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HomeMy WebLinkAbout2020_0224_CRC OP Minutes APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved with amendments 04/17/2020 Board/Commission: CHARTER REVIEW COMMISSION Meeting Date February 24, 2020 Location Mo‘ikeha Building, Meeting Room 2 A/B Start of Meeting: 3:09 p.m. End of Meeting: 5:17 p.m. Present Chair Marissa Sandblom, Vice Chair Jan TenBruggencate. Members: Virginia Kapali, Patrick Stack, Lori Koga. Also: Boards & Commissions Office Staff: Administrator Ellen Ching, Administrative Specialist Anela Segreti. Testifiers: Felicia Cowden, Richard Robinson Excused Carol Suzawa, Reid Kawane Absent SUBJECT DISCUSSION ACTION Call To Order Chair Sandblom called the meeting to order at 3:09 p.m. with five members present which constituted a quorum. Agenda Chair Sandblom entertained a motion to amend the agenda to move Executive Session items to after approval of minutes. Chair Sandblom entertained a motion to approve agenda as amended. Vice Chair TenBruggencate moved to amend the agenda. Ms. Koga seconded. Motion carried 5:0 Vice Chair TenBruggencate moved to approve the agenda as amended. Ms. Koga seconded. Motion carried 5:0 Approval of Minutes Open Session Minutes of January 27, 2020 Vice Chair Ten Bruggencate noted an error on page 9, third paragraph, first line, “askee” should be “asked”. Vice Chair TenBruggencate moved to approve the Open Session Minutes of January 27, 2020 as amended. Ms. Koga seconded. Motion carried 5:0 Charter Review Commission Open Session February 24, 2020 Page 2 SUBJECT DISCUSSION ACTION Communications CRC 2020-02 Confidential communication received from First Deputy County Attorney Nicholas Courson dated February 13, 2020 regarding CRC-2019-06 proposing an amendment to Charter Section 20.04 (A) relating to the disclosure requirements. CRC 2020-03 Confidential communication received from First Deputy County Attorney Nicholas Courson dated February 13, 2020 regarding CRC-2019-09 proposing an amendment to Charter Section 28.01, 28.02, 28.04 relating to the name, goal and duties of the Cost Control Commission. CRC 2020-04 Confidential communication received from First Deputy County Attorney Nicholas Courson dated February 13, 2020 regarding CRC-2019-21 A proposing amendment to Charter Section 13.02 relating to the requirements for the position of County Engineer. CRC 2020-05 Confidential communication received from First Deputy County Attorney Nicholas Courson dated February 13, 2020 regarding CRC-2019-21 B proposing amendment to Charter Section 13.02 relating to the requirements for the position of County Engineer. CRC 2020-06 Confidential communication received from First Deputy County Attorney Nicholas Courson dated February 13, 2020 regarding CRC-2020-01 proposing an amendment to Charter Section 20.05(D)(2) relating to ethics advisory opinions. CRC 2020-07 Confidential communication received from First Deputy County Attorney Nicholas Courson dated February 14, 2020 regarding CRC-2019-05 proposing an amendment to Charter Section 11.04 relating to the minimum requirements for the position of Chief of Police. CRC 2020-08 Confidential communication received from First Deputy County Attorney Nicholas Courson dated February 14, 2020 regarding CRC-2019-18 proposing amendments to Charter Sections 29.01, 29.03 relating to Salary Commissions organization and resolution process. Charter Review Commission Open Session February 24, 2020 Page 3 SUBJECT DISCUSSION ACTION CRC 2020-09 Confidential communication received from First Deputy County Attorney Nicholas Courson dated February 14, 2020 regarding CRC-2019-21 proposing amendment to Charter Section 17.04 relating to the requirements for the position of Manager and Chief Engineer of the Department of Water. Vice Chair TenBruggencate moved to waive confidential privileges for all communications received from First Deputy Attorney Courson. Ms. Koga seconded. Motion carried 5:0 Vice Chair TenBruggencate moved to receive all communications. Ms. Koga seconded. Motion carried 5:0 Business CRC 2019-02 General Discussion on Charter Initiatives of Interest Chair Sandblom asked if there were any commissioners wishing to bring up any initiatives not on the agenda. None responded. No action taken CRC 2020-10 Review of proposed Charter amendments. Vice Chair TenBruggencate moved to defer CRC 2020- 10 to the end of the agenda. Ms. Koga seconded. Motion carried 5:0 CRC 2019-05 Discussion and possible action on proposal to amend Charter section 11.04 relating to the minimum requirements for the position of Chief of Police. Vice Chair TenBruggencate stated that he reviewed proposal and took notice of the discussion at the County Council level and Charter Review meetings, regarding minimum 15 years of training and experience in law