sometimes they struggle. Some do not make healthy profits from the outset and it is very tough out there. For the Legislature to have moved that...at least we went in the right direction. We are going up by 2018 to ten dollars and ten cents ($10.10), I applaud them for finally enacting legislation that would get us a little bit closer to where somebody can have a livable wage, but to risk or even put out this proposal that suggest that Kauai County lawmakers approve of this plan and we feel that it would work, I just do not have enough information. I do not have enough confidence that it will work. As was mentioned by earlier Councilmembers, I think one of the major things you have to watch out for is that yes, some people will benefit, the lower skilled families will benefit from the higher wage, but how much of them will be put on the unemployment line from this. How much businesses will have to shut down. My mom had a restaurant called "Sue's Snack Shop" in `Ele`ele Shopping Center for twelve (12) years, and a lot of people were sad because she had a lot of good food, and they were sad when she shut down. As an owner, you cannot do it for free and when you find out, in her case that she can be a clerk working for a dentist office and make just as much money without having to work ten (10) hours a day for six (6) days a week...it is not hard to figure out what to do. It is a tough thing to gage the effect that it will have on our small businesses. What if we are wrong? What if we are wrong and it will have a negative affect? That is where we have to be careful and that is where, as Councilmember Kaneshiro made a broad statement saying, yes, we urge our legislature to look at 2019 and work hard on what number would be good, yet, not hurt our small businesses. I agree that the large businesses with the million dollar profits for executives, yes, sure they can probably be able to eat that cost, but our small businesses is another thing. We have to let our small businesses compete nationwide, equally. It cannot be only us, Baltimore, Seattle, and L.A. with higher wages than everybody else, how are we going to compete? It is not fair. It is like playing football when one team get fifteen (15) players and the other team get eleven (11). It is not fair. I think we have to be careful. Yes, our decisions even on something like this that does not have teeth, it is a suggestion by us, it is still has merit because our voices here on the Council has merit to our State Legislatures. COUNCIL MEETING 74 SEPTEMBER 2, 2015 I thank Councilmember Chock, this amendment does specifically address the small businesses and it cares about the small businesses, that is why the amendment is here, but still I do not have the confidence that it will work in totality. Thank you. Council Chair Rapozo: Anyone else? Councilmember Chock: I appreciate the discussion. For me, I just want to take a step back and put us into reality mode about how likely this thing is to move forward. After conversations just today, I know that likelihood is very low. From the beginning it was a message that Councilmember Kuali`i wanted to express and whatever we could do as a Council to come to a place to come to an agreement. I actually would have voted for what was suggested last week from the Councilmembers on this side of the table, which was a broader statement. Have the discussion, this is so important, we need to continue the discussion —everyone agrees that and that is what I am looking for. This was just another way to have the discussion again for us today, and that is what I am supporting. Ultimately, what it comes down to is responsibility to our fellow people. I am a business owner. The lowest paid person is eighteen dollars ($18) an hour in my company and that is just a choice. I think for me if we continue to live with a mindset of scarcity, that is what we will get. I want to support us moving forward. I actually value all of the discussion. I do not think we have the answers here. This amendment is not going to answer all the details and questions. I never thought it would, but all I want to support is having that discussion on a higher level and that is what this is about today. Thank you. Councilmember Yukimura: I would support more general language to have a conversation on another level, but this is a very specific proposal whether it is the tiered approach or the fifteen dollars ($15) an hour. I cannot support that kind of specific proposal without a full vetting of the issue. Councilmember Kuali`i: I want to make the point that I put these proposed bills forward for the Legislature because I think it is important that they continue to do the work and that they do not stop because they have addressed up until 2018. The Legislature has their annual bill making process, and it can take effect the following year or the year after that. They cannot stop addressing this, like one of our testifiers said, it is something that probably has to be revisited each year, and so that they have had this staggered approach until 2018, that needs to continue. This tiered approach as put forward by Councilmember Chock gives us the...and we have data, we have been looking at data from the Chamber, DLIR, and the Legislature when they consider this, it will dig up even more data, but the breakdown and the way that Councilmember Chock has put this gross annual sales, sixty percent (60%) of our Kaua`i businesses would be in the bottom of the two tiers. Eight hundred ninety-eight (898) businesses are listed as gross annual sales of over one point two million or twenty-three percent (23%). This is taken into consideration. The small businesses and the very small businesses and in no way we intend for the gradual increase of wages to put our small businesses out of business. There are different ways that businesses will compete and will adjust. They have in the past. Raising the minimum wage has happened for a very long time and every time the arguments have been the same, that it is going to shut us down and we cannot afford it. It has mostly not been true. I thank Councilmember Chock for this amendment, I think it makes it...it adds some detail, but even much more detail ultimately will be worked on by the Legislature with the citizens input. I just think that this is important that we keep this conversation going and that we represent all of our workers that are working at the minimum wage level today and will continue to in the future. COUNCIL MEETING 75 SEPTEMBER 2, 2015 Council Chair Rapozo: This is a really tough issue because there is a reality of impact that something like this would happen. I mentioned earlier that cause and effect and I think that this is a substantial change and there is definitely going to come with impacts. We on this table, we do not have the resources to thoroughly examine the effects of something like this. We do not. I look at the State as...with all of their committee's; Budget & Finance, Economic Development, all of these committees that have resources that I have to believe and in speaking with a few Legislators on O`ahu that they have the ability to immediately take a look at this issue and start to do the analysis of where we have come since this law was changed years ago. What are the impacts? What have the impacts been? Have businesses suffered?Keep in mind the increases throughout the years have been relatively small; fifty cents ($0.50) or seventy-five cents ($0.75) an hour, and not five dollars ($5) an hour. Therefore, there is going to be an impact and I am not comfortable with putting my signature on a process that may impact a lot of people. I just do not know that. Mr. Sykos brings up some really good points, but if this gets implemented and I do not have the capacity to do it, I am just not smart enough, but someone out there is, and I do not think they are sitting on this table, but some firm out there can plug in the numbers in a computer using a model and come up with a potential or a pretty good idea of what would happen if in fact this went across. Remember, this affects the entire state, not just Kaua`i, Honolulu, or the big city that can absorb this. I talked about this at the last meeting that a big corporation like Walmart, yes, they can absorb fifteen dollars ($15) an hour for the minimum wage, but what does that do to the competitor, the small business who is barely making it now? I really take offense when someone says, "If they cannot pay fifteen dollars ($15) an hour, they should not be in business." That is so painful and hurtful because everyone is out there trying to make it work and they work hard. Some of these business owners work fifteen to seventeen (15 — 17) hours a day to make it work to provide a product or service. Yes, it would be easier like Councilmember Kagawa said, at some point you have to make a decision and I am one of them. I just said, "Screw this, I am not going to survive," with business taxes, insurance, all of these things that the State dumps on small businesses today — it is just easier to go get a job and that is what I did. I went to work at the hotel. It is just so much easier. I am afraid that when we move in this direction and the tiered approach is a much better approach, but still, what will the impact be a year or three years from now. I would hope that the State could produce an analysis like that because they have the data or they should have the data. Last week I was at the HSAC meeting, we had our monthly meeting and I did bring this up, and it did not go over very well with the HSAC members in the other counties for the same reasons. They are afraid that...because simply, we just do not have enough information. Not that it is a bad idea because I do not think there is a soul on this planet that would say, "No, we should not raise the minimum wage," because I think we all believe we need to in some way or fashion. If the impact or affect at the end of the day is more detrimental to the people of Kaua`i, then why would we want to do it. I am not talking about Honolulu, Maui, or San Francisco, but the Kaua`i County Council represents the people of Kaua`i. If in fact this movement would impact Kaua`i at a point where it would be a detriment, why would this body support it? We do not represent the people in San Francisco or Honolulu and that is my fear. I do not have the answer to that. It is very easy to say that the people will have more money to spend so they can go and patronize the small businesses that are losing money or cannot bring their profit because they have to pay a higher wage, that is all speculation — I do not know that. I think a broader resolution is the proper way. Encouraging the state to move on getting to a better point and thoroughly vetting out the impacts that will be caused by this action. With that, we are on the amendment. Roll call. COUNCIL MEETING 76 SEPTEMBER 2, 2015 The motion to amend C 2015-227 was then put, and failed by the following vote: FOR AMENDMENT: Chock, Hooser, Kuali`i TOTAL — 3, AGAINST AMENDMENT: Kagawa, Kaneshiro, Yukimura, Rapozo TOTAL— 4, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0. Council Chair Rapozo: We are back to the main motion. Councilmember Hooser: I held back on my discussion on the amendment because I wanted to speak on the main motion. Clearly three (3) people on this panel support a strong statement of fifteen dollars ($15) an hour. If any Councilmember would support any of the other four (4) Councilmembers would support an amendment and phase it in over a longer period of time, I would be happy to work with staff...we can work with the staff to do that. If somebody wants to speak up, we can offer that amendment. That is the overriding concern that people are saying that it is too much, too fast. If anyone of the remaining four (4) votes would entertain that than we can do the work, otherwise it is no sense doing the work. We have differences of opinion. Working for the State for eight (8) years, I have been involved in the State level and these discussions and I will tell you from my experience that there is no different from our discussion here. Everyone goes out and gets their economist; no one has a silver bullet, or all the answers. People have computer and economic models and those models reflect different outcomes. Some of those outcomes will support an increase and some will counter increase. There has been quotes from a federal agency saying that it is going to cost jobs, we have quotes from another federal agency saying that it is not going to cost jobs. At the of the day, there is no risk free decision. The Legislatures action should be applauded, does not move us closer to a living wage simply inflation over the last thirty (30) years means that minimum wage should have been ten dollars ($10) already. The poor are getting poor; there is no question about that. People earning minimum wage are earning less and not more. Therefore, we are not getting ahead, we are getting further behind. I think there is a way to frame the strong fifteen dollars ($15) an hour resolution to move forward. Again, if any of the four (4) votes who have not been in support so far wish to support the type of amendment, I would be happy to draft it. Thank you. Councilmember Kaneshiro: I am not going to be supporting this item and I actually wrote my notes down last night and I think it is just as pertinent today, especially with the testimony we have heard. I just want to reiterate, I am not against increasing minimum wage. Giving a broad statement which I heard we cannot do because the ordinance we have now in front of us is very specific, so we are not able to make a broad statement. In general, I agree with increasing the minimum wage and I would be in favor of telling the state, because they have already implemented an increase through 2018 and I would encourage them to continue looking at increasing it through 2019 and so forth. My main hesitation and opposition to this is again, setting the minimum wage for 2019 at an arbitrary number of fifteen dollars ($15) an hour with no basis or analysis of its economic impact. Like Councilmember Hooser, I have heard arguments for and against raising minimum wage and its impact on the economy and there are truth to both. I think it is possible to raise minimum wage and have a positive impact to the economy and I also think it is possible to raise minimum wage and have a negative impact to the economy. Again, the determining factor in that is what is the number? What is this number that we are raising it to? I heard statements from U.S. Department of Labor saying that they COUNCIL MEETING 77 SEPTEMBER 2, 2015 had letter sent to the President, six hundred (600) economist, seven (7) Nobel Prize Winner's urging the President to increase the minimum wage. It further goes on to say that increasing minimum wage had little to no effect on minimum wage workers and will have a small stimulate of effect on the economy. The important thing to note on that is that they were talking about raising the minimum wage to five dollars and twenty-five cents ($5.25) to ten dollars and ten cents ($10.10), over three (3) years, which is ninety-five cents ($0.95) every year. That is not what we are talking about here. We are talking about raising minimum wage from ten dollars and ten cents ($10.10) to fifteen dollars ($15), which is a four dollars and ninety cents ($4.90) increase in one year. When we look at things, we need to be comparing apples to apples. What is the impact of an increase of four dollars and ninety cents ($4.90) in one year? That is a forty-nine percent (49%) increase to wages for one person. We also need to consider which I am glad to hear today, payroll, taxes and benefits, because as your wage increases, so does your payroll, taxes, and benefits which comes out of the employers. Those can range from thirty percent to fifty percent (30% - 50%) of the wage for medical, workers' compensation, et cetera. I am glad we got a testimony too last night and it kind of put it into perspective —what is the effect of a fifteen dollar ($15) increase, from ten dollars and ten cents ($10.10) to fifteen dollars ($15). I can do a calculations, but when you look at a small business with three employees that are making ten dollars and ten cents ($10.10), and you increase the wage to fifteen dollars ($15), that small business is going to be faced with a decision. They can either increase all their rates to fifteen, which would cost them an additional forty-one thousand dollars ($41,000), or they could reduce their staff by one (1) person and they would be almost even with what their expenses were prior. That is the reality of it. You look at the numbers, this is what a small business person is going to need to deal with. Are they going to say, "I will just eat the cost even though there is no benefit on where my sales are going." I am not getting an increase in sales, I am getting an increase in expenses. Or do I cut an employee, which further creates more unemployment and I go work an extra ten (10) hours a day or more hours to supplement this wage because I cannot afford it. That is the reality of it. We heard a lot about the impact to the small businesses. Anybody can run the numbers. You can run the scenarios and say, "Anytime you have three employees, this increase is going to affect one employee." If you have six (6) employees, are you going to fire two (2) to keep the same level or are you going to just pay the increase? I have been hearing is an increase from ten dollars and ten cents ($10.10) to fifteen dollars ($15) in the workforce is drastic. I support minimum wage increase, but again, I am not going to support an arbitrary number. I am willing to say that we will support an increase in the future, but we are talking about 2019. We should see what happens from 2015 to 2018 with the increases we already have, therefore, that is where I stand on this. Councilmember Yukimura: We have to be clear that in not supporting this proposal, it is not that we do not support the concept of a minimum wage or the idea of gradually increasing the minimum wage, but this proposal is about neither of those. It is about a specific bill that would increase the minimum wage to fifteen dollars ($15) by 2019 from ten dollars and ten cents ($10.10) in 2018. That is an increase of four dollars and ninety cents ($4.90) in one year or an increase of forty-nine cents ($0.49) in one year. For a small business employer, that is ten thousand more per minimum wage employee and not even counting those employees who are above minimum wage whose wages also will have to be adjusted. Perhaps a large corporation like Walmart can handle this, but this proposal does not limit the fifteen dollars ($15) an hour wage to businesses like Walmart. It is proposed for all the businesses in the State of Hawai`i. A state where it is already difficult to do business. Every year the Chamber of Commerce celebrates small businesses in this County by recognizing the small business administration winners, the outstanding COUNCIL MEETING 78 SEPTEMBER 2, 2015 small businesses and entrepreneur's on Kaua`i, we recognize how much work, how much ingenuity, how much perseverance it takes to start and grow businesses. These are not people who come to County government asking us to create jobs for them. They are the ones who are taking the initiative to create jobs for us, the community. They create