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HomeMy WebLinkAbout06-16-2009 Council Meeting Minutes COUNCIL MEETING June 16, 2009 The Council Meeting of the Council of the County of Kauai was called to order by the Council Chair at the Council Chambers, Historic County Building, 4396 Rice Street, Room 201, Lihu`e, Kauai, on Tuesday, June 16, 2009 at 9:05 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Dickie Chang Honorable Jay Furfaro Honorable Daryl W. Kaneshiro Honorable Lani T. Kawahara Honorable Derek S.K. Kawakami Honorable Bill "Kaipo" Asing, Council Chair APPROVAL OF AGENDA: Mr. Kaneshiro moved for approval of the agenda as circulated, seconded by Mr. Furfaro. Chair Asing: Any discussion? Ms. Kawahara: Sir, Chair, hi. I wanted to make a motion to add a communication to the agenda. Ms. Kawahara moved to add a communication dated June 16, 2009 to the agenda, seconded by Mr. Bynum. Ms. Kawahara: The motion... the communication respectfully request agenda time on the July 8 Council Meeting to discuss the following matters including the Councilmember's agenda... access to the agenda, placement of public documents including meeting minutes on the County's website, equitable and timely circulation of Council Service documents, and general access to information by the public and Councilmembers. We believe it is a modest and reasonable request and also reflects the wording of an online citizen petition that... as of now is 290 citizen signatures. Chair Asing: Well, it is a little unusual, but I am not sure what this is intended to do. Mr. Furfaro: Well, it looks to me Mr. Chair if I may have the floor. Chair Asing: Yes, go ahead. COUNCIL MEETING - 2 - June 16, 2009 Mr. Furfaro: That there are... there is a request for the purpose of... what was the date you said? Ms. Kawahara: July 8. Mr. Furfaro: July 8 to put three (3) items on the agenda for the purpose of discussion. That does not sound unreasonable. I would like to make note again though, for discussion purposes... Ms. Kawahara: Yes, and it is for four (4) items. Chair Asing: Can I have the County Attorney up? ALFRED B. CASTILLO, JR., COUNTY ATTORNEY: Good morning everyone. Al Castillo, County Attorney. Chair Asing: Good morning. Mr. Kaneshiro: Morning. Mr. Castillo: Okay, I have just been handed a communication dated June 16, 2009 and without reading the body of the communication... basically, from what I gather is that this is a communication that Councilmember Kawahara request at this moment in time to add to the agenda. Let me put this in perspective for all of you, so that we have an established train of thought. The last time and when I look at this, it is a communication and it is a communication requesting agenda time for another date, July 8. So the question becomes how does this differ from the last time that I was here regarding a request to put another matter on the agenda. And in looking at this right now and this is the first time that I have seen it... is the subject matter is a lot different. The last time that we were here, what basically the law protects is, one, you have the Sunshine Law which provides the citizens of Kauai the opportunity to know what is coming up in the next meeting. That is one. Number 2 is... in any, I guess forum, what is not desired is a form of introducing evidence or introducing things before a body. It is almost like by ambush where nobody has the opportunity to look at it first. However, in this... what I see here is just a request... a communication. When you look at the law and basically the law says that no item shall be added if it is of reasonably major importance that will affect a significant number of persons. So two (2) weeks ago when I was here, it... the intent of the addition to the agenda was to introduce basically a resolution to... what I said back then was to change how our County government did business. In looking at the communication and this is merely a communication... it is not a bill, there is no substance in it... it is a communication, therefore, the appropriate way of handling this is this way. First of all, I have opined that this is a communication and, therefore, the Sunshine Law does not apply in this case because it does... the communication is, COUNCIL MEETING - 3 - June 16, 2009 itself, is not of reasonably major importance, and the communication itself will not affect a significant number of persons because it is right... in this point in time, it is merely a communication. Therefore, once filed, what this Council should do is by a two-thirds vote that is the number that it will take for this communication to be able to be placed on the agenda today. So two-thirds vote to place the communication on the agenda. After that, then you have the vote on whether or not... it is like an ordinary meeting after that. It is a communication and you vote on whether or not to... it is going to be received by this body, so it is a two-step process. So I am wondering if that is clear. Mr. Kaneshiro: I have a question Mr. Chair. So Mr. Castillo, the 290 signatures is not a significant amount then? Mr. Castillo: No, the... Mr. Kaneshiro: Because it is a petition signed by 290 signatures. Mr. Castillo: No, the communication itself... right now, the fact that within the body of this, it says that there is a petition out there. I don't see a petition. There is no petition attached to this. It is merely stating that what they believe that this request regarding the agenda items to be valid or... basically, the proponents of this communication basically says that they have the backing of 290 citizens. It doesn't necessarily mean... we are not discussing the substance of these matters regarding the proposed agenda items. We are just discussing basically whether or not the communication regarding what they are saying exist is valid and the communication itself is not the substance of the matter that is of concern right now. It is... we are looking at only the communication not the substance of what the proponents want to do in July. Chair Asing: Okay, Councilmember Furfaro. Mr. Castillo: I have to split it. I mean that is the legal analysis. Chair Asing: Let me ask a question now. You know, the placement of public documents including meeting minutes on the County's website is going to affect the entire County. How can you not say it is not of major importance? I agree it is important. Mr. Castillo: No, I understand what you are saying because the substance matter of the communication will definitely affect how things are run. However, at this point in time, what is being... what will be voted upon is not the substance matter, it is basically a communication, it is basically a request saying that we want to put this on the agenda on July the 8th. So, basically, we are not getting into the substance matter of the request. Chair Asing: With that, Councilmember Furfaro? COUNCIL MEETING - 4 - June 16, 2009 Mr. Furfaro: Yes, thank you. Thank you Al for that clarification. We are, in fact, talking about a communication to be received by the Council by... as I want to reiterate, the discussion here was to put on agenda for a future discussion. You made a comment about our ability to discuss and get this on and, unfortunately, I have been alleged to be in violation of the serial one on one communication rule. I have a copy of it here which basically says that more than two (2) Councilmembers cannot necessarily circulate and find a majority or a minor majority to get something on the agenda. It is of my opinion that this approach under the section of approving the agenda or under the section of communication is the proper place to receive this for future discussion. Mr. Castillo: You see... Mr. Furfaro: You know... you are familiar with this serial one on one communication? Mr. Castillo: Yes, I know, but... Mr. Furfaro: Our rules prevent us from individually having a discussion. Mr. Castillo: And I am not... that is reason why at this point in time, it is premature to get into the validity of the... the merits. Mr. Furfaro: I am confirming with you. Mr. Castillo: Yes, yes. Mr. Furfaro: The item here is to accept this communication to put something