enforcement. He offered additional language to include, “ and Charter Review Commission Open Session February 24, 2020 Page 4 SUBJECT DISCUSSION ACTION at least 10 years of which as a peace officer in a full-service, public sector, law enforcement agency, and at least three years of which shall be in performing management-level duties at the rank of lieutenant or higher.” Commissioners discussed whether a criteria to define full-service is needed in the amendment and how it will appear to voters on the ballot with the use of peace officer. The Commission took note that they need to ask the Police Commission to participate in the education of the voters on the new language. Vice Chair TenBruggencate moved to approve CRC 2019-05 with additional language for placement on the ballot. Ms. Kapali seconded. Motion carried 5:0 CRC 2019-06 Discussion and possible action on proposed Charter amendment regarding Ethics Disclosure Statements Requirements Vice Chair TenBruggencate noted that a letter received from Patricia Hebson (on file) on this issue and asked it to be made part of the record. Chair Sandblom noted the letter for the record. Vice Chair TenBruggencate stated that he is not in favor of Ethics Rulings not being expeditious and would vote against this proposal. Commissioner Kapali clarified that the item currently being discussed is on disclosures, and the testimony received is about 45 days on an opinion. Chair Sandblom clarified that the item Vice Chair TenBruggencate was referring to is CRC 2020-01, advisory opinions. Vice Chair TenBruggencate stated that having clarified item being discussed is on disclosure statements, he has no objection to CRC 2019-06. Vice Chair TenBruggencate moved to approve CRC 2019-06. Ms. Kapali seconded. Vice Chair Charter Review Commission Open Session February 24, 2020 Page 5 SUBJECT DISCUSSION ACTION Chair Sandblom asked if there was any more comment. Commissioners discussed the addition of regulatory employee and defining and where it will be defined. Nicholas Courson, First Deputy Attorney shared some of the list of regulatory employees from the County of Hawaii and that the Board of Ethics intent is to define this by administrative rule. Mr. Courson pointed out that in the other jurisdictions it is a confidential disclosure to the Board of Ethics, but they cannot do that for County of Kauai because the Charter will say that it is public. He discussed with the Commission his concern that the unions will have concern over members being required to do public disclosures. Mr. Courson discussed with the Commissioners state law versus the charter and collective bargaining rights. He explained that the State Constitution gives the counties the right to set their own ethics standards. He clarified that he thinks it can be done and that it is legal but recommends asking HR to raise the issue with the unions over the next month and see what they think. He suggested an alternative path would be to have the Council take it up because they can supplement the Code of Ethics by ordinance, so there is another section of the Code of Ethics in the County Ordinances and the Council could do it relatively easy, two readings. Chair Sandblom entertained a motion. Vice Chair TenBruggencate asked if the Commission could also look at having unionized regulatory employees to file private disclosures. Mr. Courson replied yes, and that he thought about proposing that type of wording, but it would have been a more complicated Charter Amendment to distinguish the two, and offered to do that if the Commission wanted him to. Chair Sandblom clarified that there were two sets of changes, one to add positions that were not specified, like the Managing Director, and then folded in the regulatory employees. TenBruggencate withdrew this motion. Ms. Kapali withdrew her second. Charter Review Commission Open Session February 24, 2020 Page 6 SUBJECT DISCUSSION ACTION Mr. Courson said the agency and division heads would be a change much like the regulatory employees, they are also, rule of thumb, public servants, and have not had to file disclosures. Vice Chair TenBruggencate shared that he was concerned about unintended consequences and wondered if they should ask Counsel to make the change that allows regulatory employees be personal, as in other counties. Mr. Courson said that he can do it. Vice Chair TenBruggencate clarified that private disclosures would apply only to the regulatory employees. Mr. Stack said that private disclosure sounds like an oxymoron and expressed concern of making elected and appointed officials file private disclosures. Mr. Courson clarified that the regulatory employees would be neither elected nor appointed. Regulatory employees would file a disclosure, but it would be private to the Board of Ethics and not made