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HomeMy WebLinkAbout07-22-2009 Council Minutes COUNCIL MEETING July 22, 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 Wednesday, July 22, 2009 at 9:10 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. Kawakaml (excused at 5:30 p.m.> Honorable Bill "Kaipo" Asing, Council Chair APPROVAL OF AGENDA: Mr. Furfaro moved for approval of the agenda as circulated, seconded by Mr. Chang. Chair Asing: Next item please? PETER A. NAKAMURA, COUNTY CLERK: Next matters are approval of the minutes of the following meetings of the Council. MINUTES of the followin~meetin~s of the Council: Council Meeting of July 8, 2009 Public Hearing of July 8, 2009 re: Bills Nos. 2291, 2317, and 2318 Special Council Meeting of July 15, 2009 Mr. Furfaro moved for approval of the minutes as circulated, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: Mr. Chair, at this time, there is a request to go to page 3 of the Council's agenda for communication C 2009-259. C 2009-259 Communication (06/16/2009) from the Councilmembers Lani T. Kawahara and Tim Bynum, requesting agenda time to discuss the following: 1) Councilmembers' access to the agenda. 2) The placement of public documents, including meeting minutes on the County's website. 3) Equitable and timely circulation of Council Services documents. 4) General access to information by the public and Councilmembers. [Referred 06/16/2009] COUNCIL MEETING - 2 - July 22, 2009 Chair Asing: Thank you. Mr. Furfaro: Mr. Chair, I would like to support letting them go first. Chair Asing: Yes, we will. We will take that as the first item on the agenda and this is the way that we will handle it. What we will do is we will take public testimony at this time first. We will open up the meeting and have the public testify. After we get through with that, we will call the meeting back to order, and then I will ask Councilmember Bynum to make a presentation, and then I will ask Councilmember Kawahara to make a presentation. After they have made their presentation, I will make a presentation, and then I will come back, and we will have full discussion from all the Councilmembers, so that is the way that it is going to be handled. Mr. Furfaro: Thank you Mr. Chair. Chair Asing: Thank you. So with that, what I would like to do is open it up to the public. Do we have a list? Mr. Nakamura: Yes, we have registered speakers. The first registered speaker is Rich Hoeppner followed by Glenn Mickens. There being no objections, the rules were suspended. RICH HOEPPNER: My name is Rich Hoeppner. Councilmembers, Mr. Chair. Chair Asing: Good morning. Mr. Kaneshiro: Good morning. Ms. Kawahara: Good morning. Mr. Hoeppner: I had a Sergeant when I worked with the Burkley Police Department in 1964 who advised that stuff flows downhill from Federal to State, to local governments, and then to citizens. I have seen it happen time and time again in the last 40 years. The past eight (8) years, Bush Chaney violated signed international treaties, U.S. Constitution, and the Geneva Convention with impunity. Then Superferry gets an exemption from State law through the Governor's Office that the Supreme Court declares illegal. Then the State Legislature and the Governor sign Act 2 into law that the Supreme Court declares unconstitutional. Now we are down to local government who violates the Sunshine law with executive sessions that the State OIP declares illegal. A Charter amendment is passed in the last election and the Planning Commission violates the law by passing permits for transient vacation rentals in violation of that Charter amendment. Why should our young people obey laws when people elected to government post violate laws with no advanced adverse consequences? Through petitions and education, we have the people aware enough to stop the Superferry on August 26, 2007 from coming back to Nawiliwili Harbor. Last year, we got petition COUNCIL MEETING - 3 - July 22, 2009 signed to get a Charter amendment on the November ballot which the citizens passed nearly 2 to 1. Derek, Dickie, Daryl, Jay, and Kaipo don't ever doubt that we can't do the same to end your political career unless you reject the good ol'boy secret system and get behind attempts to provide transparent legal government here on Kauai. Decisions are expected from those elected. Not committees, not consultants, and not the outside attorneys who are not accountable to the public. Stop this committee move to have three (3) foxes study how to best protect the chicken house. Thank you. Chair Asing: Thank you. Mr. Kaneshiro: I have a question. So would you say that since the Charter was adopted in 1969, January 2nd, then each and every one of the four (4) members or five (5) members you mentioned would also apply to all of those people that served as Honorable Councilmembers during the period of time. Mr. Hoeppner: Well, that gets into a personal opinion and I think we may have to have an executive session on that. Mr. Kaneshiro: That's funny. Thank you for such a, you know, a straight forward answer. Chair Asing: Thank you. Can we have the next speaker please? Mr. Nakamura: The next speaker is Glenn Mickens, followed by Don Heacock. GLENN MICKENS: Good morning Councilmembers. Chair Asing: Morning. Mr. Kaneshiro: Good morning Glenn. Ms. Kawahara: Good morning. Mr. Mickens: Good morning Daryl. You have a copy of my testimony and it is not very long. You can go over with me if you want. My name is Glenn Mickens. In my opinion... this is regarding C 2009-251. In my opinion, this issue can be solved in either of two (2) ways and there is absolutely no doubt that our Council rules need changing. I commend Lani and Tim for raising this issue and I applaud all the members of the public showed up out here today who have taken their time to voice their opinions on getting more openness in our government. First, I do not believe that we need any three (3) member committee to solve this problem. I believe that you seven (7) Councilmembers that we elected should be able to go over these rules one by one completely before the public and with total public input, and correct the mistakes that now exist. This will obviously take some time... probably down in the CounciUCommittee workshop, but with public participation, I believe it can be COUNCIL MEETING - 4 - July 22, 2009 done. If a three (3) member committee is the choice of the people, then I would highly recommend that the people of that committee be chosen by the people, and not by members of this Council. It seems to me that the fastest and simplest way to accomplish this task is my first solution and I highly recommend it. Chair Asing: Thank you Glenn. Questions? Councilmember Furfaro? Mr. Furfaro: Yes, thank you. I just want to caution people that testimony specifically related to the proposed review of the rules is a separate agenda item. The items that we are addressing right now are the four (4) items that Mr. Bynum and Kawahara got unanimous support from this Council to approve their communication to do this study. So I just want to share that... Glenn, do you know when a1121 of the rules were last reviewed? Mr. Mickens: I have never seen them reviewed in the 15 years that I have been coming here Jay. Mr. Furfaro: And so I want to make sure that the public understands that the agenda item is for four (4) items in the rule. The rules to the best of my knowledge in reviewing this were last reviewed in 1988. Mr. Mickens: '88. Mr. Furfaro: That is 21 years ago. The second thing that I would like to make sure that everybody understands is... I understand that I am speaking off the agenda and I will honor what you are going to tell me, but I want to make sure that people don't have all the information as to what items we are addressing now. ALFRED B. CASTILLO, JR., COUNTY ATTORNEY: I am sorry Councilman Furfaro, but Mr. Chair, I believe that the topic for discussion right now is agenda item 259. Chair Asing: Yes. Mr. Castillo: And Mr. Mickens started off by saying, I'd like to discuss 251. So the rules are the Chair can give Mr. Mickens the latitude of speaking on whatever he wants to speak to; however, the correct ruling on what the Council may discuss can only be 259. I am sorry. Mr. Furfaro: Mr. County Attorney, I want to thank you for that correction. I started off reminding the audience that that is not on the agenda, but that would be a separate item later about reviewing the entire package, and I apologize to my colleagues if I strayed. Mr. Mickens: Jay, I do appreciate that. I did make a mistake I guess because I should have been... I have a testimony for 259. I thought this was 251... Daryl, you didn't stop me. Mr. Kaneshiro: I am not the Chair. COUNCIL MEETING - 5 - July 22, 2009 Mr. Furfaro: Well, we both made a mistake Glenn, but again, I want to reiterate that the items that we are hearing right now are the items restated by the County Attorney. Mr. Mickens: Okay, I will be back to 259. Chair Asing: Councilmember Bynum? Ms. Kawahara: Wait, 259 is... Mr. Bynum: I just want to say that the County Attorney correctly stated, you know, that generally boards will provide a wider latitude to the members of the public who want to speak and OIP has opined that, you know, but the board members themselves are held to somewhat higher standards, so I just wanted to echo that the County Attorney is correctly implying that. Mr. Mickens: Well, may I come back for 259 or... Ms. Kawahara: 259 is now. Chair Asing: We are on 259 Glenn. Mr. Bynum: 251 comes later and then you will have an opportunity to testify. Mr. Mickens: But I did testify to 251, so I've got 259, and that is why. Mr. Furfaro: You can come back for 251. Chair Asing: Thank you. Mr. Mickens: Thank you very much. Chair Asing: Can we have the next person please? Don? DON HEACOCK: Thank you Mr. Chair and members of the Council. I didn't submit a testimony, but I would like to say that I am totally in favor and commend Councilmembers Bynum and Kawahara for the item on the agenda which is "C" as in Charlie, 2009-259. I am in favor and strongly support that Councilmembers access to the agenda be as open, transparent, and immediate as possible that the placement of public documents including meeting minutes are all on the website including public documents would be any letters received from the public or agencies. I agree with all four (4) of these recommendations. Ithink really what it boils down to here today is we are all trying to work together for two (2) things. We want to help the people of Kauai and we want to keep Kauai the place we love the way we want. We can only do that if we work together. There has been a lot of... I want to also say that I... let's see, so I can or cannot address the special committee at this point? COUNCIL MEETING - 6 - July 22, 2009 Mr. Furfaro: Cannot. Mr. Heacock: Cannot. Very good. As far as adopting these procedures or the... Bynum and Kawahara recommended, these seem to be essential for not only the Council, but for the public which you represent to make informed decisions without proper information... the proper decisions can't be determined. Thank you. Chair Asing: I have a question Don. Mr. Heacock: Yes Kaipo. Chair Asing: What makes you feel that you are not getting proper information? Mr. Heacock: Well, I think there are two (2) things. People... it is, you know, I feel uncomfortable because I can't talk about other issues at this, but information comes out in two (2) ways. What we find and feed to the Councilmembers we elected and the information that is available on the worldwide web which is virtually everything. Any subject is on there, but if only a handful of Councilmembers know some information and the other ones don't, it doesn't seem democratic. Chair Asing: How do you know that? Where did you get that information that some members get information and some others don't? Mr. Heacock: I got it by doing something I rarely every do. I watch t.v. and I watched some of the past Councilmembers... Council meetings on Ho`ike and that is where I got that information. I was quite frankly appalled. Chair Asing: Okay, thank you. Mr. Kaneshiro: I have a question. For a person like me that doesn't use any website, I don't rely on making decisions by looking at websites and so forth, how would that apply? I mean I don't really go onto the website and many of you have tried to contact me, but, you know, I am the old fashioned way. I go there, I pick up the agenda, I look at what is coming up, I will read it, and if I need to research it, I will research it on my own by not using the website. Mr. Heacock: And that is perfectly okay. Mr. Kaneshiro: So then your, you know, statement that the website would give equal opportunity to everyone, I am not certain that I can understand that because I don't use it. Mr. Heacock: Let me amend what I said. Mr. Kaneshiro: So am I treated unequal at this point? Mr. Heacock: No, you would still get hard copies of all that, but we would save reams of paper if all of these things didn't need to get printed. COUNCIL MEETING - 7 - July 22, 2009 Mr. Kaneshiro: Well, that is a little different. Mr. Heacock: Well, you are asking more specific questions and I am giving you a more specific answer. Mr. Kaneshiro: Specifically, you stated that, you know, we weren't being equal. You made a statement that because the website is not up and giving this information, but I feel that I can get whatever agenda item, I can get whatever information without going to the website. Mr. Heacock: Well, that is true. Mr. Kaneshiro: Now what you are saying something about saving paper, then I think... Mr. Heacock: Well, let's just imagine that you had to (inaudible) to every registered voter on Kauai, what that would cost? Chair Asing: What I would like to do... have you gotten your answer? Mr. Kaneshiro: I got my answer. Chair Asing: Okay, then fine. Thank you. Tim? Mr. Bynum: Thank you for your testimony and I agree with Councilmember Kaneshiro that there are different ways to access information. I have had concerns about both avenues and we will discuss those today. Mr. Heacock: Very good. Thank you. Chair Asing: Thank you Don. With that, can we have the next speaker please? ERNIE PASION, DEPUTY COUNTY CLERK: Ken Taylor followed by Elli Ward. KEN TAYLOR: Chair and members of the Council, my name is Ken Taylor. I did turn in an item that you have all received. It basically says, government could be transparent. Transparency promotes accountability and provides information for citizens about what their government is doing. Government should be participatory. Public engagement enhances the government's effectiveness and improves the quality of its decisions. Knowledge is widely disbursed in the society and the public officials benefit from having access to that disbursed knowledge. Thirdly, government should be collaborative... collaboration actually engages the community and the work of their government. I really don't feel that you folks have been transparent in a lot of issues and it is unfortunate. That is my feeling and I'd like to remind all of you that both at the December meeting last year and at the first meeting in January, I asked that we look at rules and regulations before you adopt them. But I would also like to just point out in COUNCIL MEETING - 8 - July 22, 2009 reading from open meetings, the sunshine law from the State of Hawaii. It is says that the intent of the sunshine law is to open up governmental process to public scrutiny and participation by requiring State and County boards to conduct their business as openly as possible. The Legislature expressly declares that it is the policy of the State that the formation and conduct of public policy... the discussions, the deliberations, and decisions and actions of government agencies shall be conducted as openly as possible. Now, I am just going to say my opinion has been that that has not taken place well in the past and I hope that through these processes that we are going through, we will see some major changes to the benefit and the benefit of the community as a whole. Thank you. Chair Asing: Thank you. Can we have the next speaker please? ELLI WARD: Good morning. Thank you for this opportunity to participate in the process. I follow Council meetings through the Internet and Ho`ike. Oh, my name is Elli Ward. I would like to state first of all that it was painful to watch the Ho`ike telecast of the tragic (inaudible) that unfolded in the June 3 County Council Meeting seeing newly elected officials leaping through hoops, so that they may be allowed to .enter an item on the agenda at some future fantasy date that really diminished the dignity of the office. I have to commend Councilman Bynum for his perseverance and determination as he moaned about having tried for over two (2) years to get this done. What I would describe as rubbing salt on his wounds is to see listed on top of today's agenda which I know has been changed. Anew Resolution for another new committee proposed by two (2) other members of the Council who evidently do not need to do any leaping, dancing, and begging like he had to. I am here because two (2) Councilmembers are asking for 1) equal access to the agenda; 2) for the County's website to include public documents and meeting minutes; 3) equitable and timely circulation of Council documents; and 4) general access to information by Councilmembers and the public. All four (4) items to do contain any strange, mysterious complicated formula or any foreign language. This is Council business that can be taken cared of by all Councilmembers who represents constituents who have put their faith and trust in their judgment and desire to act in the best interest of the community. Why not just go down the line and have each Councilmember who have not taken a stand on each issue do so, and give your reasons for not agreeing on any one or all four (4) of these items. We, the public, who are in support of all four (4) items have a right to know where you stand... at least enlighten us about the reasons that may have eluded us so far for your non-support. There may be other rules of Council that need revising, amending, eliminating, etc., so be it. Just have a balanced committee who will be conducting their meetings openly. With our current grim economic situation crammed with foreclosures, furloughs, layoffs, you know better than most. I would think that our Council has a plate overflowing with problems to deal with. Please do not postpone any decision on this item. You have plenty more waiting for your deliberation and judgment. Thank you. Chair Asing: Thank you. Mr. Bynum: Thank you very much. Ms. Ward, can we get a copy of your testimony? It appears that it was in writing. COUNCIL MEETING - 9 - July 22, 2009 Ms. Ward: Can I just leave it? Mr. Bynum: Yes please, thank you. Chair Asing: Thank you. Can we have the next speaker please? Mr. Pasion: The next speaker is Carol Bain followed by Rob Abrew. Chair Asing: Is Carol in? Can we have the next speaker please? Mr. Pasion: The next one is Rob Abrew. ROB ABREW: Aloha Councilmembers. Chair Asing: Aloha. Mr. Abrew: My name is Rob Abrew for the record. I am here on behalf of myself and I will represent anyone else. I appreciate the Council taking this first agenda item today with the request from the members. It was very nice of you. One... I have heard some questions today... someone mentioned the last time the rules were updated was 1988. Well, a new Council is set every two (2) years and in your obligation are to look over the rules and adopt rules and regulations for that Council. Now you guys are operating on rules that were formulated in 1988. Mr. Furfaro: I would like to answer one question if I could County Attorney. The rules that were created in 1988 were voted on eight (8) months ago and they were unanimously approved again. Mr. Abrew: Correctly. Thank you very much. So obviously we are, what, 25 years, 27 years down the road with not creating any new rules and guidelines for this committee updating for the recent changes. First, on the Councilmembers access to the agenda. I understand that everyone on the County should have access to the agenda to see what is on the agenda on the next thing. Council people putting things and requiring items on the agenda should be followed. The rules state... in your rules, 15b states that all agenda items shall be placed and received by the County Clerk two (2) weeks by Friday, 4:30, before the meeting. Obviously, we are not following that rule because, today, we have three (3) or two (2) communications with Resolutions attached to them that is going to be decided today. As a public member, this was received... these agenda items were received about 4 o'clock on Thursday afternoon. The agenda was received at 7:05 Thursday evening. For a member of the public would be correct... Friday morning he looks for the agenda, he sees it on the website or anything, that person sees that there are items that he might want to testify. One of the things about the sunshine law is to allow the community to read, research, and check items on this agenda, so if they have testimony, they can compare for testimony, so you have until 4:30 to come all the way down to the Council office, go to the Council, and ask them for these communications and documents. COUNCIL MEETING - 10 - July 22, 2009 Then you have Saturday and Sunday which is not a business day, so if someone was working all day Friday, they couldn't come down and receive those communications until Monday. So now they have Monday to prepare testimony and bring it to you, and then Tuesday is another... so on three (3) agenda items, the public had three (3) days to review, to have access, and review documents. Chair Asing: Rob, your three (3) minutes is up, but I will give you an additional... well, hang on. How many speakers do we have? We have two (2) more. Aside from the two (2) that is listed, could you read the names please Peter? I just want to know how many people are going to speak today. If there is a lot, then I would like to have those of you who are here now an opportunity first, but if there is not a lot of speakers, then I will let him finish up his testimony. So how many more? Do you want to read the two (2) please? Mr. Nakamura: Actually, it is just Carol Bain registered speaker. Chair Asing: Just Carol Bain. Okay, why don't you finish up. Mr. Abrew: Thank you Chairman. So pretty much that deals with the first two (2) things on this. Equitable time for circulation of Council Service documents, then, again, Councilmembers had Friday, Monday, and Tuesday to read these communication that turned into Resolutions to come here and talk about them and vote on them. How can they get any public input or any ideas or talk with any constituents in three (3) days. The next one is general access to information by the public and Councilmembers. Ibelieve it was either yesterday or Monday that I came down and asked for the rules for this committee. I got a copy of the rules. There is no official stamp that these were received or verified as an official document for the Council. There is no seal, there is no stamp received by the County Clerk. These are official documents for the County Council. How can we be giving copies out that aren't official? Mr. Furfaro: I just want to ask a clarification. Do you have a copy of the Resolution that shows the vote and the signature of the Chair? Mr. Abrew: No. Mr. Furfaro: You do not have Kaipo Asing. Mr. Abrew: I got this from Council Services. Mr. Furfaro: You have answered my question, but there is a set that shows the vote and the cover Resolution with the Chair's signature. Mr. Abrew: The other issues that I have is before May 28 on the County Council websites, all of our agendas are posted for the last, probably two (2) years. Anything up until May 28 does not have a received by the Clerk stamp on it. There is no official time when those were received. One of my issues in this County is this County has had problem after problem after problem after problem in every department about timelines. You've got to start from basics, make sure you guys cover the basics of getting this stuff, and not releasing documents that aren't official documents. This all goes into discussion. Now as what we should do, I feel that COUNCIL MEETING - 11 - July 22, 2009 this committee should all participate in the rules and regulations of this committee. I think every meeting should be open and available to the public to come and testify, and if it takes three (3) Saturdays, four (4) Saturdays for a month for you guys to come in... one of the reasons you guys got a raise, was so you guys could have more time, and not have to rely on outside income to come and do this. This was one of the reasons why the Salary Commission pumped it up, so you didn't have to work full-time jobs, and this could come more of a full-time job. So that would be my suggestion. Include the public in this rules and regulations if we do decide to do it in the discussion. Chair Asing: Thank you. Can we have the next speaker please? Mr. Nakamura: The next speaker is Carol Bain followed by Alice Parker... and the next speaker would be Alice Parker followed by Charles Braun. ALICE PARKER: Good morning Council. Mr. Furfaro: Good morning Alice. Chair Asing: Good morning. Ms. Kawahara: Good morning. Ms. Parker: I would like to echo Elli Ward and Ken Taylor's testimony. I thought it was very good and also Councilmember Kaneshiro. I am a computer fob, I hate it, and I watch Ho`ike, and watch the things there. I get a lot of mending done that way, so I do want transparency. I need to see what is going on because I care about the community and the people. And I would love to see Tim Bynum's and Lani Kawahara's suggestions adopted because I don't think... we need to see the opinions of the County Attorney release, so that we know what is happening with the Council, what the liabilities are. Thank you. Chair Asing: Thank you. Can we have the next speaker please? Mr. Nakamura: The next speaker is Charles Braun. CHARLES BRAUN: I came to talk about the plastic bags. Chair Asing: That is on a later item. We are on communication C 2009-259 and you are talking about the bill which will come later. Mr. Braun: (Inaudible). Chair Asing: No problem. With that, can we have the next speaker? Okay, Mr. Coll? ED COLL: Councilmembers, for the record, my name is Ed Coll. I (inaudible) the blog about this situation and I predicted that... what would happen in terms of publishing on the web was that you would print out copies, scan them back in, so they weren't text searchable. That is exactly what happened. I wrote a letter to the editor and several days later, thank you, it was fixed. My COUNCIL MEETING - 12 - July 22, 2009 question though is that... that takes technologist... that takes extra work to print something out, scan it back in as an image, and then post it. What is the purpose of that? It is more inefficient when all you have to do is take the electronic file and convert it to PDF and put it up there, so it was done for a reason. I tried to think of the reason. I only reason that I could think of is to make it more difficult for people to cut and paste things that they want to talk about in testimony into their document. Unless you can give me an explanation that makes sense, I look at people's actions, and then action (inaudible) frustrate input by the membership. Another thing is we are paying... right now as we speak, there is somebody sitting in Honolulu listening to my voice and your voices captioning this thing in real time open caption which we are paying a great deal of money for. Why isn't this program going out to all of the people of Kauai as we speak? There is absolutely no reason. It is going up to your offices. A member of the press can sit back there and watch the thing and people can be in their office and then come wandering in when they want to. That technology, you guys have access to, we the people don't, and there is no reason why not. And so my concern is an attitude. It is not a technological problem. It is not even a significant cost problem to make all of those four (4) things that run (inaudible) petition done. And one thing that could be done... people could be watching this within a week all over the island and not have to be driving in, taking time off of work, taking time away from their families... it could have been done ten (10) years ago and yet it is still not done. The question that I have is why? I don't see any barriers and if anybody here thinks that it is a problem of cost and technology, I am ready to answer any questions in that regard right now. Chair Asing: Councilmember Furfaro? Mr. Furfaro: Thank you for your testimony as well as your article in the Garden Island. I am not as close to this as perhaps you are. I do read my e-mail, I do respond and so forth, but I believe and also in talking with Ron's issue... some of the issues dealing with the word document is, in fact... I know for myself as an official that the PDF file that actually shows my signature... that I acknowledged it, that I approved it, that I voted... to me first blush and I am not... I don't have that kind of technical background like you do... I think that is very important for me to make sure that, you know, my signature is scanned in that PDF file. That is the only answer that I can give to you on that. The second piece in Ron's comment is... if it is a word document, you know, it is very hard again to have a time-stamped document circulating electronically. I am not trying to answer your question, I am only trying to give some rationale of thinking and, therefore, that is one of the reasons eventually we will talk about reviewing all the other rules. Thank you. That wasn't a question, that was just a comment. Mr. Coll: I figured it was. Chair Asing: With that, thank you. Councilmember Chang? Mr. Chang: Yes, thank you. Thanks Ed for your testimony. You know, on a personal note, I am not sure how accurate we are regarding trying to do something live ten (10) years ago because I had inquired about that years ago, but my explanation why things weren't doing live was that the building was so old that COUNCIL MEETING - 13 - July 22, 2009 electronically the wiring of this building couldn't do it live. Now, you are right about the technology. There is a technology right now that you could have someone. I will give an example, not an endorsement... Hawaii Stream for example... they can put in their machine, they can tap into B.C., and we would essentially see it on about a ten (10) second delay, but you could see it live. One of the reasonings that that is not happening is when you say time caption, yes, Sammie is in Honolulu time captioning, but there are times that she has to rewind back when we got to pause just so she can listen, so she can record it correctly, so by tomorrow afternoon or hopefully by tomorrow evening at the latest, it would be on Ho`ike. Now for the rest of everyone listening, there is presently an RFP right now as we speak and one of the requirements is to show the Council meetings live which will help out with our ability to get quote, unquote, minutes out a little quicker, but when this RFP, whoever gets the account, by the next day or certainly by the next day or two (2), we would be able to see it almost immediately. The only delay would be is when the Council needs to go to executive session or there is an unforeseen break in the action... what they will do then is they will re-edit the piece, edit the piece down, edit the piece down, edit the piece down, which you understand, then it will be one flawless role that everybody can see the video. Now on top of that, when you talk about this rule here or the plastic bill rule or the no drinking of alcohol between 11 and 6, all of these will be marked and screened, so if there is a topic that you just want to speak of, the very next day in this perfect world, you should be able to not have to go through the whole Council meeting, but you can break it down by items that will make it access and very accurate for the public. So I just wanted to let you know that is currently in place right now as we speak. Mr. Coll: Well, that is all... like I said, it was done ten (10) years ago, number 1. Number 2, I could take a... I could walk back there to where he is and I could hook that up and broadcast it for the entire island right now if I (inaudible). So if they are receiving it in their offices, I could be receiving it in my home. You don't have to be Internet streaming or anything, all you have to do is you just take that signal and IT can record the whole thing on hard disk as it is going out on the Internet. You can put it up on an archive and you can mark index it, and do all that, and that could have been done years ago. So people that have been on the Council (inaudible)... nobody testified on this issue saying why don't we have live broadcast of these video tape meetings. And there is no answer other than you don't want to do it. It is pure and simple, it would have been done, and I know because I had this contract for a year and we wanted to do it and we couldn't get anywhere. What I am saying is not a technological solution in terms of PDF and word files and all that sort of thing... you should talk to your IT Department. The solutions are already there for that. You are creating solutions (inaudible) because of lack of knowledge. So what I am seeing is that when I predict something is going to be difficult and show exactly how it is going to be done, and then I see that you do it, I am real suspect, you know. What you want to do seems like to me is have as much information coming to the people, so that you can get legitimate feedback for them. And I will quote (inaudible) he said he who plucks out the people's eyes (inaudible) them for their blindness. That is what is going on here. I have seen many Council meetings on t.v. where somebody will correct... COUNCIL MEETING - 14 - July 22, 2009 Mr. Furfaro: Ed, we had to pose you a question to give you that extra time. I certainly appreciate all of the overview that you gave us and, yes, we've got lots to do with technology. Mr. Coll: Thank you. Chair Asing: With that, Councilmember Bynum? Mr. Bynum: I just want to say that I believe you are correct that there are no technical barriers to moving forward with these or if they are, they are minor. And I have asked these questions and asked them in writing. In terms of the Council minutes that are being posted, I also was dismayed that they were not created from originals and I think Councilmember Furfaro's point is correct. It would be nice to have the signature pages which often is one page of 100 or more, so those can easily be appended as you know. But, you know, there is a perhaps a hint to your clue and response we received regarding the UIPA request that Councilmember Kawahara and I requested public documents in May and have had that only partially complied with, but in the response, it says that they are having difficulties finding the original documents which, to me, has huge implications, but if you can't find the electronic documents, then... because we know that it is just a key stroke to convert them and it is important because... particularly for people with disabilities, it allows them to use the (inaudible) technologies to enlarge files and... so I have learned a lot about that recently, but when you scan the document and even if you OCR it, the OCR has many errors and mistakes and skips, and the documents are still huge in size, you know, 50 or 100 megabytes, so that is an issue that we really need to address and I am thrilled that we are beginning the dialogue here, so... but I don't believe there are any obstacle to that. I have asked for some time that our... because well as... I think another testimony is like... and I am thrilled about what Councilmember Chang is saying that we funded some time ago Internet live streaming, archiving, indexing, and I have been following up regularly... where is that RFP, why is it taking so long to get it out, it is government time, but it also needs to go on Ho`ike because for those people who are not computer (inaudible)... you know, Councilmember Kaneshiro has made a good point. We need to be fully engaged in the old style and fully engaged in the next style, so thank you for your comments. Mr. Coll: It is conversions and I agree completely. Chair Asing: Thank you. Mr. Furfaro: Mr. Chair, I would like to make one comment. Chair Asing: Before you do, let me have Mr. Kawakami please. Mr. Kawakami: I am glad that this was brought to our attention because this whole time I thought it was a technological barrier that prevented all of this from happening, but you said that you received a communication from IT saying that it hasn't, it is not that or... Mr. Bynum: We haven't had any technological barriers to do. COUNCIL MEETING - 15 - July 22, 2009 Mr. Kawakami: But I am asking you received something from IT, something written, communication. Mr. Bynum: I mean there are layers of issues on some of them, yes. Mr. Kawakami: Have you circulated it to the rest of us, so that we knew that... that this technological barrier wasn't (inaudible). Mr. Bynum: I believe it has been circulated. Ms. Kawahara: Yes. Mr. Kawakami: Thank you. Chair Asing: Let me clear up something. I held onto this because I did not have the correct figure. Let me tell you that I have here in front of me the County budget that we just passed. In