value, they bring money into the economy, they address needs for food, health care, elder care, cleaning, and new products and services. They care about their employees and take care of their employees. I believe that it is our responsibility to make sure that whatever we do will not inadvertently hurt these businesses. It is true that we do not have the resources to analyze impacts, but we do have small businesses who can tell us and who have told us how they will be impacted. As Councilmember Kaneshiro illustrated very specifically, a fifteen dollars ($15) increase could very well cause a loss of jobs and closure of businesses. I want to acknowledge the good intention behind the request for fifteen dollars ($15) an hour. I think all of us want our families to be able to do better. We all know how tough it is to live here in a high-price economy, but the proposal is not well based. It does not consider the needs the concerns of the very entities that make jobs possible on Kaua`i and it ignores the complex and fragile ecology of commerce in Hawai`i. If we want to help families in the lower income brackets, let us focus on lowering and moderating the cost of living in Hawai`i and Kaua`i. This is something we can do without hurting small businesses. The two (2) largest household cost for families are housing and transportation. The affordable housing that the County creates requires families pay no more than thirty percent (30%) of their household income, that is a huge saving because many families now have to pay over fifty percent (50%) of their household income for housing. If a person can commute to a home or work and back by bus, depending on where they live, they can save up to two thousand dollars ($2,000) a year. If two (2) people in a household can do that — that is four thousand dollars ($4,000) a year savings. According to transportation consultant Jim Charlier, if a family can get rid of one (1) car, they can qualify for fifteen thousand dollars ($50,000) in mortgage money. These are things that are directly within the Council's kuleana. They are the core functions of the County. It is our business to do and we can do this without hurting small businesses, in fact by creating housing, we create a lot of construction jobs. It would be win-win, not win-lose, or lose-lose. They are better ways to help our families then fifteen dollars ($15) an hour minimum wage. Council Chair Rapozo: Thank you, Councilmember Yukimura. Anyone else? Councilmember Kuali`i: I just want to say that I am very disappointed that we are not willing to speak on behalf of our workers and to put it forward just for the Legislature to continue to consideration of minimum wage increase beyond January 1, 2018. In fact, by voting down the amendment, we voted down the concerns of addressing small businesses. Overwhelming sixty percent (60%), or eighty percent (80%) Chamber of Commerce figures would not be subject to the fifteen dollars ($15) an hour rates, therefore to keep using that is wrong. This eleven dollars ($11) in 2020 would just be following the same gradual increase that we have even heard some of the small business people say that they can support. Seven dollars and seventy-five cents ($7.75) an hour today, sixteen thousand one hundred twenty dollars ($16,120) annual income — poverty wages. In 2018, ten dollars and ten cents ($10.10) an hour, twenty-one thousand and eight dollars ($21,008), I am sure at that time that would probably be poverty wages as well, if it is not today, or something that nobody can survive on. Even the young lady from the pie shop talked about twenty-one dollars ($21) an hour as a living wage to survive on, to have housing and meet all of your basic needs. The only way that people are surviving today on the low minimum wage is by depending on family members, goodness of others, and government subsidies. COUNCIL MEETING 79 SEPTEMBER 2, 2015 Eleven dollars ($11) in January 2020, twenty-two thousand eight hundred dollars ($22,800), still pretty small. Most of us do not even earn anywhere close to that, so when are we going to be compassionate enough to think about the people at the bottom. It is not about putting small businesses out of business, we make accommodations for those. We just want people to do more when they can. Take less in profits. We all said Walmart can, but we did not vote for Walmart to be effective by this and for the Legislature to continue doing this, and create the tiers and hold Walmart accountable to a fifteen dollar ($15) an hour wage. Thank you. Somebody cut my time somewhere. Council Chair Rapozo: Was that five (5) minutes. That was pretty quick. Councilmember Kuali`i: I am done. Council Chair Rapozo: If the analysis had been done and this is just in response to Councilmember Kuali`i's about Walmart, if we could tie in the minimum wage based on the profits of corporate business, I think that is doable. I am not sure that is constitutional, but I think you all understand what I am trying to say. Gross sales do not correlate to profits. Some businesses have a high profit margin and some barely have none. I, myself, stayed in business for a long time because I did not want to let my employees go because they needed the job. I made absolutely no money, very little money, but I stayed open so my secretary had a job until she could find something else. A lot of people do that, it is not smart, but it is just the way it is. I just wanted to put these numbers up and there was a tier amendment, this was done before the amendment came out, but just so the public has an idea, if you look at a small business with five (5) employees, between today's minimum wage of seven dollars and seventy-five cents ($7.75) and five (5) years from now, their increase in just the salary, just the pay, and not the benefits that go with it, would be seventy-five thousand four hundred dollars ($75,400). Is that realistic for many companies today. The fact that many companies today, like the pie shop or a single unit/single service type of business, is it realistic that they could generate that much more revenue in five (5) years, not including the benefits; vacation, sick leave, and the medical. This State is not a very business friendly state and we know that, but we choose to come here because it is a great place to live. The State is going to have to make some concessions, if we are going to continue to increase expenses and this is where they should require the increases in businesses, is in the wages, then they have to ease off of the other end, the requirements that they put on small business today to operate in the State. That is where the balance has to come, but there has to be an analysis for that. We do not know what the impact will be. It is scary. It is very, very scary. It is difficult because I think if we had the broader discussions if we are urging, we still have time, we still got three (3) years before the minimum wage needs to be changed, in fact there is nothing that the State cannot increase the minimum wage before then. They have to start having the discussion now, and I think that pressure from the Counties, that pressure from HSAC is where it has to come. We have to encourage the state to do their analysis now, do not wait to 2018 because things have change: the inflation numbers, the cost of doing business here. Mr. Bernabe brought a cute analogy about the poke or the fish. That works for that business because they have a variety of products that they sell, but again, if you are a sole producer, let us say you do clothing or pies, or in my case we serve subpoenas for attorneys, I cannot do more or charge more. You are limited. I cannot replace that service with a cheaper service to make more profit to pay the employees. There are so many small businesses here and without knowing what the true impact would be, that in fact it would not create a bigger detriment to our people here on COUNCIL MEETING 80 SEPTEMBER 2, 2015 Kaua`i is very difficult to support. I know Councilmember Kuali`i spent a lot of time and energy on this, I commend him for that, and I know he does not want to hear this, he wanted the vote, but one thing this does it gets the discussion on the table, raises awareness of the public, and now we know where we stand and we move forward on this. I would expect another resolution to come forward moving forward because I believe that we have to get the state to take a look at this issue because it is a critical issues. To put numbers to it at a county level, I just do not think that is the right way to do it. With that, roll call. The motion to approve C 2015-227 was then put, and failed by the following vote: FOR APPROVAL: Chock, Hooser, Kuali`i TOTAL— 3, AGAINST APPROVAL: Kagawa, Kaneshiro, Yukimura, Rapozo TOTAL — 4, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: 3:4. Council Chair, could we get a motion to receive. Councilmember Chock moved to receive C 2015-227 for the record, seconded by Councilmember Yukimura, and carried by the following vote: FOR RECEIPT: Chock, Hooser, Kagawa, Kaneshiro, Kuali`i, Yukimura, Rapozo TOTAL— 7, AGAINST RECEIPT: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL — 0. Ms. Fountain-Tanigawa: 7 ayes. Council Chair, did you want to take the Resolution? Council Chair Rapozo: I do not anticipate much more discussions, because the Resolution encompasses all. Ms. Fountain-Tanigawa: The resolution on the road. Council Chair Rapozo: Which resolution are you talking about? Ms. Fountain-Tanigawa: This is the resolution regarding truck restrictions. Council Chair Rapozo: Are we anticipating a lot more discussion on C 2015-228? Councilmember Yukimura: What is C 2015-228? Councilmember Kuali`i: Paid Sick Leave. Councilmember Yukimura: Probably will be. Council Chair Rapozo: There will be? Okay, then how many people are here to discuss the resolution for the street restrictions? COUNCIL MEETING 81 SEPTEMBER 2, 2015 Councilmember Yukimura: Can we also see how many are here to discuss the Paid Sick Leave item? Council Chair Rapozo: How many people are here to discuss the sick leave item? Let us just follow the agenda for now. C 2015-228 Communication (08/11/2015) from Councilmember Kuali`i, requesting agenda time to discuss and approve for inclusion in the 2016 County of Kaua`i and Hawai`i State Association of Counties (HSAC) Legislative Packages, a proposed new Chapter to the Hawai`i Revised Statutes (HRS) entitled "Paid Sick Leave," which would require many employers to provide a minimum amount of paid sick leave to employees to care for themselves or a family member who is ill, needs medical care, or is the victim of domestic violence, sexual assault, or stalking: Councilmember Hooser moved to approve C 2015-228, seconded by Councilmember Kuali`i. Council Chair Rapozo: Are there anyone in the audience wishing to testify on the sick leave issue? There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: Council Chair Rapozo: Councilmember Kuali`i. Councilmember Kuali`i: I do not know if anyone will propose any amendments to the point of being able to support, but out of Committee the vote was 2:3. I would be willing to put amendments forward if there was any appetite for support, whether it be tiers or I think there were concern about the employee being able to use the sick leave for other than their own personal health. We are only talking about seven (7) days a years...seven (7) days for employers with ten (10) or more employees and five (5) days for employers with nine (9) of fewer. Therefore the tiers are actually there already as far as nine (9) employees versus ten (10) or more employees, but if limiting it to just the employees use, was an amendment that would garner anymore support, I would be willing to make that amendment. Council Chair Rapozo: Discussion? Councilmember Yukimura. Councilmember Yukimura: I would consider an amendment that limits it just to the employees youth, but I also hope that there would be some language for flexibility and I am not sure how you would actually frame that language. I think we need some guidance again from the businesses that it impacts. Councilmember Kuali`i: Based on the timeline, I will take that as a no. Council Chair Rapozo: I think that is what that was. We are not going to be able to get...if you want it to make the HSAC package, we are not going to be able to get out to the business community in time. It really boils down to is this body today willing to look at some amendments? Will amendments change the minds of the minds of four (4) other members? I really do not want to go through the amendment process and I am sure that you accept that. If there is no interest in moving forward. COUNCIL MEETING 82 SEPTEMBER 2, 2015 Councilmember Kuali`i: Can I say one (1) more thing? Council Chair Rapozo: Sure. Councilmember Kuali`i: Let me just put forward one more thing as far as employee use only...the tiers are already there between ten (10) or more employees and nine (9) or fewer employees. Another possibility is changing the seven (7) and five (5) days to some lower amount. In the case of the nine (9) of fewer employees, because I believe the national act that is being considered does the lower tier, the five (5) days or fewer employees here as five (5) unpaid sick days, but they have the right to take those five (5) days and still have a job when they are sick for those five (5) days. Therefore, it would be unpaid. Council Chair Rapozo: Councilmember Kagawa. Councilmember Kagawa: What cities or states have adopted this measure? Councilmember Kuali`i: There are many and I think as the Chamber also said, seventy-five percent (75%) of the Chamber members here on Kaua`i already offer some level of paid sick leave. Councilmember Kagawa: No, but what I mean — what cities or states are these mandatory for private companies? Councilmember Kuali`i: I do not have that. I may have it, but... Councilmember Kagawa: I am wondering if it is the same Baltimore, Los Angles, and Seattle... Councilmember Kuali`i: No, it is a lot more. Councilmember Kagawa: A lot more than that have mandatory sick leave. Councilmember Kuali`i: I can get that for you, but it will take a little time. Councilmember Kagawa: I think it is pretty important. Council Chair Rapozo: Any other discussion? No? Okay, go ahead. Councilmember Yukimura: If Councilmember Kuali`i wants to make a proposal, I am willing to consider it today. Council Chair Rapozo: Even without input from the business community? Councilmember Yukimura: Well, it has to be pretty limited. Council Chair Rapozo: Okay. Councilmember Yukimura: But I cannot say until I see a specific proposal. COUNCIL MEETING 83 SEPTEMBER 2, 2015 Council Chair Rapozo: What are you thinking, Councilmember Kuali`i, as far as an amendment. Councilmember Kuali`i: I mentioned employee use only, that was the thing that I believe I heard Councilmember Yukimura, one of the things she objected to as far as using it for other...I think there were some other Councilmembers too that also said that it was venturing into the realm of family, medical leave act because we were using it for other illnesses in the family. This was just the bill as written from the Legislature last year, it even included the piece on domestic violence...an employee who was facing domestic violence and maybe had to go to a safe house and had to be away from their job for a little while — that they would have five (5) days paid sick leave. They could use sick leave for that purpose. Councilmember Kaneshiro: Last week I had my hesitations on this and this week I still have my hesitations. I really have not heard from the business community. I heard that they offer some type of sick and health and they are pretty flexible on it, therefore I do not know what type of impact we would have by saying this is what is mandatory now. I know for future reference, we actually just heard from somebody that said they offer their employees personal leave, which you do not need to be sick — it can be for anything which is a lot more flexible than your won personal health and of course the health needs of members or families which I think if you are talking about sick leave, that is kind of reaching. Using up personal leave might be something, but again, I do not know what the impact of requiring companies to offer personal leave is. That is where I am uncomfortable on and I do not know if we will get the information today that would make me comfortable on it, therefore my initial thought is a no vote. Again, if we could make this broader, ask the state to look at requiring personal leaves and keep it as a small number, I really do not know what the impact is. You give a person two (2) or three (3) days personal leave, they are sick, restaurant folks have to take their kids to the doctor or something, that might be reasonable, but again, we have not really heard much. That is where I am at. I am just not comfortable making a decision without all the information. Council Chair Rapozo: I guess the question I have is, is this an issue? Is this a problem where people cannot get off? Is that a true problem? I am not in that mix so I am not sure. Councilmember Hooser: Last week we heard from a number of people in restaurant industry, specifically, but that is what I heard anyway that it was an issue in certain segments of the economy. I support this and applaud Councilmember Kuali`i for bringing it up. I would like to see Kaua`i be a leader in this area and make a strong statement that we value our workers and they deserve what we are asking. They truly deserve what is being proposed. The question was asked about other cities or states that do this kind of thing, there are entire Countries that do far more than this. United States in general is in the dark ages in many aspects of how they treat their workers and the kind of benefits that are offered. We cannot do it all in one fall swoop, certainly, but we can make a strong statement. It is not going to pass into law, it is just a statement. A statement that we believe that our workers deserve this benefit and I believe that it deserves the benefit of family leave as well as sick leave. It is simple. We can talk about it all day long, but to me it is a statement of values, it is continuing conversation of how we treat our workers and what direction we want to go as a state and community. The power and authority in the statement wheels are minimum on a legal basis, but it is statement that I think we should make. It is not like it is going to happen, if we vote yes today, but it is a statement that keeps COUNCIL MEETING 84 SEPTEMBER 2, 2015 the conversation going. I certainly would like to make a statement in strong support for families and working people. Thank you. Councilmember Kagawa: Again, I do not think it is necessary to criticize our views on this type of issue. It is the state's issue, HB 1047, SB 1025. The State Legislature has direct control over this. They have the information and teeth to enact it with the necessary votes. Our resolution here is nothing. Yes, it is a statement on how our Councilmembers feel, if you have a majority, but it does nothing. I do not know why we have to get into personal reasons for not supporting it. It is not our call. It is a the State's call. As to the effects, if it was a such a slam dunk, no-brainer, would the State not have already enacted it? Instead, what did they do? So, criticize your legislature, if