on the agenda. The merits of those items are to be discussed when they are appropriately posted on the agenda titled July 18 or July 8. Mr. Castillo: Yes, provided that the necessary legal steps are taken to place it on the agenda at that time. I am not making any opinion on whether or not it will get to that point. The only... what I want to... what I am telling the Council today is basically, by atwo-thirds vote, this Council can or has the ability to place this matter on the agenda, so it will be this body to decide whether or not it gets placed on the agenda. If you vote "no", then it doesn't get placed on this agenda and if you vote "yes", it does get placed on the agenda, and then you go to the second step as far as whether or not there is a motion to receive, and then you vote again, so that is the procedure. Mr. Furfaro: I have a follow up to that question. I also want my colleagues to note that who are introducing this and hoping for a July 8 schedule if it passes by a supermajority. Our rules also state that the final date on which it gets on the agenda is at the discretion of the Chairman based on the fact that he COUNCIL MEETING - 5 - June 16, 2009 has the management rights to determine the volume that we can take on that day or not. So if he so pushes it back to the 15~ and so forth, that is stated in our rules, but you are advising us that we first need to get the a supermajority vote to get... to accept this communication for a future agenda item. Mr. Castillo: That is what I am saying. Mr. Furfaro: Thank you. I just wanted to make sure I concur with both the Sunshine rules which were, in my opinion, misinterpreted from this e-mail two (2) weeks ago, and also the current status of the serial one on one laws, and how we do sometimes conflict with our own Council rules. That is what I was trying to clarify. Mr. Castillo: Thank you. So I am done here or you got more questions. I am sorry. Chair Asing: Any questions Councilmembers? If not, I have some questions only because, you know, there is also... when you make reference to Councilmember's access to the agenda, you are talking about in-house rules and why would we want to discuss in-house rules with the public. Mr. Castillo: And that is... Chair Asing: These are in-house rules on County operations and you want to take that and discuss it in a public forum, why would you want to do that? These are in-house rules that you make in-house on how you handle the paperwork, how you handle things that come about, so (inaudible) me that these kinds of things are being asked for discussion in the public sector because these are... like your operations, it is like whatever rules that you make in-house should have public discussion... I have some diff... Mr. Castillo: That is right. Well, I guess what your concern is the subject matter of the communication, the merits or the justification that it deals with the in-house rules. However, today, this morning, this is really not the subject matter, and that is why the Sunshine Law would not apply in this case. If it were, the purpose of this was to cover all of these things today, then I would be making the same opinion that I did two (2) weeks ago, so that is the... the difference here is, we are only right now dealing with a communication for a future intent. Chair Asing: Any other questions Councilmembers? Mr. Furfaro: Thank you Mr. Chair. Chair Asing: Councilmember Furfaro? COUNCIL MEETING - 6 - June 16, 2009 Mr. Furfaro: Yes, I would just like to make note that our rules are passed in a public form in a form of resolution during the inaugural and I want to just say that people need to become familiar with the rules, and so this merits this communication discussion because we are often hearing this about COK Kauai Council and so forth, but our rules clearly state that each piece of legislation shall be managed by the Chair of that Committee and the appropriate Chairman shall serve as the manager of that legislation. So in determining who are the Chairmans of the various Committees, those Chairman are first... whether it is Public Works, Parks, Planning, they are mandated in our rules to be the manager of that information, and that sometimes is unknown, so that is why I think this communication about discussing our rules is important. Chair Asing: Thank you. Any other questions Councilmembers? If not, I would like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: Councilmember Bynum? Mr. Bynum: I just want to concur with what Councilmember Furfaro just said that I think it is appropriate and important for us to have a public discussion about how we conduct ourselves around the table. The rules are something that is established by resolution. Resolutions and rules can be changed by a subsequent resolution. I am not attempting to discuss the matter that... I am just requesting future Council time to discuss the matter when it is properly sunshined because there was Sunshine concerns raised, so... Chair Asing: Any further discussion? If not, I would like to call for a short recess. There being no objections, the Chair called for a recess at 9:23 a.m. The meeting was called back to order at 10:20 a.m., and proceeded as follows: Chair Asing: We have a motion on the floor to amend the agenda. Is there any further discussion? Mr. Kaneshiro: Mr. Chair if I could. I would propose that instead of locking in the date as of July 8, perhaps we could... because we are not sure what we got on the July 8 agenda is give the option of July 8 or July 22 which is the next Council meeting. So this way, it will be the discretion of the Chair as we look at the agenda to be able to give him some flexibility in being able to adjust it to the 8th or the 22nd. Mr. Bynum: How do you amend a communication? I have no objection. COUNCIL MEETING - 7 - June 16, 2009 Mr. Kaneshiro: So basically, I would say that we just put in that July 8 or July 22 for the record. Can we do that or do we have to... Chair Asing: Motion to amend. Mr. Kaneshiro: So basically I would like to make that motion. Mr. Kaneshiro moved to amend the motion to reflect the communication dated June 16, 2009 from Councilmembers Bynum and Kawahara that their item be placed on either the July 8, 2009 or July 22, 2009, seconded Mr. Furfaro, and unanimously carried. Chair Asing: We are back to the main motion as amended. The motion to amend the agenda, as amended to reflect both July 8 and July 22 was then put, and unanimously carried. Mr. Bynum: Thank you. Ms. Kawahara: Thank you. The motion to approve the agenda as amended, was then put, and unanimously carried. Chair Asing: Next item please? PETER NAKAMURA, COUNTY CLERK: The next matter is approval of the minutes of the following meetings of the Council. MINUTES of the following meetin~L of the Council: Special Council Meeting of May 27, 2009 Council Meeting of June 3, 2009 Mr. Furfaro moved for approval of the minutes as circulated, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matters are communications for receipt. For receipt on page 1 is communication C 2009-209 and communication C 2009-210, and on page 2 communication C 2009-211 and C 2009-212. COUNCIL MEETING - 8 - June 16, 2009 COMMUNICATIONS: C 2009-209 Communication (04/21/2009) from the Planning Director, transmitting the Planning Commission's recommendation to clarify the procedures for Shoreline Setback Determinations and Activity Determinations and determining applicability; to amend the list of activities permitted within the shoreline setback area and to allow activities permitted under Section 8-27.7 within the shoreline setback area to proceed with permitting without a setback determination: Mr. Chang moved to receive C 2009-209 for the record, seconded by Mr. Kaneshiro. C 2009-210 Communication (05/12/2009) from the Chief of the Building Division, Department of Public Works, transmitting for Council information, the Building Permit Information Reports for Apri12009 that includes the following: 1) Building Permit Processing Report 2) Building Permit Estimated Value of Plans Summary 3) Building Permits Tracking Report 4) Building Permits Status Mr. Chang moved to receive C 2009-210 for the