the County budget, there is a line item, that line item is Ho`ike television video streaming, $200,000, so we have allocated funds for that study, and it is with the Finance Department at this time. So I want to make it clear that your assertion that we are holding it back is incorrect. We are, in fact, moving on it, but you make those assumptions that are totally wrong. Mr. Coll: I am not making assumptions and they aren't wrong. Chair Asing: It is wrong. Mr. Coll: No, it is not. Chair Asing: I am not going to get into an argument. Thank you very much. I appreciate it. Mr. Coll: Thank you for letting me respond to your saying that I said something wrong. Chair Asing: Thank you. Can we have the next speaker please? SANDRA HERNDON: Good morning. Ms. Kawahara: Good morning. Ms. Herndon: My name is Sandra Herndon for the record and I am here in support of the testimony that has been previously been given. And I thank you very much for bringing this forward because I think the transparency issue is a very big one for our community. And like Councilmember Kaneshiro, I have my own frustrations with the computer and probably my verbalization of that frustration is what a lot of my friends would say, no, I don't want to mess with it either. However, that is a choice. That is a choice that we all make whether we deal with it, but it being the Internet and all of that, we are not. And we all have choices and what I would like to add as a PS to the testimonies that have been given COUNCIL MEETING - 16 - July 22, 2009 is that when the public gets to the point where thy don't have viable choices, that leads to frustration. And what frustration does is it generates revolution. Now I am a peaceful pacifist person, but when people cannot be heard and when that is not followed up on appropriately, they get really angry. And so I just would suggest that it behooves all of us to work together to be clear about our communications, and to give each other choices, so that we can create the kind of community that we all want to live in. Ms. Kawahara: Thank you. Mr. Furfaro: Thank you. Chair Asing: Can we have the next speaker please? Mr. Nakamura: The next speaker is Carol Bain. CAROL BAIN: I am Carol Bain and I am representing myself. Good morning and aloha kakahiaka. Chair Asing: Aloha. Ms. Kawahara: Good morning. Ms. Bain: I am speaking regarding C 2009-259 and the County Council is a deliberative assembly of seven (7) elected individuals and you come together to decide on actions to be taken and toward that goal, you have adopted... I thought it was 20 rules, some said 21, but I know the final rule is Robert's Rules of Order. Mr. Furfaro: That was the 21St and it says that in rule 20. Ms. Bain: So I went and got my revised version because I will be paraphrasing... quoting some of today in my brief 200 word testimony here. But um... and in addition, you are guided by that and you are guided by our County Charter and... Mr. Furfaro: And OIP. Ms. Bain: State laws, sunshine laws, one of my favorite laws is HRS 92 and 92F and Federal laws in that order, and that is a deliberative body. The need for order to present and often the Chair takes that role and paraphrasing the needed control... paraphrasing from page 4 of this revised 2004 edition... the needed control must not only keep order, it must of course be geared on getting business done and resolving any issues that may arise. But even more important and this is the good part. It must do things in a way that is fair to everyone taking part in the process and I know that we are here today to try to make things right and fair. So fairness is the essence of why we are here and discussing the rules of Council... certainly the four (4) that are brought up and the others that are in the rules... discussing the rules of agenda setting is... and information access is important, so it has to be done in a way that is fair to every Councilmember and none of these laws and rules should be used to apostate or obstruct any COUNCIL MEETING - 17 - July 22, 2009 Councilmember's request, frinjant information or agenda input, and I would assume that those of you with 20 years experience might help those who are two (2) years experience and to really try to encourage things to be understood, information to be shared, and agenda items to be placed... not to just rush towards the efficiency and here it is, morning, 10 o'clock, and you are thinking, well how much else is on the agenda. But, of course, in a democracy we can't be always considered about the efficiency. So I am concerned about good government and so of course these above items could be enhanced through laws and rules, but the rules and laws can be tools to also delay, so we have to avoid that. So sometimes when things are delayed and maybe the customs are based on attitude... Chair Asing: Carol, your three (3) minutes are up, but I will allow you to continue. Ms. Bain: I have one more quote. Chair Asing: No problem. Ms. Bain: I will round it up. Chair Asing: No problem. Ms. Bain: And we need to use the rules of law to encourage communications, so to quote once more from Robert's Rules of Order, it is wrong to assume as many do that the President or Chair sets the agenda and it is common for the President to prepare a proposed agenda, but that becomes binding only if it is adopted by the full assembly. Now, of course, you have the County rule that may take precedence over Roberts and it is rule lOc, placement on agenda. All bills and resolutions must be initialed by the Chair, so you don't want to have a rule like that get in the way of agenda accesses is basically my point. You are going to look towards... and my three (3) recommendations are as the Chairperson, this is also from Robert's rules. A Chair should never be stricter than is necessary for the good of the meeting and don't err on the side of efficiency, err on the side of access and transparency, and the third is to renew and develop your attitudes of openness. So that is my general comment and I did get this in case you wanted me to find anything. Chair Asing: Thank you. Councilmember Furfaro? Mr. Furfaro: Thank you first and good testimony, but that is one of the reasons I do believe it is important for us to review all of the rules and I want to make sure that we understand that when we get to that item, this is not about delay, but you have pointed that out. Rule 10c conflicts with rule 20. Ms. Bain: Yes. Mr. Furfaro: Because rule 20 says that where the rules are silent, you refer to Robert's Rules of Order. Robert's Rules of Order implies that everything should get placed on the agenda. But in this case, it is subservient to rule lOc. COUNCIL MEETING - 18 - July 22, 2009 Ms. Bain: That is correct. Mr. Furfaro: So it has to be fixed. Ms. Bain: And I am glad that the (inaudible). Mr. Furfaro: And that is why we are here talking. Ms. Bain: what issues brought forward and I commend the entire board for opening this up and I am looking forward to 251. Chair Asing: Thank you and Carol, I want to say that I totally agree with you. Ms. Bain: I am glad to hear that. Chair Asing: Thank you. Ms. Bain: Aloha. Chair Asing: Can we have the next speaker please? Coun... I was going to say Councilmember Yukimura. JOANN YUKIMURA: Aloha Council Chair, Councilmembers, JoAnn Yukimura for the record. Ms. Kawahara: Aloha. Ms. Yukimura: I want to first of all thank and commend the Council Chair for allowing this issue to be first on the agenda and I want to thank all Councilmembers for supporting the request to have a discussion on these very important issues. I want to thank the Chair for... as he has outlined in his procedures and is proper for allowing Councilmembers Bynum and Kawahara to make the first presentations and I will trust that they will be allowed to give their presentations completely. Lastly, I want to say that any special committee should not be used to stop or slow down the resolution proposed on the key issues that are a subject of this communication. If these matters should be referred to committee, they should be first on the committee's agenda and the committee should be given a deadline... hopefully no less than two (2) months to send it recommendations back to the Council. And I say this because I remember in 1978, one of my first bills regarding ag land... to recognize condos as subdivision, so that they would be treated properly in the planning process was sent to committee and died in committee. A special committee, not of Councilmembers, but of Councilmembers and it never emerged and I think there is a fear out in the public that that is what will happen. And so you have pointed out that there is some need for discussion and suggestions about how to make agenda setting operational and fair. So I recognize that you may need some time to figure out the specifics, but I think giving some guidelines and deadlines would be very important to ensure that this issue is not sent to oblivion and is actually dealt with and handled as I believe is your intention. COUNCIL MEETING - 19 - July 22, 2009 And lastly, I want tot just say that, you know, this has been a controversial and difficult subject in many ways, but I think that Ed Coll has suggested that we could turn this into an opportunity and really use it to upgrade the Council's technology and ability to serve its constituents. We saw that with the State Legislature only in the last couple of years now. The ability to send testimony in, to track testimony, to, you know, has really improved and public access has been made very easy that way. I think there are things that we can do at the County level for this and I know there are different efforts underway. So I do believe that our ultimate goal, all of us, is for a well working County government that has openness and fairness and I thank you for your efforts in that direction. Chair Asing: Thank you and I want to reiterate again that that is exactly the reason for this $200,000 appropriation for that purpose. Ms. Yukimura: Yes and... Chair Asing: It was appropriated to get the information, so we can move forward with the new technology. That was the intent of the Council. Ms. Yukimura: Yes, Mr. Chair, and I was on the Council when we passed the first budget item for that and it hasn't happened yet. I think this was a carryover from the last budget, so I mean, putting it in the budget is one thing and actually making it happen is... involves more steps and I am glad that you are moving on that. Chair Asing: Ms. Yukimura, you well know... I am going to repeat it again. You well know that there is responsibilities that afforded this Council and we cannot interfere with the Administration and their ability to do work. We do our part and the Administration will have to do their part. It is malfeasance for us to go and tell them what to do, so I want to, you know, make it plain, so that everybody understands. We have our duties and we are performing our duties and we expect the Administration to do their part. Ms. Yukimura: Yes, Mr. Chair, and I think there may be some tangles that I am not familiar with more recently, but I know that the head of IT did tell me when I was on the Council that it could be done right away, so... and, you know, there are calendars and there are priorities, so we will see what happens. Chair Asing: Yes, I just want to make plain that we need to be careful. We can only do so much and the Administrations... ajob is to do their job. Ms. Yukimura: Right. Chair Asing: And so we want you to know that we are trying and this is why we have done what we have done. Ms. Yukimura: You are right that there is a separation of powers in County government and legislative bodies are not allowed to direct administrative departments. Chair Asing: Thank you. With that, Councilmember Furfaro? COUNCIL MEETING - 20 - July 22, 2009 Mr. Furfaro: JoAnn, thank you for being here today. I wanted to address two (2) of your items. First and foremost, you know, I want to say that the purpose of this committee and won't reference any committee that might get me cut off here, but you do know that the Council does have the ability to set up an ad hoc committee. Ms. Yukimura: Of course. Mr. Furfaro: Thank you and you also know that the Council cannot delegate its responsibilities to a committee. That committee has to come back to report. - Ms. Yukimura: It just has advisory powers. Mr. Furfaro: Purely as advisory and I don't think people quite understand that. The fact that we cannot delegate our responsibility to a committee. Ms. Yukimura: Well, I think... Mr. Furfaro: It is purely advisable... advisory... Ms. Yukimura: Right. I think it is just that people would like to see timely addressing of the issues. Mr. Furfaro: And in this particular matter, I couldn't agree with you more. Being a 36 year old... 36 year... I wish I was 36. 36 year old hotel veteran that finds myself struggling with electronic communications when I deal with it everyday. I press a button and I get an early bird report. What was the room revenue last time, how many covers did we do. I use it for booking (inaudible) banquet space, advanced reservations, advanced deposit... we move very slow here. I also want to say that there is a situation that is a public record right now and I want to make sure when we move, we move cautiously because I have tried to communicate information and I think both the members that are here that have been on the Council for some time with me, seven (7) years now, I have always made a practice to circulate information. In fact, I am cautious about these PDF files not just for the signature page, but for the nine (9) pages that preceded it because correctly, I have an investigation against myself for circulating a piece of information that I didn't even sign. So I just want to make sure that everybody understands that there is some caution about these things. And to date, I have spent my own money to give the answers to OIP. I haven't used County money because, first of all, I am saying that I didn't sign it, but, yes, the intent was to circulate it with the cover of the bill. Ms. Yukimura: I believe I was part of that. Mr. Furfaro: So that we all understand that it is like, when you start writing the lawyer the check from your own pocketbook, you want to make sure that we are doing right. But I want to assure you JoAnn that my intent of having this committee make recommendations that ultimately are this Council's decision. I am going follow. COUNCIL MEETING - 21 - July 22, 2009 Ms. Yukimura: Well, regarding the items on this present communication, my only request is that if they do go to committee and that is still a decision to be made to an advisory committee that there would be deadlines that they be asked to have these items be first on the agenda so that there can be some timely responses. Mr. Furfaro: I agree with you wholeheartedly on that. Ms. Yukimura: Thank you. Mr. Furfaro: The later resolution has a not to exceed number on it, but I think what you have said to move urgently on it if it goes to committee is very correct. Thank you. Ms. Yukimura: Thank you. Mr. Furfaro: Thank you for your testimony. Chair Asing: Thank you JoAnn. Ms. Yukimura: You're welcome. Thank you. Chair Asing: Next speaker please? ANNA CHAVEZ: Hello, good morning. My name is Anna Chavez and I have spent about 33 years in various roles in communication and I want to thank you very much. I know this is difficult and that you face difficult issues everyday. They are impossible for us, so they must be that times two (2) for you. But I am coming to you today with the different perspective and I am just going to summarize it very quickly. I have heard... I have listened carefully and heard your very thoughtful and mindful reasoning, and I have read and I have watched when I could, and you are talking about the mindful consequences of your vote. The intended consequences of your vote... because you don't want to do things online or it is difficult or it is confusing or a very excellent concept that you must validate the document before you put it on the web. The caution with which you approach this is really admirable and so I have heard your lessons, your opinions, about intended consequences of the processes that you choose. I'd like to just raise a concept for you today especially with these very emotional and controversial issues for those of us as voters. Ms. Herndon spoke about it earlier. There are negative, unintended consequences that are occurring with each of your votes. Some of them have to do with what we think. We are not experts, we are not inside your beltway, we are not on your websites everyday, we are just trying to live our lives, but some of the negative, unintended consequences of your votes include voters like me who keep thinking what are they trying to hide? So thank you from the bottom of my heart for taking an open view and hearing all the thoughts of the community before you make a vote whatever it turns out to be. Thank you for putting a record forward. We would love to hear a vote on your views of these difficult issues, but I urge you to think about not just the intended consequences of how you decide what you do, the reasons for it, and we all expect to have integrity behind your decisions. But I ask you humbly especially on these issues and starting with this one today to consider COUNCIL MEETING - 22 - July 22, 2009 the unintended negative messages you may be sending to those of us who are not experts inside your Chambers everyday. Thank you very much for having your hearing today. Thank you for sharing your thoughts both intellectual and practical. We appreciate it and on the issues coming forward today on your docket, I hope that the concept just in the back of your mind of negative unintended consequences can be there to balance the pragmatic choices, the difficult ones that we respect that you all have to make on our behalf. Thank you. Chair Asing: Thank you. I have a question for you. Do you want to sit down and maybe it is not a question. I want to commend you for what you said. Do you have a sense that... what all the Councilmembers are doing today and the response that we gave to different questions? Do you feel that we are being honest and open? Ms. Chavez: I am a communications consultant. What I do is a range of things related to looking at people's communication styles... the messages that professional goals and how they achieve them and I am going to say something from my heart of heart and I hope it is not offensive to any of you here. I think sometimes the historical reputation of local government, but especially here, unfortunately has happened on two (2) levels, hard working, smart, energetic, dedicated public servants in these walls work day in, day out, doing their best. Unfortunately, I believe that there is history, an indelible (inaudible) you might say, to many memories of things that have caused unintended negative consequences. And so (inaudible) with respect what I say is this feels like progress. I am so pleased and so happy that you have decided to open the venues and talk... let sunshine in, let oxygen in, let voices come together. Trust that the wisdom of the people will come forward to its elected representatives. To do that, we need transparency. I am in support of this initiative. Chair Asing: Thank you. With that, can we have the next speaker please? Is there anyone else who wants to speak on this item? Jimmy? JAMES GERARD TRUJILLO: James Gerard Trujillo for the record. Mahalo Chair Asing for allowing public comment on this. This is nothing that will be as eloquent words gracefully said as the previous speaker, but you hit it right on the head. It is with gratitude and appreciation for the work that you guys all do that I offer this and mahalo Councilwoman Kawahara and Councilmember Bynum for initiating this dialogue and the support that this body has given them in allowing a public forum where numerous people share their concerns and their thoughts, and it is something about leadership that I would like you to consider. The leadership that is demonstrated by this body, elected officials, but leaders in our communities and leaders amongst yourselves in support of the work that you are doing for us, the people. Thank you and mahalos for your attempts to bring this further out into the public whether you engage with local media at different times and different ways, this is what the public desires access and understanding of where you are at with this and why is this an important issue for you individually as a body and as a community, and so I thank you for that. And I think we speak for others who appreciate the leadership and the service that you have for our community and for these issues of technology, development, being progressive in the way that we handle our business. This is our business and you are tasked, your kuleana is great, and it is difficult for us to be supportive when we don't know, COUNCIL MEETING - 23 - July 22, 2009 when we don't understand the rules, when we aren't able to have that information. And sometimes it is... as the previous speakers mentioned, it was just a perception of, so, again, thank you and mahalo for engaging at another level and taking it to that place where the light shines. Chair Asing: Thank you. Can we have the next speaker please? Is there anyone else? You want to come up please. LAURA CONRAY (not sure on the spelling, did not fill out speaker form): Good morning. My name is Laura Conray. I am not prepared as others are today, but I had one question that I would hope to hear from each Councilmember on. I know that the idea of looking at our overall... the rules doing what you are proposing to do in the next discussion, but the one question that keeps arising and keeps being discussed is the idea that the Chairman who is elected by this group... the intent of what the rules are, I just don't understand why it is an issue to be gone to committee to discuss and to study when all of you were elected by the public. We all have entrusted to each of you by our vote the abil... and have trusted that you are... the ability to make decisions and to bring subjects that need to be dealt with to our Council. Why would any of you want the Chairperson including the Chairperson to have a position of selecting what issue should be discussed or be allowed to discuss within this group that anyone of you is no higher up than the other in their knowledge or their desires to do the right thing for the public. Why is that still a question as to why does it have to be discussed anymore that you all can't make that decision and clarify that, that surely you don't intend for one person on your board to be making those decisions. So I would ask each of you if you could respond to that if that would be appropriate. Chair Asing: No, that would not be appropriate. I am sorry, but it is part of the rules, but I will tell you that I am so, so happy and glad of what you just said. And if you stay around, you will get my view, my interpretation of what you just said. So stay around and I will be making a presentation and you will have my version and you will not have the version of the newspaper or anyone else. You will have it from me as the Council Chair, so you will have that answer today from me. Ms. Conray: Thank you. Chair Asing: Thank you. With that, Councilmember Bynum? Mr. Bynum: Laura, thank you for your testimony. Thank you for you... in my opinion in getting to the crux of the matter that is the most fundamental thing that we will talk about here today and I will answer you yes. We should all have the ability as your elected officials to place matters before this body for discussion subject to the management of the Chair, so I will answer you because, to me, that is fundamental to the democratic process. Chair Asing: Thank you. Councilmember Furfaro? Mr. Furfaro: And I will answer the question about the rules... were you at the inaugural in December? COUNCIL MEETING - 24 - July 22, 2009 Ms. Conray: No, I was not. Mr. Furfaro: There was a request from the audience for us to go forward and review the rules. The request came from the public. We have several people who were part of that request in the audience today. Now we find ourselves perhaps using this opportunity since we are going to address the concerns and we unanimously agreed to address the concerns that Mr. Bynum and Kawahara raised to also have this opportunity to look at all rules, but the request also came from the public that day. Ms. Kawahara: I would like to answer her question. Chair Asing: Go ahead. Ms. Kawahara: Thank you. I will answer your question. I definitely support open government and transparency. I absolutely believe that all Councilmembers... you are elected officials have the right and should demand the right to be able to place things on the agenda for the constituents. Thank you. Chair Asing: Thank you. Can we have the next speaker please? Is there anyone else? Glenn? GLENN MICKENS: Thank you Kaipo. For informational purposes, I had... should I wait until the 251 comes up before... Chair Asing: You are going to have to. I will be breaking the rules if I do that. Mr. Mickens: Okay, so then can I have my other three (3) minutes to read by 259? Chair Asing: Yes, you can, go ahead. Mr. Mickens: Thank you Kaipo. For the record, Glenn... Chair Asing: Glenn, I must tell you that, you know, for those of you that don't fully know and understand that this Council... I am talking about Kaua`i... this Council has the most, most, remember that, most open policy on accepting comments from the general public. As an example, if you went to Maui to testify before the committee and the Council meeting, you would have one opportunity and that is up front when they start the meeting, you have an opportunity for three (3) minutes, one minute closing for any item on the agenda and you are done, that is it. So I want to tell you that for all of you here, the so- called openness, the ability to testify, we are the best. So, you know, again, public sometimes you get this information that is fraud, that is colored, that you don't understand, but I will tell you that and that is not the only County either. So, you know, bear in mind that what you perceive may not be correct. What somebody else has told you may not be correct, so stick around and you may get the correct answer today from me and other Councilmembers. Thank you. COUNCIL MEETING - 25 - July 22, 2009 Mr. Chang: Chair, if I could just add one thing for the audience. Just to let everyone know... if you... hello, hello... if you had the opportunity to testify and some of you may have testified in Honolulu for any reason or another, please keep in mind that when you do testify on Oahu, you only got one (1) minute. You are basically in and out, so thank you Chair for that explanation. Chair Asing: Thank you. Ms. Kawahara: Chair, thank you. I wasn't aware that we were discussing actual testimony, public testimony. I totally agree that we have the most generous policy on having people come and testify from the public, but that wasn't the issue of our communication. The communication was on things that we are not doing a good job on that we believe and it wasn't to do with public discussion because I do believe that we have the most generous public discussion, public testimony rules. Thank you. Chair Asing: Thank you. Mr. Mickens: Thanks. Chair Asing: Thank you Glenn. Mr. Mickens: Thanks Kaipo for your generosity. I made the mistake. Okay, let me read my testimony. It won't take over three (3) minutes. Chair Asing: I am sorry, you are done. Glenn, you are done. Go ahead. Mr. Mickens: Where is your generosity? Councilmembers Bynum and Kawahara tell us that communications and materials relating to Council agenda items to which they are entitled are withheld and censored by the Council Chair and presumably under his direction, the County Clerk. Well, the actual facts involved are private to the Councilmembers and cannot be verified by the public. If the contentions are accurate, the inferences are a shameful abuse of the rights of the Councilmembers. Similarly, if such materials are not known to and made available in advance to citizens testifying a similar deprivation of rights again occurs. The Bynum/Kawahara claims have been publicly proclaimed for well over a month despite an outpouring of letters, e-mails, and petitions from our citizens... the silence of the four (4) members of the Council other than the Chair and Bynum and Kawahara is deafening. The issues raised by Bynum and Kawahara raise critical questions about the integrity of the operation of the Council that need to be answered. If the Bynum/Kawahara claims are well taken, it is not an acceptable option for the other four (4) members of the Council to remain silent. I call on members Chang, Furfaro, Kawahara, and Kaneshiro each to promptly identify and explain their position on the contentions made. Their statement should enable the appropriate resolution of the questions presented and end the public outrage that now exist. I know the figure has been basically, you know, pointed at you and our County Clerk and, you know, I think there are other responsibilities here besides this, so that is basically what I am asking in my letter. Thank you Kaipo. Chair Asing: Hang on Glenn. Councilmember Furfaro? COUNCIL MEETING - 26 - July 22, 2009 Mr. Furfaro: I might ask you if you want to revisit your testimony because you implied that Councilwoman Kawahara was silent when you read it, you also said that you hadn't heard from me. I just want to go back there. That first week, I granted an interview to the Garden Island. I answered all their questions. I also took the time to write an editorial regarding some of the assumptions made by members... a member who was part of the Ethics committee to correct some of the correspondence and I have also co-sponsored with the Chairman our policy statement that we would work towards getting electro... so I am kind of struggling with the fact that you said that I have been silent. Mr. Mickens: Not silent, maybe your clarity to the public wasn't there and that is all that I think we are asking Jay. Mr. Furfaro: Well, you can talk to the Garden Island about that. They didn't quote everything correctly. Mr. Mickens: Okay, I will talk to Mike. Thank you. Chair Asing: Councilmember Kawahara? Ms. Kawahara: Thank you Chair. Mr. Mickens: No, the silence wasn't on you. Ms. Kawahara: Yea, your testimony does say other than Kawahara. It was a different name and you said Kawahara, so you meant a different member. Mr. Mickens: I am sorry for that. It was confusing. That is not what I meant. Ms. Kawahara: Okay, thank you. Mr. Mickens: Thank you. Chair Asing: Glenn, let me just answer you this way. I never, never respond to questions that come out of the newspaper. I never do that. Whatever people want to say in the newspaper is their business. They say what they want to say and there are many, many times that information is totally false, totally incorrect, but I will not answer the newspaper. That is not my function. My function is to do my job here on the Council floor. Everything that I believe in, everything that I want to do is here on the floor. It is not the newspaper. I don't go to the newspaper to talk, I talk here, so you are being represented, the general public here on this floor. You are not being represented by me going to the newspaper, that is not what you do. That is wrong, wrong, wrong, and I don't do that, so I stay here in these Chambers and I work and I respond to questions coming from you, coming from everybody, Councilmembers, on the floor. That is where it should be and I will keep it that way as far as I am concerned. I have done that for 27 years and I am not about to change. Thank you. COUNCIL MEETING - 27 - July 22, 2009 Mr. Kaneshiro: I had a question for Glenn Mickens. Mr. Mickens, did you ever ask me for my opinion? Mr. Mickens: No, I guess personally haven't asked for that, for your opinion. Mr. Kaneshiro: That is all. Mr. Mickens: But I think what the public I think is asking Daryl is for the silence of the members that aren't bringing these matters up to go ahead and voice their opinions. I think that is what the young lady. Mr. Kaneshiro: Well, I am not going to voice it through the paper. If I am going to voice it, we will voice it here in a communication and we are here to do that. Mr. Mickens: See and again, the pa... Mr. Kaneshiro: And at the same time, you know, I am open if anyone wants to stop me on the side. I have a cell number that is 24 hours open. I don't go on the website. I told you that I don't conduct my business on the website, but you can also call me and you can get my opinion. Mr. Mickens: But as you know, the newspaper for the majority of the people on the island aren't capable of sitting here at the Council Chambers and they may not be able to watch Ho`ike, so they have to rely on what the paper said. As you saying Kaipo or Daryl, if you aren't responding to paper or if this paper is false, the information isn't getting out to the people that, you know, that they should be then. Chair Asing: Thank you Glenn. Mr. Mickens: Thank you Kaipo. Chair Asing: Is there anyone else? Is there anyone else who wants to speak a second time? Mr. Taylor? KEN TAYLOR: Chair and members of the Council, my name is Ken Taylor. Thank you for your generosity. I spoke earlier about transparency and I want to follow up on some issues that was raised by Ed Coll. Many communities across the country when you go on their website and look at their agenda, you can scroll down and if you are interested in reading the minutes, you can punch on the minutes and you can bring the minutes up and you can review them. You can go down to other items on the agenda and you can click on them and you can get staff reports or other documents that are pertaining to that particular item. Those are the kinds of things that I believe are part of the transparency in local government. I think that this is really an important issue that needs to be done. It is nothing new... in communities all over the country, they have been doing it for 20, 25 years or more and it is in big communities, in small communities, and there is absolutely no reason why it can't be done here. I've talked to the gentlemen that does the website here and he said that there is no problem with doing that. It just requires COUNCIL MEETING - 28 - July 22, 2009 somebody to say do it. I talked to the t.v. people and I said what would it take to go live broadcast. They told me it was about 100 foot of cable. I don't know what the $200,000 is for, but if 100 foot of cable cost $200,000, then maybe we were shopping in the wrong store, but the point is, we can get this done, we are not having to reinvent the wheel, it is being done all over the country and it is time for us to step up to the plate and move forward. Thank you. Chair Asing: Thank you. Councilmember Bynum? Mr. Bynum: Just to answer your question. The $200,000 is for streaming video on the Internet and we have been waiting for it. This Council supported it unanimously and it has taken a while. I understand the bids are going out very soon and... but I also agree with you that live broadcast on Ho`ike is something that we certainly could have worked out much sooner. The tools that are available in terms of the use of the Internet have been available to us for a number of years. So there aren't technical difficulties and the money that we funded is for live streaming and archiving, and if it is done properly, it will have those elements that you can go on and click on the agenda and see that portion of the meeting. And I believe also that the minutes should be linked to that as well when they become available, so thank you. Chair Asing: Thank you Ken. Is there anyone else who wants to speak? Ed? ED LOLL: Yes, Ed Coll for the record. Just a clarification. Kaipo said, I thought that they had $200,000 for Ho`ike and then I just thought I heard Councilman Bynum say that they had $200,000 for Internet streaming. Am I to understand that Ho`ike is going to be doing the Internet streaming? Chair Asing: Ed, listed here on this budget page, Ho`ike television video streaming, total $200,000, that is what is here. Now what we have done is we passed this over to the Finance Department and the Finance Department will make the decision on how to do it, what to do it to get the job done, so it is... Mr. Coll: It is not going out for competitive bids (inaudible). Mr. Bynum: Yes it is. .Chair Asing: It is. Mr. Coll: So how is Ho`ike assume to be getting it? Chair Asing: I can't tell you that. All I can tell you is this. We have passed it onto the Finance Department and they are going to be making the decisions on how to do it to be within the... to make sure that everybody gets an equal chance I am sure. I mean it is a procedural thing that they need to do and we will leave that portion up to the Finance Department and it is not our function, so that is the only answer that I can give you Ed. Thank you. Go ahead. COUNCIL MEETING - 29 - July 22, 2009 Mr. Bynum: Mr. Coll, this is something that I am really interested in and so I read the RFP, had dialogue with the IT Department repeatedly, and it will be a competitive bid. I think maybe it says Ho`ike and I may not be right about the dollars and which line item, but I know that there is the intent to do streaming video and it may say Ho`ike because of who the provider is that, you know, the vendor who