you really do not agree, criticize them. They did not even have a hearing on it. As normal process, it goes on to the next session, is what happens. Council Chair Rapozo: For two (2) years. Councilmember Kagawa: The public, for those watching, if this is a slam dunk, you folks need to contact our legislators and get this done. It is not our call. The Council does not control mandatory sick leave for private companies. Council Chair Rapozo: Just so that the public knows, we did invite our State Delegation in these discussions. Unfortunately, their schedules did not allow them to be here. Any other discussion? Councilmember Yukimura: I appreciate this discussion and as the discussion has gone, I think that there are many different ways to achieve what we say we want to achieve and some of them are not good ways and have a lot of negative side effects and other ways might be useful. This idea that perhaps we not require sick leave, but we require personal leave would take out all the enforcement issues, would remove the enforcement issues of whether you are really sick or not and would just allow people to choose. It would give more flexibility to the employee. That is something worth pursuing. If most of the businesses provide it, if it is not needed, we should not require it and restrict flexibility of business owners. Now, if it is required that is people are not getting the kind of sick leave they need, we should require it, but only where the problem is and not affect those where it is already solved. That makes me think anybody who wants...and if it is just a statement that we need, than somebody propose a statement, not a specific bill which is proposed here. This bill does require paid family leave, and not just family leave, it is for other individuals of similar family affinity. I think those who want to see something pass need to go back to the drawing board and work on this in conjunction with people who will be potentially impacted, meaning the business community and the workers. Councilmember Kuali`i: I just want to be clear again that my intent was to get the Legislature to continue working on this, they had an attempt last year, like Council Vice Chair Kagawa talked about, H.B. 1047, the idea is that nationally forty percent (40%) of private sector workers do not have sick leave, therefore, sixty percent (60%) has. In Hawaii, forty-three percent (43%) of private sector workers do not have sick leave. Where it is voluntary, the employer has chosen not to provide any sick leave to forty-three percent (43%) of our workers. We are even lower than the national average. When Councilmember talks about us being more progressive and leading the way, I actually used to think of Hawaii as that kind of State and I moved away for a while and when I came back and learned the truth, I was sadly disappointed. Paid sick leave, some minimal leave is merely meant to help the workers and it is the low-income workers who are more likely not to have any sick COUNCIL MEETING 85 SEPTEMBER 2, 2015 leave. Only one in five low-income workers have access to sick leave, therefore twenty percent (20%). Forty-three percent (43%) of all workers in the private sector, but twenty percent (20%), therefore eighty percent (80%) do not have any access to sick leave. This is just meant to establish some minimal level, as a State law, so that all workers would be entitled to some minimal level. They are earning it with every thirty (30) hours work, they are earning an hour of sick leave, up to a maximum of seven (7) days in a year for employers of ten (10) or more and employees and for nine (9) or fewer, five (5) days or forty (40) hours. It is just a basic minimum for the Legislature to continue working on it, but if we cannot even get that, it is very sad. Council Chair Rapozo: Any other discussion? Councilmember Yukimura: Of the eighty percent (80%) of the low-income workers who do not have sick leave, where are they employed? Councilmember Kuali`i: I do not have it here in the legislative data that I have, but I would imagine that it is everywhere. Councilmember Yukimura: It would be useful for... Councilmember Kuali`i: Only one in five (5) low-income workers has access to paid sick leave. It must be mostly in the service industry, in the lower paid industries, the blue collar, if you will. Councilmember Yukimura: Well, they are all low-income workers. Councilmember Kuali`i: Eighty percent (80%). Councilmember Yukimura: It would be interested to find out who are the twenty percent (20%) that have sick leave. What type of businesses are there and who of the eighty percent (80%) who do not have sick leave, what types of businesses? It would help us fashion the law more carefully, if we could find out. Council Chair Rapozo: Any other discussion? If not, is there anyone in the audience...I think I asked once already. Is there anyone in the audience wishing to testify on this? There being no objections, the rules were suspended. Ms. Parker: I wanted to answer Councilmember Yukimura's question partially. I know a service station attendant's often have no sick leave. There is a service station I walk by each night, and it has been closed in the evening because the young woman who usually handles it is ill and has no sick leave, no income, and the station has been closed, the 76 station on Kuhi`o Highway. Thank you. Council Chair Rapozo: Anyone else? Mr. Sykos. Mr. Sykos: As Councilmember Kuali`i noted the arguments against minimum wage, health care, paid leave, and sick leave, they are all the same arguments that we have been listening to since suffrage at vote for women, racial equality, on and on...it is the same exact arguments over and over and over again. We are the only industrialized Country on the planet that does not have universal health care for all citizens, does not have maternity and paternity leave, COUNCIL MEETING 86 SEPTEMBER 2, 2015 does not provide more than the minimum leave that is being encouraged in this statement to the Legislature. I simply encourage you to approve this. Send this off to the Legislature and see what happens. You all act like if you approve this measure, instantaneously we are going to tax all small businesses to death. That is not what this is about. This is to have a discussion in Honolulu in the Legislature. Let the Legislature discuss this, pass these things, and get on to more serious local business. Thank you very much. The meeting was called back to order, and proceeded as follows: Council Chair Rapozo: I think just to answer Mr. Sykos' comments, this is more than a statement. This is specific numbers. This is numbers that have been placed on a propose bill. It is not a statement to the Legislature saying, "Hey get off your butts and get to work." That I would support. I think it would be unanimous and I think that is the issue. The issue is...is that a County's function to determine those numbers or is it the State. This actually goes in and puts numbers in places in a bill or amending an ordinance, therefore it is much more than that. There is a level of credibility that I would like to maintain or retain with the State legislature. It is not a matter or throwing things up there and seeing what happens, no, that is not how we do things. There is the credibility thing, we have done our homework, we believe this can work, and now you go and do it for us and for the people of Hawai`i. That is how we do things. I do not know. If I had a level of comfort that I felt that it was fine...I want to support this, I really do, but I am afraid that there is an issue of what the impacts will be. That is all it is. I think the general statement to the Legislature would have been appropriate. The fact that anybody does not support any of these communications, does not mean we do not want to see minimum wage raise or we do not care for our people, that is simply not the case, but we represent everybody and we have to make sure that...and that is the beauty of this process. The Councilmembers have the ability to do this. One thing that this does do, like I said, it sparks discussion and dialogue. What this will do, I am assuming whether it passes or not passes, the Legislature will get letters from Councilmembers urging them to do something. Any further discussion? If not, are we ready to vote? Councilmember Yukimura: I believe sick leave as its conventionally understood, that is paid leave for employees who are sick, is an important benefit to provide. I think maybe even sick leave to take care of minor children who are sick is, but this bill is far more than that. It requires sick leave to be provided and paid for when children are sick, when parents are sick, and quote, "When any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship is sick." This is paid family leave bill in the guides of a sick leave bill, and I think if we are going to make this a requirement of all businesses or the businesses as distinguished in the bill, I think we should start with sick leave for employees and their minor children and let that work well, and then go on to family leave, but they are two matters in my mind. The bill also leaves no flexibility to allow small business employers to make sick leave with vacation or other leave, a flexibility that I believe is especially important to small businesses and may even be beneficial to workers who do not have to get a sick leave paper from the doctor and have some other really compelling needs that take them away from work. It is also interesting that even a large union like Local 5 also believes that flexibility is important. They talked about exempting them from the sick leave provision if benefits are instead turned in to deferred compensation or some kind of other employee compensation and none of this is addressed in the bill that is before us. Many things have not been worked out or thought through and I cannot support what I consider a seriously defective bill. COUNCIL MEETING 87 SEPTEMBER 2, 2015 Council Chair Rapozo: Anyone else? Councilmember Kuali`i: Allowing employees the flexibility to use those five (5) or seven (7) days which is a minimal amount, I do not see it as the same problem as Councilmember Yukimura does. Maybe if it was twenty (20) or thirty (30) days a year, which they really do not personally get sick that often, they would have so many ways to use it, so they would not be a leave that would be unused. When you are talking about a minimum amount of five (5) or seven (7) days in a year, it is more than likely that an employee would need to use that for their own sickness or for their ill parents that they have to care for, and of course for their ill kids. The whole thing about people sending kids to school sick because they have to get to work and all of that. I do not see that big concern. As for the unions, the unions do well in their contracts. Our County workers get twenty-one (21) days of sick leave, therefore that would be three times as much as the minimum for employers of ten (10) or more, that this is calling for the Legislature to look at. Council Chair Rapozo: Thank you. Do we have any amendments to introduce? If not, roll call. The motion to approve C 2015-228 was then put, and failed by the following vote: FOR APPROVAL: Chock, Hooser, Kuali`i TOTAL — 3, AGAINST APPROVAL: Kagawa, Kaneshiro, Yukimura, Rapozo TOTAL— 4, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL — 0. Ms. Fountain-Tanigawa: 3:4. Councilmember Kuali`i moved to receive C 2015-228 for the record, seconded by Councilmember Chock. Council Chair Rapozo: Go ahead, Councilmember Kuali`i. Councilmember Kuali`i: Thank you everyone for all the testimony and all the education, obviously, we need more education and I will continue to work on it because I think there is a lot of different avenues that we have to work on. This was just one and this is the time of year when any Councilmember can bring forward any proposal for HSAC whether it be a bill or resolution for the Legislature to consider. Therefore we get this opportunity once a year. As for propose bills and resolutions, that the Legislature themselves would pass. As for our own resolutions, the third piece the proposed and put forward is a resolution and I heard several people express support for making a statement, therefore I hope that when we get around to actually working on this resolution that there will be support. Just as a reminder, the public hearing for the resolution for economic justice for Hawai`i's working families which has the living wage fifteen dollars ($15), paid sick leave, paid family and medical leave, and the right to organize. The public hearing is September 16, 2015 at 1:30 p.m., and then after the public hearing, it will be in the Council Meeting on October 6, and that would be a Council resolution which is a statement of support for these different economic justice for Hawai`i's working families issues. COUNCIL MEETING 88 SEPTEMBER 2, 2015 Ms. Fountain-Tanigawa: It will be at the full Council on October 7th Councilmember Kuali`i: October 7th, is that not what I said. October 7th Council Meeting and September 16th, 1:30 p.m. public hearing. Council Chair Rapozo: Okay, we are back on the motion to receive. Any further discussion? The motion to receive C 2015-228 for the record was then put, and unanimously carried. Council Chair Rapozo: At this time, let us take the Resolution for the street restrictions. There being no objections, Resolution No. 2015-58 was taken out of order. Resolution No. 2015-58 — RESOLUTION ESTABLISHING TRUCK RESTRICTIONS FOR NANI STREET AND LELEIONA STREET, LIHU`E DISTRICT, COUNTY OF KAUAI, STATE OF HAWAII: Councilmember Chock moved for adoption of Resolution No. 2015-58, seconded by Councilmember Yukimura. Council Chair Rapozo: Did you have a comment before we open it up for public testimony? Councilmember Kagawa: I have a question for the Administration. Council Chair Rapozo: Let us bring Public Works up. There being no objections, the rules were suspended. Councilmember Kagawa: Is this Resolution related to the Puhi Road resurfacing, road improvement, or road construction? MICHAEL MOULE, Chief of Engineering Division: Not really. The request has come from the residents independent of this. We would like to have this in place prior to those road closures, so that we do not see more traffic cutting's through those streets during construction. It was requested independent of that. It came as a request from Council, actually, to us. Councilmember Kagawa: From the Council to you folks. Mr. Moule: I think it was from Councilmember Yukimura. Yes, citizen request to Council, then to us. Councilmember Kagawa: Do we have a map? Mr. Moule: Yes. Council Chair Rapozo: Do you have a presentation? Councilmember Kagawa: I think the community should see. Council Chair Rapozo: I agree, but I believe and maybe Councilmember Yukimura can help me out, the request came from the community COUNCIL MEETING 89 SEPTEMBER 2, 2015 because of the Puhi Road improvements. If not for the Puhi Road improvements and those community meetings. Can you give us a little history on it? Councilmember Yukimura: The request came, I am sorry to say, two (2) years ago. Prior to the decision to move ahead on Puhi Road. We can ask Mr. Girald who lives right there. Because the road and traffic is bad on the main highway, there is inherent incentive for truckers go through the neighborhood road to avoid either bad roads, traffic, or both. This has an impact on the neighborhood. That started two (2) years ago, and then intervening the decision was made to move ahead on the reconstruction on Puhi Road which is also going to be another potential impact on the neighborhood. Council Chair Rapozo: Did the request go over two (2) years ago and only now it is showing up? Does anybody know why? Mr. Moule: I first saw... LARRY DILL, P.E., County Engineer: There is probably not a good answer to that, Council Chair. Part of it is because the turnover that we had in the position of the Chief of Engineering Division, at that time. Council Chair Rapozo: Okay, fair enough. Councilmember Kagawa: Is this behind Ron's Puhi Paint? Mr. Dill: I will ask Michael to show you. Councilmember Kagawa: That road right before Ron's Puhi Paint, right? Mr. Dill: Yes. Mr. Moule: You will see on the map here there is Kaumuali`i Highway here and Puhi Road here. The hash markings here are the two (2) streets; Leleiona Street here and Nani Street here. These are what I would call the "minor collector streets" for this subdivision here. The two (2) streets that go in and out of this subdivision. People do whether they are in trucks or otherwise, sometimes use these streets to get from here to here, instead of taking the more major roads on the highway and Puhi Road. While there is no recommendation at this time to try to prohibit all through traffic and it is very difficult to do. We generally feel that on residential streets like this, they are not built for large truck traffic and that traffic disrupts neighborhoods, so it is common both here in the County and elsewhere to restrict trucks from streets that are in neighborhoods. We are about to start with reconstruction of Puhi Road to a road construction that will support, as you heard from us before, all that truck traffic and while there are residents on Puhi Road, there is not as many and has long been a more major road. Councilmember Kagawa: Therefore, the restriction is for trucks with six (6) wheels or more, so basically construction type/hauling type trucks. Mr. Moule: Pretty much any truck that has six (6) wheels or more. This Resolution is different than ones in the past, which we have done based on the weight. We had some conversations with KPD as we were preparing this Resolution and they felt that...we all felt that a number of wheel-based restriction was easier to enforce for them because they can just look. There would be no checking the COUNCIL MEETING 90 SEPTEMBER 2, 2015 registration, weighing the actual vehicle, or anything like that. They can just literally look and count the wheels. And of course the vehicles that are in designation within this neighborhood are exempted by the resolution, if you read the Resolution, it exempts those vehicles. Therefore, if someone has their own trailer and they are going to their house, they are okay. Councilmember Kagawa: Any further questions, Councilmembers? Councilmember Yukimura: And if they are building a house, I do not know if there is a vacant lot and they need a lot of lumber or something, that is going to be okay. Mr. Moule: Yes. If the delivery trucks are coming in whether its FedEx which usually have six (6) wheels, or lumber delivery trucks or anything else, if they are going into this area, they will be okay. Councilmember Yukimura: For the purpose of their job or destination. Mr. Moule: Yes. That is similar to what we have done to other resolutions. The truck restrictions in Molokoa subdivision are similar, which traffic destined to that location is allowed by a resolution. Councilmember Yukimura: Therefore, as you just acknowledged, these restrictions have done before and in fact they exist in Molokoa to prevent large trucks from using alternative routes through neighborhoods, right? Mr. Moule: That is correct. The only difference in this case is that we are doing it by wheels instead of weight. Councilmember Yukimura: Yes. For ease of enforcement. Mr. Moule: Yes. Councilmember Kagawa: Councilmember Kuali`i. Councilmember Kuali`i: I am not sure if I missed it, but on behalf of the people that live there, how will this be enforced and can they play a role in helping with the enforcement? If so, how? Mr. Moule: Well enforcement is done through KPD and like any other restriction that is out there, citizens are welcome to call KPD to note when a truck is going through on a regular basis, and when they can, KPD will respond. I think we all recognize that KPD cannot have their traffic enforcement people everywhere that citizens might want them all the time, but I would hope that KPD would be able to respond often enough to make a difference. The nice thing about this as opposed to something like say speeding is that, there is only a fine number of trucks on this island and businesses down that way, therefore if there are regular vehicles going through to the same business then it can certainly be reported. Neighbors are very smart about those sorts of things and they know where people are going around here and so I think that would be reported to KPD and that would help them enforce, even if it is just a matter of talking to business owners without actually writing a ticket...the goal is not to write lots of tickets, it is to get the trucks out and I think that is something that hopefully KPD would be able to do as part of their enforcement efforts. COUNCIL MEETING 91 SEPTEMBER 2, 2015 Councilmember Kuali`i: What are the penalties? "Penalties prescribed in Section 16-21.6." Mr. Moule: Honestly, I do not know the penalty off the top of my head, but we can look it up. Councilmember Kuali`i: But it is part of this Resolution. Mr. Moule: Yes, we used the same penalties that we typically used for this kind of violation in the past, and I do not know what the actual... Councilmember Yukimura: It is the standard penalties provision for traffic. Councilmember Kuali`i: A fine or citation. Mr. Moule: Yes, it would be a citation, but the amount, I could not tell you off the top of my head. Councilmember Kuali`i: Thank you. We will get it. Councilmember Kagawa: Further questions? Seeing none, thank you. I would like to ask if there is anybody from the public wishing to speak. Ms. Fountain-Tanigawa: Vice Chair, we have one (1) registered speaker currently, Robert Girald. ROBERT GIRALD: I live on Leleiona Street, which is one of the street's that are in question. When I think back, this has been going on for way over ten (10) years. I am very happy to see this finally reach this level. The situation is where back in the early 80s when Grove Farm established the Puhi industrial side subdivision, we gave testimony from the Puhi Community Association, that Leleiona Street would not be used to egress and ingress into Puhi Road or to Kaumuali`i Highway. Unfortunately, I lost my copy of that, I was then the President of the Puhi Community Association and I am actually the last standing of President of the Community Association. As the years went by, you had a whole different influx of people in that particular subdivision. As a matter of fact, I guess Grove Farm had less control. When Grove Farm had control, we could call them and say...but as the years went by that all changed. What I have been doing especially for the last ten (10) years, I have been calling the respective truckers and getting them to let their workers know, but it is a continuous thing. When they started the realignment/improvement of Kaumuali`i Highway, we had a whole influx of equipment. At that time we closed our eyes because we knew that the road was being repaired and they had no other way to go and they came through. Since that had stopped, we have the same truckers all the time coming through the subdivision. We get tow wagons, fuel tank trucks every day. Every day we have traffic coming through there and I am talking about...it is right in front my house and I am afraid for the kids that are playing on the roads that someone is going to get hurt. Not to mention the fact that that road is not made for that type of traffic. The other thing is if you come in the morning and afternoon, that is like a freeway going to the industrial site because all these folks are coming to work, they maybe late, they cutting through Nani Street from Kaumuali`i Highway and then they shoot up through that road. They are just barreling down the road every morning. I believe our thing with this...the change will allow us to at least take the numbers of the truck and call the police, if that does happen. I still would like to talk to the respective COUNCIL MEETING 92 SEPTEMBER 2, 2015 truckers, but at least now I think we will have some teeth, therefore I am hoping that we can get your support on this. Council Chair Rapozo: Thank you, Mr. Girald. You live on Leleiona. Mr. Girald: Yes. Council Chair Rapozo: You are saying that during the day it is constant... Mr. Girald: It is not constant, but enough trucks every day. You get a dozen or more a day. Council Chair Rapozo: Because this is only for trucks with more than six (6) wheels, I believe. Mr. Girald: I am assuming when we say "wheels," we are talking tires. Council Chair Rapozo: Yes. Mr. Girald: Like a FedEx truck has six (6) tires, even that should not be on the road, but because they are coming in for specific service to the community, then they are allowed, but when you have tow wagons and things that are running through, I do not think they belong in there. Council Chair Rapozo: Is it because the Puhi Road and Kaumuali`i is busy? Because Nani Street...you still have to make a left to go down and then a right and then back to Puhi, so it just seems like its quicker for them to go straight to Puhi. Mr. Girald: Well, that is what we think, but a lot of these folks cut short. Council Chair Rapozo: They just go short. Mr. Girald: Yes. Council Chair Rapozo: Okay, I got it. Further questions for Mr. Girald? Councilmember Kuali`i: You mentioned people going to work at the industrial area, cutting across...so they are coming from Lihu`e and then they are going through the neighborhood to get to the industrial area. Mr. Girald: Yes. Councilmember Kuali`i: If they are in cars speeding through, this does not address it. Mr. Girald: These are mostly transportation vehicles, pickup trucks, and cars, but in the morning, it is dangerous. Councilmember Kuali`i: During rush hour, probably,people are going to work. COUNCIL MEETING 93 SEPTEMBER 2, 2015 Mr. Girald: Yes, they are just going through there. Councilmember Kuali`i: There are speed limit too in there, right? Mr. Girald: There is a twenty-five miles per hour (25MPH) zone, but nobody to enforce it. Council Chair Rapozo: That is probably something else that we have to look at, maybe the speed limit on that street. Further questions? Thank you, Mr. Girald. Anyone else wishing to testify. The meeting was called back to order, and proceeded as follows: Council Chair Rapozo: If no discussion, roll call please. The motion for adoption of Resolution No. 2015-58 was then put, and carried by the following vote: FOR ADOPTION: Chock, Hooser, Kagawa, Kaneshiro, Kuali`i, Yukimura, Rapozo TOTAL— 7, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0. C 2015-234 Communication (08/05/2015) from the Executive on Aging, requesting Council approval to receive and expend additional grant funding in the amount of $3,000, from the Corporation for National and Community Service for the budget period, April 1, 2015 to March 31, 2016 to be used for long distance travel for two (2) Project Staff to attend training to carry out the national service program as authorized by the Domestic Volunteer Service Act of 1973, as amended (42 U.S.C., Chapter 22). This grant amendment will increase the total amount awarded for the Kaua`i Retired and Senior Volunteer Program (RSVP) to $65,847: Councilmember Chock moved to approve C 2015-234, seconded by Councilmember Yukimura. There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: The motion to approve C 2015-234 was then put, and unanimously carried. C 2015-235 Communication (08/24/2015) from Council Chair Rapozo, requesting agenda time to discuss and approve for inclusion in the 2016 County of Kaua`i and Hawai`i State Association of Counties (HSAC) Legislative Packages, a proposed Bill to clarify the counties' zoning authority by distinguishing Single-Family residential use from Single-Family vacation rental use and allow amortization by ordinance for Single-Family Transient Vacation Rentals over a reasonable period: Councilmember Chock moved to approve C 2015-235, seconded by Councilmember Kuali`i. There being no objections, the rules were suspended to take public testimony. COUNCIL MEETING 94 SEPTEMBER 2, 2015 There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: The motion to approve C 2015-235 was then put, and unanimously carried. Council Chair Rapozo: I see Mr. Furfaro here, and I assuming you are here for the Resolution for the appointment, therefore can we take that out of order. I do not anticipate that taking up too much time. There being no objections, Resolution No. 2015-56 was taken out of order. Resolution No. 2015-56 — RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE PLANNING COMMISSION (Roy K Ho — Labor): Councilmember Kagawa moved for adoption of Resolution No. 2015-56, seconded by Councilmember Kuali`i. Council Chair Rapozo: Any discussion? Go ahead, Councilmember Yukimura. Councilmember Yukimura: I want to thank the body for the deferral that allowed me to meet with Mr. Ho. We met for about an hour and it was a pleasure and privilege to meet with him. He showed himself to be thoughtful, intelligent, open to learning, and committed to the common good — all great qualities for a Planning Commissioner. His experience and background shows him to be a man of many talents and wide ranging experiences and I am happy to vote for his appointment to the Planning Commission. Council Chair Rapozo: Thank you. Any other discussion? If not, roll call. The motion for adoption of Resolution No. 2015-56 was then put, and carried by the following vote: FOR ADOPTION: Chock, Hooser, Kagawa, Kaneshiro, Kuali`i, Yukimura, Rapozo TOTAL— 7, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: We are back to the agenda on page 3, we have C 2015-236 which we would need to convene into Executive Session. Council Chair Rapozo: Okay. Ms. Fountain-Tanigawa: The next item following that is C 2015-238. There being no objections, C 2015-238 was taken out of order. LEGAL DOCUMENT: C 2015-238 Communication (08/19/2015) from the County Engineer, recommending Council approval of a Right-of-Entry Agreement between the County of Kaua`i and the Association of Apartment Owners of Pono Kai ("Pono Kai"), for a temporary detour path for shared use path users located within TMK (4) 4-5-007:002, COUNCIL MEETING 95 SEPTEMBER 2, 2015 for repairs to the seawall fronting Pono Kai as the construction work area will extend into the adjacent shared use path. • Right-of-Entry Agreement Councilmember Kagawa moved to approve C 2015-238, seconded by Councilmember Kuali`i. There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: The motion to approve C 2015-238 was then put, and unanimously carried. CLAIMS: C 2015-239 Communication (08/14/2015) from the County Clerk, transmitting a claim filed against the County of Kaua`i by Victorino Nunez, for damage to his vehicle, pursuant to Section 23.06, Charter of the County of Kaua`i: Councilmember Kuali`i moved to refer C 2015-239 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Councilmember Yukimura. There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: The motion to refer C 2015-239 to the County Attorney's Office for disposition and/or report back to the Council was then put, and unanimously carried. C 2015-240 Communication (08/20/2015) from the County Clerk, transmitting a claim filed against the County of Kaua`i by Susan J. Blaylock, for damage to her vehicle, pursuant to Section 23.06, Charter of the County of Kaua`i. Councilmember Kuali`i moved to refer C 2015-240 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Councilmember Yukimura. There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: The motion to refer C 2015-240 to the County Attorney's Office for disposition and/or report back to the Council was then put, and unanimously carried. COMMITTEE REPORTS: PLANNING COMMITTEE: A report (No. PL 2015-17) submitted by the Planning Committee, recommending that the following be Approved on second and final reading: "Bill No. 2459 — A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO THE COUNCIL MEETING 96 SEPTEMBER 2, 2015 COMPREHENSIVE ZONING ORDINANCE (Special Standards For Issuance Of Farm Worker Housing Use Permits)," Councilmember Kagawa moved for approval of the report, seconded by Councilmember Kuali`i. There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: The motion for approval of the report was then put, and unanimously carried. ECONOMIC DEVELOPMENT & INTERGOVERNMENTAL RELATIONS COMMITTEE: A report (No. EDIR 2015-04) submitted by the Economic Development & Intergovernmental Relations Committee, recommending that the .following be Received for the Record: "C 2015-227 — Communication (08/11/2015) from Councilmember Kuali`i, requesting agenda time to discuss and approve for inclusion in the 2016 County of Kaua`i and Hawai`i State Association of Counties (HSAC) Legislative Packages, a proposed amendment to Section 387-2, Hawai`i Revised Statutes (HRS), that would increase Hawai`i's statewide minimum wage to $15.00, effective January 1, 2019," Councilmember Kuali`i moved for approval of the report, seconded by Councilmember Yukimura. There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: The motion for approval of the report was then put, and unanimously carried. A report (No. EDIR 2015-05) submitted by the Economic Development & Intergovernmental Relations Committee, recommending that the following be Received for the Record: "C 2015-228 — Communication (08/11/2015) from Councilmember Kuali`i, requesting agenda time to discuss and approve for inclusion in the 2016 County of Kauai and Hawai`i State Association of Counties (HSAC) Legislative Packages, a proposed new Chapter to the Hawai`i Revised Statutes (HRS) entitled "Paid Sick Leave," which would require many employers to provide a minimum amount of paid sick leave to employees to care for themselves or a family member who is ill, needs medical care, or is the victim of domestic violence, sexual assault, or stalking," Councilmember Kuali`i moved for approval of the report, seconded by Councilmember Yukimura. There being no objections, the rules were suspended to take public testimony. COUNCIL MEETING 97 SEPTEMBER 2, 2015 There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: The motion for approval of the report was then put, and unanimously carried. A report (No. EDIR 2015-05) submitted by the Economic Development & Intergovernmental Relations Committee, recommending that the following be Referred to the October 7, 2015 Council Meeting: "Resolution No. 2015-57— RESOLUTION SUPPORTING ECONOMIC JUSTICE FOR HAWAII'S WORKING FAMILIES: LIVING WAGE, PAID SICK LEAVE, PAID FAMILY AND MEDICAL LEAVE, AND RIGHT TO ORGANIZE," Councilmember Kuali`i moved for approval of the report, seconded by Councilmember Yukimura. There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: The motion for approval of the report was then put, and unanimously carried. BUDGET & FINANCE COMMITTEE: A report (No. BF 2015-23) submitted by the Budget & Finance Committee, recommending that the following be Approved: "C 2015-223 — Communication (07/30/2015) from the Prosecuting Attorney, requesting Council approval to receive and expend Federal funds in the amount of $163,000, and approval to indemnify the State of Hawai`i, Department of the Attorney General, for the Sex Assault Prosecution Unit, for the period of January 1, 2016 through December 31, 2016, to create a Sex Assault Prosecution Unit, which will consist of a 0.90 Full Time Equivalent (FTE) Special Prosecuting Attorney and 1.00 FTE Legal Clerk, as well as training, an increase in the contract with the YWCA Sexual Assault Treatment Program, supplies, and equipment," Councilmember Kuali`i moved for approval of the report, seconded by Councilmember Yukimura. There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: The motion for approval of the report was then put, and unanimously carried. A report (No. BF 2015-24) submitted by the Budget & Finance Committee, recommending that the following be Approved: COUNCIL MEETING 98 SEPTEMBER 2, 2015 "C 2015-226 — Communication (08/03/2015) from the Prosecuting Attorney, requesting Council approval to receive and expend Federal funds in the amount of $95,535, and approval to indemnify the State of Hawai`i, Department of the Attorney General, for Ke `Ahi Pio`ole, also known as the Cold Case Unit, for the period of January 1, 2016 to December 31, 2016, to continue the work involved in solving the island's cold cases. The funding will be utilized for consultants, overtime for Kaua`i Police Department Detectives and the Office of the Prosecuting Attorney's Special Investigators, training, travel for interviews, DNA submission, digital photographs and/or transcripts, and office supplies," Councilmember Kuali`i moved for approval of the report, seconded by Councilmember Yukimura. There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: The motion for approval of the report was then put, and unanimously carried. A report (No. BF 2015-25) submitted by the Budget & Finance Committee, recommending that the following be Received for the Record: "BF 2015-04 — Communication (07/29/2015) from Council Chair Rapozo and Council Vice Chair Kagawa, requesting the presence of the Director of Finance and the Real Property Tax Manager, to discuss the assessment of real property, the way real property is assessed, the methodology used by the Real Property Tax Assessment Division to assess property, and all other related issues," Councilmember Kuali`i moved for approval of the report, seconded by Councilmember Yukimura. There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: The motion for approval of the report was then put, and unanimously carried. A report (No. BF 2015-26) submitted by the Budget & Finance Committee, recommending that the following be Approved on second and final reading: "Bill No. 2591 — A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2015-796, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2015 THROUGH JUNE 30, 2016, BY REVISING THE AMOUNTS ESTIMATED IN THE GENERAL FUND AND SEWER FUND (Kauai Lagoons Resort Wastewater Treatment Capacity Assessment Refund - $758,550)," Councilmember Kuali`i moved for approval of the report, seconded by Councilmember Yukimura. COUNCIL MEETING 99 SEPTEMBER 2, 2015 There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: The motion for approval of the report was then put, and unanimously carried. A report (No. BF 2015-27) submitted by the Budget & Finance Committee, recommending that the following be Approved on second and final reading: "Bill No. 2592 —A BILL FOR AN ORDINANCE TO AMEND SECTION 2, ORDINANCE NO. 891 AUTHORIZING THE ISSUANCE OF GENERAL OBLIGATION BONDS OF THE COUNTY OF KAUAI FOR THE PURPOSE OF FINANCING CERTAIN PUBLIC IMPROVEMENTS AND REFUNDING CERTAIN BONDS OF THE COUNTY; FIXING OR AUTHORIZING THE FIXING OF THE FORM, DENOMINATIONS, AND CERTAIN OTHER DETAILS