record, seconded by Mr. Kaneshiro. C 2009-211 Communication (05/19/2009) from the Director of Personnel Services, transmitting for Council information, the following classification requests which the Department of Personnel Services will be reviewing and taking appropriate action: • Fire Department, Position No. 2534 (Reallocation of Present Class of Water Safety Office I to Lifeguard) • Fire Department, Position No. 1654 (Reallocation of Present Class of Water Safety Officer II to Lifeguard) • Fire Department, Position No. 1036 (Reallocation of Present Class of Water Safety Officer II to Lifeguard) Mr. Chang moved to receive C 2009-211 for the record, seconded by Mr. Kaneshiro. Chair Asing: Okay, the motion should be to receive communication C 2009-211 and not C 2009-212. With that, any discussion? Councilmember Bynum? Mr. Bynum: Yes, Mr. Chair, regarding communication C 2009-209, we received this communication... this is regarding a bill that is here for first reading today that I have a real interest in. It amends our shoreline setback in a way that, you know, to accommodate some minor things on the shoreline. It is a concern and timely because we have a requirement to meet certain ADA requirements, and the outcome of this bill may impact us meeting those timelines. So I have been trying to find this information about this bill. Last week, I asked the... the Planning Director was here... whether he had sent... you know, why we hadn't seen the communication and the work from the Planning Department. And he said, I will look into it, but I am certain we sent it over and so I want to note that this communication was received at Council Services and time- stamped in on May 12. It includes the proposed amendments of the draft ordinance, the staff report covering amended request, and transcripts and testimonies from the hearings held at the Planning Department. However, I didn't COUNCIL MEETING - 9 - June 16, 2009 receive this communication until last week, July 12 (meant June 12)... a full month that I have been seeking this information. Then I received the communication and the bill, but the staff report and transcripts were not made available to me until yesterday. And this, you know, I am very concerned and I have expressed those concerns for a long time that communications be distributed to me in a timely matter, and here is an example where for a month I could have been studying this very important bill and it hasn't been made available. I'd like to know from the County Clerk why it takes a month when I have made repeated requests to have communications delivered in a timely manner... why these materials were not made available to me as I have requested repeatedly. Chair Asing: Thank you. Councilmember Furfaro? Mr. Furfaro: Yes, thank you. You know, here is something and I am really glad that we had that earlier communication about reviewing the particulars on rules and here is something that I need to take some responsibility for and I want to certainly make sure that those that are in the audience understand... in our rules, Section 10, item (b), the manager of the certain pieces of legislation are required to have a manager and the introducer and/or appropriate Committee Chair shall serve as the manager of the legislation and may delegate this function to other Councilmembers. The manager or Chair shall be responsible for managing of such legislation including the securing of all the pertinent information regarding the matter, and that is why we have a Chairman in the Committee. These things come through C of K and I have questions equally before I distribute it to members of my Committee. I have practiced this for many years under rule 10, item (b), in managing the particular items, and I want to make sure that I take full responsibility for my interpretation of that, and it should not be directed at the Clerk and/or the Chair. This, I believe, I am working within the boundaries of the rules and hopefully after earlier discussion today, we will have an opportunity to put an ad hoc Committee together to review that. I, myself, do depend often on other Chairman when they are ready to introduce something and so forth to share those communications. I feel that is an important function of the Chairman. You are the manager of the communication. I take full responsibility for that Mr. Bynum as well as I am going to take full responsibility to communicate my concerns on the shoreline bill today including the correspondence that I have from Earthjustice. The Earthjustice is basically implying to us that there is a conflict in the bill that has been requested by the Planning Department as they see an interpretation of the SMA versus they are seeing the CZMA and a mandate from the State government which seems to be in conflict. And so I will be sending that communication to the County Attorney's Office as well as the Planning Department, so that when I am prepared to actually have this item worked in Committee, I can assure members that you will have both points of view. You know, that amendment certainly directs or calls on the issue that may or may not require certain items in the shoreline setback to be determined by the Planning Director and there is where COUNCIL MEETING - 10 - June 16, 2009 the conflict lies, and I am trying to get to the bottom of it before I distribute some information. So just independently, I want to make sure that we understand that these are my interpretations, and I take full responsibility if someone feels that they are not getting information, but at the same time, I would give the same extended parameters to other Chairman who are trying to make sure that nobody made a bad decision because you had too much information. So Mr. Clerk, could I have this communication sent down to Planning as well as the County Attorney for the conflict that exist in the correspondence from Earthjustice. Thank you Mr. Chairman. Chair Asing: Councilmember Kaneshiro? Mr. Kaneshiro: I just wanted to add and thank Mr. Furfaro who has been the Chairman of the Planning Committee for expressing his views as the timely matter that he wanted this to be put on the agenda. I appreciate that and I also want the public to know that none of us here were able to get this information before anyone else. We all got it equally at the same time and Mr. Furfaro made a decision that this was time, that he has done his research on and feel appropriate for this to be on the agenda. So it is not only Mr. Bynum that didn't get any of this information, neither did I or probably the rest of the Councilmembers. Chair Asing: Councilmember Bynum? Mr. Bynum: I just want to say that I totally agree with what Mr. Kaneshiro just said that none of us were provided these materials prior to part of them when the agenda was released, and the rest of them were available yesterday when I asked for them, and they were passed out to all of us in forms today. But the issue is that this is a communication that was addressed to the Honorable Chairperson Bill "Kaipo" Asing and members of the Kauai County. Council. It was dated by the Planning Department on March... on April 21, time- stamped in at Council Services on May 12, and our Council rules say... regarding the County Clerk, the County Clerk is to forward at once to the proper parties all communications and other matters either directly or through a Committee as the case may be... at once being the key language here and I have in writing repeatedly for over two and a half (2 1/2) years requested that communication that is addressed to all members of the Council be provided to all members of the Council in a timely manner. In this instance, it wasn't provided until it was agendaed which means I lost a full month of time. These are public records that I could go get from the Planning Department, but they... our routine is that it was sent here. If we looked at the communication that is delivered to all members of the County Council, we would find dozens every week I think of communications that are never distributed to Councilmembers... to any of us even though they are addressed. So I would like the Clerk to fulfill his responsibility to deliver