does that, the final outlet would be through Ho`ike. So Ho`ike, I assume, will bid on it and I assume other people will as well. Mr. Coll: Well, in that case, I would just say that $200,000 is way too much money. Chair Asing: Ed, let me do it this way. You know, we appropriate $200,000 and if the Finance Department feels that it is too much, then they will cut it back. I mean, you know, we need to make sure that we... Mr. Castillo: Mr. Chair... hello, County Attorney Al Castillo. This matter for discussion is not appropriate at this point in time. Chair Asing: Thank you. Thank you Ed, appreciate it. Mr. Coll: Thank you. Chair Asing: Can we have the next speaker please? I see one hand in the back left corner. ANDREA BROWER: Good morning. My name is Andrea Brower and I am speaking as an individual this morning. I just had a few brief general thoughts that I wanted to share. I am looking around the room and this is pretty typical. I'm... me and the reporter are pretty much the only young people here and I kind of just wanted to address why we haven't seen more activity of people, you know, in their 20's and stuff and our local County government. A common perception that I think is wrong is that young people are apathetic and they don't want to do anything except maybe surf and watch t.v. and I don't think that is true. I was barbequing with a bunch of my friends... you know, born and raised here... this weekend... the conversation turned back to... as it usually does, the things that people are really frustrated by and there are a lot of things and they... most people my age don't feel that there is any avenue for them to have their voice heard or anyway for them to step up and make a difference. And I actually was called by one friend this weekend who was crying because she had just found out some news related to some development issue, and, again, she said, why does this keep happening? Who is making these decisions and is our government just so corrupt that everything gets made behind closed doors and the voice of the people aren't being heard because obviously people who are young don't have a voice in determining the future of the island. And I am not saying that I agree with that perception that there is corruption and it is just all the deals are made behind closed doors and there is whole power structure. I think that is a very over simplistic analysis of the situation, but when basic access to information has turned into such a major issue and when, you know, Council meetings have been deci... Council Committees have been decided prior to the first Council meeting and when issues that the community really cares about seem to take a really long time to get down or avoided or skirted around, then it does feel like there is something going COUNCIL MEETING - 30 - July 22, 2009 on, and there is something to hide. And so I am just... I am asking you to search your hearts, ask yourselves why is it that so many feel this way, why do young people in particular feel this way, and why do people feel like it is so hard to have their voice heard in a democracy because in a truly functioning democracy, people shouldn't feel that way, so there has to be a reason for it and that is all. Chair Asing: Thank you. I am glad you said what you said and let me do this. One of the reasons is that maybe some people are getting information that is being incorrect, so people are spreading information wrongly and that is probably one of the reasons unfortunately. Ms. Brower: Well, I think it is really hard to get... I mean that kind of is a sign of our times. It is hard to get good information when you have the web and anybody can pose any information. There is always misinformation flying all over the place, but at the same time, it also feels like the issues that are presented aren't necessarily addressed head on. For example, we've been talking about the length of testimony in this meeting when I think the real issue is censorship and if certain Councilmembers feel like they are being censored, then that needs to be addressed. Chair Asing: And it is being addressed. Ms. Brower: Yes, and it is. I also just... it was a thought that just popped into my mind and it is something that I wanted to offer to Councilmembers. If anybody is ever interested in me hosting, you know, some sort of talk story with 20 or so people who are more my age and just kind of getting a sense of where the issues that are most passionate about our... then I think that will be something really beneficial for the general public and for all of you. Chair Asing: Thank you. Ms. Brower: Thank you. Ms. Kawahara: Thank you. Chair Asing: Can we have the next speaker please? Is... ROB ABREW: Thank you Chair and members. Once again... Chair Asing: You know, I really gave you two (2) opportunities, but I will allow you. Go ahead. Mr. Abrew: Thank you Mr. Chair. Chair Asing: To show you how overly open we are. Mr. Abrew: Thank you very much. There was a speaker earlier that brought up the word unintentional outcomes. One of the unintentional outcomes I think that is happening is we have these rules for this Council. There are 22, 25 years old. I as the public member of... this is all that I have to go by... these printed rules to see if you guys are doing what these rules say, so when I ask COUNCIL MEETING - 31 - July 22, 2009 a question to various members of the Council of what is going on, why isn't it following this rule, my resp... the response was, oh, we haven't done that for a long time. Well, the unintentional consequences that is... there is a perception in the public that you are not following the rules that you guys have voted in here to guide you just like Ms. Brower said. The corruption, the unintentional outcome of not following what is printed, what the public has in print and what you guys decide up here. I guess my biggest question is, is this Council ran by these rules that you guys adopted in two thousand... when you guys started your term. Is every rule in here followed or do we have various different timelines now, are there timelines that agendas need to be given to the Chair in time? All those things when it comes up, that you guys are discussing, we see one thing, you guys have other ideas or guidelines what you are following, there is where the unintentional consequent comes up to where we don't know what to do as the public. What is guiding us as the public to make sure we do what we need to do and you guys as elected persons are doing what you need to do. My question is, is every rule in here in effect? Chair Asing: Yes. Mr. Abrew: Okay, and is that... will this be until the rules and regulations are updated through public hearings and everything, will this Council continue using these rules? Chair Asing: We follow the rules. Mr. Abrew: Thank you. Chair Asing: Thank you. Mr. Abrew: Thank you for clearing that up and... Chair Asing: And let me again, for the public, the rules are adopted when Councilmembers take office. It is at that particular time if Councilmembers feel that they want to have rule changes, that is the time to do it, so we are afforded the opportunity every Councilmember has an opportunity. When we make reference to... but the rules are 25 years old, they are not 25 years old, they were adopted on December 1, 2008. If you had any problems, bring it up, otherwise we are saying, guys, here are the rules, study it, it is going to be on the agenda. It is on the agenda. Study, look at it, if you have some problems, bring it up, we will discuss it, and we will change it. So it is on the agenda, the rules are current. We are not talking about we operating with 25 year old rules, it is rules that were adopted in December of 2008, so get that straight. Again, slanted, misinformation, somebody says 25 years old, and the perception now is 25 years old. You heard it from the Council Chair here in these Chambers. Mr. Abrew: And thank you for clearing that up for myself because I can use this as a guide to put testimony in and ask questions. Chair Asing: Thank you. Mr. Abrew: Thank you very much Kaipo. COUNCIL MEETING - 32 - July 22, 2009 Ms. Kawahara: Hi Chair. I wanted to address you. Yes, those are rules of the Council and we do follow them. They... the Chair is absolutely correct. When we are sworn in to office, we do look at those rules and we vote on them. The rules though are allowed to be changed for the reasons o£ if it is desirable or needed. If there is something in the rules as time passes because time is... time passes, we see how those rules work, there is the option and there is the need to always look at your rules. We are told to adopt a questioning attitude toward Council procedure and always trying to improve those procedures. And to improve those procedures, this is what we are trying to do. So they are current and the questions that are arising now are questions that some of the Councilmembers are asking in order to improve those rules and there is a mechanism to do that, and that is actually not just the mechanism, it is a responsibility to be able to update and look at your rules as you use them. Mr. Abrew: I totally understand. Ms. Kawahara: Okay, thanks. Chair Asing: And I want to comment that I totally agree also with that and you heard it from the Chair here in these Chambers, not on the newspaper. Thank you. Mr. Abrew: If you guys adopt a new rule, it will be put into the rules, is that correct? Or if you change a rule, that will be updated and put in the rules. Chair Asing: Thank you. Councilmember Bynum? Mr. Bynum: Yea, I am thrilled that we are going to discuss this today and this might be the last testimony, but it is absolutely... I think what Councilmember Furfaro said was, the first time a comprehensive overview of the entire rules was that time ago, but the rules... I am sure that there has been changes in the meantime and we do adopt them on December lst or the first meeting in December. But the cultural tradition, the political culture on Kauai is that meeting is literally scripted, right? This year, we had three (3) new members who had never been at a Council meeting before and that meeting really is a celebration of our democracy and it is, you know, not been the political culture to address, you know, agenda items and weighty things, but to go through the process of orderly transition of government. And so... but our rules, in my opinion, allow... should allow for Councilmembers to introduce anything and I have attempted to introduce three (3) separate changes to the rules. Mr. Kaneshiro: Point of order. I think we are drifting off from the agenda item. Mr. Bynum: I am done. Mr. Kaneshiro: The discussion is now leading into rules. Chair Asing: Thank you Councilman Kaneshiro. With that, thank you very much. COUNCIL MEETING - 33 - July 22, 2009 Mr. Abrew: Thank you Sir. Chair Asing: Is there anyone else who wants to speak? Either who did not speak the first time, the second time? LUCILLE BARILE CURVORST: Good morning. Thank you for this opportunity. I am Lucille Barile Curvorst (unknown spelling of last name, did not fill in speaker form) from Lawa`i. I didn't expect to be giving testimony this (inaudible). Thank you. And I certainly didn't think that we would all be spending so much time on an issue that is a... that is fundamental to our democracy. I have been following your... the positions of each of you through the election and I thought we would be involved in debates regarding the environment, development, the economy, transportation, buses, these sorts of things. Little did I know that one of the biggest topics and the one that would get me in the chair this morning has to do with my fundamental constitutional rights. There has been a lot of discussion this morning about the rules and I think that you would all agree that the rules that you have adopted last January, December, January, and the ones that are currently in effect, could never take precedent over our constitution. And that you make these rules that the best you can, but they have to be interpreted in light of the rules and the laws that we have as a nation. And particularly the bill of rights and the rights that all of us enjoy as voters in this democracy. So if there is occasion when you use the rules, if they are interpreted that they would deny my rights as a U.S. citizen, as a resident of the State of Hawaii or as a voter, then you have to step back and you have to say, oh that rule that we made last January or December whenever you made it, well, maybe we have to interpret that differently because we cannot be operating this Council in a way that would deny any of the fundamental rights that we enjoy as a voter. And specifically I mean when I voted and I cast votes... I tasted a number of votes because I am allowed to vote generally for all the positions on the Council. If any members of the Council are denied proper access to information, proper opportunity to operate as a Councilmember, that also affects my fundamental rights. And so I would like you to consider as you consider whether or not you are going to... what you are going to do with these rules and how far you are going to postpone consideration of the rules, that we already have some very strong rules in effect and it is called the U.S. Constitution and our Bill of Rights. And I am hoping that each of you will step up and show your integrity and affirmation for these fundamental rules that we all enjoy in a democracy and that all members of the Council should have access to information, should be able to put matters on the agenda without undue delay, normal procedures applied, but that our rights as voters are not being infringed. And I think that is something that the Council can step up and speak to immediately. You do not need a committee to tell you what the U.S. Constitution says. Thank you very much for listening to me. Chair Asing: Thank you. I would like to make one comment and that one comment that I would like to make is thank you very much because I agree with you. Thank you. MEL RAPOZO: Mel Rapozo for the record. I was not going to testify, but I guess I felt compelled because Mr. Chair every time you made a comment, I can hear the snickering in the back and I am not going to get into the debate of who is right, who is wrong, but I will say that for 27 years you have served this County. COUNCIL MEETING - 34 - July 22, 2009 For 27 years you have provided excellent service to me personally six (6) years on this Council. I can remember and I am sure that you do because you do have an awesome memory. There was a time when I sat right where Mr. Kawakami is sitting that the Council meetings were really long and, in fact, very personal. People would come in and personally attack members of the Council and I came to see the Chair. I said Mr. Chair, I have already checked with OIP and I think we should limit... and I am not proud of this today, but I am honest. I think we should limit the testimony to a minute because it is legal and because we would cut the time of our meetings down tremendously because the three (3) minutes turn to four (4), then it turns into a second four (4), it is ten (10) minutes, twelve (12) minutes per person and sometimes we had 15, 20 people stay here until 1, 2 in the morning. Our staff stayed and overtime was tremendous and Mr. Asing said, Mel, no, no. We are not going to do that because the people have the right to speak. People today have said, you know, like the Legislature... like, you know, you want to compare the State and the County, you want to go do what the Legislature does, take away Sunshine law. Prohibit the people from the notice that we have today to prepare testimony. We want to be like the State, it would make your job a whole lot easier if you didn't have to wait six (6) days for your item to be on the agenda to have a meeting. Let's compare apples and apples. We have it good here today ladies and gentlemen. This island is the most open. I have sat in Honolulu Council meetings, you try cramp your testimony into one minute or three (3) minutes for that matter. Try be able to walk in and say Mr. Chair, I missed the agenda item, can I still make a comment and the Chair graciously says, sure, sit down. Now the blogs which I read Mr. Chair, has painted you as an evil man and that is why I am here today to say that I have asked for many things in my career on the Council, short career, six (6) years, to be put on the agenda, and the Chair has said, Mel, now is not the time. Grading, grubbing, audits, critical issues, and Mr. Chair in his wisdom says, Mel, we need little bit more information, but if you can go out and get the votes of three (3) others on the Council, we will put it on, and most of the time I couldn't get the votes because they, in their wisdom, felt it wasn't the proper time. Again, I am not going to debate the merits of this specific issue, but I want the public to understand that, you know, 27 years of dedicated service and open government. In one instance is erasing that and calling you the dictator, I think is totally unfair. I think, Mr. Chair, you have made it more accessible for more people on this County than anyone else. And when I got elected in 2002, when I got re-elected in '04 and '06, we all got copies of the rules and says if you have any proposed changes, talk to staff and get it done. Anybody had the opportunity at the inauguration meeting and Mr. Bynum, yes, it might be ceremonial, but it is a meeting. If I felt strongly about it, I would have said, Mr. Chair, I will make a motion to address the rule. And I also agree that at anytime, that rules can be changed. I agree with that, but look at the time that this matter has taken up and the energies, and you know, we got furloughs, we've got all these issues. I mean we've got too many issues to be dealing with and we are wasting our time on this and a lot of the testimony said today is very true. I am sorry (public talking in the back). No, I am saying that there are other important issues that need to be addressed and it should be addressed in the proper way. And I have sat here and paid the respect to everyone that came up and testified and I ask the same. I know that I am not... many fans in here today Mr. Chair, but I just want you to know and the public watching that in my experience on this Council that you have been more than open, and you have been more than flexible, and especially to the people COUNCIL MEETING - 35 - July 22, 2009 of Kauai when I have sat here and said, Mr. Chair, cut it off already as your Vice- Chair, and you said no, the public needs the time. So that is all that I wanted to say Mr. Chair. Thank you very much. Chair Asing: Thank you. Is there anyone else? JAMES GERARD TRUJILLO: James Gerard Trujillo for the record. Mahalo Chair for allowing... indulging me three (3) more minutes. And, you know, as I listen and hear, you know, the back and forth, it is an exchange and mahalos for that because this is what democracy is about and while folks might say, this is worth every minute, others might think, come on, we've got better things to tend to. But this is the process that we are engaged in and I afforded couple hours, I made arrangements with my employer, family, as well as you guys clearing your schedule to be here every Wednesday. I thank you for this opportunity to point out that not necessarily to this body, but to the public, to the folks who consider their government operations. This is why a County manager might be something worth considering. As you pointed out in a number of items, this has already been funded. We can't tell the Administration what to do. We have had whether it was grubbing and grading, development, transportation issues, that need to be addressed. And somehow like Mr. Bynum said, government time. What does that mean? And Chair Asing, you have heard it from a number of folks, information, people want information... Ms. Kawahara, you have been referenced as an information specialist. As a librarian, this is something that you work with. Well, this is great because we have the opportunity just like Ed Coll said. You have the challenge to rise to this opportunity to prepare us for better government services and I encourage our citizens to think about ways that they participate whether it is voting for elected officials that are progressive, that are adaptable, that flow, in the new technology and this new paradigm of how information is shared. As Councilman Furfaro always mentions that good information, we need that, to have good decisions. So I encourage you to think about perhaps after 27 years, maybe addressing the press, addressing the media, so that your information comes out because if all you do is stay here in these halls, it is difficult for the public to get a sense. It is difficult to make that time with the boss to come down here to spend 15 minutes for testimony or an hour, but you guys have made yourselves available. Thank you for the work that you do, we appreciate it. Chair Asing: Thank you. Jimmy, let me clear something. I didn't mean that I didn't mean that I don't go out. I didn't mean that Jimmy. I do go out a lot. Mr. Trujillo: Sure. Chair Asing: I attend many, many, many functions. I talk to many, many people, but I don't go to the newspaper and possibly give slanted or wrong information. Mr. Trujillo: I am just saying, go to the newspaper and give them good information. Chair Asing: Yes. COUNCIL MEETING - 36 - July 22, 2009 Mr. Trujillo: Give them your information and mahalos for that press release because that is information that prior to wasn't public knowledge. Some people knew, some people that have relationships or have access to information, but not the general public, and that is what we are talking about. Chair Asing: Thank you Jimmy. Mr. Trujillo: Thank you. Chair Asing: Appreciate it. Okay, we are going to have a... this note here is we need to take a caption break. Again, it is by law, and so we need to do it at this particular time. So we will break for a caption break and come back again. Thank you. There being no objections, the Chair called for a recess at 11:11 a.m. The meeting was called back to order at 11:36 a.m., and proceeded as follows: Chair Asing: With that, I am going to suspend the rules. There being no objections, the rules were suspended. Chair Asing: And finish up with the public testimony. Is there anyone else here who wants to speak on the issue? CHARLES BRAUN: I am Charles Braun and I have been listening to this all the time and wrangling in my head with all the discussion. I finally come up with... I would like to have the Council to start a forum page of their own and it probably just... each of you probably have to invest $500 on your own computer and then they could see what it is like and it might be topic driven where the subjects which are most important were sent to the top and when somebody comes in to look at this system, they would see how many responses were on each subject to see how active the subject was. It would let us all think together in a way and then we could integrate it into the rest of our lives. Thank you. Chair Asing: Thank you. Ms. Kawahara: Thank you. Chair Asing: Is there anyone else who wants to speak in the back? ANDREA BROWER: My name is Andrea again and since the issue of not really going on the Internet stuff which I totally respect came up. I did want to just bring a printed version of the petition that has been online circulating, so that there is a hard copy for the record, and there is 443 signatures and they ask for agenda time for exactly what you granted, so thank you very much. And I did want to just make sure that we do start to address in further discussions because I have realized that this is just the beginning of this process that is exciting and very democratic about Councilmembers access to the agenda and the equitable and timely circulation of Council Service documents and then just general access to COUNCIL MEETING - 37 - July 22, 2009 information. So thank you very much and I would just like to leave this with you folks. Chair Asing: Thank you. Is there anyone else? If not, what I would like... We have one more. ARTHUR DEFRIES: For the record, my name is Arthur DeFries. I might go a little off the record, but I just want to say that I have been around the Council for... Chair Asing: Well, how about try stay a little with the record. Mr. DeFries: I remember 1967 sitting in the back corner and then like Eddie Demellow... he was the lobbyist for the ILWU. There were some things that we wanted to see happen... community college, housing for our people in the plantation. So he told me, for every commission that we have, we have four (4) votes. If it is in the land use commission, the land board, we had the votes. That is like (inaudible) here from Kauai he was representing us and as far as Dr. Matsunaga who was on the land board who was representing the ILWU. If you don't have four (4) votes out of seven (7), it is only get three (3)... if you can get four (4) votes to second this Council, you can move mysteriously. So this is what it was he said. He just wanted me to listen to two (2)... at that time, they used to not be called Councilmembers (inaudible) Supervisor, so he wasn't too sure about these two (2) guys, but I just wanted to say how I felt about that. And by just sitting down, I got to know them because I was very involved in sports and working with an organizer with the ILWU which I got to know everybody. Every land board or every commission, but I am really happy to see Mr. Kawakami that is sitting here because Richard, from the day he took office, he wanted to see housing for all the people that live in the plantation. I am going to tell you the truth, he made it into reality. If was pertaining to city housing, low income homes, and as far as for the (inaudible)... we got it from them through the Hawaiian... but I want to say, if anybody that is on the Council and if you don't have four (4) votes, it is not a dream. It will be a reality to have four (4) votes. Chair Asing: Thank you. Is there anyone else who wants to speak? Going once, going twice, 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: I'd like to turn it over to Councilmember Bynum. Mr. Bynum: Thank you Mr. Chair. Thank you for your patience here this morning and thank you all for coming and addressing your concerns about open government. I've wanted to have this dialogue for 2 1/2 years and I've attempted to have this dialogue in a number of ways throughout that time. And it has been frustrating and difficult and I think a lot of you know that. I think that we... I serve on a really good Council. I think... I love democracy. I love that the voters go through the process and make their selections and I honor and respect the selections that the voters make. I believe this is a good Council. It has a diversity of opinion, a diversity of ideas, and you know, I think there is a lot of respect for one COUNCIL MEETING - 38 - July 22, 2009 another, and we can agree and disagree, and if we engage in a democratic process, I believe that this Council will make good decisions. I don't expect to have the decisions go my way. I hope they do at times, but I love the process of doing that and I felt that over time, the process has not been what it needs to be or even close to what it needs to be. I have tried to address each of those issues and it is complicated. There are a number of issues and one of the things that Councilmember Rapozo said here today that I totally agree with that in terms of allowing the public to speak, we have the best process in the State. And the Chair has allowed that, you know, tremendous latitude to the public to address it. Councilmember Furfaro recently has tried to structure his committee to where we had a circulation of proposed amendments, so the public could review those and have an opportunity to comment and I applaud those efforts. So there are areas where we do a good job and there are areas where we don't do a good job in my opinion. I wanted to use the mechanisms of government to address these issues, so I wrote memos, I proposed things, I did things, so I have a story to tell, and I think that somebody else also said in testimony today, great testimony today, that we have very critical issues facing this island, and that it is important that we work well together as a team and make them happen. And I couldn't agree more, but if we don't work from a good process that includes the voice of everyone... if we don't work on a leveled playing field, then we won't do as good a job as we need to do. And in my view, we haven't had a leveled playing field and we haven't had a process that meets the standards that have evolved in our society over the years. 26 or 27 years ago when the Chair began his political career, we didn't have a Sunshine law, we didn't have the Internet, we didn't have the tools that have been made available to us in our modern society and it is important that we use all of the tools that are available to us. These issues, I think, Councilmember Kawahara and I have outlined quite clearly and we focused on three (3). They are not the only issues, but there are ones that I think are important or critical and where I have had the biggest frustration and I think we have the right to bring that into a public discussion and it has been a struggle to get there, okay. And this is not about personalities, this is not about wanting to change any people on this Council or to make accusations or to do anything of this sort. It is to focus on these three (3) issues and engage the democratic process around that dialogue, so I don't think this is a waste of time. I think that it is very important and I think that all of the processes and the challenges that we have will be well served if we can improve the process that allows democracy to work at the level that it came. I believe that all of the people here are very capable of doing that, so... but I am... I said it has been a struggle, you know, we had to maneuver and to get this agenda item on here... what we proposed on June 3 was a resolution to clarify the Council rules that is what I have asked to have on the agenda and I have been denied that opportunity. So I consulted with OIP and they said here is a method you could do it. Our County Attorney agreed... disagreed with that method and I respect that as well and so we... so what we have managed to do today is get a discussion on the agenda, not the resolution that I proposed, but a discussion. Hey, that is a start, but I think we should have open dialogue, so I believe that is beginning today and I hope that it is successful, but a thorough discussion of these issues about access to the agenda by Councilmembers, about access... equitable and timely access to the documents that come here to Council Services that are equal and level and appropriate may take some time and I am okay with that, taking some time. We may not finish today, but that is fine. I have been on this Council for 2 1/~ years and we have spent months COUNCIL MEETING - 39 - July 22, 2009 talking about vacation rentals. We spent literally hundreds and hundreds of hours providing oversight over the bike path program. It was on the agenda every other week for months, okay, and we had meetings that went late into the evening. You know, so we... things take time and that is okay, so I am hoping that we afford the time that this issue requires to be fully discussed. Part of what we do is oversight on the Council. We provide legislation and we do oversight and every appointed officials in this... practically every appointed official has been here and we have had lengthy discussions about their roles, their responsibilities, and whether they are being held accountable and fulfilling those roles and responsibilities. It is part of our responsibilities. You can ask the Public Works Director or the Planning Director or the Finance Director or the Director of Personnel... I think Edwin was kind of wise to stay outside because County employees know, avoid these room at all cost. So because, but that is part of democracy being held accountable for your roles and responsibilities and what you do. Recently when I've tried to discuss the roles and responsibilities of the County Clerk, I have been not allowed to speak and told that it was a personal item. The Sunshine law is very clear about the exceptions and the other thing that I want to say is we had great testimony from somebody that said we ultimately serve the Constitution of the United States. So I think all of us know that there is a heiarachy of what governs our actions and our behavior here. Pretty low on that totem pole is the Council rules, right? Above that in the County is the Charter, above that is the State Constitution overriding what we might want to do is the State Legislature. And the State Legislature passed a Sunshine law and that Sunshine law we have to apply by and a lot of the dialogue that needs to occur and the discussion that needs to happen is about us adequately and appropriately applying the goals of the Sunshine law. I think that is as great that we are doing this because we are going to have a better democracy, a better Council, and this fine group of individuals are going to make better decisions on your behalf particularly if we let you be as fully active and engaged participant in the process. Giving you information should make our job easier, okay because I will be honest. Sometimes the public gets up here and I know all of us experience this and they say things that are passionate and well meaning, but because of our passion and our access to information, we know that we are kind of off the mark. They are not kind of accurate. And, you know, someone talked about unintended consequences and the perception of corruption. Believe me, if anybody at this table was aware of corruption, I think they would call their (inaudible)... so when I hear that, I take offense. I don't see any corrupt people around here. I assume there is corruption in government, but if I saw it, I trust that each one of us would call it. It is not a matter of that, so that perception comment was really on the mark and we have to be diligent about perceptions, so to get specific about the Hawaii Sunshine law, I have it here, and the first thing it says, is a declaration of policy and intent, and I want to read a couple of paragraphs because I am afraid it may play out today. Declaration of policy intent. In a democracy, the people are vested with the ultimate decision making power. Governmental agencies exist to aide the people in a formation and conduct of public policy. Opening up governmental process is the public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the Legislature declares that it is the policy of this State that the formation and conduct of the public policy, the COUNCIL MEETING - 40 - July 22, 2009 discussions, the deliberations, the decisions, and the actions of governmental agencies shall be conducted as openly as possible, okay. I think we all agree with that. To implement this policy, the Legislature declares that: 1) intent of this part to protect the people's right to know. Number 2, the provision requiring open meetings is to be liberally construed. So when you have a question of intent, go towards openness liberally is what that means. The provisions providing for exceptions to open meetings, requirements shall be constrictly construed against closed meetings. So it means be special careful if you are going to close something from public dialogue. You know, in that hierarchy, I believe this State law trumps any rules or behavior that we would do here and our Council rules need to be consistent with this policy. So as we go... engage in this discussion today, I hope we are focused on that liberally construed to openness and being very careful of when we go into closed or trying to censor open dialogue. You know, I came up earlier today where the OIP has opined that the Chair and whoever is in charge of the meeting can liberally apply the Sunshine rule to the public, but needs to hold the body to a more accountable measure. So I wanted to make those opening comments and before we get into the agenda item, so the agenda item that we got here as a discussion and it is broken into four (4) pieces. And the way that I would hope the Chair would agree is that, you know, to take each of those one at a time... I certainly have things that I want to present about each of those. I know that Councilmember Kawahara... Chair Asing: Councilmember Bynum, what I intended to do was take the items 1 and 2 together and then 3 and 4 together, so if you want to make your presentation, you can make your presentation on the access to the agenda and the placement of documents first. We will cover those two (2) and then cover the other two (2) later. Mr. Bynum: Okay, I just would say that I am going to have a representation and I know that Councilmember Kawahara was focused perhaps that we are both on the... yea, okay, so now I am ready to start. I beg my colleagues in your indulgence because I want to tell the story and... Mr. Furfaro: Excuse me Mr. Bynum, could you allow us some time to relocate if you are making a PowerPoint. Mr. Bynum: Yea, I am not going to start that right away. Sure, absolutely. First of all, you know, it is pretty clear that those of you that followed this that on June 3, we decided to use what mechanisms that are available to us to press these issues. One of those mechanisms