OF SUCH BONDS AND PROVIDING FOR THE SALE OF SUCH BONDS TO THE PUBLIC," Councilmember Kuali`i moved for approval of the report, seconded by Councilmember Yukimura. There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: The motion for approval of the report was then put, and unanimously carried. Council Chair Rapozo: This would be a good time to take our caption break, it is 3:30 p.m. There being no objections, the Council recessed at 3:30 p.m. The meeting convened at 3:41 p.m., and proceeded as follows: Council Chair Rapozo: The meeting is called back to order. Staff, can we have the next item, please? Ms. Fountain-Tanigawa: This is on page 7. RESOLUTIONS: Resolution No. 2015-52 — RESOLUTION PROPOSING A CHARTER AMENDMENT RELATING TO TERM LIMITS FOR COUNCILMEMBERS: Councilmember Kuali`i moved for adoption of Resolution No. 2015-52, seconded by Councilmember Kagawa. Council Chair Rapozo: Thank you. Anyone in the audience wishing to testify on this matter? There being no objections, the rules were suspended. COUNCIL MEETING 100 SEPTEMBER 2, 2015 Ms. Parker: I think the community spoke vehemently and loudly a few years ago when they voted for term limits. I think actually it would be handy if we had staggering terms so there would be communication from those who have had experience and those who are brand new. We definitely need term limits. This is not a dynasty or a monarchy. We need new blood from time-to-time. We have new blood sometimes and sometimes old blood that has been recycled and comes back later. Thank you. Council Chair Rapozo: Any questions for Ms. Parker? If not, Mr. Sykos, you may come up. Mr. Sykos: My argument to have term limits lies in the fact that our country was founded...the Constitution states that the prerogatives of the government cannot be inherited by the children of the current office holders. Our entire concept of self-government is based on the belief that within our body of citizens, there exists at all moments in time the sufficient capacity by the public to govern themselves. That is what the Constitution says, "We the People..." The idea that we need to protect the ability of certain individuals to keep their position in the government in order for the government to function properly is inherently un- American. There are people out there, God forbid, that you should all resign at the same time or something worse happen. It is inconceivable that there would not be seven (7) individuals who would step up and continue the operation of the government. From that perspective, I do not believe there is a necessity of any kind to keep people in office more than the term limits that we have. Thank you very much. Council Chair Rapozo: Thank you. Anyone else wishing to testify? Ms. Fountain-Tanigawa: The next registered speaker... Council Chair Rapozo: I am sorry, I did not realize we had registered speakers. Ms. Fountain-Tanigawa: Yes, we have one more, Ken Taylor. Mr. Taylor: I am adamantly opposed to Resolution No. 2015-52 and I really believe that if any of you think you should vote yes for this then basically what I feel is that you are telling the community that you are very important people and that Kaua`i cannot do without you. I would like to remind each of you that you were elected under the process of term limits and that there is absolutely no reason to change. Kaua`i will go on without you as you are termed-out. Just remember than when you come to voting on this issue today, a yes vote tells that community that you are so important that Kaua`i cannot do without you. Thank you. Council Chair Rapozo: Anyone else? If not, I will call the meeting back to order. Councilmember Kagawa. There being no objections, the meeting was called back to order, and proceeded as follows: Councilmember Kagawa: I am looking at the 2006 General Election report. Scott, may you put that up? This was not a few years ago, Alice, this was ten (10) years ago...or nine (9) years ago. I want you to notice the amount of charter amendments and Constitutional Convention (ConCon) amendments that we had in COUNCIL MEETING 101 SEPTEMBER 2, 2015 that time, because certainly, I can only speak for myself on how I voted in 2006 because I had young kids at that time and I basically voted for the representatives, governor race, Tokioka race, Sagum race, and the Councilmembers' race. Out of all the amendments, I think I recall maybe spending a little time on the Parks & Recreation one and when in my mind whether our Parks & Recreation Department improved things, but for the rest of them, I think I just voted all no or yes or something, whatever I did at the time. I did not spend too much time and this is a person who now sits here on the Council that did not spend much time in 2006 about these amendments, but I am just saying that after ten (10) years, is it not worth the while the see how the voters feel on this item? A lot has changed on Kauai. Our number one vote-getter, Councilmember Yukimura, was here. Councilmember Rapozo was here; he was number four. Four (4) years ago, staff informed me that Councilmember Yukimura had this discussion about removing term limits before this Council. I thought that well since I feel that way and maybe some other Councilmembers feel that way and if Councilmember Yukimura feels that way, then let us put it out to the voters. The voters will make the decision. We will not have the decision today. Today is merely to put it out to the voters. To say, "Well, we need new blood and stuff." Well, we still have two (2) of the ones that were here ten (10) years ago sitting right here. After a two (2) year break, they will probably be back for another eight (8) years. I think if we want change, the voters have to term these longstanding members out. Two (2) of the longstanding members last year were termed out by the voters, not by term limits. The voters have the ability at any time and period. To say that, "Well, you served three (3) years, so you are selfish because you think you are going to serve eight (8) years." I do not even know if I can last six (6). The economy and issues here on Kaua`i is tough and we run the whole island. It is not like Maui or Hawai`i island by districts. Kaua`i does not have districts; it is the whole island, every two (2) years. If anybody thinks that it is an easy job to run for Council, come on in. "Feel froggy" and leap right in. It is tough, but you can do a lot. You can accomplish a lot because you represent the whole island; you are not only representing a district or looking out after a little portion of Kaua`i. You have to vote on the whole island and do what is best. I just play it out. I have never been a cheerleader; I am a sports enthusiast athlete. I play on teams. I have won some and I have lost some. Just like this vote, it is my prerogative to put this before the Council. It is my power to put any issue that I want before the Council and we vote it up or down. If we win, we win. If we lose, we lose. We do not need to get personal about this issue. The Garden Island brought in the Mayor and trying to be "Drama-lani's" and bringing in the mayor term limit. That is not even in question. It never was a question. It was The Garden Island, and the some of the readers of The Garden Island wrote that, "So the Mayor term limits is up for grabs, too?" We are not talking about the Mayor. The Mayor's term limit was never in question. It is about the Council's term limit and whether the voters already are doing the term limits for Councilmembers. That is my belief. Nobody has ever reached it. Thank you, Chair. Council Chair Rapozo: Anyone else? Councilmember Kaneshiro. Councilmember Kaneshiro: I was not here for the original meeting, but I have heard a lot. I have heard things like it is a disservice to the island and you are selfish if you vote for this, but I think there is a disconnect and the disconnect is that we are basically putting this up for the voters to decide and I think the further disconnect is that I am not guaranteed to win anytime. The only vote I know I can get is my own if I vote for myself. Other than that, who knows where we will be or who is going to be where? It really is up to the voters on whether they want somebody to continue to serve or not. When I hear that, "Oh, if you do this, you are doing a disservice to the island," I would say that is it a disservice if you run for a ninth term COUNCIL MEETING 102 SEPTEMBER 2, 2015 and the majority of the people vote you in the top seven (7) and you say, "Oh, I am not going to do it, although everybody wants me to be in the top seven (7) or I am voted in the top seven (7), I am not going to do it." I think that is a disservice to the island because the majority of the voters are voting you in. It would be a disservice if we said we are not going to have any elections anymore and we seven (7) are going to be in the Council forever; that would be a disservice. I think ultimately, the voters decide. I do not think anybody can say that running for Council is easy and running for Council is a guaranteed win. I do not think anybody would say that. Really, it is up to the voters. The voters decide if they want you to continue to serve or not and it is that simple. It is nothing about being selfish and guaranteeing that I am here. I cannot guarantee anything. It is basically leaving it up to the voters to decide. Do we want you to continue to run? We will vote you in. If we think you are doing a bad job, you will not get voted in. It is that simple. Council Chair Rapozo: Thank you. Anyone else? Councilmember Yukimura. Councilmember Yukimura: Yes, I will be voting against the Resolution that proposes to remove the limitation on Council terms. The people voted resoundingly in favor of term limits for this Council and unless there is compelling evidence that there has been a change of heart in the community, I do not know why we would spend money or energy on this issue and the testimony both by E-mail and at the public hearing was overwhelmingly in favor of keeping the limitation in place. With that kind of public input, it does not seem to be a justification to put it on the ballot. Besides being introduced by a Councilmember, the proposal does take on the appearance of self-interest. It would have been different if the proposal was initiated by a petition of the people or the by Charter Review Commission, but this is not the case. If the proposal had been applied to other county-elected offices like the Mayor and the Prosecutor, it would have given it more integrity because what applies to one elected position should apply to the other elected positions, theoretically at least, but neither was the case. I think there is a value in the concept of sabbatical, which is inherent in term limits. It is the idea that if someone stays in place too long, they get stale and getting a change of scenery and perspective can be healthy. The existing term limits do not preclude a Councilmember from coming back, as I have done many times, after taking a two (2) year break. Now, as someone who has taken a break and come back, I do confess that there is a risk that some of the hard-won advances could be reversed when one is gone. I have to say that happened on the housing of Courtyard at Marriott and the on the golf course here by the industrial park, and the ninety-nine (99) buyback at Kukui`ula. I know specific examples where I feel things went backwards when I left, but the responsibility as always is on the electorate; on the people; on the voters of this Council to choose carefully at election time. In my mind, there are two (2) minimum responsibilities if you want to be a citizen of this County: one is to vote at election time and the other is to vote wisely. If we really wanted to make a positive change in the system of governments on Kaua`i, I would suggest that we change the two (2) year Council term to a four (4) year term. If you look at the Council Elections, you will see that most elected Councilmembers actually served for four (4) terms and sometimes greater than four (4) term intervals, but have to run every other year. This is not conducive to good government because it makes Councilmembers think in very short-term framework because elections take a lot of time away from Councilmembers working on issues and finding real solutions to the problem of affordable housing, traffic, solid waste, budget, and cost of living, as we all know we have a huge job. We need elections, but I do not know that we need it every other year. Those are my thoughts. I will be voting against the Resolution. COUNCIL MEETING 103 SEPTEMBER 2, 2015 Council Chair Rapozo: Thank you. Councilmember Hooser. Councilmember Hooser: I will also be voting against the Resolution and do not support the repeal of the term limit provision for many of the same reasons Councilmember Yukimura expressed, so I will not repeat all of those. Instead, I will focus on some things that have not been said. I was a little bit taken back when the proposal to put the Open Space provision on the ballot a couple of weeks ago, raising that amount. I kept thinking, "Well, everyone said let the people decide, let the people decide, so it is natural that they will let the people decide on this, too. If they are smart enough to vote on term limits, they are smart enough to vote on that." That was not the case. I think there are times when you can say, "Let the people decide," but that is certainly not every case. The people have decided on this and I think to diminish that vote by saying that people were busy, the ballot was confusing, or people did not know how to vote, I think is diminishing the quality of the voters. The voters were certainly able to vote at this last election. I forget how many candidates for Council there were because there were a whole bunch and they all, in their wisdom, voted for us. It is true that anyone can run for Council and the voters can pick, but it is also true that the seven (7) of us have a tremendous advantage over anyone else. One thing that used to irk me, and it still does, is when people say, "Well, there are no openings in the Council or there is one (1) or two (2) openings because there is a vacancy." There are seven (7) openings, but people do not feel that way because we are sitting in those chairs because we have name recognition, we are on television every week, and it is easier to raise money. For a variety of reasons, we have a distinct advantage over new candidates, so the barrier of entry to and islandwide, Countywide race against the incumbents, the barrier is really high. I think we need to step aside or be willing to step aside to provide an opportunity for new leadership to step forward. I agree that the value of a sabbatical and stepping aside is a good one. I have served in public office now since 1998, but I have never served more than eight (8) years. I have always had breaks and chosen to do other things. I think I personally benefitted from that and certainly willing. My wife is looking forward to term limits actually and would very angry at me if I voted to take those away. That is a little bit of humor, but I think it is a wrong thing to do. Most of us, we propose bills and respond to community requests and problems. People will come to us and say, "I have a problem. Can you help me solve it?" We think about it and introduce a bill and it may or may not pass. No one at all has come to me, to my knowledge, or proposed publically that there is a problem and that they are concerned about this. This is not coming from the community. It is coming from individual Councilmembers. Again, I believe that it is a disservice to the people after voting 2:1 to put term limits in the first place. Thank you. Council Chair Rapozo: Anybody else? Councilmember Kuali`i. Councilmember Kuali`i: To me, for one thing, I think the Open Space issue was a different issue or was fiduciary in nature, and we as seven (7) members of the Council are elected to deal with the budget, and that was possibly more than a million dollar budget decision that I think is our responsibility, so that is why I did not vote the same way as far as putting it on the ballot. As far as elected officials, I just have a principle belief in democracy, elections, and term limits and that there is a difference between any executive that as a single person elected to a top office. So whether it would be the President, the Governor, or the Mayor, I believe those positions should have term limits. However, for any representatives that are elected by the community to participate in a legislative body of any kind for representing the people, I feel differently. I do not believe in term limits: not for the United States COUNCIL MEETING 104 SEPTEMBER 2, 2015 Congress, not for the State Legislature, and not for the County Council. Even if I was the only person voting in favor of this, that is my principle belief when it comes to democracy and how to best serve the people. Ultimately, if a legislator is serving the people well and the people want to reelect him or her, the people should have that choice. With term limits, you remove that choice. Arbitrarily just because you want new blood, you want to give somebody else a chance, or you want people to rest, but you are taking away the choice from the voter. If the voter wants to reelect someone because they are doing a good job, the voter should have that choice, and that is just my basic belief when we are talking about a legislative body that serves any level of community. My vote is in favor. Council Chair Rapozo: Councilmember Chock. Councilmember Chock: I will not be supporting the Resolution. Council Chair Rapozo: Okay. Any other discussion? This is a charter amendment proposal, so it requires five (5) votes. Prior to this last election, I would agree and always believe that the incumbents have an advantage, but last election, two (2) senior Councilmembers were voted off. They were not voted off by a charter amendment or by a term limit; the people spoke. My view on this...I remember when Councilmember Yukimura brought this up as a discussion several years ago when she was looking at doing the same thing and I remember thinking, "That is so self-serving." But as the years went on...what Councilmember Kuali`i said at the last meeting was profound when he said you are going to take the people's opportunity to vote their representatives in because you want to open the door for someone else to run. That struck me and he is so true. If you have a Councilmember or State House of Representative or whatever serving a community that appreciates what they are doing, why would you take that opportunity away from the public? Again, this motion or this Resolution is simply to put it back in front the people. It is not going to change anything. It is going to be put on the ballot for the people to decide. When Councilmember Kuali`i mentioned that, it was profound. You are going to take that right of the people away because someone else wants a shot—that struck me. Like I said, when election results came back, Mr. Furfaro and Mr. Bynum, who both are typically decent vote-getters and the Chair of the Council—that to me said that the public determines when your time is up, not a document or the Charter. If the public likes you, you stay and if they do not, you go. That is when my attitude towards this changed. Councilmember Hooser said that he would be willing to step aside