these communications that are addressed to me at once as the Council rules say. Chair Asing: Councilmember Furfaro? COUNCIL MEETING - 11 - June 16, 2009 Mr. Furfaro: Yes, again, I am delighted that we are reviewing this in a future session because there is this conflict that exist, and I want to make certain again... delivered to the proper individual and that in me... in my terms, also references the Committee Chair and so forth... I have released the information. This is only for scheduling of the first reading and, therefore, I think there is some important amendments that the Planning Department needs to revisit along with the County Attorney before we actually get it in Committee. So I take full responsibility and I also take an educated guess at my own interpretation of what is required of me as the Committee member and Chair and Vice Chair over the last six (6) years. So thank you very much and all that information Mr. Clerk is now distributed and we will set a calendar date for the Committee and public hearing. Thank you and may I transmit this to somebody which will communicate my concern down to the Planning Department. Thank you. Chair Asing: Any further discussion? If not, all those in favor say aye. The motion to receive C 2009-209, C 2009-210, and C 2009-211 for the record was then put, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: We are on page 2 of the Council's agenda on communication C 2009-212. C 2009-212 Communication (05/20/2009) from the Director of Finance, transmitting for Council information, a copy of the Kauai Humane Society's Third Quarter Report for Fiscal Year 2009, which includes Cash Flow Analysis, Percentage Change Report, and Field Services Statistics: Chair Asing: What I would like to do is suspend the rules. There being no objections, the rules were suspended. Chair Asing: Good morning Dr. Rhoades. DR. BECKY RHOADES, KAUAI HUMANE SOCIETY: Good morning. Thank you. I have made a New Year's resolution to be here for every quarterly report, so that I might answer any questions for anybody as you reviewed the report, and just be here to help you learn more about the work we do. This third quarter report just shows how busy we were... encouraging numbers with more animals going home to their families that are lost as well as finding new families, our work out in the community with the zero tolerance for dogs off leash has shown some increase in leash law violations issued, and note is the big case... we are partnering with the COUNCIL MEETING - 12 - June 16, 2009 Kauai Police Department on the cockfighting and we still are holding some of the roosters at the facility to this day. Chair Asing: Thank you. Any questions? If not, thank you very much. I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Ms. Kawahara: Thank you for being here. Chair Asing: Is there anyone else in the audience who wants to speak? Councilmember Bynum? Mr. Bynum: First of all, I promise this is the last time I will bring this up today, but this communication was generated by the Humane Society on May 1, received by the Director of Finance on May 5 (time-stamped), time- stamped in a May 20 memo to the County Council... receive, time-stamped in on May 27 and I received this last week, so 15 days... 17 days after it had been received at Council Services. I don't believe this goes through any Committee. This is the responsibility of the Clerk to deliver this at once. And so we can do this on almost every communication that comes here, but, you know, I expect a communication that is addressed to me to be delivered in a timely manner and 17 days is not timely. Chair Asing: Any other questions? Yes, Councilmember Furfaro? Mr. Furfaro: I can only defend my rationale as the manager of the planning piece, but I also want to, again, concur that we will be reviewing this, and I want to make sure that Council Services is a body of employees, and this is not a reflection on your performance. It is something that this body will visit. I am sorry if you are being caught in any cross fire here. I do appreciate all the support from Council Services. Chair Asing: Councilmember Kawakami? Mr. Kawakami: You know, I just... I understand where you are coming from. My personal view point on communications as far as receiving in a timely manner, I am not requesting any change because, quite frankly, the way the communications have been handed out to me are very well managed because as I am looking at it, the less of (inaudible)... this would be overwhelmed with communication at any one given point of time. So as they come in, I find it appropriate for my own filing purposes and my own organization... what we are going through the hundreds of pieces of communications, that whatever way Council Services has been allocating it and the Committee Chairs also have been sufficient for me to make educated and factual decisions... decision making. COUNCIL MEETING - 13 - June 16, 2009 Chair Asing: Thank you. Councilmember Bynum? Mr. Bynum: I won't belabor this any further, but I just want to concur with Councilmember Furfaro that, you know, my comments were directed at the County Clerk... the County Clerk is responsible for governing the staff. We have an outstanding staff that follows the directions of their boss. Mr. Furfaro: Thank you Mr. Bynum. Chair Asing: Any other discussion? If not, I'd like to also make a comment. You know, in all the years that I have been on the Council and we are talking about 26 years, this is the first time we had a Councilmember who is not happy at the operations. First time in all the 26 years. First Councilman, first time, so I think there is something to be said there. Every other Councilmember that I know has not had this kind of complaint except for Councilmember Bynum. He seems to have all kinds of complaints about operations. With that, thank you. I am sorry, we have the County Attorney. Mr. Castillo: I am sorry. The reason why I am interjecting here, Council Chair is... as your County Attorney and protecting the rights of every County personnel here, I think it is improper for someone to, at this point in time, to be making any subtle allegation against our County Clerk because it is an employment matter. And if there is any sort of allegation... I have heard it twice this morning and it is basically unfair to the County Clerk who cannot voice his reply as far as what is being alleged here. So I would warn the Council that, you know, I would... any further discussion regarding the performance of the County Clerk has to go into executive session. So I will... I am going to... I just want to let everybody know once we start talking about the County Clerk again, I am going to say, excuse me, we have to go into executive session because we cannot talk about an employment right here at this point in time. Thank you. Mr. Furfaro: Thank you for that clarification. Mr. Kaneshiro: Thank you for that Al. Chair Asing: Thank you. What I would like to do is call the meeting back to order. The meeting was called back to order, and proceeded as follows: Mr. Kaneshiro: The motion is to receive. Mr. Kaneshiro moved to receive C 2009-212 for the record, seconded by Mr. Furfaro, and unanimously carried. Chair Asing: Next item please? COUNCIL MEETING - 14 - June 16, 2009 Mr. Nakamura: The next matter for approval on page 2 of the Council's agenda is communication C 2009-213. C 2009-213 Communication (05/15/2009) from the Wallace M. Kudo, Civil Engineer VII, requesting Council approval to replace one (1) Plotter/Scanner in the amount of approximately $23,000 which funds are available in the Engineering Division's equipment account: Mr. Furfaro moved to approve C 2009-213, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for Council approval is communication C 2009-214. C 2009-214 Communication (05/20/2009) from the Housing Director, requesting Council approval to decline the repurchase of Unit No. 82, Villas at Puali, located at 1934 Hokulei Place, Lihu`e, Kauai, Hawaii, 96766, and provide the owner with aone-year waiver of the resale restriction: Mr. Furfaro moved to approve C 2009-214, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The matter for