is our frustration about access to public information, you know, hasn't been fulfilled through the means of the County website, so we created a website where we placed a lot of documents, and we continue to place documents on that website. Frankly, my goal is to take that site down and not have that need any longer. But, you know, to the best of my ability, I believe that the things that I have to say here today are accurate and appropriate. They are not misinformation. If you... it is volumimous... somebody said that the material that we place out there and you might be able to find someone individual areas where, you know, we didn't get it exactly right, but I know that we have done this in good faith and I am willing to stand by the three (3) premises that we put forward about where there are problems, so... and this starts with my coming onto COUNCIL MEETING - 41 - July 22, 2009 the County Council, so I will tell the story as quickly as possible, and I will get to the presentation. Mr. Furfaro: Take your time, the Chair has provided you with this opportunity. Mr. Bynum: Thank you for that. Mr. Furfaro: I just want to make sure that I didn't miss anything if you were making a PowerPoint. Mr. Bynum: I will do a short PowerPoint, but I am thrilled that I was elected to the County Council. I worked really hard to get here. It is a lot of work and as everybody here knows because I do love the public process and I love this place. And prior to the election, I spoke with most of the current members, told them how happy I was to be here, and I read the Council rules and the Charter and did my homework. I take this job very seriously and when I read the Council rules, I said, oh, this is cool, I got elected. The rule says, any member can introduce any bill or resolution. That means the things that I am concerned about personally and more importantly, the things that the people who elected me are concerned about, I get to put on the public forum. That is pretty cool, okay. So, you know, I wanted to get all the information that I could, so early in my term, I sat here one day and we are discussing an item that is on the agenda and other Councilmembers are looking at documents and they have little tabs on them and they are highlighted and they are all ready to go, and I am like, wow, these guys are really prepared, so I start feeling inadequate as a new Councilmember. Boy, I didn't get that prepared, so later I went to find out what these documents were and I found out they were documents that were addressed to the Honorable Kaipo Asing and all Councilmembers, but I have never seen them. I am like, wow, I want those documents too, right. So I went looking for them and I found out the process by which we deal with the mail that is addressed to me puts huge obstacles in the way of accessing those documents. I got a letter... I got a memo, a piece of paper in my box that said the minutes of the Council meeting are ready for your review because you approve them at the next meeting. And I wrote an e-mail back to a Clerk and said, could you send me an electronic copy of those minutes and within two (2) minutes, they were in my in-box. I reviewed them, I am prepared, ready to go. The next time I got one of those memos, piece of paper in my in-box, I went and said, you know, can you just routinely send me the minutes electronically. I don't need a piece of paper in my in-box. You can just send an a-mail that are attached. Better yet, we have an Intranet. Those of you who are technically savvy, we have little files in folders that anybody can access and you can say who gets to see them and who doesn't. How about we create a folder where we park these minutes because if I want to review the Council minutes to this day although it started to change recently, I have to go and look at the paper copy that is in the binder in the break room. You know, I like the tools that technology has given us and much to my dismay, I was not... I was no longer allowed to have electronic copies of our minutes and I wasn't... you know, that is the way this started. Hey wait a minute, this mail is addressed to me and I want to be able to access it. Hey, I want to see the minutes and then the tools and use the office tools that are available in this society to do my job effectively. And when I ran into... so I went to the Clerk COUNCIL MEETING - 42 - July 22, 2009 and said, Clerk, can I have these this way? Well, no, that is not the way we do it. Well, that is what serves me and I think you are supposed to serve me. Well, you would have to talk with the Chair because the Council rules says that the Chair deals with it, and that began a long process of many meetings. To this day, to this day, we have not had a staff meeting in this Council. I have never met to discuss these issues with the Chair and the Clerk in the same room. They won't do it, so, you know, I have posted all the memos that I said... some of this was interpersonal in the hallways, meetings, and then I started to document it to say, well, I will put it in here... in that frustration, I said, you know, the public is frustrated they can't get access to this information and I can't even get access to it, but hey, any member can introduce anything, right? That is what the Council rules says, so I wrote my first bill on Internet access and it is a good bill. The bill basically says, no need... I mean, says, it encourages all of the County to make that tool available to the public, but it would have required that key documents like minutes and agendas and bills... upcoming bills for consideration be posted on the Internet and I wrote the memo and I put the bill forward, right? In the process we do, you write a memo, goes to the Chair, because the rule says that the Chair must initial anything in order for it to be on the agenda. When I read those rules, it said to me, clear as a bell. Any member can introduce anything, the Chair must initial it prior to it being placed on the agenda. So when I met with the Chair, he said, oh man, I don't know if we are ready for this to go on the agenda. You know, I don't know that the Administration is meeting the deadline, the legal deadline of having their minutes prepared in 30 days. This will be difficult for them. Do we really need a law for this? Well, that was a great question. That was leadership, right? I don't think we needed a law. I mean, he is saying that we don't need a law and I didn't think we needed a law, but that is the only method that I saw that I could access because I wasn't getting anywhere by trying to do it by memo and request, but the Chair asked me to wait, and I said, fine I will wait. And I engaged with the Administration and they said, you are right, this is the area, this is where we need to go and give us time to get there. And I put the memos onto our website that came over the next year and a half about the Administration's efforts to get their minutes done on time, post them on the Internet, and they made good progress, and I applaud them for doing that, and that is now the routine. One of the memos I put that is on the... that is in the public record now said that I am concerned about access to my own mail. I am concerned about mail that comes to COK which Councilmember Kawahara will talk about. I am concerned about all Councilmembers getting equal access to information at the same time, but thank you for agreeing to post the minutes on the Internet because the Chair told me, in 2007, that when the boards and commissions got there, we would do it too, but that didn't happen. When the time came to post the minutes on the Internet when the Administration was doing it, the Council minutes weren't there. So I said, I guess we do need the law, please put this law on the Council's agenda for consideration and the answer was no. Well, why not? No, I am the Chair and I am not going to put it on. Well, wait, any Councilmember can introduce anything. So with that, I have a presentation. I know the workings of government gets complicated sometimes, but we have resolutions and bills and discussion items. We have different ways you access the COUNCIL MEETING - 43 - July 22, 2009 agenda. Today, we are having a discussion item, but a resolution, it can just be a resolution like I did earlier in the year and the Council supported and it was placed on the agenda to support healthy start. It just becomes a message from the Council and this case to the Governor and the Legislature that we thought that healthy start was an important program which as an aside is gone on Kauai now because of budget constraints. But, another way... and other resolutions have weight and the one that we talked about today for the Council rules is done by resolution and traditionally it is voted at the Inaugural meeting which I have said is largely ceremonial, and... so this is the cover page of the resolution and it has our Council rules in it. It certainly was adopted unanimously on December 2nd or 3rd of this year as it is every year. December 1St it was, right, so in that front page in Section 2, just like the Sunshine law gives you guidance about how you interpret the rules because there may be disagreement about interpretation. This gives us guidance and it says, in interpreting the rules, the intent of the Council shall be deemed to have been to carry out the majority view of the Council, yet provide the minority fair opportunity to express its views. Well, that is great that that is in our resolution because that is a fundamental, you know, democratic principle, right? Majority decides, but minority has a voice, okay. And so... but in this context, it says, if you are going to interpret the rules, keep this in mind. This is the intent, so rule number 10 is the one that I think is the most fundamental thing that this Council needs to address and it is general provisions regarding bills, resolutions, motions, and amendments. So this is a section of the rules and it basically says, as I said, the introduction section... well, introduction manager, placement on the agenda. In the introduction, it says any bill or resolution may be introduced by any member. That is the key document, but, you know, let's look at the whole thing. Any bill or resolution may be introduced by any member, the original copy of the bill and resolution shall be written, dated, and signed by the introducer otherwise it will not be considered. So when I wanted my first bill I ever wrote to be considered, that is what I did. I had it in writing, I had it signed and dated... the staff has a process by which they put it forward, then there is a section about who manages it, but rule number c says, all bills and resolutions must be initialed by the Council Chair or in the Chair's absence, the Vice Chair or other designated... whatever that is... as stated in rule 3 in order to be placed on the agenda. So first you have any bill or resolution may be introduced by any member, to me that is really clear. And then all bills or resolutions must be initialed by the Council Chair or in the Chair's absence, the Vice Chair in order to be placed on the agenda. Now when I read that the first time, as I have said, I can introduce anything, but the Chair manages the agenda. I want the Chair to manage the agenda, so when the Chair came to me and said, not now, why don't we try this first. How about we approach it a different way, I thought that was totally appropriate. That was leadership. That was what I would want from my Council Chair, but when I couldn't... when a year went by and I wasn't accomplishing the goal, I felt like, well, by now, I should have the opportunity to do what I was elected to do because I had a lot of constituents who were telling me, I want this information and I am tired of driving down to the County building to get it and having to pay fees. This isn't the way the world works anymore and I went out on the Internet and I couldn't find a municipal government that didn't place these items on the agenda. So I couldn't believe that that... anybody would interpret it any other way. It is like, you know, so I talked to attorneys, a bunch of them, I talked to other Councilmembers from other people, they said, well, of course, any Councilmember who is duly elected can place COUNCIL MEETING - 44 - July 22, 2009 something on the agenda. But the way it has been interpreted here is that this, you know, this initialing gives the Chair the power to keep something off indefinitely. I disagree with that okay. As the Garden Island I think aptly put it and this is the quote. It gives the Chair a preemptive veto power even surpassing that held by Mayor Bernard Carvalho, Jr. and that decisions cannot be overridden by a supermajority vote and that his decisions are shielded from the public view. I hadn't quite characterized it that way and I thank the Garden Island because I believe that is exactly accurate. You know, if we pass a law here, the Mayor under our Charter can veto it, right? But it happens in the public and he is held accountable for that decision and we have the ability to override that veto. I don't think the voters of Kauai intended for our Council Chair, no matter who he or she is to have this much authority, but I understand that rules can be interpreted differently. I accept that, that is why... remember it gave us guidance in the first place about how to interpret the rules just like the Sunshine gives us guidance about how to interpret the rules. So section 4 of our Council rules say that the approved rule shall be subject to amendment. Shall is a powerful word in legalese as provided for therein. And so when this rule became unbearable to me, I proposed a resolution, right? Because how do you change the rules? You do it by resolution, but the Chair refused to place that on the agenda, right? And what recourse do I have, right? It is a classic catch 22, right? We... so what is it that we are proposing? I say we now because Councilmember Kawahara came onto the Council and discovered very quickly the same frustrations that I felt, right? So remember that rule that says, all bills and resolutions must be initialed by the Council Chair, what I am proposing is that we clarify that rule, that we make it clear. This is a proposal. If I can't get four (4) votes, then I lose as Mr. DeFries so aptly put. You have to count to four (4). Placement on the agenda... I suggested that in order to appropriately coordinate the agenda, you know, and underline means new language, bracketed means removing it... bills and resolutions must be initialed by the Council Chair or the Chairs blah, blah, blah, and then adding the sentence, the Chair or his designee shall not use this rule to restrict the introduction of any bill or resolution introduced by any member indefinitely. This... a lot of thought went into this because some people say, well, you should say, it goes on the agenda immediately. Well, no, I don't believe that. I believe a good management of the agenda, the Chair, who may have... you know, the Chair is going to say, you know what, I am managing the agenda and we've got this really big issue happening now and, you know, if we are going to put this forward and especially with this Chair that has the experience he has and I have learned much from him that, you know, hey, Councilmember, you may not want to place this on the agenda now until you go line up your ducks. How about you go do a, b, c, right? And if he says, you know, I am not going to put this on until next month, I am fine with that. That is management of the agenda, so the word indefinitely I know is kind o£ not real clear, right, but I want the Chair to have that latitude to provide that leadership. But I don't want apre-emptive veto power that is greater than our Mayor has. I don't want to not be able to place something that I believe the public thinks is important on the docket for discussion. Now the Sunshine law says that the place that we should have discussion is here on the floor. They have things that are frustrating, rigid rules that say, you know, you are not supposed to discuss this in advance. You are not supposed to go and talk... you know, we are not allowed to meet other than two (2) at a time to COUNCIL MEETING - 45 - July 22, 2009 discuss Council policy because if we are going to meet more than two (2), it should happen here on the floor, right? So those laws are... those rules are frustrating for all of us. It is like, eh, we want to do a good job, we want to talk about it, you know, but we have those rules. You know, part of what I have heard from the Chair and I heard from Mr. Rapozo today. You go out and get four (4) votes and I will put it on the agenda, but my interpretation of the Sunshine law says, I am supposed to put the proposal out and discuss it with you all present, right? I am not supposed to go line up four (4) votes in advance, right? That is why you never see anything introduced by more than two (2) people because two (2) people can work together, but three (3) constitutes taking the discussion out of the public view. According to the Sunshine law which I acknowledge did not exist 26 years ago, okay. On this first agenda item, I think the Council should have deliberation on this agenda item, on this proposal. I believe at the next Council meeting which is in two (2) weeks, this should be on the agenda and I want to pose to my colleagues today, the question that was asked earlier. Will you support this resolution being placed on the agenda for consideration in two (2) weeks, right? Now I can ask that now because we are in a public forum. I am not soliciting those votes outside of a Sunshine rule law. I believe I am okay, right? Now as I said, we have focused on three (3) issues that we think are particularly difficult in terms of us having good democratic process. This is the first and perhaps the most fundamental. There has been other suggestion that we have a more comprehensive look at our rules and I think that is a really good idea because these aren't the only three (3) that we need to get up to speed on, but I don't think a comprehensive look at our rules should delay any longer a discussion and a decision on this issue, okay. So regarding the first issue, that is my presentation. Now the Chair said that he wanted us to talk about the placement of public documents including these, so I am going to say something about that briefly although we kind of prepared the way that we are going to do this a little bit differently, but he is the Chair and I respect that and we will go by his thing. I said earlier that we put a lot of information out there. A lot of documents... we've gotten some of the documents that we wanted to place on the agenda for years and we haven't gotten them all yet, but we put them on our website. And like I said, I hope three (3) or four (4) weeks from now that that website does not exist or it is there for some other purpose because I don't think it should be one Councilmember's job to get this information out. I think we have a (inaudible) comparable... capable staff that would have to work a little harder at first to get this going, but once they did, it would save them tons of time because I wouldn't be going over to them all the time saying, hey, can I have a copy of this, hey, can I have a copy of that because it would be right there on the website or right there on my Intranet, and the public wouldn't be coming near as much to the... but some of you would because you are not computer people yet, right? You would still access these documents in that fashion, so I am not suggesting that all the public documents that come in to Council Services be placed on the web because there is a huge number, okay. But minutes of Council and Committee meetings, the agenda packet... a few weeks ago, I started publishing the packet... you know, the stuff comes in, the Chair manages the agenda, they put all of the attachments into a packet and sometimes it is 100 pages, okay. That is what we are actually going to discuss and it comes with supporting documents. That packet, in my mind, should be posted on Thursday night for the entire public to see. What I have been doing and it took me, believe it or not, two (2) years to get access to a scanner around COUNCIL MEETING - 46 - July 22, 2009 here, but what I have been doing is taking my packet next door to elections where we have a cool new machine, a Xerox machine that you say scan to e-mail, right? And it takes about two (2) minutes to scan 100 pages and it shows up on my e-mail and it takes about 30 seconds to post it on the Internet, okay. So I believe the minutes, the Council packets, then any bill that we are considering should be posted on the Internet. You know, at least by the time it is introduced. Once it is on the agenda, you all should be able to see it. And so, you know, some of these key documents, I think, and this issue could be resolved easily in about an hour and a half, okay, if there was a commitment to do it. Now I won't get into some of the details because as I said earlier, I am hearing that they can't find the original electronic documents. That really scares me and I hope that they are looking diligently for those documents because that has tremendous implications, but the... so the Chair says that we are going to discuss 1 and 2. You know, when... this is how easy the technology is. Let's say... you have seen the bill posted, right? And now amendments are circulated okay... now this will take a little more planning, but, you know, our staff sometimes goes out on breaks and does amendments right here on the floor, right? Right back here on the desk could be a little machine that once... when they are distributing them around the table and they give the public copy, they slide a copy into this machine and within seconds, it is posted on the Internet, so when we get that live streaming video, the people at home can participate, the people that have disabilities can participate in government because, you know, you guys all know Mr. Mickens, and you know Mr. Pleas who comes up here, Mr. Taylor, and many other people... they add tremendously to our deliberations. They have helped write some of these laws. They come up here and say, here, this is what we think the law should say. Mr. Imperato, Ms. Diamond, and some of our regulars, they are part of what we do. We should make it easy for them and then you also see people that come up here and say things and I cringe and it is like, oh, they don't get it right, you know, and we try to educate them. It is like... I can't help but thinking, geez, if we would have given them access to these documents, they would have had the information to give better testimony, right? So on the first two (2) issues, those are my... that is my comments, but I want to be clear. Mr. Castillo: Excuse me Council Chair, I am sorry for interrupting Councilman Bynum. Al Castillo, County Attorney. I know we are very impassioned regarding our points of view and, however, as County Attorney and as your legal representative, your legal advisor, as your attorney for each and every member of this Council, I must warn you that please refrain from any discussion that places this County in some form of liability. Just do this for your protection and the County's protection. Thank you. Mr. Bynum: Duly noted. I always try to be careful not to place the County in any liability, but regarding number 1 on this agenda, I believe the way to address this issue is that this resolution be placed on the agenda in two (2) weeks, and we have deliberation and discussion, and come to some decision making. Regarding the placement of public documents, I have said what I think should be a minimum and it can happen easily in... it is just the matter of the leadership being provided by... starting with the Council Chair because he is our liaison with the County Clerk in doing that, right? I know... I am committed to making those documents which are public available to you to the best of my ability, but, you COUNCIL MEETING - 47 - July 22, 2009 know, I actually have to scan them in and then get home to my computer where I can do it, and I am not a technical wiz. I know how to consume it more than I do know how to create it, but we've got some technical wizzes around here that can do it. You know, we said we are going to talk about equitable and timely circulation of Council Service documents later, so I will save my comments about that. Chair Asing: Okay, with that, thank you. I am just going to make one comment now and then I will turn it over to Councilmember Kawahara. And, you know, like I said earlier, correct, accurate information. Councilmember Bynum has said can't find a municipality in this State that do not post on the web. Is that a true statement? Of course not. It is a false statement. The County of Hawaii does not do that. They do not post it, so I just want to say, you know, you get information, is it true? Is it true? It is not true, it is totally false. Hawaii County does not do that. Honolulu does it, Maui does it, Hawaii County does not do it, so, again, I am trying to tell you that, you know, all of this information, documentation is what I want to see, but this is just an example and I just want to take 1 and I am going to move on. I am not going to go through the rest, but Councilmember Kawahara, this is an example. Ms. Kawahara: Thank you. I actually have information on numbers 2 and 3, so they might be intermingled here, so some of the slides I won't be speaking on and some of them I will. Chair Asing: Councilmember Kawahara, I am sure it is going to take more than eight (8) minutes. Am I correct? Ms. Kawahara: Yes you are. Chair Asing: Okay, then it would not be fair for me to let you talk for, you know, eight (8) minutes, and then say that we are going to go lunch. That wouldn't be fair. Ms. Kawahara: No. Chair Asing: I think you should have the full timeframe to make your presentation, so with that, we will break for lunch and then we will come back, so that she can give her full presentation, but I have to also tell you that we have on our schedule the public hearing slated for 1:30 and we must do that, again, because it is posted, so when we come back at 1:30, we will do the public hearing first. I am going to assume that it is not going to take very long because I don't think there is too many people that will be testifying on that particular subject. So, anyway, we will break for lunch and come back at 1:30, have the public hearing, and then have Councilmember Kawahara go ahead with her presentation. Thank you. There being no objections, the Chair called for a recess at 12:25 p.m. The meeting was called back to order at 2:40 p.m., and proceeded as follows: Chair Asing: With that, I will now turn it over to Councilmember Kawahara. Ms. Kawahara: Thank you Chair Asing. COUNCIL MEETING - 48 - July 22, 2009 Chair Asing: Do you want to take a short break? Ms. Kawahara: Yea, that would be great. Mr. Furfaro: Do you want to take a five (5) minute break? Chair Asing: We will take a short five (5) minute break. There being no objections, the Chair called for a recess at 2:41 p.m. The meeting was called back to order at 2:55 p.m., and proceeded as follows: Chair Asing: With that, Councilmember Kawahara. Ms. Kawahara: Good afternoon everybody. We have been dealing with a lot of heavy issues and important issues today and I do appreciate the Chair taking our request first this morning, so thank you Chair. I, too, do have a story that I would like to share. When... this is actually one of my first presentations, so I am going to be a little nervous. When I first came on the Council, I like Councilmember Bynum was very excited. I was eager to do something good and something that would help the public because that is what I am. I am a public servant and I have always been a public servant. My background as most of you know is as a librarian and it seemed just perfect that I was able to win a seat on this Council and able to look at better ways of providing service and informing the public about what we do here at the Council. So with the advice of several people, that, oh, it is going to be hard, oh, it might not happen, don't be disappointed, it has been tried before, I just figured that these were naysayers and I am going to be optimistic before I am going to be negative. So I started to work at trying to get something that I consider basic and I think many informational professionals and most of the public determine as pretty basic access to public documents that are created in electronic format. They are things that should be available online because there is no obstacle to putting them online. The technology is there, our staff has been trained. I spoke with our wonderful IT Manager which is Eric Knutzen, had several meetings with him... clarified with him that everything was doable. I got all my ducks in a row, very excited is like, oh, we are going to get this stuff online. And it was at the request of several constituents that is like how come... why I need the minutes online, I don't want to drive in to pick them up. I don't feel I should have to drive in to get them when I could get them online. So I did do that and I actually have it on here. I did make a proposal, an "e" proposal early in March or May detailing how IT and us, we, could work together to make our Council better at serving the public and providing services. There was a list... it was a detailed list which I will show you when we get to the presentation. I had a meeting with our County Clerk and it was a long meeting, and there were several issues that were brought up that I think were very, very surmountable and easily taken cared of, and I still believe that. And I think to show it, we have done that online ourselves with barely any glitches and rather quickly because it is an easy process as Mr. Coll does know. And at that point, I was disappointed and I tried to make sure that I was hearing it right and that we weren't going to be supportive in putting these online. And, again, I have great respect for this body. I have great respect for protocol and lines of command and that is just my nature. I COUNCIL MEETING - 49 - July 22, 2009 follow what needs to be done in order to get to the right place, so I wrote memos, I discussed things, and nothing came back. Yes, nothing came back and it was disappointing and at that point, I had spoken again to Councilmember Bynum and other people and said, okay, this really is happening. How is that possible? Please help me figure out what we are going to do and because of this new election I think of new people, I felt it was important to support what Councilmember Bynum had obviously gone through already. I was hoping that I would have gotten a different result and it did not happen, so that it is still occurring is our experience and we share that with the public because we could not communicate in any way or form with the powers that be that allow us to put things on the agenda or even... yea, to put things on the agenda to address it in that way or to do it as an amendment to the agenda on that day. And I think people that have been following are quite aware that we have tried everything possible within the tools that we are allowed legally to resolve some issues that we think are very basic and very important. Some of the things that are more basic, we have had some success and this was solely the work between myself and Eric Knutzen and Mr. Bynum himself where we said, okay, so we need to figure out how to do this because there is this one a-mail address for everything and we need to diversify what our a-mails are because there are different needs for different people in what they want to say. So we were able to do certain things and my presentation... I am going to start now. I wanted to share the story before I went into my formal statement here to say because I didn't want to forget anything that I wanted to tell the public and that I wanted to share with my fellow Councilmembers because amazingly enough, we do follow the Sunshine law and it is almost impossible to talk to anybody between ourselves. We are very paranoid about talking with two (2) or more people, so to be able to share it with my fellow Councilmembers is good. Councilmember Kawakami had asked if we had given such information to them and we had and I had. So let me start my statement. From the beginning this has been about issues and not personalities. If there were personalities that were brought in, they were not done by Mr. Bynum or myself. What has happened maybe was people writing in and expressing frustration. The frustration that they understand that we have felt as representatives of the public, so it has never been about personalities. It has been about issues... Councilmember Bynum and I have strived to be issue oriented because we recognize the strength and the diversity and the sum of life experiences as everybody on this table. So I absolutely respect and expect lively discussion about these issues and discussions that are to be made in the best interest of our community, and this is one of those issues. There are issues as we have heard from testimony, big issues, and major issues that we have to deal with, but you know what, we are a bunch of smart people. We can deal with this issue and those issues. We have that capability. We are smart and we can multi-task because everything is just as important. This is a core fundamental issue that guides our decisions... to address it is mandatory in order to continue and to make decisions on any other major issues and I have the full faith that we can do both. I wanted to address that issue. I also... as we all know, there is a majority and a minority in all legislative bodies. This means for us as a Council, for our Council, it is not a rubber stamp, this Council is not a rubber stamp. We have a very lively minority on this Council and just what is the law is that the majority has a... may rule, but the minority has a voice. That voice I fear has been silenced and I know has been silenced because it is my experience, so I wanted to share that with you. I am anxious because I don't want to be attacked or anything because I own this experience, it is my experience, COUNCIL MEETING - 50 - July 22, 2009 and it is what has happened to me as your elected representative. And continuing on the fact that this is a Council and we are not a rubberstamp. There is a tendency, I know, and I have heard that everybody... people would like us to be a homogenous group, we agree on everything and there is no infighting. I submit that a good Council is a Council that has minority views and allow them to be heard because as we have all heard, you make better decisions and as a community, those decisions are appreciated more because everybody had a chance to say something. When you have a minority view and a majority rule and you go at it, and you are respectful as I believe we have been diligently through this entire process. That is a respectful dialogue with both views... that is the bread and butter of a democracy. Better decisions as I said are made and support for the decisions are stronger when all voices are heard and considered. The issues that we are considering today, again, are fundamental to a vibrant democracy and engaged citizenry. I want to thank everybody that came out today because I know you have things to do and this is what an engaged citizenry looks like. People that care, people that want to know what is going on, and I appreciate you coming and I appreciate everybody that has submitted testimony or come up today or submitted testimony online or just in the grocery store. It has been overwhelming and I believe... and I know everybody recognizes the importance of the three (3) issues that we have addressed here. We are demanding equal access of Councilmembers to the agenda. The posting of basic key documents on the County website and equal and timely distribution of mail and communications to all Councilmembers. This is a modest and reasonable request. It took a long time to get here. For Councilmember Bynum, it has been two (2) years or more and I am just happy to be able to help him and add to his voice and his experience because these issues are just as important to me. We have been silenced by denials to place items on the agenda that... that if you see our agenda today such obstacles do not exist. We have been advised by the County Attorney separately that on another occasion when we try to do it by the law and with our recognition of the Sunshine law that the County Attorney was still concerned about the Sunshine law and that is how we got here today. We got here by saying that this is just communication to discuss these issues. In the big picture of everything, what is wrong with the discussion of these issues? I am dismayed and disappointed that it has taken this long. We started on June 3 with the official protocol, the official communications in writing, on letterhead, whereas before that we were trying to collaborate and meet with people to help us address what we view is an integral part of communication and an integral part of the County Council to be visible and relevant to the public. As a staffer at the capitol for our Senator Hooser and an avid observer of national politics, I recognize that there are games to be played, that is just how it is done. There are games and gamesmanship depends a lot on experience, so if we are outplayed in this, I would be very disappointed