public. Rich Robinson, testifier. He shared that he feels that government is losing many good people to run for office because of transparency. He stated that there is a lot that the public needs to know, but there are many things that they have brought forward that they do not need to know. He also stated that there are a lot of people that do not run for public office as a result of the transparency requirements and the paperwork and bureaucracy that goes along with it. Felicia Cowden, speaking as an individual who also happens to be a County Council member. She shared that she has no problem being completely transparent. She feels it’s really important when there is so much mistrust. Vice Chair TenBruggencate moved to amend the proposal to allow private disclosures for regulatory employees and that the others listed on Charter Review Commission Open Session February 24, 2020 Page 7 SUBJECT DISCUSSION ACTION Vice Chair TenBruggencate pointed out that the Mayor and Council are required to file. existing proposal would file public disclosures and will review it at next meeting. Ms. Kapali seconded. Motion carried 5:0 CRC 2019-09 Discussion and possible action on proposal to amend Charter sections 28.01, 28.02, 28.4 relating to the name, goal and duties of the Cost Control Commission. Vice Chair TenBruggencate stated that he was compelled to the conclusion that people who look at finances frequently come across opportunities for the County to save money. The Cost Control Commission cannot make the final decision, they recommend to the County Council after doing the work. Ms. Kapali stated that she is not in favor of changing Cost Control to Cost Control and Revenue Enhancement. She feels that there are already a number of checks and balances regarding this and if people want to make suggestions, she is sure that the Council and Mayor’s Office is open to taking them, she does not feel it needs to be done through a Charter amendment. Motion was not approved, need 4 to pass. Mr. Courson suggested deferring this item since there appears to be a stalemate and another Commissioner is needed to vote. Chair Sandblom asked for a motion to defer. None made. Ms. Cowden asked why the Commission is different than the Council where if they have five of seven members and they chose to take a vote and it fails, then it fails. Mr. Courson answered that the Commissions have more articulate rules. Vice Chair TenBruggencate moved to approve CRC 2019-09 which would rename the Cost Control Commission to the Cost Control and Revenue Enhancement Commission. Ms. Koga seconded. Roll Call Vote: Ms. Kapali-nay Ms. Koga-yes Mr. Stack-nay Vice Chair TenBruggencate- aye Chair Sandblom-aye Motion not approved. Charter Review Commission Open Session February 24, 2020 Page 8 SUBJECT DISCUSSION ACTION CRC 2019-18 Discussion and possible action on proposal to amend Charter sections 29.01, 29.03 relating to Salary Commissions organization and resolution process. Vice Chair explained that this amendment would give the Salary Commission the final decider on County salaries for non-union employees. Ms. Kapali stated that it looks like a long amendment and was concerned on how it will appear on the ballot and asked if some of it could be part of administrative rules. Vice Chair TenBruggencate explained that it will be challenging for the Commission to summarize it in the voter educational materials, and it is a complicated process. Mr. Courson did not think that it could be done in administrative rule. As the Charter is currently written would not allow an administrative rule like that. Could not change how commissioners are appointed by administrative rule. Vice Chair TenBruggencate gave a history of the Charter giving Commissions, citizen volunteers, power. Ms. Cowden, has not been as informed as she’d like to be, stating that it was previously discussed in Executive sessions. She would like to add that it has been difficult when the resolution comes in front of Council to raise salaries of the department heads and also the Council. She asked if they could be separate. Mr. Courson stated that though the Council votes on Council raises, it does not take effect to the new term. The Council has also previously employed the idea of voting the terms inceratum so their own raises can be parced out and can be voted down. Ms. Cowden believes that they tried it last time but could not do it. She will check the minutes. Charter Review Commission Open Session February 24, 2020 Page 9 SUBJECT DISCUSSION ACTION Vice Chair TenBruggencate clarified that the Mayor and Council would each appoint three commissioners and the six commissioners would appoint the seventh. Chair Sandblom clarified that this item has been discussed in open sessions. Vice Chair TenBruggencate moved to approve CRC 2019-18 