approval is communication C 2009-215. C 2009-215 Communication (05/20/2009) from the Housing Director, requesting Council approval to decline the repurchase of Unit No. 32, Villas at Puali, located at 1945 Hokulani Place, Lihu`e, Kauai, Hawaii, 96766, and permit market sale of the unit for a period of one-year: Mr. Chang moved to approve C 2009-215, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: At the bottom of page 2, the next matter for Council approval is communication C 2009-216. C 2009-216 Communication (05/27/2009) from the Prosecuting Attorney, requesting Council approval to: 1) Apply for, receive, and expend Federal funds for the Domestic Violence Prosecution Unit in the amount of $46,403; and 2) Indemnify the State of Hawaii, Department of the Attorney General. The funding received will be expended on salaries/wages and supplies for the Domestic Violence Prosecution Unit to continue the program for the term commencing December 1, 2009 to November 30, 2010: Mr. Kawakami moved to approve C 2009-216, seconded by Mr. Chang, and unanimously carried. COUNCIL MEETING - 15 - June 16, 2009 Mr. Nakamura: The next matter on the top of page 3 for approval is communication C 2009-217. C 2009-217 Communication (06/03/2009) from the Executive on Aging, Agency on Elderly Affairs, requesting Council approval to receive, and expend State funds, in the amount of $29,901 which covers funding from July 1, 2009 through June 30, 2010 for State Fiscal Year 2009 to 2010 for KUPUNA CARE services to adults, age 60 and older, and to indemnify the State Executive Office on Aging with their intent to award the Agency on Elderly Affairs State funds: Mr. Furfaro moved to approve C 2009-217, seconded by Ms. Kawahara, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for Council approval is communication C 2009-218. C 2009-218 Communication (06/03/2009) from the Fire Chief, requesting Council approval to apply for, receive, and expend the 2009 Rural Fire Assistance Grant to purchase 162 durable wild land firefighting headlamps in the amount of $9,004.60 which is 90% of the grant and the remaining 10% or $1,000.52 will be from the Kauai Fire Department's budget: Mr. Chang moved to approve C 2009-218, seconded by Mr. Kawakami, and unanimously carried. Mr. Nakamura: The next matter for Council approval is communication C 2009-219. C 2009-219 Communication (06/04/2009) from the Executive on Transportation, requesting Council approval to apply for, receive, indemnify and expend a Federal Transit Administration (FTA) Section 5311 and 5311(b)(2) Rural Transit Assistance Program (RTAP) grant for operational, administrative and training expenses for the County Transportation Agency in the amounts of $555,525 and $10,711, respectively: Mr. Kaneshiro moved to approve C 2009-219, seconded by Mr. Kawakami, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: On page 3, communication C 2009-202. C 2009-202 Communication (05/08/2009) from the Housing Director, requesting Council approval to decline the repurchase of Unit No. 602, Hookena at Puhi, located at 2080 Manawalea Street, Lihu`e, Kauai, Hawaii, 96766, and provide the owner with aone-year waiver of the resale restriction: Mr. Nakamura: I believe there is a request to defer this matter once again Mr. Chair from the Housing Agency. COUNCIL MEETING - 16 - June 16, 2009 Chair Asing: I believe it is to July 8 Council Meeting. Mr. Kawakami moved to defer C 2009-202, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: Mr. Chair, at this time if we could go to page 4 of the Council's agenda on bills for first reading Proposed Draft Bill No. 2319. BILLS FOR FIRST READING: Proposed Draft Bill No. 2319 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (Amending Article 27, Chapter 8, Kauai County Code 1987, relating to Shoreline Setbacks and Coastal Protection): Mr. Furfaro: I would like to move to approve even though I shared my concerns earlier and circulated the concerns from Earthjustice, but this is first reading and I would like to schedule a public hearing on July 22, and refer to the Planning Committee. Mr. Furfaro moved for passage of Proposed Draft Bill No. 2319 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for July 22, 2009, and that it thereafter be referred to the Planning Committee, seconded by Mr. Kaneshiro. Chair Asing: What I would like to do... there is a motion and a second. Before I go into discussion, what I would like to do is open it up to the public first. So with that, I would like to suspend the rules. There being no objections, the rules were suspended. Chair Asing Is there anyone in the public who would like to testify on this bill? CAREN DIAMOND: Aloha Councilmembers. Mr. Furfaro: Aloha. Ms. Diamond: My name is Caren Diamond and I am a coastal advocate for the northshore. It is totally disappointing to see the County promulgate a bill like this. It actually goes against State law, it goes against the whole coastal zone management way of law. Basically, if you read the way the agenda item was sent over and the way it was written as it was sent over, pretty much you have no idea what it is talking about. So I just want to just put it down COUNCIL MEETING - 17 - June 16, 2009 into regular language. Basically, what this is asking for is for all the things that have minor permits to be allowed to proceed without doing a certified shoreline. And in talking to the Planning Director, what he said was that all those things were permitted. They are allowed under the minor permit section, so why should we make people do a certified shoreline. Basically, even though those things are permitted and what we are talking about is walls, fences, planting the beach... all the things that cause problems on the beach and if Planning wants to permit those, they have to get a certified shoreline first to determine whether they are below the shoreline, above the shoreline, on public trust area in County jurisdiction, State jurisdiction, where the public is allowed to be. Basically what the County wants to do is say, skip all of that, never mind, and I want to quote and read from the second supplemental planning report that was submitted to the Planning Commission. It says, while the certified shoreline is the formal process for determining legal jurisdictional boundaries, it is unreasonable to assume that registered professionals, surveyors and engineers are unable to judge where the shoreline is without certification, and are unable to exercise judgment regarding whether certification is necessary. Well, that goes against State law. The surveyors, none of those people are allowed to do that. That is a State function... 205A, H.R.S. governs how things on the coastal zone are managed and where development happens. These structures that are being... that under minor permits, those are still structures that is still development. No development can happen on the coastal zone without it being in the proper place, so it baffles me that Planning would even ask for this. Basically, I ask for you to... as Mr. Furfaro has asked, send it to your legal team, have them review it because I do believe that maybe that would put an end to this discussion. I also want to say that the coastal erosion study that this County Council funded for three (3) years with County public money is done. Mr. Furfaro: It is not done. We just had an update. The photography work is done and I will be glad to give you a schedule of its estimated completion this Fall, but I would like to give you the whole list of what we covered last week. Ms. Diamond: It is almost done and this is an interim bill and the proper place and time to really go over any kind of changes to this bill would be when the coastal study gets implemented into this bill. Since the `70's the shoreline setback bill was never updated, never. Why does Planning want to all of a sudden update it right now and to answer one of the things that I know Mr. Bynum is favoring is this Lydgate improvements that need to happen. During the time that Planning has tried to change these rules, they could have gotten a certified shoreline. It is not that big of a deal and instead they changed the law and changed