just because I would feel that I did not serve my public well just because I wasn't experienced enough in game playing. So, yes, there are games and when I ran for this seat, I knew that and I accepted that it was a major decision to make as any of these Councilmembers know. Decisions are expected to be made on this Council. You are elected a representatives and you are put in positions of trust to represent your constituents and to represent your community. And as Chair Asing has so aptly said and stated in the past, this is the nature of the game, but when it comes to transparency in government, when it comes to the public having access to public documents and basic democratic COUNCIL MEETING - 51 - July 22, 2009 principles, that game must end. Indeed, this principles are so important, they are protected by State and Federal law. An Office of Information Practices for the State of Hawaii was established for the sole critical reason of protecting these principles. Concepts such as the right of the community to have their voice heard through their representatives and the importance of an informed public are the fundamentals of democracy and a public right. In our journey to get here today, we've had to use the tools provided us by State and Federal laws as Councilmembers. We have had to resort to invoking the Uniform Information Practice Act and the Sunshine law. I believe Councilmember Bynum will be able to address the letters and the non-responses that we have gotten unfortunately and sadly from our leadership. The fact that your Councilmembers are having this difficulty in getting information, I cannot imagine and I applaud anybody who has tried to get this information on your own. Any difficulty in the public getting their public documents as required by law, it doesn't matter what format it is in. If you don't get it, it is egregious. I want to comment on several things that were discussed before this and one of the main things was the format of the materials. As a librarian and information junky, the format of information is wide and varied because of the way people learn, the way people read. It is a life long learning process. People read, people listen, it takes all kinds of formats to get the word to people, so when I think about it, there is so much that we can do, and that we should be able to do better, and this is what this is about. When we talk about changing the rules and that we voted on them at the beginning, I again say that when we get to see how those rules are applied, the rules are very succinct in saying that we can amend the rules, so that the processes of the Council can be clarified. When we have Councilmembers and we have the public that do not use computers and I have every type of person coming into the library using every type of computers or not, just books, touch computers, I don't want to touch them, they break, they explode, whatever. It is nothing new how people get their information. That, we have the technology to provide it in different formats is a salutation to how our technology is being useful to us and how we are Council should be able to harness the technology that we have to distribute the information even more widely. We are as we have discussed and shown going to be doing live streaming and I believe that will also provide people not only the right for the privilege of seeing live streaming, but you will also be able to get it on demand, so you are not going to be able to watch it live. You can watch it on demand, online whenever you want because as I have tried to watch... Ho`ike's schedule changes a lot. You never know when the Council meetings are going to be on, so when this contract is awarded, that is an expectation that I have that there is going to be on demand video also, so you can watch it at midnight, you can watch it whenever you are eating lunch if you would like, and then we have in print one of the longest types of ways of transmitting information. Nobody would ever, ever imagine not being able to get something in print and today what we are talking about now is online and that technology is there, that technology is easy, our IT Department has set it up just specifically for purposes of government information and it is set up by department that we have access to. What I am going to present here is what I have learned about how we are getting or were getting our information. I also wanted to mention the IT budget that COUNCIL MEETING - 52 - July 22, 2009 people have been talking about. The $200,000 has been in the budget for a while, not just this year or last year. When we came up to the budget, I and Councilmember Bynum discussed how can we get all of the budget meetings on... filmed by Ho`ike, so we checked to see what our budget was and it turns out that we hadn't spent half of that budget, so we requested that they all be televised and that was denied, but our major... sadly, our major achievement was getting the one decision making session on t.v. So the $200,000 has been there and I am glad to see that we are moving forward on getting live streaming and I hear Chair Asing saying that money is in the Administration's hands and that we can't tell them what to do. Yes, we can't. Chair Asing: Exactly. Ms. Kawahara: As the Council and I have been thinking of this while we were doing the budget, it should be in our budget, then we have our control. I don't have to separate myself from the Administration to ask them, so that we have the $200,000 to spend on any kind of information technology that we want to use. It had come up in my mind and being the first budget, again, I sat back and said, maybe I will do it next year, so I can pretty much assure you that I want to move that $200,000 into our own County Council budget, so there is no question whose money that is and how we can apply it. Okay, I am going to do this and I have never done this before. Council communications as Lani Kawahara has experienced it. We have e-mail and we have internal mail. I am going to cover electronic mail first because I believe the Chair has asked that we separate these out. So internal mail will be coming separately and luckily I have it... Chair Asing: Hang on please. We need B.C. to change the tape. Ms. Kawahara: Okay. Chair Asing: Hang on. There being no objections, the Chair called for a recess at 3:15 p.m. The meeting was called back to order at 3:19 p.m., and proceeded as follows: Chair Asing: We are back in order. Ms. Kawahara: Thank you Chair Asing. So, again, this is Council communications and processes as experienced by Lani Kawahara since being here and gratefully being elected in November. So what we have for here is Council communications, electronic mail, and internal mail. I am going to be covering electronic mail because we have been asked to separate them out. Mr. Castillo: Excuse me. Al Castillo, County Attorney. I am sorry. As your legal advisor and your legal representative, I think what is happening is we... I anticipate us going into matters that raises questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities. So that being said as your legal advisor and as your legal representative, it is my strong suggestion that we go into executive session. COUNCIL MEETING - 53 - July 22, 2009 Chair Asing: I don't... while I respect the County Attorney and I believe we should go into executive session, I would not be suggesting that we go into executive session, but I am willing to make a compromise and not let Councilmember Kawahara continue in this same light which the County Attorney has ruled could be getting into an area that is... could be liable, so I have to take that under consideration as the County Attorney. I will not go against the County Attorney, first of all, and second, like I say as a compromise that Councilmember Kawahara will not continue on this light, this area here. So she can continue in other areas, but not in this one because the County Attorney has made a ruling, so that is my suggestion. Councilmember Bynum? Mr. Bynum: Perhaps the County Attorney could tell us why, what circumstances, under what provision of what law are we going to break, what liabilities are we going to incur. We are talking about communication. I don't understand it. Maybe I could get more information than I would. Mr. Castillo: Al Castillo, County Attorney again. It would be improper for me to opine and give reasons right now in public because I do not want to disparage in any... excuse me, I am trying to protect the County Council, okay, and you are... now I am... it is my strong suggestion or it is my legal advice as your County Attorney, as your representative, and if you do not go into executive and allow this to go on, then you would be doing so against legal representation and you will be subject to individual liability. Ms. Kawahara: I think he was next. Chair Asing: Hang on. With that, Councilmember Kawakami please. Mr. Kawakami: So when you say individual liability, you are talking about the individual giving the presentation because I don't have a problem if she is faced... if you want to go on, I will support you going on, but how does this work? Are we all liable as a body? Chair Asing: Yes. Mr. Kawakami: Because... Mr. Castillo: Now I don't want to single out any one person, but it would be prudent. To me, it would be very legally prudent to go into executive and find out what my concerns are before anyone here waves any privilege. Chair Asing: Okay, hang on everybody. Let me finish with Councilmember Kawakami's question first. Go ahead. Councilmember Kawakami? Mr. Kawakami: You know, I think... the thing is, okay... I think we all know what the issues are yea or we don't. I mean it has been publicized, it has been pretty much in the newspaper every other day. They definitely have talked about it I think, you know, substantially enough, so that I understand where you are coming from. You know, I just want an opportunity to respond back and ask COUNCIL MEETING - 54 - July 22, 2009 some questions too and not necessarily on this subject, but on some of their concerns and I don't know if they are willing to shift their presentation in a different direction to allow some kind of dialogue or if you guys want to continue just going on with your presentation, I guess it is in your court how you want to handle it, but, you know, I have been sitting here patiently and I have some questions and if we are going to go into an executive session because you guys are going to demand that you guys want to go that route or... I mean it is frustrating. Chair Asing: We are not going to go into executive session. Mr. Kawakami: Okay, so can we... so you guys want to continue on or you want to open it up? Well, you know what, that is at your discretion. Mr. Castillo: Mr. Chair, I am sorry. On a legal matter, when the issue becomes any single Councilmember waiving his or her fundamental rights, I think it would be prudent for us to go into recess, so I can discuss my concerns with a particular person regarding whether or not the Councilmember, Council Chair who... or whomever wishes to waive his or her rights. I don't think the body can waive an individual's right. Chair Asing: Okay. Hang on. With that, Councilmember Chang. Mr. Chang: County Attorney, when you have an opportunity to talk to an individual or individuals, how long would that take? How long is this conversation going to take? Mr. Castillo: Well, I know we are heading for a caption break and I would expect this conversation to take between 10 to 20 minutes because it is of that nature. Thank you. Chair Asing: Councilmember Kawahara? Ms. Kawahara: Hi, thank you Council Chair Asing. To the members of the public, we... I have great respect for our County Attorney and he is doing his job in trying to protect the County Council from any liabilities. I am not an attorney, but what I have in my presentation are all public communications, public documents... I was careful to be sure that there were public documents and it is the Council's... we are doing the business of the people, so I am not sure if I could speak with County Attorney and if he has seen the presentation because maybe there is... we can alleviate his concern if he could see what the presentation was in a recess. Chair Asing: Thank you. I can agree to that. With that, Councilmember Furfaro? Mr. Furfaro: Yes, me too, I would not necessarily want to go into executive session. It has taken us a very long time for us to get where we are at. But as a colleague of yours across the table, I heard something here that I would encourage us at least to take a recess because I heard the County Attorney say something that the body could not relieve itself from an individual's decision. And so there is something on the radar screen that I just don't quite catch onto, so I COUNCIL MEETING - 55 - July 22, 2009 would strongly suggest that we take a recess and I would also like to say that I am not supporting going into executive session. With that, Councilmember Bynum? Mr. Bynum: I was hoping that we could get through this without this occurrence and I tried to kind of address it earlier by saying that... well, first of all, let me just be more systemic and we will do our recess. I really appreciate what you said Mr. Kawakami. I want to hear that dialogue, I want us to talk to each other about this issue, so I hope we get there. I want Lani to be able to complete her communication. I don't want to do anything that puts the body in jeopardy of liability. If I make a choice outside of my attorney's opinion put myself in liability, I may choose to do that, but I believe what this is about is what I was talking about earlier. This Council, in my view, spends half of its time since I have been here calling up appointed officials and talking about their role, what their role is, and whether they have done it properly or not or how could they do it better, and holding them accountable to the role that they play on behalf of all of us. I believe that is what he is worried about that our conversation will be somehow critical of the work of the Clerk and, you know, let's see what he has to say because I don't think that that should be a problem, but I am not an attorney, so, you know, I think it is the... that is part of what we do, oversight. We talk about what people's roles and responsibilities are and we question them about whether they fulfilled them or not. I think that is part of what I certainly want to do and I don't know why our Clerk here should be held at a different standard than any other Department Head and civil servants who have paraded up here for years, so that is my 2 cents. Chair Asing: With that, we are going to take a recess. There being no objections, the Chair called for a recess at 3:31 p.m. The meeting was called back to order at 4:50 p.m., and proceeded as follows: Ms. Kawahara: Thank you Chair Asing. I want to apologize for the delay and thank you for the people that decided to stay. I also want to acknowledge that County Attorney Al Castillo is doing his job... absolutely doing his job. Chair Asing has requested that he go next, but I believe I've got the floor and I only have ten (10) minutes left. I think that I would like to discuss with you, to share with you, and after that, and I will be asking Mr. Castillo to come up because of a unexpected incident, so if you will bear with me, that is what we will be doing in the next ten (10) minutes. As I was saying earlier, it is the nature of the game and I am very new at this and there are other people that are very... have been doing this a long time. It is as simple as how long would I like to be a Councilmember, so let me go ahead and finish this. We are going to do Council communications, electronic mail, and these are just items that come through... have in the past, through my whole term here. We have seen our electronic mail come through like this and I have no idea why, but it is something that I think we can do much better. On, sorry... there we go. No, that is not the one. Click, click, there, that is all, that is all, big deal. I don't know why we receive it like this, but... I don't know why we receive it like this. This is simple as a piece of paper. It is a hard document printed out from electronic format. E-mail began coming that way from the beginning of my term and the e-mail addresses were not there to respond to and also the address of testifiers were not there either. So these are just stuff, you know, examples, because and I have been careful about selecting things that were public documents. Yea, so I can't respond to any of these people. I can't reply to them by e-mail. I could COUNCIL MEETING - 56 - July 22, 2009 go ahead and look in the phone book and give them a call, but I believe that fourth line is probably a phone number, so I am just asking if we could do this better. If I could do my job better do you think if I had more information? I thought so. We have been getting them in electronic format now for... well, actually, they still are being printed as hard copies, but we are getting the a-mail addresses and other identifying information of these people that are doing a public testimony just like you have done here. So I think we've made a good step and I am hoping that that stays the case where I can reply or I could take the hard copy, type in the address, and reply to the constituents or ask them. I need more information about your testimony, could I talk to you please because there is some... I find your testimony compelling or I find some information... I need more information on it, could I talk to you as a communication that I would like to do. I think I will end there. Do I want to do that? And I know I told Chair Asing that I would only do ten (10) minutes and I am going to stop there. I just want to again say that I can't imagine that these would be bad things that would happen if we changed things and these are simple requests... standard operating procedures in most places. The resistance or attitude has been eye opening and I wouldn't want to change anything that I have done because I know that this is something that is a basic right for me to be able to request that I be able to communicate with my constituents in the format most comfortable to them, so I can learn exactly what they want. And I can't believe that there would be anything wrong with that, so I am going to close with that and say what we are trying to do is improve what we provide as a service and our represen... how we represent you is all that I am trying to do and I believe that is all that Councilmember Bynum is trying to do. And I am not set with any discussions that I have had with Mr. Castillo if you may notice that I am upset, but we are going to go... I am requesting that there has been something large enough that has happened that I would like Mr. Castillo to... and I would like Mr. Castillo to come up. Thank you. Mr. Castillo: Council Chair, Councilmembers. The subject matter is an unanticipated matter and it does involve questions and issues pertaining to the powers, duties, privileges, immunities, and liabilities of this body under Chapter 92. I request that we go into executive session to discuss this matter that falls under 92-5 subsection (4). Mr. Bynum moved to go into executive session, seconded by Ms. Kawahara. Chair Asing: There has been a motion to move into executive session, there has been a second. I will not support going into executive session at this particular time. I have not had an opportunity to make my presentation. I have given the floor, the courtesy extended to both Councilmember Bynum and Councilmember Kawahara, so I would like to finish up with my presentation. I believe that it is fair and so I cannot move to go into executive session. I cannot support going into executive session at this time. Mr. Castillo: And Council Chair, I just wanted to say that means that maybe at a later time today. Chair Asing: Yes... well, maybe not even today. COUNCIL MEETING - 57 - July 22, 2009 Mr. Castillo: It is a totally... it might be a... it is a totally unrelated to... not totally unrelated... it is unrelated to the presentation, but I will just go take my seat. Chair Asing: Thank you. Ms. Kawahara: There is a motion. Mr. Bynum: There is a motion. We are at discussion. Chair Asing: Go ahead Councilmember Bynum. Mr. Bynum: A couple of weeks ago, I voted not to go into executive session and the Council Chair said, our attorney had advised us, and what are we going to do, not follow the advice of our attorney. This is a separate matter. I believe it is serious that is why I made the motion and I am going to support us following the advice of our attorney and going into executive session. Ms. Kawahara: I would like to state that this has nothing to do with the presentation or the presentation that is going to be coming up. It is... Mr. Kaneshiro: May I make a suggestion, then if it has nothing to do with the presentation that is coming up, I believe we can continue with the presentation, and then go into executive session after the presentation is made. Chair Asing: Councilmember Furfaro? Mr. Furfaro: I had said earlier that I did not want to go into executive session, but I hear my colleagues across the table requesting such. I hear the comments regarding the completion of a presentation by the Chair and I think that also would be proper. I want to make sure that I am hearing that you do want to do this. Mr. Bynum: Yes, I do. I will speak for myself. Mr. Furfaro: And may I ask if you would want to withdraw your motion and your second, and let Mr. Asing make his presentation, I would support you if you asked. If you don't want to do that and we call for a vote, we are going to need five (5) votes to go into executive session. Mr. Bynum: I don't believe we should wait. I think the County Attorney has advised us... I will... I will listen to... Ms. Kawahara: I can support waiting until after Chair Asing's presentation, however, this item is going to go on public record in executive session and it will happen. This is precisely exactly what an executive session is for... for something to be placed on the public record in executive session, so I would support the withdrawal. Mr. Bynum: And then I will withdraw my motion. COUNCIL MEETING - 58 - July 22, 2009 Ms. Kawahara withdrew her motion to go into executive session. Mr. Bynum withdrew his motion to go into executive session. Chair Asing: With that, I will now be make my presentation. With that, I am going to turn the Chair over to Councilmember Vice Chair... Councilmember Furfaro. Mr. Furfaro: Thank you. I will give you the floor for your presentation and I will go across the counter. Mr. Asing, the floor is yours. Chair Asing: Thank you. Can you hear me? No. Can you hear me now? Thank you. Let me start. The Kauai County Charter Section 3.07A requires the Council to elect one of its members as Chairman and presiding officer of the Council, therefore, the Council Chair has two (2) roles. One as an elected representative of the voters and the other as an elected leader of the Council. As with other legislative bodies, the elected Chair or head is responsible for managing the agenda and carrying out other matters involved in the administration of the Council and Council meetings. The administrative responsibilities are also mandated by Charter. The Kauai County Charter Section 3.07(F) states the Council shall appoint the necessary personnel for transactions of its business and such appointments shall be subject to the civil service and classification requirements. The Chairman of the Council shall be the administrative officer of the staff employees. Mr. Furfaro: Excuse me Mr. Asing. Are those numbers right on this presentation? It is 259. Thank you. I just wanted to correct that. Chair Asing: Yes. The authority to establish the agenda is found in the rules for this Council relating to transaction of Council business which was adopted by a unanimous vote of all Councilmembers on December 1, 2008. Two (2) of these rules provide the Council Chair with the duty and responsibility for setting the Council agenda. Rule number 3A5 directs the Council Chair as the presiding officer at Council meetings to receive and to determine for disposition all matters properly brought before the Council. Further, rule lOC states that all bills and resolutions must be initialed by the Council Chair or in the Chair's absence, the Vice Chair or other designated Chair as stated in rule 3 in order to be placed on the agenda. Both of these are long standing rules that have been in existence during the tenure of prior Council Chairs. As specified by the Council rules and customs in addition to setting the agenda, the Council Chair's responsibilities include calling the Council to order, presiding over debate, recognizing members to speak on the floor, and preserving order... leading the appointment process for Committee Chairs, carrying out the day to day administration of the Council and the Council staff. Administrative duties... I agree with the view that the administrative authority of the Council Chair does not... I am going to repeat, does not amount to total control over all Council business. It means that the Council Chair places items on the agenda at the request of Councilmembers unless there are cases where the items are not listed for administrative reasons. As Council Chair, I have exercised my discretion to delay or defer agenda items carefully using the Council's past practices as guidelines. There are many times when the Council Chair must make difficult administrative decisions necessary to manage the agenda to enable the members and the public to be able to fully and productively discuss each item. COUNCIL MEETING - 59 - July 22, 2009 Rules, Councilmembers Bynum and Kawahara claim that Council rules need to be amended. The rules that they claim about are basically the same rules that were in effect when Councilmember Bynum took office more than two (2) years ago. When the rules came up for adoption in December of 2008, Councilmember Bynum did not suggest any changes and yet Councilmember Bynum says he has had this problem for years. When it was placed on the agenda and he had an opportunity to make any changes that he wanted to because we allow that to happen in the legislative process, nothing was done. Councilmember Kawahara also voted for the rules. As you can see here, wow, this light has to go off. Can I get this light off please? This is the Council rules and the meeting was held on December 1, 2001 (meaning 2008) and if you will notice on the bottom here, this is the vote count and notice that all members voted for it. So seven (7) members agreed with the rules. Was it placed on the agenda, no? Half true? It was placed on the agenda and you had every opportunity to do whatever you wanted to do with it. Amend it, change it, discuss it... when we put things on the agenda, the agenda is given to you ahead of time, so that you can review it and if you had any concerns and you wanted to make changes when it gets to the floor, you make those requests, and we will honor those requests. Access to the agenda, Councilmember Bynum claims that I have not given him access to the agenda. I could dispute every single allegation that he has made. Today, you have heard things that have been said that are false, right? I pointed that out to you. Statements that are inaccurate. I wonder how many statements are inaccurate and not factual. I would like to focus on three (3) examples where he is telling half the truth and maybe not even that. The first example is the erosion at Po`ipu Beach Park. In January of 2009, Councilmember Bynum asked that I place on the agenda a bill on the agenda that would appropriate $400,000 for a consultant to study beach erosion at Po`ipu Beach. At the time, there was a possibility that the County would have a budget deficit of approximately $11 million. If you recall at that particular time, the State Legislature had thoughts of pulling our TAT funds and if they did in fact pull those funds, we would be in a deficit of at least $11 million. There was some concern, so what did I do instead. So instead of placing the proposed bill on the agenda, I decided to place the item in the budget bill which is the same because it is something that is going on the agenda. Now when it was going to go onto the agenda at a later period, here is the bill. This is the capital budget bill that we passed. It was on the agenda, full discussion on the floor, everyone had every opportunity to give input. Could I have the next slide please? This is the item and the item is down in this area here. Could you highlight that please? Here you go. Coastal erosion study, Po`ipu matching. Instead of the $400,000, everyone supported $150,000 which is okay, nothing is wrong. Now as you can see, you want to get the next slide please. Here is the vote count. The vote count is 7-0, so everyone had an opportunity for input on this, in the public, and the vote was 7-0 for adoption. The second item that I would like to talk about is the release of the County Attorney's opinions to the public. At the time, Councilmember Bynum proposed that his bill be placed on the agenda. Councilmember Furfaro also requested that the issue be discussed by the Council. Because the release of legal opinions may involve privileged or confidential information, the issue needed further study and I COUNCIL MEETING - 60 - July 22, 2009 decided to place Councilmember Furfaro's item to discuss the issue on the agenda instead of Councilmember Bynum's bill which was identical. As you can see from the Council minutes, let me show you. This is the meeting and the meeting was held on June 25. I would like to read you a passage and a comment by Councilmember Bynum. Let me read it to you. Here is Councilmember Bynum's quote from the minutes. Mr. Bynum: I am very pleased that this agenda item is on the agenda here and I would like to thank Councilmember Furfaro for requesting it and I would like to acknowledge the Council Chair for placing it on the agenda. Where did this information come from? I wasn't able to place it on the agenda. Where did that come from-I am trying to manage the system. That is my duty. Manage the system, place it in areas that I believe are better, timely, and appropriate. The third example I'd like to use is Councilmember Bynum's proposed bill to place public documents including meeting minutes on the Internet. In 2007, Councilmember Bynum shared the bill with me. It is (inaudible) that Councilmember Bynum talked about this bill earlier. I knew that the bill would require additional personnel. In other words, more money as one item. I met with Mayor Baptiste to share my concerns, not just about money, but about time and timeframes, when will the boards and commissions be ready. If you pass this bill now, you will be in violation because the boards and commissions and the Council was not ready at that time. Mayor Baptiste asked that I meet with John Isobe, the Administrator of boards and commissions to discuss the issue. Councilmember Bynum also met with Mayor Baptiste and Mr. Isobe in separate meetings. Mr. Isobe explained to Councilmember Bynum and me that the bill would require additional funding for staff and equipment in order to post the minutes on the Internet. He reported to both Councilmembers and me about the progress that was being made. Here is a report dated November 2007. If you will note, this is a report from John Isobe who is the Administrator and to Councilmember Tim Bynum and the Chair, Bill "Kaipo" Asing, so the memo goes to two (2) people and the reason it goes to two (2) people... we had an agreement that we will work together. The Council will do their part on trying to get it also on the Internet. We would place our meeting agendas on... that was the agreement made and that agreement was made together with Councilmember Bynum and John Isobe, the Administrator. I would like to... can you highlight that section. Let me read this portion here. However and this is that communication which was sent over to both Councilmember Bynum and myself. However, should you still desire to take legislative course of action, we will do our utmost to comply with the requirements of your proposed bill, but also request understanding and continued support of the Council in insuring that all departments and/or division servicing the boards and commissions are provided with adequate funding, staffing, and equipment. In other words, we knew that it was going to cost some money. It is not simple and easy. In the report, he repeated to Councilmember Bynum and me that the proposed legislation would require additional money. Here is another report. This is a report dated June 6, 2008. Again, it was an agreement between Councilmember Bynum, myself, and the Administrator John Isobe that we were all working towards posting it on the website. That was the goal. Do you want to turn the next page? Let me read you this portion here and this is 2008. We remain hopeful that this update clearly demonstrates our ongoing desire to support your ideas of COUNCIL MEETING - 61 - July 22, 2009 providing improved public access for all open meetings, proceedings of County boards and commissions and thereby mitigate the need for additional legislation. What we were trying to do was say, Councilmember Bynum, let us work towards doing it. If we do it, then there is no need for the legislation and I believe that was the plan that I believed that we agreed to. Councilmember Bynum should know that we had to fund an additional position in the Administration and that that person's duty include implementing the changes that he wanted. As you can see, Councilmember Bynum knew about this ongoing plan that we had. Councilmember Bynum knew that two (2) of the Council's analyst positions were not filled and that one of our analyst just returned from maternity leave. He also knew that we were moving temporarily to another location while the building is being repaired. He also knows that the minutes are done by a Clerk who in addition to typing the minutes verbatim is also responsible for preparing the agendas. By the way, do you want to show the next slide. Let me show you this slide here. This happens to be minutes that are posted on other municipalities and as I described to you earlier, you will notice that Hawaii County does not post. So, again, remember the erroneous information that all counties get that. Again, it is small, it is minor, but it is inaccurate and why do you say inaccurate things to make somebody else look bad, that is wrong. You can't do things like that. You have to be upfront and honest and what I am trying to do is show you all the documentation that I have to prove what I have done and how I have managed the system. Let me point out this bottom portion, highlight that please. Approve committee minutes report posted on County of Maui website with attachments by Council Services. You know how much it cost them, $170,000. Money, yes, it cost money. It is not easy, so we do we hire outside help, a court reporter, and pay the $170,000 and get it on? It cost money. It is not easy. He also knows that our staff despite being shorthanded fulfills all of its obligations as required by law. Despite his knowing this, he wanted to impose more duties on our short handed staff that would require lots of overtime and stress, hiring more personnel or paying a court reporter. In these hard financial times, it would be irresponsible to try to implement his demands within his timeframe. How about help us to help ourselves also. In spite of the hardships, we lived up to our verbal agreement to post documents on the website, so there would be no need for the legislation. Put it away because we are going to do it also. Do you want to show that slide? Here is the press release dated... can you see the date? July 2. Now... why don't you highlight it now? In the press release, here is what it says. Putting the meeting minutes and recap memos on the Council website is part of our Countywide effort plan that we had, plan that we talked about, what we are going to do agreed to by all. To make more and more public information available online. Discussions between the Council and boards and commissions offices on posting the minutes of the County boards and commissions and Council meetings were launched in 2007. The implementation of posting Council meeting was delayed by several factors including the untimely passing of the Late Mayor Baptiste, the complex subsequent transition of County leadership, the Special 2008 Mayoral Election, the relocation of the Office of the County Clerk - Elections Division, and the seating of a new Council. So there were concerns, there were problems that we needed to work out too, so that we could do our job as planned. These are but a few examples of how the Council rules are used to administer the agenda items requested by Councilmembers. It is fair and it is COUNCIL MEETING - 62 - July 22, 2009 efficient. It is my hope that the Councilmembers and the public have a better understanding of how and why the system has always worked. There is no need to change the rules. The rules are fine. It is the interpretation of the rule and how you administer the rule and I believe that I have administered the rule fairly and I believe that I have done a good job in administering the rules. What do you think? I showed you the documents, the evidence. These are not something that I sit back there and I