to let someone else run, but any one of us can do that anytime. You do not need a term limit for that. When Councilmember Yukimura and I ran for mayor unsuccessfully, we made that choice to step away from the Council, hoping to do something better for the community and the people spoke. We made that choice to step away, giving up the term on the Council. Any one of us, if you want to make room for someone else, then step aside. You do not need a term limit for that. I am going to support this, simply because I believe...the people overwhelmingly support this ten (10) years ago, when many people could not vote ten (10) years ago? How many people like the high school students and college students were not here and could not vote ten (10) years ago? How many people have moved here since then ten (10) years ago that did not know about this amendment ten (10) years ago? Like Councilmember Kagawa said, it is a whole new time. Do I expect the public to see it differently? Probably not, but does that mean that I should not give them an opportunity? No. As far as the Open Space, Councilmember Kuali`i hit it right on the head. That was a budgetary issue. As the Charter does say, that should be done by us and not by the public because only us, only the body and only the Council, has the right to make decisions that is going to affect future budgets. I think that is apples and oranges. I am going to support COUNCIL MEETING 105 SEPTEMBER 2, 2015 this. I do not think we have the five (5) votes, but nonetheless, I do not believe that it is self-serving and I do not believe that we believe we are irreplaceable. I disagree with Mr. Taylor. Again, I think the last election clearly showed that it is not the incumbents that determines who is elected, it is the people and that was clearly shown at the last election. Councilmember Yukimura. Councilmember Yukimura: I just want to say that I think there is some merit to the position, as articulated by Councilmember Kuali`i, but then why would that reasoning not apply to the Mayor's and the Prosecuting Attorney's position? Also, what is important to me is that if there is a desire for change in the public right now with the new voters and everything, then we would have heard from them at the public hearing and there has been no request for this change and it does cost time, money, and energy, and I think our job is to put on the ballot things that we feel are both desired, whose time has come, and also that would really, truly make good governance better. I do not see that in the new works. Council Chair Rapozo: Thank you. I am not sure what cost is being referred to. Anyway, Councilmember Kagawa. Councilmember Kagawa: For me, I know all of my supporters trust in the job that I am doing and they tell me in private that they support it, but they are not the vocal type to write in The Garden Island newspaper, send testimony, or show up here. They are mostly working people who are too busy working to come here during the day. I just want to make that point. Council Chair Rapozo: Councilmember Kuali`i. Councilmember Kuali`i: I just want to say that because it was mentioned twice that it would be so costly, but I can imagine putting a few words on the ballot is anything significant, as far as our budget goes. Elections cost money; we have them every two (2)years. Having one more charter amendment that is as simple as this one, the way it is written and put on paper, I do not think costs should be any kind of determining factor here. Thank you. Council Chair Rapozo: With that, roll call. The motion for adoption of Resolution No. 2015-52 was then put, and failed by the following vote: FOR ADOPTION: Kagawa, Kaneshiro, Kuali`i, Rapozo TOTAL — 4*, AGAINST ADOPTION: Chock, Hooser, Yukimura TOTAL — 3, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL— 0. (Pursuant to Section 24.01(A) of the Charter of the County of Kauai, a charter amendment may be initiated by a resolution of the Council adopted after two readings on separate days and passed by a vote of five (5) or more members of the Council.) Council Chair Rapozo: Motion to approve fails. Councilmember Kagawa moved to receive Resolution No. 2015-52 for the record, seconded by Councilmember Kuali`i, and unanimously carried. Council Chair Rapozo: Next item. COUNCIL MEETING 106 SEPTEMBER 2, 2015 BILLS FOR SECOND READING: Bill No. 2459 — A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (Special Standards For Issuance Of Farm Worker Housing Use Permits) Ms. Fountain-Tanigawa: Chair, I believe a floor amendment is being prepped and copied right now. Councilmember Yukimura moved for adoption of Bill No. 2459 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Councilmember Kuali`i. Council Chair Rapozo: Is the amendment ready? Mr. Fountain-Tanigawa: Yes, it is just being copied. Council Chair Rapozo: If it is not ready right now, let us move on to the next item. Bill No. 2591 — A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2015-796, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2015 THROUGH JUNE 30, 2016, BY REVISING THE AMOUNTS ESTIMATED IN THE GENERAL FUND AND SEWER FUND (Kaua`i Lagoons Resort Wastewater Treatment Capacity Assessment Refund - $758,550): Councilmember Chock moved for adoption of Bill No. 2591 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Councilmember Yukimura. Council Chair Rapozo: Any discussion? Public testimony? Mr. Sykos. The rules are suspended. There being no objections, the rules were suspended. Mr. Sykos: Chair, could you explain this to the public, please? It does say that there is an assessment refund of seven hundred fifty-eight thousand five hundred fifty dollars ($758,550), but could you explain how that works for the public? Council Chair Rapozo: We can have the Wastewater Division come up if you need to have...I am sorry...I do not know if they are available. Are they available? I believe it was discussed the last time. Mr. Sykos: My basic question is, are we seven hundred fifty-eight thousand five hundred fifty dollars ($758,550) richer or poorer as a result of this? Council Chair Rapozo: Well, we are poorer. It is coming from our Equity Fund Balance and it is being transferred into the Sewer Fund. Mr. Sykos: So it could be spent on expenses or... COUNCIL MEETING 107 SEPTEMBER 2, 2015 Council Chair Rapozo: Please, Councilmember Yukimura. Councilmember Yukimura: I believe this comes out of an obligation we have to reimburse some of the fees Kaua`i Lagoons paid us because they put out a lot of money to improve the sewage treatment plant for the County and if I recall correctly, it was a "win-win" because we needed those improvements and they are taking the R-1 water or effluent, so it was actually sort of a partnership effort to improve the sewage treatment plant, which serves all of Lihu`e...or not all of Lihu`e. I think Grove Farm has a sewage treatment plant, too, but much of Lihu`e. Mr. Sykos: Okay. Council Chair Rapozo: It is a financial obligation that we have and the Wastewater Division has, so it has come down to the surplus or the reserve. Councilmember Yukimura: I believe it was an oversight during budget. It should have been included in the budget. Mr. Sykos: Which was my next question, which would this appropriately been in budget... Councilmember Yukimura: Covered in budget, but it was not. Mr. Sykos: Okay. Thank you. Council Chair Rapozo: Councilmember Kaneshiro. Councilmember Kaneshiro: I was going to clarify, but I think Councilmember Yukimura basically said the whole situation. We are basically trying to correct it. It was refund that was supposed to take place a couple of years ago and it only got caught now, so we are just correcting it. Mr. Bernabe: My questions are along that line, a continuation. Once we pay them back for all the infrastructure and whatever they have done, do we start collecting the fees they collect for treating water? I am trying to ask that question. Are we paying them back for the infrastructure while they collect fees from people's sewers or how does that work? Council Chair Rapozo: Councilmember Kaneshiro. Councilmember Kaneshiro: We are collecting the fees. They helped us put up the infrastructure with money, we are collecting the fees, and we owe them money back for helping put up the infrastructure. Councilmember Yukimura: Owe them their fees back. Mr. Bernabe: No, what I am asking is the wastewater treatment treats somebody's water, right? You say it is treating Lihu`e's water, so do they have to pay a sewer bill or do these residents get...is there a sewer fee? How does this work? I do not have a sewer that is why. Councilmember Yukimura: May I try? COUNCIL MEETING 108 SEPTEMBER 2, 2015 Council Chair Rapozo: Go ahead. Councilmember Yukimura: It is the County's sewage treatment plant and all users pay fees in order that those who are hooked up that their wastewater be processed. I believe Kaua`i Lagoons also uses the sewer treatment plant to treat their wastewater. They pay us fees, but there has been a provision to reimburse them to the extent that we want to pay them back for the costs that we owe them. Mr. Bernabe: I understand. Thank you for the clarification. Council Chair Rapozo: We are going to get a better clarification right now. Councilmember Yukimura: The accuracy of our understanding was tested. Council Chair Rapozo: That is why I asked for you because I could not answer his questions. A couple of Councilmembers have tried, so I hope they were right. I believe they were. ED TSCHUPP, Chief of Wastewater Management: I saw the item come on and heard the question. Council Chair Rapozo: Thank you for running over. I did not anticipate any questions because this had already gone through the Committee, so that is why we did not ask for you to be here. It is not that we expected you here, but thank you for coming. I do not know if you heard the question. It was a very simple one. What is this? Mr. Tschupp: For the record, Ed Tschupp, Chief of Wastewater Management. Could you repeat the question? Council Chair Rapozo: This is a transfer, right? This is a money bill to transfer the fund for the Kaua`i Lagoons Wastewater Facility and that is the seven hundred fifty-eight thousand five hundred fifty dollars ($756,550). It is coming from the Unassigned Fund Balance and going over to contributions and refunds. The first question was why is that money going there? The second question is who pays the fees? Does the County collect those fees from the users of this treatment plant? Mr. Tschupp: This is a refund to Kaua`i Lagoons for the Wastewater Treatment Capacity Assessment (WTCA) fees that they had previously paid to the County. Subsequent to their payment of those fees, and that is associated with subdivision approvals, so as part of the Kaua`i Lagoons Resort development, they had gone through the subdivision process and developed a number of lots. I do not think that they sold anywhere near as many as they have developed, but they are sitting on a bunch of real estate. As part of the subdivision process when a developer is within a County sewer service area,we have what is called a"WTCA"or"Wastewater Treatment Capacity Assessment." That is presently three thousand nine hundred dollars ($3,900) a lot. Kaua`i Lagoons, as part of the subdivision process, went ahead and paid those fees on several subdivisions to the tune of seven hundred fifty-eight thousand five hundred fifty dollars ($758,550). Subsequently, as part of the overall Kaua`i Lagoons master plan, they and the County got together and worked out an agreement whereby Kaua`i Lagoons designed and constructed the tertiary treatment of facility to upgrade the plant to an R-1 plant. They have subsequently conveyed that improvement in wastewater treatment capacity, they built capacity for us. As part of their master plan, COUNCIL MEETING 109 SEPTEMBER 2, 2015 they did not have to do that. We had enough treatment capacity as a secondary treatment plant to serve them, but it was mutually beneficial for both the County and Kaua`i Lagoons to do the upgrade, which required the additional treatment facilities to be constructed. They designed and constructed the individual treatment facilities, subject to an agreement and approved by the County Council. In fairness, they would basically be paying the fee as well as building the improvements. Part of the agreement was to refund to Kaua`i Lagoons any fees that they had already paid for that same master plan area. Council Chair Rapozo: That is question number one. That is good. Mr. Tschupp: Okay. Council Chair Rapozo: Question number two is who runs the plant and where do the user fees go? Is it a County plant? Mr. Tschupp: It is a County plant. Council Chair Rapozo: So the users pay the County... Mr. Tschupp: The users pay the County. Just for clarification, the WTCA fee,which is what is being refunded here, is the onetime hookup fee. Council Chair Rapozo: Correct. Mr. Tschupp: So the user fees are basically right now around sixty dollars ($60) a month and they are paying those to the County. Council Chair Rapozo: Okay. The other comment was made that this was a budget oversight. Did we not see this in the budget and was this caught later? Mr. Tschupp: Actually, it took a while for the construction to be completed for the conveyance of the improvements to be completed and as the way that the agreement was structured was that after the completion of the conveyance, then we would settle the money. Council Chair Rapozo: Got it. Thank you. We appreciate you coming over. Are there any questions for Mr.Tschupp? If not, thank you. I will call the meeting back to order. Further discussion? If not, roll call. The meeting was called back to order, and proceeded as follows: The motion for adoption of Bill No. 2591 on second and final reading, and that it be transmitted to the Mayor for his approval was then put, and carried by the following vote: FOR ADOPTION: Chock, Hooser, Kagawa, Kaneshiro, Kuali`i, Yukimura, Rapozo TOTAL— 7, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL—0, RECUSED & NOT VOTING: None TOTAL— 0. COUNCIL MEETING 110 SEPTEMBER 2, 2015 Council Chair Rapozo: Are we ready for Bill No. 2459? May we go back to that item, please? A motion and a second was made. Councilmember Chock: What is being circulated is somewhat of a minor amendment. We need to update the section numbers accordingly with this Bill, so it is highlighted before you in the amendment. Councilmember Chock moved to amend Bill No. 2459 as circulated, as shown in the Floor Amendment which is attached hereto as Attachment 2, seconded by Councilmember Kaneshiro. Council Chair Rapozo: Any questions on the amendment? Councilmember Kaneshiro: So just for clarification, this is just a housekeeping measure to get the sections correct? Councilmember Chock: Yes. Councilmember Kaneshiro: Okay. Council Chair Rapozo: Well, there is also another amendment on page 2, the removal of "and the declaration has not been amended subsequent to August 16, 2010." Councilmember Chock: That is on the original I believe. Council Chair Rapozo: That is the original? Councilmember Chock: Yes. Council Chair Rapozo: Okay. The motion Bill No. 2459 as circulated, as shown in the Floor Amendment which is attached hereto as Attachment 2 was then put, and unanimously carried. Council Chair Rapozo: The amendment passed. We are back to the main motion. Anybody in the audience wishing to testify? Ms. Fountain-Tanigawa: We have two (2) registered speakers. The first registered speaker is Matt Bernabe, followed by Lonnie Sykos. Council Chair Rapozo: Okay, the rules are suspended with no objections. There being no objections, the rules were suspended. Mr. Bernabe: I saw the redactions over here for this new one, but there are many more things in the language that I have a problem with. Everything looks good until we get to the part where it says "Exclusive Residence." When you turn over the page and it says "that a proposed farm worker housing will be the farm owner's exclusive residence." If you are Grove Farm and you want to build housing for your farmers, do you have to live as an exclusive resident before you can do that? I am confused. Is this strictly for condominiums and small time farmers? The other part I COUNCIL MEETING 111 SEPTEMBER 2, 2015 have a problem with is these thirty-five thousand dollars ($35,000) per house, per acre. I say "per acre" because what if you have one hundred (100) acres and all you have to do is produce thirty-five thousand dollars ($35,000) to put a structure on it? I do not like that. To me, that is bad. That is a bad area of language. The other thing is that if the farms are sold, they should not be able to keep that housing. They should have to break that housing down and reapply and show the financial plan to the Planning Department that gives them merit to even have that farm housing. Once you put that housing on, I do not know if you know how the real estate market works, but their equity goes up. They are able to say their value is more. They have the pictures and they have the houses, so that right there to me is wrong. One the last part like Section 3, if any part of the provision is invalid, the validity of the rest of it stands good. I think the whole thing should be sound before you validate any part of the plan, to me. If you have a part of your thing that is not good, it should not be, "Oh, we will let it go." It just does not sound strong to me. It is like backwards logic. The thing that I want to talk about is enforcement, because earlier Councilmember Yukimura talked about not going down the path for Councilmember Kagawa's because it is a waste of money, but we are overturning something that only in 2010 were your own rules. To me, that is a waste of money. Why are we going and overturning what you folks already said were wrong. It just does not make sense. I see my yellow light, so I will come back and pound this enforcement issue because it is going to tie in to what I am going to say next. Council Chair Rapozo: Thank you. Next speaker. Ms. Fountain-Tanigawa: The next speaker is Lonnie Sykos. Mr. Sykos: For the record, Lonnie Sykos. I am not in favor of this. I agree with Mr. Bernabe that I have not heard a compelling argument as to what the arguments were five (5) years ago when these farm dwellings were prohibited and why it is that they should now be allowed. The primary problem I have is that this is an attempt to deal with one small part of the greater issue of how to stimulate agricultural development on Kaua`i. This is not how one engages in best practices. One does not simply say, "This is an issue for these people and now we are going to create a new ordinance," and as our arguments earlier today, what the Devil is in is the details of how this is going to impact other things in the future. One of the primary problems in agriculture today is that agricultural land's value of it is based on what its best usage is and if you go out and put your agricultural land on the market, they tell you that the values are based on how many houses you can build. This is simply building another dwelling on agricultural land, which will not only drive up the value of that parcel, but all of the surrounding parcels. Secondly, this whole thing with using condominium to divide agricultural land, this is the only county that does it. For the other three (3) counties, the county attorneys ruled decades ago that it was not the intent