the rules... it is not beneficial to the public trust, it is not beneficial to the beach... in fact, it makes (inaudible) of our beach. That is what it does. It gets rid of the public trust, it gets rid of the County's responsibility and waives the State's responsibility, and it waives the State's responsibility to... and... it is really poor and so I ask all of you to reject these whatever you want to call them... things that detract from a really good setback law, and protect the public trust. Our beaches COUNCIL MEETING - 18 - June 16, 2009 are the most valuable resource that we have whether it is for the visitors, whether it is for. the people who live here or cultural identity, everything is right on the coast. And when you allow development to happen there and make it easy for it to happen, that doesn't serve the public trust. I would ask you to look at Isaac's letter, look at Earthjustice letter... I believe they lay out the legal reasons why this bill shouldn't go forward. Chair Asing: Thank you. Any other questions? Councilmember Furfaro? Mr. Furfaro: Yes, first of all, I think you know that in my Committee, I am following up with the letter from Earthjustice as well as the concerns that Isaac raised. Ms. Diamond: Thank you. Mr. Furfaro: As they conflict with Hawaii Revised Statute 205A- 43. They are going to look into that. I suspect that we will have some response by the time we look at a scheduled workshop. Secondly, you do understand when the request comes from Planning, it is put in our Committee by request, so this is a bill that did come out from the Planning Department, not from the Council per say. Ms. Diamond: I understand that is why we hope the Council will actively review that bill... Mr. Furfaro: Yes, but I wanted to make sure for the record... you had mentioned other particular Councilmembers and, quite frankly, I wanted to make sure for the record that we knew that material was requested by us by Planning. And then also, thirdly, I have asked the County Clerk to give you a copy of the projects that I put in summary in my Committee as my starting point as Chairman, and hopefully they will have that for you today. Ms. Diamond: Thank you. Mr. Furfaro: Okay, thank you Mr. Chair. Chair Asing: Any other questions for Caren? I have one. Caren, can you do me a favor by trying to put the specific different items of concern that you have, so I be looking at those. Ms. Diamond: You mean in writing? Chair Asing: Yes. Ms. Diamond: Yes, that is fine. COUNCIL MEETING - 19 - June 16, 2009 Chair Asing: Will you please? Ms. Diamond: I will do that. Chair Asing: I would appreciate that. I am sure Councilmember Furfaro would appreciate... Ms. Diamond: And you can look at my testimony to the Planning Commission. I didn't write fresh testimony for today. I will put my thoughts down, but my Planning Commission testimony reflects my thoughts. Chair Asing: Okay, thank you. Councilmember Furfaro? Mr. Furfaro: Just one more thing along that line. You know, we have various Committee Chairpersons and I just want to, again, reiterate... when we come up for first reading in my Committee and as Chair, I will raise the concerns. I also want you to know that when we get into the actual public hearing and then go into the first Committee workshop, I will have someone from the Planning Department available to make their presentation as well as their rationale, and that is just going to be my modus operandi. Ms. Diamond: Thank you. That will be helpful. Mr. Furfaro: Okay, thank you Mr. Chair. Chair Asing: Thank you. Thank you very muEh. I'd like to call the meeting... unless there is anybody else who wants to speak. Nobody, the meeting is now called back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: We have a motion on the floor and we have a second. Councilmember Bynum? Mr. Bynum: Thank you Mr. Chair. I just wanted to say that my... as I said earlier, I haven't had these documents long, so I haven't fully studied them. My understanding is, the intent of this legislation is not at all to undermine the legislation that we passed here last year, and I think I could speak for all of us that we are proud of it, and I hope... well, I won't speak for all of us. I think it is an important bill that helped protect the shoreline and my understanding of this legislation... that its intent is that when we have minor improvements in the shoreline area and an example that Ms. Diamond brings up is walkway that we need to do at Lydgate Park to make it ADA compliant. It is relatively minor... there is no... but if we have to go through certified shoreline and a big legal process, a project that may cost only $20,000, the planning could be $100,000, so I think the intent is to do that. I certainly won't vote for anything that undermines the COUNCIL MEETING - 20 - June 16, 2009 integrity of the shoreline bill that we worked so hard on and... but this is a bill for first reading which means we are bringing it into the system here and the Chairman of the Planning Committee, Mr. Furfaro, I know will do the due diligence to address any concerns of Ms. Diamond and others would have. And so I wanted to be clear that a vote on this bill today at first reading just puts the process in doing the due diligence and the deliberations to make sure that we don't pass anything that inadvertently undermines the intent of the shoreline setback law. Thank you Mr. Chair. Chair Asing: Thank you. Councilmember Furfaro? Mr. Furfaro: Yes, and keeping the spirit of working with other Committee members, you know, we are restricted to no more than two (2) of us communicating information and I extend an invitation to Councilman Bynum when I meet with Imai from the Planning Department to have a better understanding of this bill, so I extend that invitation to you today at 3 o'clock. Thank you. Chair Asing: Councilmember Kawahara? Ms. Kawahara: Thank you Chair Asing. I just wanted to also voice my concerns. They are similar to Committee Chair Furfaro and I appreciate the clarity that you are going to bring to the issue when we come back to it at Committee, so I appreciate that, but I do have some concerns and they are similar to yours. Thank you. Chair Asing: Thank you. Any further discussion? If not, roll call. The motion to approve Proposed Draft Bill No. 2319 was then put, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST PASSAGE: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: At this time, we are back on page 3 of the Council's agenda. CLAIMS: C 2009-220 Communication (05/26/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Shiannte Makanani, for damages to her vehicle, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2009-220 to the County Attorney for disposition COUNCIL MEETING - 21 - June 16, 2009 and/or report back to the Council, seconded by Ms. Kawahara, and unanimously carried. C 2009-221 Communication (05/27/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Janice S. Bond, for damages to her vehicle, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2009-221 to the County Attorney for disposition and/or report back to the Council, seconded by Ms. Kawahara, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: My apologies Council Chair. On the top of page 4 which are two (2) further claims. C 2009-222 Communication (05/29/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Richard E. Hurst, Sr., for damages to his vehicle, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2009-222 to the County Attorney for disposition and/or report back to the Council, seconded by Ms. Kawahara. C 2009-223 Communication (06/03/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Eric "Rick" Fogel, for loss of personal property, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2009-223 to the County Attorney for disposition and/or report back to the Council, seconded by Ms. Kawahara. Mr. Furfaro: I do want to also make note that claims under $5,000, the County leaves that jurisdiction to the County Attorney and will not be required to come back to us. Thank you Mr. Clerk. Chair Asing: Thank you. Next item please? Mr. Nakamura: The next matters for approval are Committee Reports. COMMITTEE