tell you. I show you my documents. Have I administered the rules in a reasonable, prudent, and professional manner? I believe I have administered the rule the way it was intended to be administered. I will continue to follow the rules. Follow the rules and administer the rules in a fair and just manner. Equitable and timely circulation of Council Service documents. Councilmember Bynum and Councilmember Kawahara claim, claim, claim, that documents are not being circulated on a timely and equitable, equitable manner. Could we start by the flow chart? Let me explain the way mail flows into the system. This is the incoming information which is mail. Go ahead. When the mail comes in... you can put the three (3) up. When the mail comes in, it is filed either inter-departmental... the mail comes in, I am sorry from departments, the mail comes in from U.S. postal service. There is also public walk-in type mail and there is the electronic mail. I will not be discussing the electronic mail at this time. Let me focus on the mail coming in here. Excuse me. When the mail comes in, the first thing that happens is, at the counter, it is time-stamped and logged in. Now you can keep on going. At that particular time if it is addressed to a Councilmember, it goes directly to that Councilmember. If it is something that is going to appear on the agenda, we put it in a file called agenda file. This dotted arrow here shows that when it is placed in the agenda file, two (2) copies... here you go, two (2) copies are made of that document. Those two (2) copies go to staff analyst. Do you want to continue this way too, the arrow going this way. Okay, we have to do that, cannot help. I want to show you that those copies that goes to the analyst... here you go. One copy goes to the primary analyst, another copy goes to the backup analyst. The primary analyst responsibilities include review for technical correctness, signatures... I use the term sanitize and maybe I am maybe way off. I just use the term... in other words, what I am saying is when it comes in, it is not necessarily ready to be put on the agenda because signatures are not there, errors, corrections need to be made. It needs to be cleaned up and so you have a primary and a backup staff do that. After it is done, then they put it in the agenda file, but they need to clean it up. Now, we also have mail that comes through the non-agenda file. With that, you want to go this way. What happens to this mail here? In other words, I describe three (3) mail areas. I describe if it is for Councilmembers directly there. If it is agenda, it goes there. If it is anon-agenda item, it goes to anon-agenda packet. From that non-agenda packet, it is circulated to the appropriate Councilmember staff. These kinds of documents are generally responses to personal request, you write in and... to Councilmember Bynum maybe asking for some information, that could come here or in many cases, it goes there. There are... besides personal request, communications, information from Personnel, Finance, notices, policies, invitations, all of those mail comes to this packet here and they are given to Councilmembers here. Now if you note here, there is a file called upcoming agenda. This is the agenda file that we use to prepare for the meeting. When it is all prepared and ready and that is normally done on a Thursday and when that is COUNCIL MEETING - 63 - July 22, 2009 done, it is the packet that you will see on the table that all Councilmembers have. So all of the information is there and all of the information is passed out... we don't have a slide for that... all of this information here in the packet is passed out at the same time to all Councilmembers. All Councilmembers can view all files provided that Councilmembers do not interfere with office operations. So every file that you see here is open to Councilmembers, nothing hidden. Why would we hide anything? There is nothing to hide. Everything is open. Now let's go to the upcoming agenda. That is the agenda file. If you will notice, all Councilmembers receive this information at the same time. That is a very, very important information for all of you because by OIP rules, you must pass the information out to Councilmembers all at the same time. You cannot give one Councilmember one time and then hold back and then give another Councilmember the next day or make it different. It is available for Councilmembers at the same time. Now in managing the agenda here... if the agenda happens to be full, too heavy, it is going to be time consuming and run into the late evening hours, we generally will find the agenda items that are not critical and take them out and put them in another file because they could be delayed. Other than that, it is in this file. Do you want to take this out? Okay. Now I only do this to show you the time that you, the important issues are really bills and that takes time, that takes a lot of study. Now if you notice the timeframe... when it goes on the agenda for first reading, what you have is you have the agenda in your hand, it is posted six (6) days, so you have some work time in there before it hits the meeting, the Council meeting, and then generally you have public hearing notice that ranges from 10 to 20 days, and then you have the public hearing with a minimum of seven (7) days and you are now at the Committee meeting. So what I am making reference to is your work time available here is reasonable. I also want to tell you that Council Chair, Committee Chairs normally will not pass out anything on the Committee meeting by approving it and passing it out if there are Councilmembers that feel that it is not ready. I am not ready. I don't have enough information. Can you defer it? The Committee Chairs, in general, will respect that and they will respect that and say, Councilmember Bynum, you are not ready, you need more time, we will defer it. That is a general rule, so what I am trying to tell you is that the time that you have to work on this is long. It is not short and the Committee Chairs will allow you if you need more time to work on it, and you do not agree that you have enough information. Okay, now, let me go to... I have some questions. Don't go through that yet. Okay, I have some questions regarding equitability, sharing of documents for Councilmember Bynum and Kawahara. Regarding the plastic bag reduction bill which is on the agenda today... has the bill been reviewed by the County Attorney's Office? Could you answer that? Mr. Bynum: Yes. Chair Asing: Yes, thank you. Did you receive any feedback from the County Attorney? Mr. Bynum: Yes. COUNCIL MEETING - 64 - July 22, 2009 Chair Asing: Yes, wow, yes. Did you receive this information one week ago, one month ago, longer? Do you have any idea when you received this information approximately? Mr. Bynum: Not off hand. Do I get to ask you questions too Council Chair? Chair Asing: Hang on. It is my time. Mr. Furfaro: Let me say Mr. Bynum and Chairman Asing, I think if we are going to pose questions across the table, I would prefer that you make your presentation Mr. Asing and I will entertain questions since it is your presentation at the end. Chair Asing: Councilmember Furfaro, let me finish this up please. Okay, so you don't recall? Did you share this information with your colleagues? Did you share this with your colleagues? Mr. Bynum: (Inaudible) the bill... it hadn't been introduced yet. Chair Asing: Did you provide this information to your colleagues? Mr. Bynum: I hadn't completed the bill. Chair Asing: You shared it? Mr. Bynum: I can't re... Chair Asing: You have it and you don't know if you shared it with your colleagues? Mr. Bynum: No, I don't believe I did. Chair Asing: You did not, okay. Let me do this. Again, editorial, Garden Island, June 17, 2009. Here it is, wow, all kinds of information here. Are these accurate, real, right... let me do this then. Put that piece up please. Imagine coming into a Council meeting or Committee meeting to find documents date stamped received days earlier that are related to the agenda. Today, plastic bill on the floor related to the agenda. Oh, decision making to be done that day, today. Imagine even more interestingly, that such information may be provided to some, some, but not all Councilmembers. Two (2) Councilmembers have this information, two (2). Did they share this? What are they talking about here? They have some double standard? It is bad for others, but it is okay for me? Double standards, accurate... it is not fair. Many, many allegations. Many, many misinformation. False information. Garden Island's fault? Mr. Furfaro: I am going to ask you Mr. DeFries, you have to refrain from your comments. Mr. Asing, you have the floor? Mr. Bynum, I will recognize you for questions at the end of his presentation. COUNCIL MEETING - 65 - July 22, 2009 Chair Asing: Yet, here, we withhold information from your (inaudible)... exactly what they state here is what they have today. They have done it today, exactly look, wrong, wrong, wrong. They do it today. Was there another time that they did it maybe? Let me do this. This is information regarding OIP. This meeting here was held on May 20. This is from OIP Jennifer Brooks. This information came in on May 15. The information came in May 15. The meeting was May 20. Did Councilmember Bynum share this information that is going to be on a subject on the agenda on the 20~? Did he, in fact, share. Of course not. As a matter of fact, it is even worst than that. He dropped the information the day of the meeting and after I called the meeting to order. As soon I called the meeting to order, he dropped the information. Mr. Bynum: Point of order Mr. Chair. Mr. Furfaro: Mr. Asing, I am going to entertain a question from the floor about order. Mr. Bynum, the floor recognizes you. Mr. Bynum: Well, we are going in a long... Chair Asing: Let me finish. Mr. Furfaro: I am sorry Mr. Asing. Let me entertain Mr. Bynum's question and your question is very... Mr. Bynum: (Inaudible) very long monologue where... I will wait. Chair Asing: Okay, thank you. Mr. Furfaro: Thank you. The floor is yours again Mr. Asing. Chair Asing: Now I could take more time to review their examples point for point, but we have critical issues facing this County and I really believe that we must get on with the business at hand. One last point. With regard to the electronic communications sent to the County Council, we have an official website at www.kauai. ov. We were ready to do our job again by placing more information on the website. What did we find? Recently, we discovered that someone had tampered with the website. Changes were made to the official Kauai County website without authorization. The unauthorized alterations provide strong or wrong information and raise concerns of violations of the Sunshine law. As a result, the website will be temporarily taken down to make the necessary corrections. This matter is currently under investigation. I will seek guidance from the County Attorney to determine if laws have been broken or whether or not the results of the investigation can be reached. Thank you. Mr. Furfaro: Okay, Mr. Chair, I would suggest that since it was your presentation, if the other members concur, you would let me continue to run the meeting while we might have Q&A on your pieces. Chair Asing: Yes, please do. COUNCIL MEETING - 66 - July 22, 2009 Mr. Furfaro: Okay, this meeting is in order for the Councilmembers and the body. Mr. Kaneshiro? Mr. Kaneshiro: Thank you Mr. Chair. I just was going to make a recommendation or suggestion. I know that Mr. Kawakami has to be excused from this meeting to be a representative for us for NACo in the mainland... up in the mainland. I thought that this might be a time to give him the opportunity to speak or ask some questions before he leaves, but I think, if I am not mistaken, he might have already left. Maybe I thought he was still here. Mr. Furfaro: I wanted to go to a housekeeping item if I could first. I do... it was submitted to me just a few minutes ago Mr. Kawakami's excuse for the purposes of traveling to represent this body. Mr. Kaneshiro: And it was reconfirmed that he did leave, so... Mr. Furfaro: And I do have that written. Mr. Bynum, I can acknowledge you now. Mr. Bynum: Thank you very much. Wow, this is really interesting huh. Many of the documents that Mr. Asing put, we posted on the Internet some time ago, so I just want to go down each one of these and I will try to be as brief as I can because I stand by everything that I have said over the last few months. I am having my veracity questioned with fairly nuance (inaudible)... but I think I am a pretty straight forward guy and people that know me, know that is true. And I think it is very clear that I have tried to address these issues over a long period of time and, so things are complicated, but let's start... let's just start with the first thing about the December meeting. I already mentioned earlier today that I did vote for the rules in December. That is not the only way that we can address the rules. You know, I also... believe it or not, I tried to come here as humble as I knew how to do it. Believe it or not, I thought that it was significant that I was elected and people of Kauai trusted me. Believe it or not, when I came on the Council, I was the only new face in town. There wasn't three (3) new ones and I will just say this as bluntly as I know. I am the haole guy that wasn't born and raised here, okay. So I thought it was really important that I would be humble, respect the culture, respect the people here, and I think I've done a good job at that because that is what I have heard from the public about my demeanor over the last two (2) years. That is why, you know, Lani said maybe she is not as patient as I am. I thought it was important to honor and to try to work within the system, plus I am a marriage family therapist. I believe in collaboration. I believe in people getting along, so I did my best to work within the system. I have already said how fundamental I believe these issues are, and now I am having my honesty questioned But let's just start with the December meeting. It is a formal meeting by tradition. It is literally scripted, it is our celebration of democracy. We had three (3) new members and at least two (2) of those members know that prior... even prior to that December meeting, I went to them with examples of my concerns about communication and I said that I intend to pursue these issues... this term I hope for your support. I have to apologize to Councilmember Kaneshiro because I didn't do that with him at that time prior to the election, but the other two (2) members I did and I have documented that I discussed with the colleagues that were here last COUNCIL MEETING - 67 - July 22, 2009 time. So I didn't address the rules in the December meeting, but I have made propositions since then which have not occurred and then placed on the agenda. Regarding Po`ipu Beach, it is not secret that I am very concerned about the erosion and the safety issues of Po`ipu Beach. I have been concerned for a number of years. I did put in a request to have a money bill placed on the agenda to fund the study, okay, and the Chair said no. The Chair also went and told me that I got four (4) other... three (3) other Councilmembers who agree with me and I said earlier today that I don't... Chair Asing: Councilmember, those are allegations. I mean don't say things that you cannot prove, that is wrong. Ms. Kawahara: Point of order. Mr. Furfaro: One moment everyone. Ms. Kawahara: Thank you. Mr. Furfaro: You know, I think my colleagues you all have me in a leadership role now. Ms. Kawahara: I know, yes. Mr. Bynum: That is why she called for point of order. Mr. Furfaro: I understand and I recognized her, but I also want to say if we are going to, you know, have some ho`o manawa nui here, okay. Let's make sure that we are not talking to the audience about assumptions and allegations. Let's make note of the points that we have which I think you are doing Mr. Bynum. Mr. Bynum: Thank you for that caution Sir. Mr. Furfaro: But I do want to let you know that it is really, really important I think for this body considering what is happened today that we try to manage the diversity here at the table when it comes to fixing some of these things that we do know that we need to fix okay Mr. Bynum and Mr. Asing. Chair Asing: Yes. Mr. Furfaro: I concur with you Sir. Chair Asing: Councilmember Furfaro, you know, I disagree with you and I respect you. Now when you make reference to fixing, you know, I tried to show that the rules are in place and it was administered in the proper manner. So, you know, when I hear the word fixing, then, you know, I am saying, but it is not broken. So, you know, so I hope you are not... Mr. Furfaro: Audience please. This is a very sensitive item for this body. This is an issue for this body. You know, I searched for a word and that COUNCIL MEETING - 68 - July 22, 2009 is why I choose ho`o manawa nui. Let's have some patience. We all have our points and I do apologize to you if you take reference to the fixing of something that you interpret as not being (inaudible)... but we need the patience, the energy, and the leadership right now to cure this. Mr. Bynum: Okay, I will stick with... I asked for a bill to be placed on the agenda to fund the study at Po`ipu Beach. I won't go into all the details. We have done that before. The answer was no, right? So I went to the Po`ipu Beach Resort Association, the Po`ipu Beach Neighborhood Association, and I lobbied the Administration and tried to convince them that... and this goes back six (6) or seven (7) years. I won't go into all the details, but I lobbied the Administration. The $150,000 that the Chair references was placed in the budget by the Administration. It wasn't placed by this Council. You know, I... that is the kind of guy that I am. I think something is important and I run into a brick wall, I see what else I can do okay. I have been lobbying the Administration and it is well known that I have been pressing for this funding. This week, I met with them and said, hey that... the additional funding to do that study ain't happening and people are still drowning out there in Po`ipu. Let's get going on this. We have a long term commitment and it is about our economy, it is the safety of our people... I won't talk about the subject, but, you know, the fact is that I tried to place it on the agenda for the consideration of this body and I never had the opportunity to make the argument, right? Eventually, after it had been public notice after it was on the agenda, I asked the Chair repeatedly if we could just have a discussion and eventually a discussion was placed on there, but not until it had gotten this energy from the community that said, eh, promises were made to us, we need to address this. You know, I don't think the point I made has diminished. I believe that Mr. Asing is sincere when he says that nothing is broken and I couldn't disagree more, and I stick by everything that I have said regarding the minutes on the agenda. This one really... I hardly know where to begin because I told that story earlier today. I posted the memos that he... which started in November of 2007. This was an issue that happened early in my term and I praise the Administration and the boards and commissions for doing it, but the issue about money was they... there already was a State law that says that these minutes are public documents and have to be ready in 30 days, and they weren't meeting it. They weren't getting them done, they were months behind... they didn't want to be embarrassed and that is fine because they needed to get it fixed and they agreed that they would. Mr. Furfaro: Excuse me Mr. Bynum. I do want to caution you in that area because you are now talking about a body of employees and I just... Mr. Bynum: And I am just saying... this is all in the public record. You know, Mr. Asing used public record to illustrate points and took excerpts. You all could do that if you had access to that public record as readily as Mr. Asing does, okay. That is part of what we are talking about here, but the issue about dollars was... at these budget hearings which is on the public record, you can look it up if you had access to it. I came in here and I said, are you getting your minutes done on time, if not, what are the obstacles. Do you need funding from this Council to meet your requirements of the law? Don't you agree that posting them on the Internet would make it easier for your staff in the long run and serve the public. Okay, this was an initiative that I worked on all levels, right? And I was successful with the Administration, okay. And if you look at the documents that I posted, COUNCIL MEETING - 69 - July 22, 2009 there is a memo that I discussed my concerns about... the other issues that we are just talking about here today, access to information, access the agenda, the Council e-mails that didn't even have your return address them on them... that didn't come to me as electronic, but it says, thank you Mr. Asing for agreeing to post the minutes on the Internet. Well, our Council Service staff is crack, they are on it. They rarely if ever get behind on the transcription of their minutes. I don't know that they ever do, right? Posting them on the Internet was as simple as converting them to PDF and putting them up there it would take less than 30 minutes, right? And all... and so, you know, it wasn't an issue of money or staff, it was an issue of will and I asked that that bill and I agreed. I said earlier, I think it was leadership to say that maybe we don't need a law because I agree. The last thing you want to do is pass a law. If you can deal with it appropriately through policy and procedure... excuse me for going fast, but I just want to get these things out. You know, when it came time to collaborate with boards and commissions for the Council to put up which they could have done right at the beginning, it didn't happen. The minutes were not posted. We are talking... this first memo after I have been discussing this for months, the first time it is in writing is November 2007. Okay, I came onto the Council in 2007, early 2007, the first memos that I wrote after I... were in March of 2007 saying that I have issues with these open access and access to government issues. So this whole thing about minutes, the idea that we collaborated with boards and commissions is just to point a face wrong, wrong, wrong. That is not how it came down, okay. Excuse me, I will calm down. Mr. Furfaro: I will give you another minute or two (2) and I am going to enforce our own rules. Mr. Bynum: No, no, no, no. Mr. Furfaro: You've got two (2) minutes to... Mr. Bynum: Because he talked about six (6) different things. I am on two (2) okay. So when that memo came from the Administration, Iwas not happy because the idea that we had been planning this for a year, I don't believe is accurate. The idea that we collaborated with boards and commissions, I don't believe is accurate and the Administration apologized to me for that being posted. Now that is an allegation I guess because I don't have it in writing, I didn't make a recording, right? But, you know, somebody went to them and post this memo. Regarding the communications, Ithink we have well documented. I never seen this. It would have been nice if we would have had this discussion two (2) years ago when I asked for it about how we process information, and I have documented perfectly well that communication that comes here addressed to all Councilmembers is withheld for thirty (30) days, ten (10) days, seven (7) days in the process that we have. Some communication is never delivered. I have never seen it. I have to go find it. I asked for that process to change. Councilmember Kouchi was the Chair for this Council for a long time. Councilmember Kouchi's practice was to place all of that communication into files that any Councilmember could go peruse on their own. That is what he told me. I wasn't here, okay. That is how simple it would be to fix this, okay, but just this Planning... this bill that we are discussing about coastal shoreline went through the Planning Commission, had public meetings, had testimony, and I was seeking that information. It had been here for a month before COUNCIL MEETING - 70 - July 22, 2009 it was delivered to me. That is my mail that was addressed to me. Whatever the processes are, something is wrong with that, okay. Regarding the allegation that I had this memo from OIP five (5) days before the Council meeting, that is true. That was my personal e-mail. There is a difference between documents that come here addressed to all Councilmembers from outside and my own work product on issues that I am working on. You know, Councilmember... I am just thinking of examples... Councilmember Kawakami introduced a bill for parks, okay. Councilmember Kawakami said yesterday that he was working on a bill about cell phones. I have an e-mail that I sent to the... one of our staff here that said, can you get me a copy of the cell phone bill that Oahu passed. We were thinking on the same lines, but he is doing his own work product, I am doing my own. My work product, I don't think I have to share with. Now, the interesting... you know, I may have made an error about the plastic bag ban, but I have to check into it because I did send it... I was working on the bill along with Councilmember Kawahara and a good process I think is to get the County Attorney involved. The County Attorney did respond to me. I have to check to see how that came in. If it came in through Council Services, it should have been distributed to all Councilmembers by Council Services, not by me. You with me on that? Chair Asing: Councilmember, can I reply to that? Mr. Furfaro: Excuse me. I need to share with you. Mr. Bynum, I have been here as long as you have today. I have not been able to speak... your presentation, Lani's presentation, Kaipo's presentation, you know, I don't want to sound like I am grieving here, but I want us to know that today's discussion tells us that we've got lots to work on. And it also tells me when I ask along with Councilman Chang if we can have a resolution to review all the rules, it certainly only reinforces us that we need to do that. Mr. Bynum: I couldn't agree more and we are going to get to that hopefully. Mr. Furfaro: But what I am saying today, in 20 minutes, by law, we need to take a dinner break. Mr. Bynum: Okay. Mr. Furfaro: I would like to make sure when we start talking about how you manage your files and, you know, I manage my files differently too. So let's kind of say, here is the four (4) or five (5) items that Mr. Asing did in his presentation, and I want to give him a chance to respond to that as well. Mr. Bynum: Well, so the other thing that I want to say is that, yea, there has been a lot in the newspaper about this and, yes, I wrote an OP-ED piece, okay. Earlier today, Mr. Asing says that he doesn't talk to the newspaper. When the newspaper calls me, I answer the phone. I am not going to apologize for that, right? When... but it is pretty clear that we took our concerns to the media to some extent because we wrote OP-ED pieces, right? I am not going to apologize for that either because I didn't see any other mechanism. What I prefer is to place that item on the Council agenda and have the discussion here with our rules under the COUNCIL MEETING - 71 - July 22, 2009 orders that we have had established. That is what I am trying to achieve. I am sorry that Mr. Asing choose to turn this thing into you accused, I can refute everything... I may have made some mistakes on the individual items. I don't think so, but, you know, it is cool to make a thing, but you know what really struck me during that whole time was... and, you know, I said inequitable distribution. There have been instances of inequitable distribution and if necessary, I can go into the public record and find those, but I don't want to go backwards. I want to go forwards. I don't want to have to defend myself, I don't want to have to make accusations. I don't think what I've... that wasn't my intent. My intent was to say, this is the frustration that I am feeling. This is where our process is not meeting the standards that you all deserve from us, and I believe that is an accurate statement. I know that things were handled differently under previous Chairs. I know that under Councilmember Kouchi, Councilmembers had access to information. You see that box up there that says Councilmembers can get anything if they don't interfere with the staff. Come with me. Look at how we log in documents and figure out what they are. If it says on it, to all Councilmembers, why isn't it routinely distributed to me. Mr. Furfaro: I am going to share with you this. This is a very difficult process for all of us and I wish we had a facilitator to do this, but you got me tonight and I want us to think in terms of this body as an `ohana. Now on that note, Mr. Asing... Chair Asing: I just want to make a very small point. Again, you know, when Mr. Bynum says, well, it came through the mail, so it should have gone to everybody. Remember what I showed you the chart. What did the chart show? If it is addressed to a Councilmember, it goes to that Councilmember. It does not go to other Councilmembers. It goes to that Councilmember, so I... again, why do I have to do this? Why do I have to do this? Why do I have to correct incorrect information that goes out? Why do I have to do it? Absolutely incorrect. I showed you. It is going to go to the addressee. If it was Bynum and Kawahara, it goes to Bynum and Kawahara, nobody else. Thank you. Mr. Furfaro: And I wanted to say that has been something that has been very interesting as members have used outside people to help them understand bills and so forth. They have used C of K for the purpose of sending contact specifically to certain members. It just happens that I used to get a lot of JoAnn's pieces because her initials spell my name, J.A.Y., so, you know, these things happen. They happen. Mr. Bynum? Mr. Bynum: Very briefly. I totally agree that if some... if you send me something that says Tim Bynum, I will get it right away. I have said repeatedly. This is correspondence that is addressed usually, The Honorable Kaipo Asing and All Councilmembers. Ibelieve that includes me. Mr. Furfaro: Thank you. Mr. Kaneshiro go ahead. Mr. Kaneshiro: Thank you Mr. Vice Chair for giving me some opportunity to have... to get into this discussion, but I wanted to do mainly is get some clarification here. I know Mr. Asing, Chair, and Mr. Bynum alluded to a bill which I believe was the bill to get $400,000 on the agenda, and I believe this COUNCIL MEETING - 72 - July 22, 2009 communication came out to Mr. Asing on or around January 16, 2009. I can tell you this and I can confess to this that the Chair did approach me and talked about this bill as the Budget & Finance Chair. And if you recall, one of the slides that Mr. Bynum also put up there is that every Councilmember can introduce a bill. And which is true, he did show it, but at the same time, it says specifically that the manager of the bill can also be the Committee Chair. And in this circumstances, if you want to put the blame on anyone, put the blame on me. I took the responsibility to go out and find and look if we could find the money for the $400,000 that you are requesting before I would even think of getting this on the agenda item because as Mr. Asing has pointed out, we were going through some budget constraints. We had just gotten notice from the Leg that we may be $11 million or $11.4 million shortfall. So I took the responsibility... Ihave the floor now. Mr. Bynum: Yea, I am waiting. Mr. Kaneshiro: Okay... to review your request and through reviewing the request, I asked the Chair if I would be afforded more time, so at least we can look at this whole financial situation as the budget was being proposed before this body. I took that responsibility to do that and going through this whole process, even through when we were about to adopt our budget, the Legislature was still in session until the last day where they had made the decision that this money was not going to be touched at that point. So up to that point, my responsibility as the Budget Chair was to find and to look at how the $400,000 could really impact us with an $11 million shortfall in our budget. So I just wanted to put this on the floor and we don't have to be pointing fingers to anybody. I will take the blame for it and before you... telling you that, you know, as what the Council rules allow and the Council rule does allow that. Just because you introduce or try to introduce an ordinance, the ordinance can be managed by a Committee Chair. So I want to point that out and be clear on that... and, you know, you haven't showed too much of that part. You only showed where, you know, it can be introduced by no one until this moment has even mentioned that the Committee Chair can also be the manager of that bill if so desired or discussed or even putting forward if he wanted to. So, with that, I just wanted to gets some clarification here on the floor as fingers have been pointed back and forth. Mr. Furfaro: Well, let's try to make more kuka kuka and not pointing fingers. That is exactly what we are doing. Mr. Kaneshiro: So I was just giving me aloha to take the blame for any miscommunications that has... Mr. Furfaro: No blame, excellent point. Mr. Kaneshiro: Well, thank you, but I will take the responsibility if that happens. Mr. Furfaro: Mr. Bynum? Mr. Bynum: Yes, this request was made on January 16, 2009. All I was told is no, it is not going on the agenda. I told you already of my efforts, COUNCIL MEETING - 73 - July 22, 2009 but, you know, the point here is that all of these arguments about whether it was wise or not, that is what should happen on the Council floor. If I can't win today, okay. I want you as the public to know that I made the effort. Since that time, we allocated a million dollars for economic stimulus for the visitor industry. I voted for it, so it wasn't that we didn't have any money, it was a policy discussion of how we spend the money, right? And so I believe that should occur on the Council floor and if the Chair would have said, timing is bad, I want to wait a few months, okay, right? But, you know, because if you introduce a bill, it can die today for a lack of a second. I move to approve, you don't get a second, it is dead. Move to approve, second, you have discussion, and you can vote it down right away. Now at first reading, we usually always pass everything through, right, but not always. I have been on this Council where it never made it out of first reading. That is the democratic process. This discussion that happened, the Sunshine law, my interpretation says, that is exactly what we don't want to have happen. We want it to happen out here where you all can watch, and you can say, hey, I think Bynum's idea is stupid, vote it down. Mr. Furfaro: Well, you know, that is your point of view. Some of us that grew up with values that deal with aha hana ko ko lele, you know, you don't make shame of anybody. That is a value, but I appreciate and recognize your comments. Lani, you had your hand up. I am sorry Mr. Chang, I will go to you next, and I am going to call fora 6:30 dinner break. Did you have anything? If not, I will go to Mr. Chang. Ms. Kawahara: I guess I did have one question. Mr. Furfaro: Go ahead, the floor is yours. Ms. Kawahara: A question about the sharing of the information that Chair Asing had put up on the board. So I was curious about... when... as most of our mail comes in or communications from other departments come in, it says, The Honorable... it is addressed to the Honorable Kaipo Asing, Chair, and members of the Kauai County Council. In that instance, I hadn't heard you say how those are routed because that is the crux of the issue. It is not if the item was addressed specifically to Councilmember Furfaro or Councilmember Chang, what is the question is what happens when it is addressed to the Chair and members of the Kauai County Council and the letter itself says, in salutation, Dear Chair Asing and members. When there are more than one body of us. There is the Chair and there are members, and I didn't catch what happened with those on your chart. Chair Asing: It goes to all Councilmembers. Ms. Kawahara: Sorry. Chair Asing: It should go to all Councilmembers. Ms. Kawahara: Ah, okay, so it should be going to all Councilmembers? Chair Asing: Yes. COUNCIL MEETING - 74 - July 22, 2009 Mr. Furfaro: And just for the public's awareness. If, for example earlier today we talked about Earth Justice... if I send something over to the County Attorney asking in particular and this is more for the audience for some clarification on this legal item... how it conflicts with what the Planning Department is doing. My communication has and it... I go through Mr. Asing and the return on those questions go to Mr. Asing and myself and then as the manager of that Chair when I get the appropriate answer from the County Attorney, then that is what... when it gets distributed, but I said that not for your benefit, more for the public. You still have the floor. Chair Asing: Can I clarify that? Mr. Furfaro: Go ahead Mr. Asing. Chair Asing: Let me clarify that. We have a policy and it is a long standing policy