and send to the ballot. Mr. Stack seconded. Motion carried 5:0 CRC 2019-21 A Discussion and possible action on proposal to amend Charter section 13.02 regarding the requirements for the position of County Engineer. Vice Chair TenBruggencate referred to the document he submitted with suggestions regarding this amendment. He explained that after consulting with First Deputy Attorney he has amendments to the suggestions he submitted. First was that the title of County Engineer be changed to read Manager of Public Works and County Engineer and the second is that the Manager of Public Works title be also included in section 13.03, therefore using the entire title in all references. Discussion of title by Commissioners. To be consistent with other places in Charter and State law that uses County Engineer suggestion is to use both Manager of Public Works and County Engineer. Mr. Courson stated that he is not sure what the benefit is to adding Manager of Public Works. He believes that the reason is because the person doesn’t strictly need to be an engineer, but then you need to explain why there is two titles when they will still be County Engineer in the title. His advice is to leave it County Engineer and qualify it. The law does prohibit someone holding them self out as a licensed engineer if they are not one. Using the title of County Engineer does not hold someone out as a licensed engineer but is the title that the County is using. He doesn’t feel that it would run a foul of HRS 464. He had HR check and Civil Engineers 1-3 for civil service classifications do not have to be licensed and are still called engineers. Vice Chair TenBruggencate clarified that Mr. Courson submitted opinions on both CRC 2019- Vice Chair TenBruggencate moved to approve CRC 2019-21 A proposed amendment to Section 13.02 with amendments to title from County Engineer to Manager of Public Works and County Engineer and to change such in section 13.03 as well. Vice Chair TenBruggencate withdrew his motion for lack of a second and moved that the Manager of Public Works be removed and keep County Charter Review Commission Open Session February 24, 2020 Page 10 SUBJECT DISCUSSION ACTION 21 A and 2019-21 B and that his motion combined the two into a single motion. Mr. Courson asked if he’s language on CRC-2019-21 B would be the same as what Vice Chair TenBruggencate is proposing in his motion if changed from five to ten. Commissioners reviewed CRC 2019-21 B, Section 13.02. Chair Sandblom clarified that it would read, shall have had a minimum of five years to ten years, borrowing language from CRC 2019 21 B. Commissioner Kapali asked for the motion to be read verbatim. Chair Sandblom read the amended Section 13.02 of CRC 2019-21B as stated in the motion. Commissioners discussed proposed changes in the county engineer qualifications, five to ten years of training and experience in an engineer related field and removal of registered engineer. Ellen Ching, Administrator, expressed that the Mayor and Managing Director have a great interest in the amendment because of the vacancy of the county engineer position. She also stated that it has been exacerbated due to the resignation of the current Deputy County Engineer and the search for the Water Manager. She asked that the Commission look at keeping the years of training and experience to five years, in line with other department heads, and is standard language in the Charter. Mr. Courson asked the Commission to also consider that responsible administrative has heavy responsibilities, need to have policy making powers or authority over a significant amount of employees and is a high hurdle to jump. Chair Sandblom entertained a motion to amend the motion. Engineer and include the other language in the proposed amendment. Vice Chair TenBruggencate revised his motion to approve CRC 2019-21 A with language borrowed from CRC 2019-21 B with amendment of Section 13.02 to read The County Engineer shall be appointed and may be removed by the mayor. The county engineer shall have had a minimum of ten years of training and experience in an engineering related position, at least three years of which shall have been in a responsible administrative capacity. Ms. Kapali seconded. Charter Review Commission Open Session February 24, 2020 Page 11 SUBJECT DISCUSSION ACTION Felicia Cowden, County Council Member and Former Engineer. She stated that she likes ten years. She thinks that someone could be found with ten and a lot of people have a lot of years’ experience. She feels it’s harder to find someone with the certification, but not as hard to find someone with experience. She stated that being a solid engineer is very important as there are many issues where engineering is critical. Chair Sandblom called for the vote on the motion as amended. CRC 