REPORTS: BUDGET & FINANCE COMMTTEE REPORT: A report (No. CR-B&F 2009-19) submitted by the Budget & Finance Committee, recommending that the following be approved as amended on second and final reading: "Bill No. 2305 AN ORDINANCE AMENDING ORDINANCE NO. B-2008-673 AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR COUNCIL MEETING - 22 - June 16, 2009 JULY 1, 2008 THROUGH JUNE 30, 2009, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE PUBLIC ACCESS FUND (Appropriation of $1.85 million from the Public Access Fund to Black Pot Beach Park Expansion-Land Acquisition)," Mr. Kaneshiro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for Bill No. 2305) Chair Asing: Next item please? Mr. Nakamura: From your Committee on Planning, Committee Report CR-PL 2009-04. PLANNING COMIVIITTEE REPORT: A report (No. CR-PL 2009-04) submitted by the Planning Committee, recommending that the following be received for the record: "PL 2009-1 Communication (6/04/2009) from Jay Furfaro, Planning Committee Chair, requesting that Ian Costa, the Planning Director, be present to provide an update on the following projects: 1. County Zoning Ordinance (CZO) Update -Phase I 2. Zoning Digitization/Geographic Information Systems (GIS) Project 3. Coastal Erosion Study 4. Lihu`e Town Core Urban Design Plan 5. Lihu`e Development Plan Update 6. Important Agricultural Land (IAL) Study," Mr. Bynum moved for approval of the report, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please? Mr. Kaneshiro: Bill for second reading. Chair Asing: We will take a caption break. There being no objections, the Chair called for a recess at 11:00 a.m. The meeting was called back to order at 11:20 a.m., and proceeded as follows: Chair Asing: Mr. Clerk, next item please? Mr. Nakamura: The next matter on page 5 of the Council's agenda is a bill for second reading. BILLS FOR SECOND READING: COUNCIL MEETING - 23 - June 16, 2009 Bill No. 2305 - AN ORDINANCE AMENDING ORDINANCE NO. B-2008- 673 AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2008 THROUGH JUNE 30, 2009, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE PUBLIC ACCESS FUND (Appropriation of $1.85 million from the Public Access Fund to Black Pot Beach Park Expansion-Land Acquisition): Mr. Bynum moved to approve Bill No. 2305 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Kawakami. Chair Asing: Any discussion? Councilmember Furfaro? Mr. Furfaro: Yes, I was hoping that, for the record, we could make note that this is an earmark until such time that the Public Land Trust comes back to us, giving us an update on August 26 I believe. Is that correct Chair of Budget & Finance? Mr. Kaneshiro: Yea. Mr. Furfaro: So I just wanted to read that into the record. Chair Asing: Okay, any further discussion? If not, what I would like to do is suspend the rules. Jennifer, I believe you have something to say. JENNIFER LUCK, KAUAI PUBLIC LAND TRUST: Aloha Councilmembers, for the record, Jennifer Luck from Kauai Public Land Trust. I just wanted to come up and mostly say thank you for your support of this project and your backing of the project. As you know, it came before the Budget & Finance Committee last week and gave you an update on the status of funding. Some of that was unfortunate news, but at that meeting, there was mention made of a possible letter or resolution to Governor Lingle asking for her to reconsider her decision not to release those Legacy Land Funds. And I just wanted to come up and encourage you to consider doing that as well. I think that would be a tremendous show of support from the Council in addition to, of course, earmarking these funds. So thank you again so much for your support of this project and I look forward to reporting back in two (2) months with some good news. Chair Asing: Thank you. Any questions? If not, thank you very much. I'd like to call the meeting back to order now. The meeting was called back to order, and proceeded as follows: Chair Asing: We have a motion and a second. Any further discussion? Councilmember Furfaro? COUNCIL MEETING - 24 - June 16, 2009 Mr. Furfaro: Yes, Mr. Chair, I don't want to be out of line here, but I am assuming that you will initiate the correspondence to the Governor as Chairman of the Council of the whole? Chair Asing: Yes. Mr. Furfaro: Okay, very good. Thank you. Chair Asing: And that can only be done... well, should only be done after its passage. Mr. Furfaro: Understood. Chair Asing: It was on the Committee level, so it was not sent until... Mr. Furfaro: I just thought of the urgency... it is better if it is a letter from you rather than wait through to July before we do a resolution. Chair Asing: Yea, well, it will be a letter signed by me, but from this Council in its entirety. Mr. Furfaro: Very good. Thank you for that clarification. Ms. Luck: Thank you. Chair Asing: With that, any further discussion? If not, roll call please. The motion to approve Bill No. 2305 was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: With that, can we have the County Attorney up please? There being no objections, the rules were suspended. Mr. Castillo: Council Chair, I guess we are going for the next matter for your consideration. Chair Asing: Yes. COUNCIL MEETING - 25 - June 16, 2009 Mr. Castillo: It would be ES-389. ES-389 Pursuant to Haw. Rev. Stat. sections 92-4 and 92-5(a)(4), and Kauai County Charter section 3.07(E), the purpose of this executive session is to consult with the Council's attorney regarding the charter amendments adopted in the 2008 General Election and other related matters. This 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. Chair Asing: Any questions? If not, I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: And have a motion to move into executive session. Mr. Kaneshiro moved to go into executive session on item ES-389, seconded by Mr. Kawakami. Chair Asing: Councilmember Bynum? Mr. Bynum: We... this was on the agenda last time and I had a long list of questions that we didn't get completed. Also, we have requested certain documents from the County Attorney's Office which we haven't received the complete set at this time. So I just wanted to ask my colleagues that I felt that at least for me to completely ask the questions that I am interested in, I wanted to review those documents, and I would be willing to entertain a motion or get feedback from you about whether this item might be deferred to the next meeting. Chair Asing: I don't want to defer it. I want to just get it done. With that, any further discussion? Ms. Kawahara: What documents? Mr. Kaneshiro: I think before we can even make a motion to defer, we have to get into executive session first and have some discussion which is, I believe the motion on the floor. Chair Asing: Okay, any further discussion? Councilmember Bynum? Mr. Bynum: (Inaudible) would like to go into executive session. I don't object to that. Will we come back into public session subsequently to that? Chair Asing: I don't believe so. We could do it, but... COUNCIL MEETING - 26 - June 16, 2009 Mr. Bynum: Okay, then I would like to make a statement. Chair Asing: We are going to move into executive session and have the discussion first. Mr. Bynum: Are we going to come back into open session? Chair Asing: Yes, we can do that. You know, I don't believe that we need to do that. There is no items here on the agenda that warrants us coming back into open session. Go ahead. Mr. Bynum: This agenda item is regarding Charter amendments that were in the last election. One Charter amendment in particular is very significant for the County of Kauai and the purpose of (inaudible)... of the special counsel was to advise the Council regarding the implementation and other aspects of that Charter amendment. Initially in July of last year prior to the election, we authorized $50,000 for special counsel and we didn't hear anything back from the special counsel prior to the election. We didn't... we heard later after the election in January and at that January meeting, we learned that an additional $70,000 of funds had been expended above the $50,000 that was authorized. I expressed real concerns about the process about which that occurs, looked