that whenever information is sent to the County Attorney's Office, the member of the Councilmembers of the Council want information, their name is on the top because it is sent from them to the County Attorney's Office, and my name is on the bottom. It is more protocol type and then when that information comes back, although I get a copy, I will... because it is normally confidential to the person or persons asking for the information. And because it is confidential to them although I get the information, I cannot disclose that. As the professional, I have to keep that and not pass that on to anybody else. Nobody gets it except those two (2) or one that it was addressed to, so that is the way that it is handled. Ms. Kawahara: Do I still have the floor? Mr. Furfaro: You still have the floor and thank you for yielding that for Mr. Asing and myself. Ms. Kawahara: Thank you. I think we are all cognizant of any communications that come from the County Attorney. We are all very dutiful and aware of County Attorney privileges and how important it is to have confidentiality. What we are discussing actually is the general mail that comes through. Mr. Furfaro: Understood, but I just wanted to clarify that for the audience. Ms. Kawahara: Oh no, I am actually thanking Chair Asing for his discussion on the County Attorney mail, but my question was specifically about general mail coming from the general people that is addressed to the Chair and members of the Kauai County Council. There must be... I don't know why, but there must be some kind of wires crossed because those aren't coming through consistently. If they are addressed both to the Chair and to members of the Kauai County Council and I... Mr. Furfaro: I think Mr. Asing answered you to the best of his knowledge. It is, but I recognize your point that we might go to the Clerk because it seems that there might be a wire crossed as you said. I am going to go to Mr. Chang. Mr. Chang? COUNCIL MEETING - 75 - July 22, 2009 Mr. Chang: Well, I wanted to contribute something before 6:30 because I have been waiting a long time and there has been a lot of stuff going on, so I am kind of lost because I wanted to go here, here, here, but since we had a lot of discussion and I got two (2) minutes, I just wanted to address the $400,000 money bill that Mr. Bynum had requested. When I found out that there was a big erosion problem there at Po`ipu and being that he is the Public Works Chair and I am his Vice Chair, I said that I would be happy to go with him to speak to the members of the Po`ipu Beach Resort Association. On the way down prior to the meeting, I figured I needed to go see for myself, what is Po`ipu all about... not surprising to my dismay, who do I meet on the beach, Tim Bynum. We should have carpooled, we didn't. Nonetheless, when I found out about the money bill and the budget constraints that were at, it was my first budget that I was sitting in. I was extremely nervous, but the one thing that I am very aware of is the TAT tax. Those of you folks that are unfamiliar with that, that was in tune of about $11.8 millions. We had a possibility of losing and we never knew we were going to get the money until... as Budget Chair Kaneshiro said was for the last day. But what I did realize that we did not have the money. We spent a minimal amount of money, this body, for our own self and as the study goes and I hadn't had a chance because Jim O'Connell is on vacation. However, the study would have took somewhere between 18 months to two (2) years, and at that given time, you would come back with the recommendation meaning that, okay, Po`ipu Beach is defined as Brenneckes to the Sheraton. At that point at the end of the study, what is it going to cost us? $2.5 million, $3 million, $4 million, $5 million, so it was for that reason that myself personally working on the first budget was saying, first of all, we don't have $200,000, we don't have $400,000, we don't have $600,000, and that is one of the reasons that I did not support at that time not wanting to be true to my Public Works Chair, but at that point knowing what the budget constraints were and it was my, you know, first budget meeting, that is why myself personally, did not support that $400,000 for the study. And I guess it is dinner time right now, so I will be anxiously awaiting when I can contribute a lot more to this hours of conversation. Thank you. Mr. Furfaro: Mr. Bynum, would you mind waiting until we come back? Okay, and again before we break, I just want to say that, you know, the goal and the mission here for all of us in this exercise today is really, you know, to widely increase the trust factor and the information that is out there in the community, and I think this was a very good beginning. Mr. Asing, I thank you very much for your presentation. Chair Asing: Thank you. Mr. Furfaro: On the current way that we do business. We are going to break until 7:30. We will be back at 7:30. There being no objections, the Vice Chair called for a recess at 6:31 p.m. The meeting was called back to order at 7:43 p.m., and proceeded as follows: Chair Asing: Councilmember Furfaro? Mr. Furfaro: Thank you. We are back from a dinner recess. I am just going to make a few housekeeping notes here. You know, this is the first item COUNCIL MEETING - 76 - July 22, 2009 still on our agenda from this morning and we have lots of business. I am hoping that we can finish some of this dialogue and then hopefully get some commitment to work on those issues and move on eventually to have some dialogue on the other items on today's agenda including establishing a comprehensive review of all the rules. On that, Mr. Bynum, I am going to recognize you on the floor before we broke. I lost my train of thought here. Are we moving on to the next two (2) items that are on this agenda? Ms. Kawahara: No. Mr. Bynum: Help me. Ms. Kawahara: We are still on the first item and discussing I believe. Mr. Bynum: I will pass for now because I can't remember where we were. Mr. Furfaro: And on that note, I am going to then turn the meeting back over to Mr. Asing. I was only the Chair during the time of the presentations, so on that note, Mr. Asing, the meeting is turned back to you. Chair Asing: Okay. Councilmember Kawahara? Ms. Kawahara: I wanted to thank Councilmember Furfaro for taking the Chair's seat while he did his presentation and I wasn't sure that I got to discuss further what I might have wanted to mention about the presentation. But I am going to leave it at that and I can probably go back. Thank you. Mr. Bynum: So... Chair Asing: Go ahead Councilmember Bynum. Mr. Furfaro: We are back to the Chair being the Chair. Ms. Kawahara: We are all like confused, sorry. Mr. Bynum: Councilmember Kawahara, you were done with your presentation? Ms. Kawahara: Yea. Mr. Bynum: Okay. Ms. Kawahara: I was. Mr. Bynum: So, you know, earlier we discussed the Councilmembers access to the agenda and I said very clearly that my expectation and my request is that the proposal that we made... first tried to make in February and again in June that a resolution proposing to clarify rule 10 be placed on next COUNCIL MEETING - 77 - July 22, 2009 week's agenda and I would like the support of my colleagues of placing that on next week's agenda, in two (2) weeks at the next Council meeting. Ms. Kawahara: Is that a motion? Mr. Bynum: If I can make a motion I will. Chair Asing: Are we through with all the discussion? Are we pau? Mr. Bynum: No, I mean that is up to you. Chair Asing: Well, you know... Mr. Bynum: My discussion is I am asking for support to place this on the agenda in two (2) weeks. Chair Asing: Yea, well, I need to find out first of all... we should not do any motion until we finish with the decision on is everybody through? Are we satisfied? Mr. Bynum: I am on number 1 and you are right. I don't know if there should be a motion, but I am just asking... Chair Asing: Well, we shouldn't do that now. Let's finish up the agenda item. I thought maybe we finish and if we did not, then you want to go and discuss more, that is fine. I will open it up to you. Ms. Kawahara: I actually thank you. I do have something that I need... because we are not sure where... could I get... and I am sorry public, but this is something really, really important that I wanted to consult with the County Attorney. Chair Asing: That is fine. You want to take a five (5) minute... Ms. Kawahara: I am really sorry, but this does have something to do with... we are going to go into executive session, but I want to know from the County Attorney if there is what I can say on the floor. Chair Asing: Okay, why don't we take a five (5) minute recess and you can consult with the County Attorney. We are taking a five (5) minute recess. There being no objections, the Chair called for a recess at 7:48 p.m. The meeting was called back to order at 7:57 p.m., and proceeded as follows: Chair Asing: Councilmember Kawahara? Ms. Kawahara: Thank you Chair Asing for your aberrance and also the public for your patience and understanding hopefully. I have nothing else to say COUNCIL MEETING - 78 - July 22, 2009 about the presentation and I guess I would like to tell you that, so that we can close this section for... Chair Asing: Thank you. Ms. Kawahara: I am done. Thank you. Chair Asing: Councilmember Bynum? Mr. Bynum: For those of you who have hung in there, we started with the Chair saying we would discuss 1 and 2 and then move to 3 and 4. I believe we had a lot of discussion about 1, 2, and 3, so I am ready to sum it up and if that is okay with you. For my summation... well and hopefully more discussion here. But for me, I have already been clear about access to the agenda and I wanted to pose to my colleagues and all I ask the County Attorney and the Clerk, can I make a motion to place this on the agenda in two (2) weeks? Mr. Kaneshiro: Place what on the agenda? Mr. Bynum: The proposal that I have been trying to get on the agenda since February for a clarification of the Council rules. Chair Asing: I think we need an opinion. I believe... Mr. Bynum: Or an easier way will be to say, Councilmember Chang, will you support consideration of this amendment in two (2) weeks? Mr. Chang: Hold on. Are we having a discussion? Are we still in discussion? Chair Asing: Hold on. Are we through with the agenda item? Mr. Bynum: Well, this is about agenda item number 1. That is part of my discussion. I want to... Chair Asing: No, are we through with the agenda item? All of the items. We are not? Mr. Bynum: No. Chair Asing: Okay, go ahead then. You have an opportunity to make any presentation you may want to make on any item on the agenda then. Mr. Bynum: Well, I thought we were in discussion on number 1. That is what I am trying to do. I have discussion about Councilmember's access to the agenda and as part of that discussion, I am posing a question. Chair Asing: I think you should... why don't you finish making your presentation Tim. I am giving you an opportunity to make a presentation, so that we can close this agenda item and move on. I mean it is not an unreasonable request. We have spent hours on this, you have made a presentation, COUNCIL MEETING - 79 - July 22, 2009 Councilmember Kawahara has made a presentation, I have made a presentation, we have discussed it, we have answered questions both ways. I asked of you, you asked of me, so I am giving you an opportunity to close everything. Mr. Castillo: I am sorry. County Attorney Al Castillo. I think we are getting confused because we are supposed to be talking just about C 2009-259. Mr. Bynum: Right. Mr. Castillo: And there were parts to it and it was supposed to be from the beginning parts 1 and then parts 2. Now, the question and I think the confusing factor that has presented itself is one, there was a question on whether or not a Councilmember can make a motion, however, you still have... you have not finished 259. Mr. Bynum: Okay. Chair Asing: Thank you and that is what I am trying to do and I am... Mr. Bynum: I will try to do that as well. Chair Asing: Thank you. Mr. Bynum: Regarding number 1, the access to the agenda, I think I have already made my point. I think it is the most fundamental question here and I am asking the Council colleagues to support placing a proposal to address that issue on the agenda in two (2) weeks. Regarding number 2, the placement of public documents including meeting minutes on the website, I have tried to outline our efforts over a period of time to do that. I am pleased that that process has begun and I outlined earlier the types of documents that I think should be a minimum criteria and I... you know, I may ask for a separate agenda item in the future to deal with the issue related to the apparent loss of electronic copies of those key public documents, but won't pursue that tonight, but I am concerned about that. And I think we may have other proposals tonight that can help with this item as well. Regarding equitable and timely circulation of Council Service documents, I don't believe Councilmember Kawahara is choosing to complete her presentation, but I want to focus on a couple of things real quickly. My first issue started right when I became a Councilmember had to do with COK e-mail. We have an a-mail address cokcouncil@kauai.gov. It is intended to go to all Councilmembers. When I started receiving those e-mails, they were put into... as printed copies into my mail box. You know, a piece of paper in the in-box and it does not have the... did not have the return a-mail address, it did not... there was no way for me to contact the constituent who was writing to me and they were delayed often for days. It was common practice say like on the bag ban that is on tonight, we have received dozens of a-mails just today. I can check them right here, right? Because there was a new a-mail address created counciltestimonv@kauai.g_ov which is distributed directly into each Councilmembers already established Council a-mail box and also to the County Clerk where it can be Council testimony on public record, so now there is no delay. But prior to this, if this issue would have happened a month ago, the e-mails that came in over the period time of ten (10) days would all be collected COUNCIL MEETING - 80 - July 22, 2009 by Council Services and they would be in a package when we came into the meeting today. So they would have been delayed by anywhere between hours and days, and they would not have any contact information about how to respond to those constituents and I didn't have those ten (10) days to read them. So I ask that those e-mails... I said, hey, I don't need this in a paper, can't you just forward it to my e- mail... this is e-mail. When it is a-mail, I can push reply to all. I can respond to my... you know, I have a record it electronically of when it came, whether I responded or not. I can pull them into folders and say, oh, this one is about this issue, this one is about that issue. I can know that... I can create a list of constituents who were interested in a particular issue that I could communicate within a future to do my job better. I want the tools that the technology age has given us to be able to be used. What I was told was, well, occasionally, a-mails come that are not intended for all Councilmembers, but the e-mail address is intended for all Councilmembers. But even if you use that reason as... because maybe JoAnn Yukimura... it was intended just for her, okay. Mr. Castillo: Excuse me, I am... Mr. Bynum: Oh, please, let me finish, I will be done in a minute. Mr. Castillo: Al Castillo, County Attorney. Mr. Bynum: I will be done in a minute Al. Mr. Castillo: We are getting to an area which raises questions and issues pertaining to the board's, powers, duties, privileges, immunities, and liabilities. Therefore, as your representative, as your legal counsel, I say that if you want to go further regarding this subject matter, we have to go into executive session. Mr. Bynum: Okay, I will move on. Mr. Furfaro: May I say something? Chair Asing: Sure. Mr. Furfaro: We are getting into an area where I am starting to get concerned too and I am directing this at the County Attorney. The current website is the property of this body, not any individuals. I just heard that we have a County of Kauai testimony category? Mr. Bynum: counciltestimonyCkauai.gov. Mr. Castillo: Council Chair, and the reason why I bring this up is you said earlier that the irregularities with the County website has been discovered and you said earlier that it is under investigation. Now based on that... Chair Asing: I am trying to keep Councilmembers in line and it is extremely difficult, but I am trying. I am trying and somehow I am not getting through. Why can't we move on? Finish this discussion about this agenda item. COUNCIL MEETING - 81 - July 22, 2009 Mr. Bynum: About equitable and timely circulation of Council Service documents. Chair Asing: Whatever you want to discuss. We will open it up Councilmember for you to discuss any and all items on the agenda, so that we can close everything down. I am through... I made my presentation, I presented my facts, I presented everything to you. I am through. I will not debate any item anymore. I have gotten my answers, I have replied to your questions, and I am done. I am giving you an opportunity to finish your testimony or whatever you want to do, so that we can close this item now. Mr. Bynum: I guess I can't talk about e-mail anymore. So I have already outlined how Council documents come here and how they are withheld from me for days, weeks, and I... that mail is addressed to me. I am embarrassed to even talk about it. It seems so easy and I have already said that Councilmember Kouchi when he was the Chair, had that mail available, readily to Councilmembers in folders, that is how easy it is to just fix this, that is how easy it has been for two (2) years. I will expect and I will just say this. I expect that this issue will be resolved by Monday next week. If it is not, I will fulfill the commitment that I made to the public and myself to pursue every avenue that I have to address these issues in a legal and appropriate manner, okay. Chair Asing: Councilmember Bynum, I showed the flowchart of how information comes in, how it is filed, what file, and I made the statement that all of the files are open... open to all Councilmembers. I don't know what else to do. I make a presentation, here it is, it is filed in this order, and all Councilmembers can look at any file, all open to you. What more do you want? I've explained that and I've put that on the table. I don't know what else you want. Mr. Bynum: Okay. If I may respond Mr. Chair. Chair Asing: Go ahead. Mr. Bynum: If I come in here Monday and that is the case, it will be great, but that has not been the case. You know that I have discussed this with you many times. You have refused to make a resolution occur. I have not been able to access my own mail. Chair Asing: That is an allegation. When you say that you have discussed that many times with me, that is not a true statement. Mr. Bynum: And I put it in writing several times. Chair Asing: I don't have anything. You have to show it to me. Mr. Furfaro: Excuse me. Chair Asing: Well, it is very difficult. I am trying my best to get things resolved. If you feel there are problems, I am willing as Chair to work with you to solve the problems. I am making that commitment now in front of the public and it is for public view. What more do you want? I am trying to work with you to COUNCIL MEETING - 82 - July 22, 2009 get things done. Now I will not... I cannot say that everything you want is what you get, I am not saying that, but I am saying that I will work with you to get a better system. I am not saying that the system that we have now is the best and that is the way that we do things. I am not saying that. I am saying that if we need to do changes and it will be good for the community, good for the public and everyone else, we will do it. I am trying... I don't know what else to do. I feel that I am being fair. Fair in managing the operations. With that, Councilmember Furfaro? Mr. Furfaro: Mr. Chair, I say that I want to appreciate... I say I thank you and I appreciate the fact what I am hearing is you are trying to get this corrected. Chair Asing: Yes. Mr. Furfaro: If it exist, I've heard Mr. Bynum said all will be fine with him if on Monday he is able to address COK and have access to that. I am wondering if we can have some clarification, but I want the public to know this and this is something that I want the County Attorney to know because if I have to leave this meeting for a reason that I am starting to get very concerned about. The current County website is the responsibility of this body. It is not the responsibility of what an individual Councilmember wants, a pair of Councilmembers wants. If there were changes and we need to go into executive session to talk about that, I would just want to raise that possibility with the County Attorney. Chair Asing: Councilmember Bynum? Mr. Castillo: Al Castillo, County Attorney. I repeat again, we shouldn't even be discussing this because it is a matter under investigation. We have touched upon it. I caution all of you that don't say anything further because this is something that is not Sunshined at this point in time. Chair Asing: Thank you. Councilmember Bynum? Mr. Bynum: I won't say anything more about e-mail and Council Chair what you just said that you will work to work out these issues. Chair Asing: Yes. Mr. Bynum: Hallelujah and it is the first time that I have heard that, but I do want to say that I sent this concern to you in a memo on 3/08/07 regarding access to this minutes. I sent that memo to all of the Councilmembers and the Chair on 5/24107 requesting an office staff meeting to talk about it. I sent that communication to Peter Nakamura with a copy to you on 8/8/07. 8, 9, that is couple of years ago. I circulated those same concerns to other Councilmembers... to some of the other Councilmembers and I already apologized to Mr. Kaneshiro because since December 1, I didn't share that with you. I should have, but I did share it with other Councilmembers. Iasked for help to resolve it to avoid what is going on right now because I don't relish this at all believe me. Memo... so I just want to say that I have documented besides the verbal attempts, attempts in writing to address this, and so what you just said about we will work this out and what I said about my expectation that it happened, hallelujah. COUNCIL MEETING - 83 - July 22, 2009 Chair Asing: Thank you. Is there anything else? Ms. Kawahara: You know what, I have three (3) slides and I promised... I made a promise that I would present them in the presentation, so I would just like to just finish the three (3) slides. Chair Asing: Fine. Ms. Kawahara: Okay. So this was the question that came up. Chair Asing was very clear about if something was addressed specifically to a Councilmember, that would go straight to the Councilmember. What is a little more unclear was what happens when it is addressed in this formal manner when it says to both Honorable Kaipo Asing, Chair, and members of the Kauai County Council. That is enough on that one. Yes, and that is how usually the information comes from internal departments from across the way. So the question is, and I put the emphasis there on the members of the Kauai County Council and that is seemingly... that would be addressed to all members of the County Council and my... be interpreted as mail that belongs to both the Chair and each member of the Kauai County Council. And, again, that is the address that you would see and the salutation in the letter I put separately where it says, Dear Chair Asing and members, so that it seems like it is addressed to all members. This is the crux of the matter because it has... that the process of how this is dealt with may be what we really need to be looking at and I would commend the Chair if we could get from you your assistance and your promise that those types of mail right now starting on Monday would come to all the members when it does say, Honorable Kaipo Asing, Chair, and members of the Kauai County Council. Chair Asing: Definitely yes. Ms. Kawahara: Okay, so thank you. And thank you. I am thrilled to hear that and I know our staff will be great and happy to do that and perhaps... and to start doing that. Thank you very much. The next slide. These were just communications, internal communications that I selectively picked. Councilmember Bynum had already stated that the shoreline setback bill had gotten to the floor without him getting much of the information that he had been seeking for a month and it became in his packet as we get six (6) days before. Ironically in... hopefully it was an oversight, but there was a resolution in this very agenda that was introduced by me that I had never seen before or never been contacted about. But it is the common practice of Administration I believe to send over... it is by request and it was placed by request which I am told is an Administration request, so I would like it on the record that that was an Administration request, and generally they do tell the Councilmember that they are offering because of the subject matter would be my Committee. So I am sure that it was... I am sure that it was an oversight, but I was very surprised to see my name on it and a by request. So you can go to the next one. Now these are just ones that we selected about distribution delays when we talk about internal mail coming to us from across the street. I just listed different departments, I haven't listed any subjects, the date received in Council Services where... as Chair Asing said they are date stamped. That is where his chart COUNCIL MEETING - 84 - July 22, 2009 stopped at the date stamp and the issue is, what happens after the date stamp. So these are when the items were date stamped and when they were received by Councilmembers in their packets. So that looks like an average of about a week. Now I have highlighted Parks & Recreation because there is also a communication in our agenda today. The resolution I explained to you yea. The Parks & Recreation letter that I am the Chair of and Councilmember Kaneshiro did explain about the management of the Committee Chair with documents. And if somebody could help me explain this about... I apologize. That is ours. This is... here we go. The part of the agenda about right-of--entry and easement to a DLNR parcel. I've got received by... date stamped Council Services 7/9 and, again, I am the Chair of that Parks & Recreation in which this letterhead from the Administration is communicating. So as Daryl... Councilmember Kaneshiro says, yes, that, you know, sometimes you are going to do it through your Committee. I, unfortunately, did not get this, so I think, you know, the concerns we have are there and like I've stated, these are things that are basic... mail that I... and that is... we are finished with that because I am hearing from the Council Chair that all mail as addressed like that... that we have specifically stated... when it says, Chair, to the Chair and members of the Council, we will be getting those and that will go down to all of our staff and people that you are formal supervisor. Chair Asing: Are you through? Ms. Kawahara: Yea, right? Chair Asing: Yea. Ms. Kawahara: Thank you and I am... I appreciate you guys letting me do the last three (3) as I had made a promise that I would do and I... Chair Asing: I guess we got two (2) managers of our operations. We have the County Clerk who is managing the operations and we have another individual who is also managing the operations. I think in all fairness, you know, if there are problems, Lani, you haven't talked to me one time regarding information and the problems that you have... not one time since election, not one time have you talked to me about whatever problems that you have. Now with that being said, that is not fair. I mean if you had problems, talk to me. You don't talk to me, you talk to the newspaper, why is that? You have problems, talk to me. I don't understand this. I am trying to help, I am trying to work, I am trying to manage. You don't talk to me, you talk to the newspaper. How can I help? How can I manage this operation with you doing your own thing? Shouldn't we work together and you don't even talk to me. You never once since election talk to me about any problem in the mail, the communication. All I hear is Kawahara is going through the time log and looking at information. That is all that I hear, but you don't talk to me, so I can address the problem. And, you know, it is frustrating, it is difficult, and you continue to make it difficult. I showed you the flow chart. I told you that this is the filing system. I told you that the filing system is open to all Councilmembers. Idon't know what else I can do to assist and help with a better operation, and it is just so difficult. I am trying to... I have six (6) other Councilmembers here that we need to serve. You know, we have a staff that is trying to do their job. You don't even know half of what staff does. You think you know, you don't know. There are many, many things that they do that you are not COUNCIL MEETING - 85 - July 22, 2009 familiar with, so you make it very difficult for staff too. Thank you. Councilmember Bynum? I am sorry, Councilmember Kaneshiro? Ms. Kawahara: I... Mr. Kaneshiro: Thank you Mr. Chair. I had a question in regards to the presentation that Lani put up and if you will, I would like to go back to the part about surprises are if you can find that slide again. Basically, it is a question on the presentation that was done by Councilmember Kawahara. It is... when you look at surprises and I guess Councilmember Kawahara stated that she wasn't aware of this coming by request. By request means that the Administration can make a request and at the same time have it put on the floor by the Chair. I believe and I believe that there were meetings set up with the Administration from July 2 to the 7th of July to specifically discuss these issues. Ms. Kawahara: You are absolutely right if I may respond. Mr. Kaneshiro: I believe that I was the last Councilmember that was briefed on this specific issue and the specific issue was that the Administration was coming up with this type of communication to be put on a future agenda. So I am not certain how this could have been a surprise when... unless she hasn't met with the Administration, but my records show that there were meeting conducted between Kawahara and the Administration which included the Parks & Recreation people that was attended by, I believe, three (3) of the Parks people including his name from the Building Department that was preparing this resolution and explaining it so... Ms. Kawahara: Yea, may I respond? Mr. Kaneshiro: Is that true? Ms. Kawahara: That we had meetings? Mr. Kaneshiro: Yea. Ms. Kawahara: Oh, absolutely. Mr. Kaneshiro: Okay. Ms. Kawahara: Well, perhaps I wasn't precise enough. I was talking about the specific resolution and letter that I hadn't seen. I know what Papaloa Road is about because I had gone to those meetings. What precisely and specifically stated was that the resolution that came under my name that I see here was not something that I saw or the letter. Mr. Kaneshiro: So my question was that, when the presenta... my question was when the presentation was made, weren't you informed by the Administration that they will... or coming through with a resolution as such? Ms. Kawahara: No, not that I remember. COUNCIL MEETING - 86 - July 22, 2009 Mr. Kaneshiro: They didn't tell you that? Ms. Kawahara: There was a meeting to discuss with me. Mr. Kaneshiro: That is fine, but with me they did. Ms. Kawahara: That was wanting to be done with Papaloa Road. Mr. Kaneshiro: With a future resolution coming through as such. No, okay. Ms. Kawahara: We have meetings all the time to discuss subjects and not all of them come out with a resolution and letter. Chair Asing: Hang on. Mr. Kaneshiro: I am still asking her the question. So, okay, and she said not. Well that is fine, but I recall meeting with the three (3) personnel from the Administration which was from Parks & Recreation specifically stating that there will be a resolution coming forth in this regard. So, you know, that is fine. Chair Asing: Councilmember Furfaro? Mr. Furfaro: First of all, I want to say that I think there is a need to have Councilwoman Kawahara signature on a request that comes from the Administration, but I also have... and I think Mr. Bynum is aware of this. I have made some suggestions to the Administration about having key customers. If you are the head of Public Works, please work with the Chairman of Public Works. If you are the Planning Chair, work with the Planning Chair, but just from a housekeeping standpoint, I don't want us to get confused. If the item comes over as a Committee item, then it should be in the jurisdiction of you. But if it comes over as a Council item, it is under the jurisdiction of the Chair. I don't disagree that you should have signed and I don't remember what was on the board right then, but I think we all have to be very clear. The Chairman has the jurisdiction of the Council agenda if it comes over. If it is a Committee item, it is definitely in your jurisdiction. Ms. Kawahara: Okay. Mr. Furfaro: And I don't disagree. You should have had an opportunity to sign it and maybe having key customers would fix that, but let's make sure that we understand where that jurisdiction is. Council items are in the Chairman's jurisdiction. Ms. Kawahara: Okay, I appreciate that. Thank you. Mr. Bynum: Very briefly, we are losing track. This agenda item was about communications. The thing is the communication was received here on July 9. It was on something that would be in Ms. Kawahara's Committee and we didn't get it distributed to us for seven (7) days. That is the point. The communication that we are talking about is about communication and we could go through every agenda... whatever system that we have and I appreciate Council COUNCIL MEETING - 87 - July 22, 2009 Chair's agreement that we are going to finally deal with it, there are delays. You know, I know Councilmember Kawahara takes her copy very seriously and in those seven (7) days, she would have spent time reviewing this. Mr. Furfaro: As we all do. Mr. Bynum: As we all do, but, you know, I just want my mail to me and we haven't even addressed the stuff that... this is just agenda items. There is other mail that I never see. Mr. Furfaro: Mr. Bynum, I want to point out... we are talking about this because it came up and Councilwoman Kawahara (inaudible). Mr. Bynum: But I think the only point she was trying to make is the time delay. Mr. Furfaro: And I was just trying to make a housekeeping point and the fact that we've talked about... Chair Asing: Councilmember Chang? Mr. Chang: Thank you. Councilmember Kawahara, have you, since the election, meet one on one with the Chair and express your concerns directly to the Chair? Ms. Kawahara: To tell you the truth, I have a hard time getting us here when we are all here together at the same time, so I sent written communications, so Chair Asing, I was not able to speak with you face to face. Chair Asing: Wow, you mean... Ms. Kawahara: But I was able to send you... Chair Asing: Yes, go ahead, I am sorry, you have the floor. Mr. Chang: I just want to finish this and I will summarize the point that I am trying to get to. Prior to the selection of a Council Chair, you went up to the Chair or at that time Councilmember Asing, and you had specifically asked him if he is to open government, and he said absolutely Councilmember Kawahara as we were all positioning ourselves as to who we are going to support. Correct? Ms. Kawahara: That is right. Mr. Chang: Okay, let me just let you know why. Tim has been an acquaintance and a friend of mine for many, many years, and he has explained to me prior to us making a selection who the Chair was going to be... he explained his concerns as he so eloquently told everyone... he said, I am going to keep pounding them, pounding them, pounding them, until I get my results. We have already heard, thank you to the Chair that effective Monday, things will be different. So we all know there are going to be communications and things are COUNCIL MEETING - 88 - July 22, 2009 going to be different. I have been in the Chair's office many times trying to play the game or try to broker a deal if you will, but I don't want to use those words because I asked the Chair how can we make this fair, how can we get everybody to get their position simply trying to step up and stand to the plate for Councilmember Bynum. He had mentioned to me that not once did Councilmember Kawahara come in to talk to me and at that particular point, I said, Chair, what if she would have explained... this is very important to Councilmember Bynum, this is what I always wanted, transparency, I wanted communication with the constituents, I want to address their concerns, can you please reconsider perhaps or explain to me why you are not allowing this and the Chair told me with his heart, sure. If Councilmember Kawahara wants to get it on the agenda, I going put it on the agenda for Councilmember Kawahara with the support for Councilmember Bynum. That is the word he had quoted. Ms. Kawahara: Uh huh. Mr. Chang: And now since we got this discussion because we are all tired and we