2019-21 B Discussion and possible action on proposal to amend Charter section 13.02 regarding the requirements for the position of County Engineer. Ms. Koga moved to amend the previous motion in regards to years of training and experience from ten to five years. Ms Kapali seconded. Motion carried: 4:1. Vice Chair TenBruggencate moved to receive CRC 2019- 21 B. Ms Kapali seconded. Motion carried 5:0 CRC 2020-01 Discussion and possible action on proposal to amend Charter Section 20.05 D2 regarding advisory opinions by the Board of Ethics. Chair Sandblom entertained a motion. Chair TenBruggencate stated that he is not in favor of this amendment and will not make a motion. Chair Sandblom reviewed the amendment for the Commissioners. Richard Robinson, testifier, stated that there are unintended consequences. He stated that investigations become political blunt instruments in political campaigns and puts individuals at risk even if they haven’t done anything wrong. If you keep investigations open ended it is a significant toll on the individuals. He feels that 45 days is not unreasonable to understand if there is probable cause of an ethics violation. Ms. Cowden testified that she feels there should be a deadline. She stated that it interrupts due Charter Review Commission Open Session February 24, 2020 Page 12 SUBJECT DISCUSSION ACTION process and can go on for a long time without informing the person and still comes up and it’s a form of intimidation and as a Councilmember when she looks at the budget, how much does it cost. She agrees that it becomes a blunt instrument. Mr. Courson clarified that what the Board of Ethics is requesting is an elimination in rendering an advisory opinion within 45days. He stated that there is a clear distinction in the Code of Ethics between advisory opinions and complaints. What the testimonies seem to be addressing is complaints being addressed in an expeditious manner, and that is not what the Commission is voting on. Ms. Cowden asked for a clarification of an advisory opinion. Mr. Courson explained that any employee or officer of the County that has a question about an application of the Code of Ethics can ask the Board to render an advisory opinion beforehand. Mr. Courson gave an example. It can be related to a complaint but is distinct. Advisory opinion is a proactive approach before the conduct takes place and a complaint is after the conduct. Mr. Robinson testified that an advisory opinion should be less than 45 days to determine if an action is ethical or non-ethical. He confirmed that he was addressing complaints. Ms. Ching clarified that the Chair and Vice Chair went to the State Ethics Conference which they learned that in comparison to other boards Kauai does not have a staff and it has some bearing on the time taken. What they feel that the problem with that if they do not respond within 45 days it would be determined that it is not a breach of the code. Chair Sandblom stated that it was clarified that after the 45 days the Board could at their next meeting address the conduct and determine if it is a breach of the code. Ms. Ching agreed and added that the period between the 45 days passed and deemed a finding Charter Review Commission Open Session February 24, 2020 Page 13 SUBJECT DISCUSSION ACTION of no breach of the code and at the next meeting they can make a decision. It could be problematic. Mr. Robinson testified that based on the comments that it should be no breech if the Board did not come forward and why should they be penalized. Councilmember Cowden stated that it makes her feel like she needs to say no to invitations. She said that it seems like when you put something in front of the Board, they should be prepared to say no. To wait for the next meeting to come up, it’s difficult to know when. Feels there would not be a functional Ethics Board if they cannot give timely responses. Vice Chair TenBruggencate stated that the Board of Ethics is not a replacement of your own gut. Ms. Kapali moved to receive CRC 2020-01. Vice Chair TenBruggencate seconded. Motion carried 5:0 CRC 2019-20 Discussion and possible action on proposal to introduce a Charter amendment creating a Department of Environmental Services. Vice Chair TenBruggencate stated that he believes it is a good proposal, but suggested change to first line of the second page. He would have it read, “D. Guide efforts to optimize opportunities for environmental and natural resource protection, sustainability, conservation, and restoration.” Vice Chair TenBruggencate stated that he is concerned if they can fix the language of 13.03 in the same Charter amendment or do they need another amendment. They need to take the powers from public works and put in new department. It needs to be a single vote. Chair Sandblom asked Ms. Ching what