at the contract which is a public document that, to me, was very clear that said to the special counsel that no work could be completed without an amended contract. And so this brings up process issues. It also was a great concern to me that at that time, we had spent $130,000 and I still hadn't heard the kind of guidance that I had hoped would be coming from this. The... I believe the Council's instructions were clear at that point. We authorized that day an additional $100,000 for a total of 150, and I think the Council was clear that there would be no further authorizations or no work should go beyond that without further authorization from the Council. Mr. Castillo: Excuse me. You know, the matter in what you are touching upon does involve the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County. So right now, I think it is... this matter should be within executive session and not in open. So, anyway... Chair Asing: Councilmember... Mr. Castillo: Because you are talking about the work that was purportedly done... you are talking about the work product that was anticipated... that you anticipated to receive, you are talking about the contract and the parameters of the contract. All of these are... should be dealt with in executive session. Chair Asing: Councilmember Bynum? COUNCIL MEETING - 27 - June 16, 2009 Mr. Bynum: Mr. Castillo, if I just keep my comments related to the funding that we've approved in open session? Mr. Castillo: Basically, you know, what you are talking about is you are still talking about the funding and the level of the work product. It would still... and that would still involve the liabilities or the privileges and duties of this Council and this County. If you basically said in general, I had expectations which were not met. If you said, in general, I would like... I have information that... I requested information that I did not receive, then that is in general, and it is open. However, what has happened in this past... what you just said does involve specific amounts, does involve contractual amounts, does involve contractual issues, and the work product received. All of this... all of these should be executive. Mr. Bynum: I will accept your guidance on this. I thought that all of my comments were general in nature and that was my intent. Mr. Castillo: That is why you have an attorney representing you. Mr. Bynum: Thank you Sir. Chair Asing: Councilmember Kawahara? Ms. Kawahara: Thank you Chair Asing. In general, I have serious reservations about... can I say this contract? Mr. Castillo: Well, again, your... you cannot say in general and say, I complain about this. That... it starts from in general and then it goes into a specific, and that would not be appropriate because it does affect the liabilities of this Council and the County. Ms. Kawahara: So I want to assure the public that my main goal is to enact the amendments and especially the main amendment that I believe a lot of people are most interested in, and that is the amendment about aligning our growth with the General Plan which is what we amended in the past election. In general, what was your words? Mr. Castillo: You know, I know what you have characterized... you have characterized for you what is the main amendment and what I can talk to you about is what... the contract, I agree is public record, however, the contract talks about doing work on all of the amendments. Ms. Kawahara: Yes. Mr. Castillo: Whether or not you give weight to which amendment you give weight to is your opinion on which of the amendments you think is important. You know, for some amendment 1 may be more important than COUNCIL MEETING - 28 - June 16, 2009 amendment 2, but the purpose of going into executive session at this point in time does involve the liabilities of the Council, so I don't know how... right now, you started with in general, then you went into specific, so I don't know how you can go around that. Ms. Kawahara: In general, I am unhappy with the lack of product that we have. Mr. Castillo: See, and then... you are commenting on the work product and it does involve counsel and it is for, right now, the subject matter is appropriate for executive session, and shouldn't be out in the open. You know, we are not trying to hide anything from the people. All I am doing is telling you what the law is and the subject matter that we are talking about now is covered by the law which should not be... which is appropriately for executive session. Ms. Kawahara: Uh huh. Mr. Castillo: And I know... you know, the way you feel about how things were done, the level of work that was done, the amount of money that was paid, those are all within... those involve everything right now should be in executive session. Chair Asing: Any further questions? Ms. Kawahara: Alright, I think I have... Chair Asing: You have another question? Ms. Kawahara: No, I can't figure out how to ask the question, so... Chair Asing: With that, Councilmember Furfaro? Mr. Furfaro: Yes, Al, I would like to say that, you know, perhaps I don't have expectations that were met, but more importantly, I would like to move into executive session to basically say, first of all, when the amendment passed, the rules in general are that there are 20 days to in fact verify that election. If the bills in particular, amendment number 6 was not date specific, it is then 30 days after that, that it is enacted, so just to answer my colleagues across the table, the fact of the matter is, we need to know what kind of liabilities we have exposed to us because the bill is enacted and there are interpretations being made by sub departments of the County that are having people who are applying for particular permits and so forth. Actually signing affidavits. I would like to get to a point although I am not satisfied at the moment on what those liabilities might mean. So I will, in fact, support going into executive session for those reasons. Chair Asing: Thank you. Councilmember Bynum? COUNCIL MEETING - 29 - June 16, 2009 Mr. Bynum: I just want to say that my earlier comment was a suggestion because I have not received all of the documents. I know I will right. Chair Asing: The idea for the executive session is so that you can receive the documents that is why we are going to go into executive session. Why would you not want to get the information when we are going to go into executive session and get the information? Mr. Bynum: Nobody told me the documents were available to us and I am not... Chair Asing: Okay. Mr. Bynum: I am not... I am happy to go into executive session. I will vote for it. I just was trying to explain myself. You know, if I don't receive the documents today or I don't have ample time to study them. Chair Asing: Then you vote accordingly on how you feel. You are one of seven (7) Councilmembers. We vote on the issue after discussion and everybody has that same equal opportunity for both discussion in total and your vote, so you have total freedom. That is the intent. Mr. Furfaro: I would like to call for the question. Mr. Bynum: May I continue? Chair Asing: Go ahead. Mr. Bynum: I agree with you what you just said. I am not objecting us going into executive session. I just want to say that if I don't receive the documents today or have ample time to study them, I would like us to be able to continue to discuss this until we reach that point. So I will probably ask that it be on the agenda again. Chair Asing: With that, any further discussion? If not, I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: And have a motion to move into executive session. Mr. Furfaro: I think we have a motion and a second Mr. Chair. Call for the question. Chair Asing: With that, all those in favor say aye? COUNCIL MEETING - 30 - June 16, 2009 The motion to move into executive session on item ES-389 was then put, and unanimously carried. There being no objections, the Chair called for a recess at 11:35 a.m. The meeting was called back to order at 12:35 p.m., and proceeded as follows: ADJOURNMENT: There being no further business, the meeting was adjourned at 12:35 p.m. Respectfully submitted, -~... ---.---, PETER A. NAKAMURA County Clerk nki