of condominium law to do so. Thus, they have either made it impossible or extremely difficult and the other counties do not have the problem that we have of our agricultural land being subdivided through condominium regime. If you had a real condo, a multi-story thing that had a rental or an owner living in each unit of the condo, would you propose that the solution to needing more maids would be the cantilever off the lanai, a little platform, and cover the thing and have a maid live in the little platform on the lanai of each condominium, because that is what you are doing here on the agricultural land. It is basically the same idea of we need more people to provide maid and whatever services. Thank you. Council Chair Rapozo: Are there any questions for Mr. Sykos? If not, thank you. Does anyone else want to speak for the first time? Second time? COUNCIL MEETING 112 SEPTEMBER 2, 2015 Mr. Bernabe: Before I go into my part about enforcement and how we are going to get it done, let us talk about this nineteen (19) hours and let us talk about the testimony today from the Farm Bureau, talking about that the farmers themselves can barely pay themselves fifteen dollars ($15) an hour. How are they going to afford to put the septic in and all of this, and nineteen (19) hours a week are they going to have to give health insurance to these workers? None of that is addressed in this. For enforcement, I heard arguments in the dog argument about the threat of the law prevent a lot of stuff. If you remove these restrictions, what I see currently happening when there are restrictions is going to be exponential. Just like I told you folks the last time, I have been to work at least ten (10) times to my job since I saw you last on this issue. I can tell you that I see illegal structures with holes in the ground and toilets hiding in banana patches and I am about to go and just videotape it already. I am over it. I see this with my own eyes. The question is, if right now there are restrictions and no one is enforcing them and we let this lapse, who is going to ensure me that it does not get out of control like it has in the past? If you look up Rolfing, the kind of massage, most of it is out in Moloa`a. After my testimony, people text me, Facebook me, and E-mail me, just like you folks—somehow I have the same plight, but I like it though. It is okay. I hear these things and more than one (1) person has brought up their own stories of what I testified here, going back to the 70's when it became a papaya farm. Old timers told me this. Somebody brought up the Rolfing issue. If you look out Rolfing, how many Rolfing people are sitting in that farm as their business without even a General Excise (GE) Tax license? I know that because I went to the State. That is irrefutable. We can go to the State. You folks can go and pull the records. I dare you. You will be shocked. Anyway, I just want to know who is going to enforce this because no one is enforcing it now. Council Chair Rapozo: Thank you. Anyone else? Mr. Sykos. Mr. Sykos: I also just have an issue with the general language in the Bill. On the first page under "Commercial Farm," it defines commercial cultivation of fruits, vegetables, flowers, foliage crops for bioenergy, and forage, excluding timber and turf farms. Why turf farms are excluded is beyond me, because what is the difference between growing and harvesting sod and peas? However, how about nuts, dyes, saps, leaves, bark...cinnamon is a bark...tea tree comes from the leaves of the eucalyptus tree. For sap, there is maple syrup and all kinds of things. Dyes are made from all kinds of plant materials. I am wondering why item number 1 is so exclusive of the many different types of diversified agriculture that is not included in this? For Mr. Bernabe's question, when we talk about exclusive residences, does that mean that they only have one (1) residence on Kaua`i or they do not have another residence anywhere in the world and how is it that we would learn that and enforce it? This also appears to increase housing density and I believe on page number 3, item number 3 near the top, that this might allow for a greater maximum housing density than the code currently allows for by allowing the inclusion of additional farm workers. Increasing housing density in our agricultural land is by definition "anti-agriculture." Also, we have here on page number 3, item number 5 near the bottom, "The owner or lessee of the subject lot or C.P.R. limited common element or portion thereof shall not charge the farm workers or their immediate family members for rent or electricity." Well, I am a small business owner or used to be. If I gave my employee free rent, it is not free rent, I get to write-off the fair value of it against my taxes and I am supposed to include that in their income tax. You cannot provide free housing to an employee without violating Internal Revenue Service (IRS) rules. Did the County Attorney go through this thing and look at the ramifications of the language here and whether or not the County wants to support ripping the IRS off? Aside from the content, you need to look at the COUNCIL MEETING 113 SEPTEMBER 2, 2015 language of this. Also, does this housing transfer with a sale of a property? That has a huge impact on the impact that it has on property values. Thank you. Council Chair Rapozo: Thank you. With that, we will call the meeting back to order. Further discussion? Councilmember Kagawa. There being no objections, the meeting was called back to order, and proceeded as follows: Councilmember Kagawa: I hear what Lonnie and Matt are bringing up and I agree with a lot of it. I have a different take on it and I look at Kilauea and `Aliomanu and I look at those...actually, Councilmember Rapozo and I went out and he said, "These are all farm lots with those big houses." I said, "What?" These are not people who are struggling farmers. These are rich people with big mansions on agricultural lots and if this Bill right here gets abused by these guys and allows them to build additional structures and they can say, "Well, it is for a family member," then it is not really to improve the farming situation. Again, it is just to add another structure, adding more building value, and taking up more space on what is supposed to be farmland. When we heard some of the legitimate farmers in here, they are going to use it and they do grow stuff like the Wooton family and others, and we are not against them...nobody is...but how can we stop the abuse that has been happening that is ongoing on our agricultural lands on Kaua`i? Is this Bill helping or hurting? I think it is helping them. It allows them to do more abuse. Is the Planning Department going to tell us right away, "Okay, this Bill is not working. We are seeing some cases where they are complying with this law and really they are not legitimate farmers. They are just adding to their property value and they are going to sell and speculate or what have you." What is the benefit for the people of Kaua`i? Again, I hear you folks and I agree with a lot of it because we have so much farm agricultural land that have turned into "fantasy islands" for a lot of people and it is just ridiculous. It has to stop at some point. Thank you. Council Chair Rapozo: Any other discussion? Councilmember Yukimura. Councilmember Yukimura: The concerns raised are well-taken, however they are not relevant to this Bill because this Bill is not proposing to change any of the language and if you want, you can initiate some changes, but all this is doing is removing the restriction that properties that qualify for farmworker housing cannot have declarations that are amended, subsequent to August 16, 2010. Also, some of the concerns raised are from a misunderstanding. Many of the concerns are actually because of the way that "farm dwelling unit" is defined and regulated and that is nothing to do with this Bill. This Bill is about farmworker housing and it has been structured to actually make sure that the properties that are permitted under this Bill are actually only for real working farms, and that is why the thirty-five thousand dollar ($35,000) requirement in gross receipts and that is why we are saying "exclusive residence," which means you are not entitled to have farmworker housing that you will live in if you have another residence somewhere else. It means somewhere else in the Country and our Real Property Tax Division is very adept at getting IRS information to make sure that people do not have another dwelling somewhere else that they are claiming as their exclusive and primary residence. When the property is sold, and that is right now why the structure is required to have pier and post foundations so that it could be removed if it is sold to a non-farmer and if the subsequent owner is not a farmer, the permit will expire and the housing will have the be removed. So you will see that there has been a lot of thought in how to distinguish real farm worker housing COUNCIL MEETING 114 SEPTEMBER 2, 2015 from fake farm housing. I believe the amendment is a further effort to promote real farming and real farmworker housing...the amendment in the Bill,which is the essence of the Bill that is before us right now. Council Chair Rapozo: Thank you. Councilmember Kaneshiro. Councilmember Kaneshiro: I heard the message from Matt and Lonnie loud and clear and they do have really valid points, but in looking at this amendment, all we are doing is taking out a small portion. So far, only two (2) houses, I believe, have actually used this. I am comfortable with the language that they need thirty-five thousand dollars ($35,000), a commercial farm bill, dedicated property, and exclusive residence, so I am comfortable with this,but that is not to say that it is not being abused. I think the people that are abusing it are not using this. They are going out and they are building the house without...I think the legitimate people that are actually using this are legitimate, but the people who are abusing it are not using this. They are going out and building the house out there where they are just blatantly abusing it. Again, only two (2) people have done it and if these two (2) people have abused it, then I think that is something that we need to look at. I heard about it and Matt has mentioned a bunch of times about houses out there all over the place. Those houses are not built because of this. They went and built them...I do not know. There must be another way that we can enforce it by saying...I do not know...those buildings might not even be on our record. Who knows? As far as this Bill goes, I am comfortable with it. Again, I understand what they are saying and I hear their concerns. I think the question is how do we go after people who are blatantly abusing the farm housing or building houses where they are not supposed to? Again, I think the people that are following this are complying because of the restrictions, but it is the people that are not on our list that have abused it. Maybe in the future, we would want to go and look at something like that. Council Chair Rapozo: Councilmember Yukimura. Councilmember Yukimura: The distinction is "farm dwelling unit," which has been...I think it is "farm dwelling unit," which has been abused. This is farm worker housing and it comes under much more strict requirements than farm dwelling unit. All those condos have farm dwelling unit agreements and that is where the disconnect and abuse is happening and the remedy is not in this part of our Comprehensive Zoning Ordinance (CZO), it is in another part. Council Chair Rapozo: Anyone else? The solution is enforcement because I think what Councilmember Kaneshiro said is the exact scenario that is going on right now. Matt is not exaggerating when he describes what he sees down in Moloa`a because I have seen it also. I have actually served summons on people down there that are living in makeshift structures that I have relayed to the Planning Department. The farm dwelling agreement, as Councilmember Yukimura talks about, to me it is the easiest thing to enforce because every person that builds a residence on an agricultural lot is required to sign a farm dwelling agreement, which gets recorded into the Bureau of Conveyances that says that they will be building a single-family residence, they will be living in the residence, and they will be deriving their income from the farm. That is probably the most violated law around because many people live on agricultural properties that do not farm, so they are in violation of the farm dwelling agreement. That farm dwelling agreement...the County's remedy is on that agreement, so we just choose not to go after them. The answer to this specific issue, the farm worker housing is enforceable. We provided moneys to the County Planning Department in the past to go hire retired cops to go out and enforce Transient Vacation Rentals (TVRs) and maybe COUNCIL MEETING 115 SEPTEMBER 2, 2015 it is that time again to get some money out there and force them to—again, we can only provide them the money. If they do not have the political will to do it, it is very difficult, but it would not take much. Two (2) eighty-nine (89) day or ninety (90) day contracts for two (2) people at a rate of fifty thousand dollars ($50,000) a year and you prorate it for three (3) months. It is not much. We get a lot of violations out of that and the violations would trigger a lot of fines that would more than pay for themselves. Now, many say that it is an attack on farming, but it is not. Like what Councilmember Kaneshiro was saying, the people that are living on the illegal structures, this is not going to bother them one way or the other because they are not following the law. It is like the gun laws. The people that are shooting people are not going to register it and they are not buying the guns legally. It is the same thing. The law is the law to protect the ones that decide to follow the law. That is something we will entertain, maybe some special enforcement funds for Planning to go after and concentrate on certain areas, because Matt is right. The Department of Health should actually be down there because what I have seen and seen recently is pretty troubling and disturbing. We will work on that angle in Councilmember Kuali`i's Committee of Economic Development & Intergovernmental Relations where we can work something out with Planning. Anyway, I will support this Bill because I think it does help the legitimate farmers that need to have the housing. With that, roll call. The motion for adoption of Bill No. 2459, as amended to Bill No. 2459, Draft 1, on second and final reading, and that it be transmitted to the Mayor for his approval, and carried by the following vote: FOR ADOPTION: Chock, Hooser, Kagawa, Kaneshiro, Kuali`i, Yukimura, Rapozo TOTAL – 7*, AGAINST ADOPTION: None TOTAL – 0, EXCUSED & NOT VOTING: None TOTAL– 0, RECUSED & NOT VOTING: None TOTAL– 0. (*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai, Councilmember Kagawa was noted as silent, but shall be recorded as an affirmative for the motion.) Council Chair Rapozo: That was on the amendment, right? Ms. Fountain-Tanigawa: No, the amendment passed. This vote was on the main motion as amended. Council Chair Rapozo: Okay, next item. Bill No. 2592 – A BILL FOR AN ORDINANCE TO AMEND SECTION 2, ORDINANCE NO. 891 AUTHORIZING THE ISSUANCE OF GENERAL OBLIGATION BONDS OF THE COUNTY OF KAUAI FOR THE PURPOSE OF FINANCING CERTAIN PUBLIC IMPROVEMENTS AND REFUNDING CERTAIN BONDS OF THE COUNTY; FIXING OR AUTHORIZING THE FIXING OF THE FORM, DENOMINATIONS, AND CERTAIN OTHER DETAILS OF SUCH BONDS AND PROVIDING FOR THE SALE OF SUCH BONDS TO THE PUBLIC: Councilmember Kuali`i moved for adoption of Bill No. 2592 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Councilmember Yukimura. Council Chair Rapozo: Any discussion or public testimony? If not, roll call. COUNCIL MEETING 116 SEPTEMBER 2, 2015 There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order, and proceeded as follows: The motion for adoption of Bill No. 2592 on second and final reading, and that it be transmitted to the Mayor for his approval was then put, and carried by the following vote: FOR ADOPTION: Chock, Hooser, Kagawa, Kaneshiro, Kuali`i, Yukimura, Rapozo TOTAL— 7, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0. Council Chair Rapozo: Next item. Ms. Fountain-Tanigawa: The next item would be Executive Session. Council Chair Rapozo: Let us go with ES-813 first, which is the matter with the Cold Case Unit. Can I get a motion to receive that? We do not need to do that in Executive Session. EXECUTIVE SESSION: ES-813 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), (6) and (8), and Kaua`i County Charter Section 3.07(E), the Kaua`i County Council may request to go into an Executive Session with the Office of the County Attorney to provide the Council with a briefing on the Ke `Ahi Pio`ole Cold Case Unit and an update on the cases outlined in the Office of the Prosecuting Attorney's Fiscal Year 2014 Edward J. Byrne Memorial Justice Assistance Grant (JAG), and related matters. The briefing and consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. Councilmember Kuali`i moved to receive ES-813 for the record, seconded by Councilmember Yukimura, and unanimously carried. Council Chair Rapozo: For the next item, I apologize that I did not bring this up earlier. ES-812 regarding the condemnation, I guess the question is why is that on the agenda? I thought we were going to do the site visit first. Ms. Fountain-Tanigawa: I believe they wanted to brief the Council on the process of condemnation. Council Chair Rapozo: I understand that. Let me just tell you what happened on my side as the Chair. The request came over and I said, "Where did this come about? I have not heard of this matter." I did meet with some...anyway, at the end of the day, I did not like these things surprising us on the Council and I said that we are not going to post anything until we have the opportunity to do a site visit at the land, so I am kind of surprised to see it on here. I am not supporting this going in. I am not ready for it and I am not ready for a briefing on it as far as...I am just one (1) vote, but what I want to do right now is take care of ES-811 so that we can get COUNCIL MEETING 117 SEPTEMBER 2, 2015 B.C. out of here. Let us do ES-811, so we can come back in open session, vote on the moneys and let B.C. leave, and then do the rest of the Executive Sessions. Actually, may you please read all of them so that we do not have to come back out here to read those items? Ms. Fountain-Tanigawa: Yes. ES-810 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Kaua`i County Charter Section 3.07(E), on behalf of the Council, the Office of the County Attorney requests an Executive Session with the Council to provide the Council with a briefing, discussion and consultation regarding the quarterly report on pending and denied claims. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. ES-811 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Kaua`i County Charter Section 3.07(E), the Office of the County Attorney requests an Executive Session with the Council to provide the Council with a briefing on the retention of Special Counsel to represent Irvin Magayanes in State of Hawai`i vs. Irvin Magayanes, Criminal Number CR15-1-0267 (Fifth Circuit Court), and related matters. The briefing and consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. ES-812 Pursuant to Hawaii Revised Statutes (HRS) Sections 92-4 and 92-5(a)(4) and (8), and Kauai County Charter Section 3.07(E), the purpose of this Executive Session is to provide the Council with a briefing on the Public Access Acquisition Plan and Condemnation Proceedings at Kukui`ula Bay through the former Hoban property (Koloa District), Tax Map Key No. (4)2-6-003:017, and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. Councilmember Kagawa moved to convene in Executive Session for ES-810, ES-811, and ES-812, seconded by Councilmember Yukimura. Council Chair Rapozo: Any discussion or public testimony? There being no objections, the rules were suspended. Mr. Sykos: In regards to ES-811, this matter has been in the newspaper and it is a great tragedy for everyone involved: the victim, the victim's family, and the County employee. I simply wanted to come up and say that everyone involved is in the public's prayers and that we know that this is a very difficult situation and we look forward to having closure for the family and the people involved in this. I also would like to say that obviously not now, but in the future, as the Executive Sessions come up, one of the things that might benefit the public in understanding how this system works is perhaps the Council or the County Attorney could address the public in the future and talk about how there is a difference between being a private citizen one aspect of your life and being an employee of a government agency, be it the County or the State, on the other side. It could be things like Fifth Amendment right for a private citizen and executive privilege for the person operating in the capacity of the government. I personally understand why the County is obligated to pay for the legal services for our employee, but I am sure that there COUNCIL MEETING 118 SEPTEMBER 2, 2015 are members of the public who do not understand the nuance of why it is that we are providing legal counsel for our employee in this matter. Thank you very much. Council Chair Rapozo: Thank you very much. Anyone else wishing to testify? If not, I will call the meeting back to order. The motion is to go into Executive Session for ES-810, ES-811, and ES-812. Roll call. There being no objections, the meeting was called back to order, and proceeded as follows: The motion to convene in Executive Session for ES-810, ES-811, and ES-812 was then put, and carried by the following vote: FOR EXECUTIVE SESSION: Chock, Hooser, Kagawa, Kaneshiro, Kuali`i, Yukimura, Rapozo TOTAL — 7, AGAINST EXECUTIVE SESSION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL — 0. Council Chair Rapozo: B.C., I cannot imagine this going on for more than fifteen (15) minutes. We are going to do the discussion on that one item, come back out in open session, vote, and go back in. Let us take a recess. There being no objections, the meeting recessed at 4:56 p.m. The meeting reconvened at 5:20 p.m., and proceeded as follows: Council Chair Rapozo: The meeting is called back to order. Can we have the next item, please? Ms. Fountain-Tanigawa: The next item is on page number 3. COMMUNICATIONS: C 2015-236 Communication (08/27/2015) from the County Attorney, requesting authorization to expend funds up to $50,000 to retain Special Counsel to represent Irvin Magayanes in State of Hawai`i vs. Irvin Magayanes, Criminal Number CR15-1-0267 (Fifth Circuit Court), and related matters; reimburse De Costa, Hempey, Meyers LLC for all expenses for representation thus provided; and related matters: Councilmember Kagawa moved to approve C 2015-236, seconded by Councilmember Yukimura. Council Chair Rapozo: Discussion? Councilmember Kagawa. Councilmember Kagawa: Again, this was an unfortunate accidently and unfortunately the Council always has to pay for the legal fees of an employee acting in his or her normal duties. It is a tough one again. Thank you, Chair. Council Chair Rapozo: Thank you. Anyone else? Councilmember Yukimura. Councilmember Yukimura: Can we just have the County Attorney briefly explain the statute that we are obligated to act under? COUNCIL MEETING 119 SEPTEMBER 2, 2015 Council Chair Rapozo: I will suspend the rules. Councilmember Yukimura: Thank you. There being no objections, the rules were suspended. MAUNA KEA TRASK, County Attorney: Aloha Chair and Honorable Councilmembers. For the record, Mauna Kea Trask, County Attorney. Council Chair Rapozo: Can you just explain the statutory requirement for the County to represent an employee, whether it is a police officer or not in a criminal matter? Mr. Trask: Yes, Chair. This is related specifically to police officers. Under Hawai`i Revised Statutes (HRS) Section 52D-8 it says, "Whenever a police officer is prosecuted for a crime or sued in a civil action for acts done in the performance of the officer's duty as a police officer, the police officer shall be represented and defended: (1) In criminal proceedings by an attorney to be employed and paid by the county in which the officer is serving; and (2), In civil cases by the corporation counsel or county attorney of the county in which the police officer is serving." Under HRS Section 52D-9 "Determination of scope of duty," it says, "The determination of whether an act, for which the police officer is being prosecuted or sued, was done in the performance of the police officer's duty, so as to entitle the police officer to be represented by counsel provided by the county, shall be made by the police commission of the county..." Councilmember Yukimura: Has that determination been made by the Police Commission? Mr. Trask: Let me say that the Police Commission judiciously held a contested case on this matter last week on August 27th and it was done in Executive Session, which it has not been made public as of yet, so I will reserve answering directly at this time. Councilmember Yukimura: I am sorry. Thank you. Council Chair Rapozo: Thank you. I will call the meeting back to order. Further discussion? Councilmember Yukimura. The meeting was called back to order, and proceeded as follows: Councilmember Yukimura: This is a heartbreaking case, both for the deceased and for the police officer. As explained by the County Attorney, not only are we obligated, but the police officer does deserve a defense, so this is before us today and I will be voting for it. Council Chair Rapozo: Thank you. Any further discussion? If not, roll call. COUNCIL MEETING 120 SEPTEMBER 2, 2015 The motion to approve C 2015-236 was then put, and carried by the following vote: FOR APPROVAL: Chock, Hooser, Kagawa, Kaneshiro, Kuali`i, Yukimura, Rapozo TOTAL — 7, AGAINST APPROVAL: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0. Council Chair Rapozo: Thank you very much. With that, that concludes the open portion of our meeting. B.C., you are free to go and we will adjourn this part of the meeting and convene in Executive Session. ADJOURNMENT: There being no further business, the meeting was adjourned at 5:24 p.m. Respectfully submitted, JADE OUNTAIN-TANIGAWA County Clerk :dmc Attachment 1 (September 2, 2015) FLOOR AMENDMENT C 2015-227, Request To Include In The 2016 County Of Kaua`i And Hawai`i State Association Of Counties (HSAC) Legislative Packages —A Proposed Amendment To Section 387-2, Hawai`i Revised Statutes (HRS), Relating To Minimum Wage Introduced by: MASON K. CHOCK 1. Amend the JUSTIFICATION SHEET attached to C 2015-227 by amending the PURPOSE, as follows: "PURPOSE: This proposed Bill for an Act increases the State minimum wage from $10.10 to $15.00 per hour for employers whose annual gross dollar volume of sales made or business done exceeds $1,250,000, $12.50 for employers whose annual gross dollar volume of sales made or business done is between $500,000 and $1,250,000, and $11.00 for employers whose annual gross dollar volume of sales made or business done is less than $500,000, effective January 1, [2019.] 2020." 2. Amend the JUSTIFICATION SHEET attached to C 2015-227 by amending the JUSTIFICATION, as follows: "JUSTIFICATION: Prior to January 1, 2015, Hawai`i's working families had not been granted a minimum wage increase since 2007. According to the White House and the Council of Economic Advisers, raising wages can increase productivity, reduce turnover and save on recruiting/training costs, and reduce absenteeism. Furthermore, raising the minimum wage to a living wage would benefit working women and improve the economy by increasing aggregate demand. The State Legislature modernized Hawai`i's minimum wage by passing S.B. No. 2609 during the 2014 Legislative Session. Since that time, however, municipalities such as Los Angeles and San Francisco in California, and Seattle, Washington have enacted a $15.00 minimum wage. The cost of living in Hawai`i is similar to these locations, and a nationwide movement is amassing support for a minimum wage increase to $15.00. To facilitate fairness and economic stability, the proposed "tiered" system, based on Minnesota state law, presents a sample of requiring higher minimum wage compensation by larger employers, mid-range compensation by mid-sized employers, and lesser wages with narrower rates of increase by smaller employers." 1 Attachment 1 3. Amend the Proposed State Bill attached to C 2015-227 by amending the proposed section 387-2(a), Hawai`i Revised Statutes, as follows: ""§387-2 Minimum wages . (a) Except as provided in section 387-9 and this section, every employer shall pay to each employee employed by the employer, wages at the rate of not less than: (1) $6. 25 per hour beginning January 1, 2003; (2) $6. 75 per hour beginning January 1, 2006; (3) $7 . 25 per hour beginning January 1, 2007; (4) $7 . 75 per hour beginning January 1, 2015; (5) $8 . 50 per hour beginning January 1, 2016; (6) $9 . 25 per hour beginning January 1, 2017; (7) $10 . 10 per hour beginning January 1, 2018 ; and (8 ) [$15 . 00 per hour beginning] Beginning January 1, [2019 . ] 2020 : (A) $15 . 00 per hour for employers whose annual gross dollar volume of sales made or business done exceeds $1, 250, 000; (B) $12 . 50 per hour for employers whose annual gross dollar volume of sales made or business done is between $500, 000 and $1, 250, 000; and (C) $11 . 00 per hour for employers whose annual gross dollar volume of sales made or business done is less than $500, 000 ." 2 R•. Attachment 1 4. Amend the Proposed State Bill attached to C 2015-227 by amending the proposed Description, as follows: "Description: Increases minimum wage rate to $15 . 00 per hour for large employers, $12 . 50 per hour for mid-sized employers, and $11 . 00 per hour for small employers beginning on [1/1/19. ] 1/1/20 ." (Material to be deleted is bracketed. New material to be added is underscored.) V:\AMENDMENTS\2015\2015-941 C 2015-227 Floor Amendment State Bill Minimum Wage(MC)09-02-2015 JA_mn.docx 3 Attachment 2 • (September 2, 2015) FLOOR AMENDMENT Bill No. 2459, Relating to Farm Worker Housing Introduced By: MASON K. CHOCK Amend Bill No. 2459 in its entirety to read as follows: "SECTION 1. Findings and Purpose. The Kaua`i County Council finds that the construction of buildings and improvements to property subjected to a condominium property regime may result in amendments to a condominium declaration. The Council further finds that such amendments should not prohibit the application for farm worker housing use permits for property that would otherwise be allowed to apply for such permits. As such, the Council finds that Section [8-7.9(c)(1)] 8-8.6(c)(1) of the Kaua`i County Code should be amended by deleting the restriction for properties whose condominium declaration has been amended after August 16, 2010. SECTION 2. Section [8-7.9] 8-8.6, Article [7] 8 of Chapter 8, Kaua`i County Code 1987, as amended, is hereby amended to read as follows: "Sec. [8-7.9] 8-8.6 Special Standards For Issuance of Farm Worker Housing Use Permits. (a) For the purposes of this Section, the following definitions shall apply: "Commercial Farm" means an operation or enterprise in operation for at least one year whose owner has filed a Schedule F form with federal income tax filings with the Internal Revenue Service. The core function of the commercial farm shall be: (1) the commercial cultivation of fruits, vegetables, flowers, foliage, crops for bioenergy and forage (but excluding timber and turf farms); or (2) the raising of livestock, including but not limited to, meat and dairy cattle, pigs, goats, sheep, poultry, bees, fish, or other animal or aquatic life that are propagated for commercial purposes (but excluding the husbandry of horses for recreational or hobby purposes unless the farm complies with the guidelines set forth in §RP-2-3(a)(1) of the County of Kaua`i's Department of Finance Real Property Tax Division's Agricultural Dedication Program Rules as of April, 2010). "Exclusive residence" means the real property that is the person's only home or residence. If the person has more than one home or residence, then the person does not have an exclusive residence. "Farm worker" is a farm owner, employee, contract worker or unpaid intern in a program that qualifies under the Fair Labor Standards Act who works no less than nineteen (19) hours per week in farm-related operations on a commercial farm. For the purposes of farm worker housing, a commercial farm owner may qualify as a farm worker only when he can demonstrate the following: Attachment 2 (1) that the proposed farm worker housing will be the farm owner's exclusive residence, and (2) that the affected lot has been subject to a condominium property regime (C.P.R.) and the respective C.P.R. limited common element does not qualify for any allowable permanent density. "Farm worker housing" means the use of a building or portion thereof designed and used exclusively for the housing of farm workers who actively and currently farm on the land upon which the housing is situated. Farm worker housing may also be used to house the immediate family members of the respective farm worker. (b) The Director shall not deem an application for a farm worker housing use permit complete unless the applicant can demonstrate that: (1) the commercial farm has generated at least thirty five thousand dollars ($35,000.00) of gross sales of agricultural product(s) per year, for the preceding (2) two consecutive years for each farm worker housing structure, as shown by State general excise tax forms and Internal Revenue Service Schedule F forms; (2) the owner has dedicated the subject lot or C.P.R. limited common element or portion thereof upon which the farm worker housing will be located to agricultural use pursuant to Section 5A-9.1 of the Kaua`i County Code as of August 16, 2010; and (3) the owner or lessee of the subject lot or C.P.R. limited common element or portion thereof upon which the farm worker housing is being proposed has provided a commercial farm plan with staffing needs outlined to the Planning Department that demonstrates the feasibility of the respective farm's commercial agricultural production. (c) The owner of a condominium property regime or a limited common element in a condominium property regime may not apply for farm worker housing unless, as of August 16, 2010: (1) the condominium property regime has been registered with and received an effective date for the final public report from the Real Estate Commission of the State of Hawai`i [and the declaration has not been amended subsequent to August 16, 2010]; and (2) the subject CPR limited common element or portion thereof has been dedicated to agricultural use pursuant to Section 5A-9.1 of the Kauai County Code. (d) No use permit for farm worker housing shall be approved unless: (1) The application meets the use permit standards established under Section [8-20.5] 8-3.2 of the Kaua`i County Code; (2) The Planning Commission finds that based upon the type of agricultural activity, size of the commercial farm, and farming methodologies, the applicant has demonstrated a clear and compelling 2 Attachment 2 need for farm worker housing and the number and size of structures applied for; and (3) The subject lot's maximum residential densities, as established in Section [8-7.5] 8-8.2(c), have been permitted and constructed. If the applicant can demonstrate that the subject lot has been subjected to a condominium property regime (C.P.R.), and that the maximum allowable residential density for the applicant's respective C.P.R. limited common element has been permitted and constructed, the Planning Commission may waive the requirements of this provision. (e) In addition to conditions of approval that the Planning Commission may impose pursuant to Section [8-20.5(b)] 8-3.2(b), a use permit for farm worker housing shall be subject to the following conditions: (1) The farm worker housing shall be used exclusively for the housing of farm workers and their immediate family; (2) The Planning Commission may issue a maximum of one (1) farm worker housing use permit per lot or, if the lot has been developed as a C.P.R., per C.P.R. limited common element. Each permit may allow the construction of a maximum of three (3) farm worker housing structures. The total floor area of all structures combined shall be limited to 1,800 square feet and no structure may exceed 1,200 square feet of floor area. For the purposes of farm worker housing, the total floor area shall mean the sum of the horizontal areas of each floor of a building, measured from the interior faces of the exterior walls. The total floor area shall include enclosed attached accessory structures such as garages or storage areas, but it shall exclude unenclosed attached structures such as breezeways, lanais, or porches; (3) The structures shall have post and pier foundations. No concrete slabs shall be used in constructing the farm worker housing; (4) The structures shall be located on a plot plan approved by the Planning Commission; and (5) The owner or lessee of the subject lot or C.P.R. limited common element or portion thereof shall not charge the farm workers or their immediate family members for rent or electricity. (f) The land upon which the farm worker housing is located shall not be subdivided to create separate lots for the farm worker housing and the commercial farm. A farm worker housing use permit shall be subject to revocation if the farm worker housing and the commercial farm are designated as limited common elements of separate condominium.units. (g) The owner of farm worker housing shall annually certify to the Director of Planning that the Farm Worker Housing meets requirements and conditions set forth in Sections [8-7.9] 8-8.6 (a) through (f). If any interest in the subject lot or C.P.R. limited common element or portion thereof that is the subject of the use permit is transferred, conveyed or sold, the successor in 3 Attachment 2 interest shall immediately notify the Director of Planning of such change in ownership. (h) Prior to the issuance of the building permit, the applicant shall demonstrate to the satisfaction of the Planning Director that the applicant has recorded in the Bureau of Conveyances or the Land Court, as the case may be, the requirements and conditions set forth in Sections [8-7.9] 8-8.6 (a) through (g) respectively." (Material to be deleted is bracketed. New material is underscored.) V:\AMENDMENTS\2015\09-02-2015 Bill No 2459 v2 (Chock) PM_dmc.doc 4