goes in front of voters. Ms. Ching explained that the full text must go in the educational material, on-line and published. The ballot will have a summary. Vice Chair TenBruggencate moved to approve CRC 2019-20 with the change stated to add “and” between environmental and natural resource protection. Ms. Kapali seconded. Vice Chair TenBruggencate withdrew the motion and Ms. Kapali withdrew her second. Vice Chair TenBruggencate Charter Review Commission Open Session February 24, 2020 Page 14 SUBJECT DISCUSSION ACTION Vice Chair TenBruggencate would like Mr. Courson to review the proposed amendment with the addition of the word “and” and to advise on Section 13.03 and if it can be changed and delivered to the public in one charter amendment. moved to approve CRC 2019-20 with the change stated to add “and” between environmental and natural resource protection under D on the second page, and refer to the County Attorney to determine how to include both actions in a single Charter Amendment. Ms. Kapali seconded. Motion carried 5:0 CRC 2020-10 Review of proposed Charter amendments Discussion and possible action of waived confidential communication CRC-2019-21 proposing amendment to Charter Section 17.04 relating to the requirements for the position of Manager and Chief Engineer of the Department of Water. Vice Chair TenBruggencate noted that in discussion with the County Attorney he believes this can be discussed, even though it is not a listed agenda item, under CRC 2019-02 General Discussion on Charter Initiatives of Interest and CRC 2020-10 Review of proposed Charter amendments. Vice Chair TenBruggencate stated that he had proposed language for CRC 2019-21 that also suggested 10 years of training and experience, but it similarly require someone with an engineering related experience, but not necessarily an engineering registration. Ms. Kapali asked if they are going to be consistent and do five years. Ms. Ching, on behalf of the Administration asked that they do so. She also reminded the Commission on what Mr. Courson started regarding administrative capacity, and previous Vice Chair TenBruggencate moved to approve CRC 2019-21 with the language that he submitted, minimum of ten years of training and experience in an engineering position or related field. Mr. Stack seconded. Charter Review Commission Open Session February 24, 2020 Page 15 SUBJECT DISCUSSION ACTION testimony. Ms. Kapali made a point for the voter, to keep it as consistent and clear to move it down to five years for both the county engineer and the water manager. Chair Sandblom reviewed Mr. Courson’s communication and his suggested language, that states five years. Vice Chair TenBruggencate read the suggested language for clarity of the amended motion. “The manager and chief engineer shall be appointed and may be removed by the board of water. The manager and chief engineer shall have had a minimum of five years of training and experience in an engineering related position, at least three years of which shall have been in a responsible administrative capacity. Said person shall have the powers and duties prescribed by the board.” Chair called to for a roll call vote to approve the motion as amended. Ms. Kapali moved to amend Vice Chair TenBruggencates motion to approve the language as suggested by First Deputy County Attorney Courson on the second page of his communication regarding CRC 2019-21. Vice Chair TenBruggencate seconded. Motion carried 4:1. Roll Call Vote: Commissioner Kapali-aye Commissioner Stack-aye Commissioner Koga-aye Vice Chair TenBruggencate- aye Chair Sandblom-aye Motion carried 5:0 Announcements Next meeting: Monday, March 23, 2020, 3:00 p.m., in the Mo’ikeha Building, Meeting Room 2A/2B. Ms. Kapali thanked support staff for the table on the status of the proposed amendments. Commissioners went over list and Vice Chair TenBruggencate suggested that the Commission could select some of those approved and move them into next years Commission as too many will confuse the voters. He suggested that there is an agenda item for the ones that are still alive be on the agenda. Ones not approved then could be moved to the agenda of Jan. 21. Staff will provide a Charter Review Commission Open Session February 24, 2020 Page 16 SUBJECT DISCUSSION ACTION copy in both Ramseyer and plain form of each proposed amendment for review at next meeting. Adjournment Chair Sandblom entertained a motion to adjourn. Vice Chair TenBruggencate moved to adjourn the meeting at 5:17pm. Ms. Koga seconded. Motion carried 5:0 Submitted by: __________________________________ Reviewed and Approved by: _________________________________________ Anela Segreti, Administrative Specialist Marissa Sandblom, Chair ( ) Approved as circulated. (X) Approved with amendments. See minutes of 04/17/2020 meeting.