want to put this thing open, I would like to let you folks know, there may or may not have been some sort of a mistake with the lineup if you will of how the Councilmembers get to be Committee members. I want to let everybody know for the record that it was Chair Asing that came to me and asked me, Councilmember Chang, would you be willing to consider putting people into positions in the Committees. As you remembered, I told the both of you I am going to back you up. You both were at my house individually, mind you, and I said, Tim has a desire to be on Economic Development and Housing. Councilmember Kawahara, I know you have a need and a desire to be in Planning. If it is alright with Councilmember Bynum, if you want to step down on the Economic Development and Housing, I will gladly give you my chair because it was important for you to be on the Planning Commission (meaning Committee). I just want to let you know it was through the blessings of Council Chair Asing that felt like, okay, this is an opportunity to be fair and at that particular point as both of you remember, I told you let's pray on it, I am going to meet, and we are going to make this thing happen, and that is just what I would like to just say for the record. In regards, in no particular fashion... in regards to myself getting my mail on a timely basis, I don't personally know who gets what when, and I am not even concerned because our mail boxes are extremely. Jimmy Trujillo, we had this conversation when we were up at KKCR. You got 40 employee boxes there or approximately. You don't know what is in your box, you don't know what is in everybody else's box, and I don't know who gets what, but as far as I am concerned, the staff is doing an amazing job and believe me, I am here I would say at least, at least four (4) times a week to look at my mail. It is so overwhelming who gets what, when, where... I don't expect anybody to be perfect, but I will tell you that we go through thousands... probably thousands of mail... I understand electronically... there could be better ways, but from what I am hearing right now from the Chair is everybody is on the same page and effective Monday, we are all going to try to work together and do what we need to do. The reason that Councilmember Furfaro and I wanted to put an item whether it is good or bad to discuss the rules is really, honestly... if there wasn't an opportunity to discuss the rules, I believe Councilmember Furfaro and I wanted to help to try to get this out in the open, so we can, and we get to that part of the deal, COUNCIL MEETING - 89 - July 22, 2009 I will make it short and sweet. But I just wanted to let a couple of things know for the record. When you ask the Chair if he is open for open government, I had asked them again and again and again. Chair, I like help, I like help, and hearing that you never went to him... you know, communication or playing the game with e-mail and, you know, written correspondence, myself is ho`o pono pono, shake hands, talk story, can we get a cup of coffee... you mind if... can I borrow a couple of minutes of your time and I think if that had happened accordingly, this may have not even come up in my opinion. Thank you. Ms. Kawahara: Thank you and I still very much appreciate you stepping down and allowing me a seat on the Planning Committee because you are right and I had a very strong... I still have a very strong (inaudible) and I appreciate it. Mr. Chang: And we met several times, but I just would like everybody to know, that wasn't my idea, that was the Chair's idea to be fair. Thank you. Ms. Kawahara: Thank you. So I would like to respond please to Chair Asing's question. Chair Asing: Let me make one comment. There is a misinterpretation Iguess of the system that I had described, the flow chart, yea, is anew system. It is not a new system. It is a system that has been in place for years. I didn't show you a new system. I showed you a system that has been in place for years. That is all that I did, so all of a sudden, everybody feels, oh, wow, it is wonderful. What do you mean it is wonderful? It has been wonderful all the time because that is not a new system. That is a system that has been in place. All I did was ask staff, staff, tell me, how is it set up. Peter, tell me, and this is what they gave me and explained to me how mail comes in, where it goes, and what the process is. I did mention to you in my slide presentation as an example why sometimes you don't get the mail when it comes in dated January... July 22 and you are not going to get it, and there is a reason for it. Remember I talked about if it goes in the agenda file and that agenda file, there are two (2) copies that come out of that... those two (2) copies go to staff analyst because the staff analyst will take that particular document and make sure that it can be placed on the agenda. If, as an example, we take that document and give it to Councilmembers, what are they going to do with a document that hasn't been sanitized, that is wrong, that needs corrections because the corrections were not made. You have to clean it up first before you put it on the agenda, so why should we give that to you? You have a copy that is useless. It is not a clean document yet. We want to put a clean document in the agenda file, so that document until it is cleaned up, then you will get it, and the process is remember the agenda, when it goes into there and ready to hand out, everybody has the information the same time. And sure you will find in that document, that packet, that sometimes the dates are way back because there were problems, and that needed to be cleaned up. So, you know, there are many, many things that you all know and I don't know why this discussion is being held in the public forum. I mean it is policies of operations that we need to do and let us do it. It shouldn't be here. How do... what are you going to do? You don't even know what kinds of documents should go where, to who, how important is it? Is it clean? Is it ready? You know, the operations is not that simple. There is lots of things to COUNCIL MEETING - 90 - July 22, 2009 consider in the Council's operations and we have good people, we have experienced people, and they do their job as best as they can. You know, I am really... I can't understand where these manufactured problems came from. You know, sure we can improve. Don't doubt that. I will be the first to admit, yes, we can. Yes, we can, and maybe we will move in that direction. As an example, remember telling you that we posted on the website and we were ready to post, and then we had some problems, legal problems, so we're moving to improve, to pass information to the public. I mean we are doing things and I just don't understand where this, you know, negative things that are coming out, why? Let's work together to try to solve this problem if we have a problem. I do not feel that we have any major problem. I don't know where it came from, but I am willing to work with anyone to try to get something done in a reasonable manner. If it needs to be changed, we will change it if it is in the benefit of everyone. That is not a problem. You know, I have been a manager for a company that I retired from for 35 years. I know a little bit about managing people. I retired in 1991, Hurricane Iniki hit, I was called back, and I managed over 100 people during the hurricane here. Do I have some management skills? I believe so. Can I improve? Yes, I can improve, but I... let's work together and try to resolve some of these issues. I do not see that these issues as major big problems that we cannot work out. I wish that Councilmember Kawahara would have talked to me. Seven (7) months... from December 1 to today, come on, give me a break. Talk to me if you have problems. No talk, don't ask, it is difficult. With that... Ms. Kawahara: I would like to respond because you did ask me a specific question, yes, Chair? Chair Asing: Go ahead. Ms. Kawahara: I didn't come talk to you, yes. Chair Asing: Go ahead, fine. Ms. Kawahara: I don't know, but sometimes you... I am a new Councilmember, you have a long history of doing good work here on the Council. Chair Asing: We are all even. Ms. Kawahara: Oh yes. Oh, that is great. So, but you are the Chair and you have been doing this for a long time. I think there are different ways and different types of leaders. I chose to communicate with you in print and I don't think there was anything preventing you as a leader and Chair of the Committee or of the Council to ask me if you had heard any issues as a leader to see if I was having any concerns especially if I had transmitted to you at least one very detailed document. So if it is a bad thing to be a new member who might be intimidated or, yea, not, yea, being intimidated, then that is what I am guilty of, so I did it by print because it would be in print and I would be able to get everything I wanted to say down on paper for it to be complete. So if it is wrong to be new and intimidated, then that is what I was. So a leader... different people would do different things. I know as a manager... as you brought up that you were a manager of a hundred people. I have been a manager of fewer than a hundred people, but depending... anybody has COUNCIL MEETING - 91 - July 22, 2009 different leadership skills and ways of reaching out. As the senior member or as the Council Chair, that was a possibility and in my management, you know, if you are ding me for being intimidated, I will take the dings and the hits. But I am concerned when I am managing people that... if I hear something, I would go to them and ask them, well, so how has it been for you as a new member, and are you comfortable. Do you have concerns? So in answer to that, that is... and in the discussions that we had in public, we were on the... we had selected and wanted different Chairs and that was very difficult and that would be intimidation enough to know that I had voted for a different Chair, but I did embrace you that were to become the Chair, and I believe that is on the record that we wanted to work together. But to be clear, I did send communications to you which I did not get any responses to. I believe we have done everything in the tools that we are given to work with everybody on the Council including Council Chair Asing. And if he sees different, then he sees different, but I know that I sent communications and it is not a one way street, so if that is a bad thing to do it in writing instead of face to face when you are a new member, then I am definitely did not see you face to face because of many issues especially the one we started out with, so I hope you get that reply. Chair Asing: Councilmember Chang? Mr. Chang: Yes, thank you. Councilmember Kawahara, I hope right now you know that you have broken the ice and you could talk to myself, Councilmember Bynum, Kaneshiro, Kawakami, Furfaro, Council Chair Asing. I had chatted with the County Attorney earlier today and I asked him after a long night as such or when we have a long day, I said, is it against the Sunshine law that we sit around and talk story. There has been many afternoon or an evening that we have all gathered around, sat, talk story. I have always walked down, knocked everybody's door, including everybody in conversation as a part of ho`o pono pono, let's build relationships, let's get laughing, and having fun. I have called Councilmember Bynum a couple of times after these meetings to say, hey Tim, I think everything is good, I think we are making progress, we are talking story, so I don't think that you should be... now that the ice is broken, that you should need to apologize or say anything else because I communicate best one on one and I apologize to everyone that ever e-mailed me that I couldn't get back, but I have been waiting for this opportunity and time. I think most people know that I am probably one of the most accessible guys on this island of Kauai. I have my cell phone number on my business cards, I am listed under Wala`au, I am listed under Dickie Chang, people know where I work, what I do, but in relationship to you selecting a different Chairperson and feeling a little intimidated because you did not vote for him. I did not vote for Jay Furfaro and admittedly, we have been friends for 20 years. Jay said whoever you choose, the reason that you choose, that is your kuleana, but when we are done, we are friends, we are working together and how honored do you think I am when Jay says, hey, sit by me and if you need any help, if you need any interpretation, and as much friends as I am with everyone, I probably talk to Jay Furfaro more than anybody else that I talk to on this table and that goes to show that there is no animosity, there is no bad blood, so... and I don't want to use the phrase playing the game, but you should feel comfortable with who you are working with and we always come. Hey, Lani, do you need help or you got any questions... I mean whenever you walk by or I come by your office, we are always talking, and I would always want to be helpful as I ask you for help. COUNCIL MEETING - 92 - July 22, 2009 Ms. Kawahara: Yes. Mr. Chang: On things that I don't know, so, you know, I hope we can clear the air honestly in my opinion. I would like to be able to move on, you know, if there is any other discussion, but I'd like to just receive this item. Councilmember Bynum, I know he has a little bit business to take care of, but I just hope that you realize that the ice is broken, and you got a good clear communication. As the Chair was saying, come Monday, we are all going to be working together because we all need improvement, and I just sincerely appreciate people that are still hanging around, but I think we have accomplished a lot today, and we will accomplish a lot more. Thank you. Chair Asing: Thank you. I appreciate that. Any further discussion? Councilmember Furfaro? Mr. Furfaro: Yes, you know, I would also like to concur that I think there has been a good commitment today about trying to constantly make some improvements. I really want to thank the Chair for his statement. I did earlier and, you know, I think you need to know your colleagues around the table do want to support fair and equal treatment. I know you have no problem coming to see me. Ms. Kawahara: Yes, no problem. Mr. Furfaro: You know, we are going to talk about agriculture tomorrow. Ms. Kawahara: Yes. Mr. Furfaro: But, you know, it is a very important process that we had today and I want to thank both of you for the points that you brought up and so forth, but I also would want you to see as we get later into the day, the points that there are two (2) other Councilmen across the table here trying to reach out to say, you know, let's look at having a real comprehensive look at the rules. Again, I want to thank the Chair for his willingness to be as respective as possible for the things that we have to do. Chair Asing: Thank you. Ms. Kawahara: Yea, and that is what I appreciate about you Councilmember Furfaro. It is the communication... Mr. Furfaro: I just wanted to say that I appreciate what the Chairman is doing and communication is important. Ms. Kawahara: Yes. Mr. Furfaro: And in that communication, I also want to point out that it is really a recent that we received the Ethernet system that we have across in the new annex building which helps the staff expedite copying material and so COUNCIL MEETING - 93 - July 22, 2009 forth. So we have the Chair's commitment to accelerate that in his press release and, you know, we have given our staff some new tools. Chair Asing: Thank you. Any further discussion? If not, Councilmember Kaneshiro? Mr. Kaneshiro: Thank you Mr. Chair. I haven't spoken much on this issue because for me, you know, I still do a lot of my things in the old fashioned way. I don't depend on the website, I don't communicate by writing letters to the editor, but there is one thing that I do. I have my phone number posted on my Council card and that phone number is my personal cell number, and if anyone needed to contact me to discuss issues, I am the kind of person that would like to sit down and be face to face with the person, and discuss the real issues. And I know there are some people in here that can attest to that. (Inaudible) probably attest to that because I take issues, I discuss issues face to face and like I said, I probably am the old fashioned way, but I am still able to communicate in the best manner in a face to face, and to really face the issues. The other thing that I wanted to bring up is that it doesn't matter to me whether I get the agenda or any of the items a couple days late or, you know, however it is because as a Committee member, I have the ability... I do have the ability to ask for a deferral, so I can do more work and usually when any documents come to this floor, documents first go on first reading, schedule public hearing, then you come to the Committee, and that is when we do the real work. In Committee, if we need to keep the item in Committee for months and I know former Councilmembers can attest to that. We have done it. We even kept it in Committee for years, so the issue of trying to get information upfront before it is really put on for the first reading or the first hearing, I perceive that differently. And what we learned today from each and everyone that spoke here... what we all learn from our colleagues that they all have different desires. They all have different desires to conduct the work and, for me, you know, I am happy with the way that I receive my information, and if I am not ready to move on the information as we get into discussions and into Committee or even onto the floor, I will ask for a deferral to give me more time to do that because at that time, it will give me enough time for me to be able to be the right decision. But what we have learned today, we have seen that every colleague of mine had different ways of receiving information and I bless that. And I think what I heard from the Chair today is that let's all try to work together now, so we can address those issues accordingly, and I am glad it has been brought out on the table again, and for me, like I said, I am satisfied with the way that I receive my communication, I receive my information, the way that I am briefed by the Administration, the way even items are thrown on the floor by request by the Administration even under my name without my signature, you know, I respect some of that as long as dialogue has been ongoing with the Administration to do so. So, for me, you know, that is my personal feeling and beliefs. Everyone else is something different. Mr. Bynum has something different, Mr. Chang, Mr. Furfaro, and Mr. Asing, but at the end, I think... the end results was tonight is that the Chair has clearly indicated that we are going to try to work together, and let's see how we can do all of this together to make it work for everyone. So with that, you know, the only thing I can say right now is to make a motion to receive what is on the floor at this point and hopefully we will be able to do that, and then work from hereon as we have discussed on the floor today. COUNCIL MEETING - 94 - July 22, 2009 Chair Asing: Can I have a second to that? Mr. Kaneshiro moved to receive C 2009-259 for the record, seconded by Mr. Chang. Chair Asing: Any discussion? Ms. Kawahara: One more thing because this... we are going to work together, I am so excited and I... serious, serious, and I am looking forward to the mail getting through to us. What is important to remember here, again, is not the personalities, but the issues and two (2) of your elected Councilpersons said that there were issues. You give us your trust when you give us your vote and that is what we are try... when you give us that trust, we all take it seriously. If I think that I am unable to do my job effectively based on what kind of information I am getting or when I am getting it... as your representative, it behooves me to try and make it that I feel that I am getting what I need and can participate for you. This does come down to public records and I just want to say that this all comes down to, for me, trying to be the best representative for the community that I can be and when that is made difficult or if maybe, you know, other people don't find it difficult, and all other avenues have been explored, I believe we explored all avenues and that is how we got to today. And I appreciate having this time, but this is just one thing that I wanted to say. The proper functioning of any public records, law, that we are talking about, your records, your right to information is very dependent upon the attitude of those who implement the law because there is space between what the law asks for, what can be provided, and what will be provided. So I just want everybody to be clear that to properly function and to properly have public records, it is so dependent upon the attitude of us, those who implement the law. So thank you very much for your time and I am so happy to see so many engaged people because this is a fundamental democratic principle that we have been discussing, I think very well among ourselves, and that is exactly what this is for to be able to have it on the floor to discuss it and have everybody's view points including, so thank you very much. That would be my wrap up for this section. Chair Asing: Thank you. Councilmember Bynum? Mr. Bynum: I am exhausted, how about you? I certainly can't say that we didn't have an opportunity to talk about things today and it was a very long time coming. I think these issues are serious and important. I don't like what has been happening over the last couple of months. I don't like this kind of attention, but I didn't see any other alternative because I also made a very serious commitment to myself and to help my community and my family to do the very best job I can. I changed up my whole life to do this. I didn't expect it and I think that my demeanor, behavior has spoken for itself over the last two (2) years, and I certainly haven't been perfect, but I think these are very serious issues. I think today the sad part was hearing a minimization of that, accusations, and finger pointing, and even an investigation which I guess we will just have to play out. You know, but I am going to trust that we have broken something loose that will be good for the community in the long run and I am going to do my best to be respectful and assertive moving forward with this process. Thank you very much. Chair Asing: Thank you. With that, any further discussion? Councilmember Furfaro? COUNCIL MEETING - 95 - July 22, 2009 Mr. Furfaro: Yes, you know, I would just say how brave I thought Councilwoman Kawahara was in some of her comments, and I just want to reach out to you. I am third senior member of the Council. And I just want to make sure if you need... you know, but I am just saying again after hearing little of your concerns about approaching other members, I just want to let you know that my door is open to you, and please feel free. I will share whatever experience or knowledge that I have that would help you increase your capabilities on the Council. Ms. Kawahara: Thank you Councilmember Furfaro. Mr. Furfaro: It was very brave of you to say that. Ms. Kawahara: Thank you. Mr. Furfaro: Thank you Mr. Chair. Chair Asing: Thank you. With that, no further discussion. All those in favor say aye. The motion to receive C 2009-259 for the record was then put, and unanimously carried. Chair Asing: Thank you. Can we swiftly go through the agenda please? Mr. Nakamura: Mr. Chair, if we can go to page 3 of the Council's agenda. I think there were some people here for communication C 2009-258. C 2009-258 Communication (07/08/2009) from the Director of Parks and Recreation, requesting Council approval to apply for, receive, and expend $4.2 million of American Recovery and Reinvestment Act of 2009 funding for the Lydgate Park to Kapa`a phase of the Nawiliwili to Anahola bike and pedestrian path project: Mr. Chang moved to approve C 2009-258, seconded by Mr. Bynum. Mr. Nakamura: We do have some registered speakers for that item. Chair Asing: I believe we have some registered speakers. Could we have the first speaker please Peter? There being no objections, the rules were suspended. Mr. Nakamura: If Sandra Herndon is here. SANDRA HERNDON: Sandra Herndon for the record. It has been an extremely long day and I am very grateful to be here and to get this on the agenda. I am going to make it really brief. This $4 million... my understanding is that this came through as a contribution from Uncle Sam and the intention was for... to be used as alternate transportation and please correct me if I am wrong, but that is my understanding. So I would think that this might be better spent on a bus system COUNCIL MEETING - 96 - July 22, 2009 that really, really works for the community. My experience with the bike path has been wonderful. The part that exist right now, I have enjoyed it, I use it, but I don't see many people out there using it as alternative transportation. It is more recreational and so I really think that, in the first place, if you are going to use these funds, they need to be used with the intention or for the purpose that they were intended. The other thing is that this bike path going through Wailua at the beach area is just... I don't know how to say it any other way than I just feel it is wrong because that is such as sacred area from the beach all the way out up to Mt. Waialeale. This area is sacred. It is sacred to the Hawaiians and I am sitting before you and as far as I know, I don't have a single drop of blood in this body that is Hawaiian, but my heart is fully Hawaiian, and I do not, repeat, do not approve or support the bike path that runs along the beach. There are some alternatives that we need to look at and that is what I am asking you to look at, to consider... perhaps the route behind the... however you have to do it. Like I said, I am going to make this short. I have already said my key points and I thank you for looking at this and considering it thoroughly. Again, that money could go into a bus system that would serve much more... serve the community in a much better way, so thank you. Chair Asing: Thank you. Ms. Kawahara: Thank you. Chair Asing: Could we have the next speaker please? Mr. Nakamura: The next speaker is Sharon Goodwin. Sharon Goodwin is not here. Oh, I am sorry. SHARON GOODWIN: Good morning has turned to good evening. Councilmembers and Chair, my name is Sharon Goodwin. I live in Kapa`a. I was born in Honolulu... the first I... born and raise there. The first time I came to Kauai was when I was 15 and it was 1960, and I walked on the beach at Wailua Beach, and sunk my toes and eventually a lot of my body right there in the sand, and that has been a special place to me. I moved here 3 1/z years ago and so I have visited Kauai and the Wailua Beach for 46 years. I know a lot of you have a lot of years over me, but that is okay too. Good for you. It is my understanding that there will be or may be a multi use path on the beach at Wailua and I wholeheartedly protest that action. I think the whole Wailua corridor as Sandy was saying from the ocean to the mountain is sacred. I have always felt that. I have told my haole husband that for 36 years. This is a sacred place. We must always treasure it. I am alarmed and dismayed that maybe not all the right reports that needed to be done were done. I am thinking specifically of the cultural impact assessment and if one was done for the Wailua area alone. Also, I am hoping that there was a traffic or route assessment done for Wailua before any of these plans were made or considerations taken up. Also, how about a burial treatment plan. I really don't know a lot of the details. I don't know what all the reports that you folks have to have. I just think we have to back up and we have to look at do what is really right. I would like to see the Wailua area remain the same as it is in perpetuity for all our future generations. Chair Asing: Thank you. Can we have the next speaker please? COUNCIL MEETING - 97 - July 22, 2009 Mr. Nakamura: The next speaker is James Alalem followed by Waldeen Palmeira. JAMES AT,AT,EM: Okay, I take care all of the heiaus. For the record, my name is James Alalem. I take care all of the heiaus in Wailua and I have been there for many, many years, and I see a lot of petroglyph and the only petroglyph that is left there in Wailua. There is only one little piece out of 63 pohakus that had petroglyph, but over the years when they opened the river mouth, they destroy it, yea. So, anyway, right by where the bridge is where they are going to start the road construction, they should not even build the bridge yet because I think over there which I have seen some stone bowls right by the bridge, but look like they had passed this thing where they are going to start building the bridge soon in a couple of days. I think they should not even start the job, make sure that they have one archaeologist study that area and if it is sacred which it is that they should not even mess with it. As for the bike path, I think that they should end the bike path right there because Wailua is so sacred for the people. It... the history and the first drums, the first canoes that came, came right up through Wailua. And they also had... right where Shell Service Station is, right across used to have one house in the ancient days where they play punani and the rule for the game was that you forfeit your life if you lost, and the losers... actually what they did, the losers, they kept the bones and used them as one fence if you lost the game. But there is so much history in that area that even above the birth stone, they have one place that they call ki`i hill. A lot of times, you know, in that whole area, a lot of people think ki`i means one wooden tiki, but this goes way, way back from the beginning when the first people came here. The tikis that they talk about was actually the stone ki`i, the one look like oblong stones that they set up and in that area, I know there is a heiau... that the very first heiau that I know, it is in a circle with two (2) pillars that are facing the east... that is a very sacred area that I'd ever show anybody. But, anyway, what my point is that, you know, the bike path should stop. They shouldn't go through that kind sacred area because there are so much bones through that area and when I seen them guys the first time putting the sewer line and I went back a couple days after when they was finished, I found some chips of bones there. You know, and the archaeologist and all these people that are monitoring, they are not doing their jobs. And how do you know if the machine going right through one body, one grave, that they are all facing towards the east when they are buried in the sand. Nobody know. They talk about machines that they can find graves... you cannot find those graves because they don't have metal, the machines only pick up metal when you go through looking for graves with these big fancy machines that they look for bones. You never can tell where that bone is, but I know there are a lot of bones because by the Bull Shed and by... all in that area, Bull Shed, Beach Boy Hotel, that open areas, you going find a lot of bones through there, and I keep telling the people, do not build in there already, pau, stop, don't mess with it. But that is my kuleana yea, so with that, I thank you. Please don't even build bike paths already through this, enough already. Chair Asing: Thank you, appreciate that. Can we have the next speaker please? Mr. Nakamura: The next speaker is Waldeen Palmeira. COUNCIL MEETING - 98 - July 22, 2009 WALDEEN PALMEIRA: Aloha mai kakou. Mr. Bynum: Aloha. Ms. Palmeira: Mahalo nokeia wa a hui ai anoka... kaolelo ana e piliana ika aina hanohano O Wailua Nui Aho`ano (not sure of Hawaiian word spellings). My name is Waldeen K. Palmeira and I am from Wailua and I represent myself and Hui Na Makaiwa O Wailua Nui Aho`ano. We are on the item concerning the funding, right? However, I am not sure if you are going to reach the other item which concerns the bike path and that is the one that I would like to speak on. Okay, this concerns the item which is the first on the agenda communication C 2009-248 and the related resolution. Chair Asing: We are on 258 now which is on page 3, the top of page 3. Ms. Palmeira: Yes, are you going to also allow testimony. Chair Asing: Yes, so we will allow testimony on this item. Every... let me explain to the public. I think they know, but anyway, any item on the agenda, you can testify. It is open to you to testify on any item on the agenda, so... Ms. Palmeira: Okay, well, I just wanted to make sure that I would be able to testify. Mr. Chang: But we are specific to 258 though, correct? Chair Asing: Yes at this time. We are on 258. Mr. Chang: Page 3, top of page 3. Do you have page 3? Mr. Bynum: Which is also about the path, so... Ms. Palmeira: Yes, I understand. Okay, well, I guess this is my opportunity to let you know some of the problems that have been observed concerning the documents of the environmental assessment. And basically, on one of the main things was that there was no cultural impact assessment in which was... what was used instead was the CIA (Cultural Impact Assessment) that was done for the Kapa`a segment as well as the Kapa`a Bypass Highway which is in the EIS (Environmental Impact Statement) right now which is out in December of this year. So that is a big blow to a community when there is not cultural impact assessment. In other words, it is as if there will be no impact on the community because it is not addressed in this EA. Another thing is that this area is registered in many areas on the National Historic Register which I believe someone else will be speaking on tonight. And the whole area of Wailua Beach which is actually called Alio (not sure on spelling). The name of Wailua Beach is Alio and it is known as Na One Kapu O Alio in the Lahainaluna records of the 1800's, and basically, Na One Kapu means the Kapu sands and we know that Kapu has a special meaning in Hawaiian, and we should respect that as a community. We should learn to uphold our traditions and keep the areas that are sacred for generations to come. I would COUNCIL MEETING - 99 - July 22, 2009 like to see our children learning that this place is of such significance in the Hawaiian islands. In the history of our islands, there is no place like Wailua Nui Aho`ano from Na One Kapu Alio all the way to Waialeale is a place of reverence. It is a place that the Tahitians first came and known about before they even arrived here. And so the great waters of Waialeale needs to be treated in a pono way and a bike path on that area without a cultural impact assessment and the finding of no significance is not acceptable because it is in a historical area. There is no wave that can stand and another problem is that there was no... there is no archaeological inventory survey and for any project normally in the State of Hawai`i... if you go to the State Historic Preservation Division in Kapolei, you will see that every project big or small has an archaeological inventory survey and what that affords in our case is that there would be the opportunity to develop a meaningful burial treatment plan ahead of time, ahead of construction in which we treat our kupuna in the right way. Chair Asing: Your three (3) minutes, do you want to wrap up please? Ms. Palmeira: Okay, yes, I will wrap up. One of the... finally, the last thing at this time is that there are really three (3) projects going on in Wailua, the bridge, the bike path, and the Kuhio Highway widening which is now an EA until August 6. The three (3) separate projects together provide actually a much larger impact than each separate one, and that was never addressed. However, I would encourage people to do look at the Kuhio Highway widening and in that case, we are also asking for an archeological inventory survey. The point is, in closing, at this time is that we have to do things right in Wailua. We need some good highways, some safe highways, and pono highways for our people of this island. And at this point, that is questionable and going ahead with all of this in Wailua is a very serious matter. It is not something that we can just go ahead and do a project without a CIA, do a project without an AIS (Archeological Impact Statement), and just do what we like, and not treat Wailua with the greatest respect that it deserves for our children and generations to come. Now, I am just wrapping up, again, with the thought that these stimulus funds I am sure... I mean I read an article the other day, an editorial saying that, you know, we really should look at the highway at the golf course. And at some point, I hope our community can come together and address the issues that involve that area which really involves a huge burial area, so let's please come together and talk about that and address it. Thank you very much. Chair Asing: Thank you. Can we have the next speaker please? Mr. Nakamura: The next speaker is Sophronia Noelani Josselin. I am not sure if she is here. SHARON HERNDON READ SOPHRONIA NOELANI JOSSELIN'S TESTIMONY: Ms. Josselin had to leave, but she did leave her testimony which I would like to read. My name is Sandra Herndon and I am reading this for Sophronia Noelani Diego Josselin. Aloha kakou. County of Kauai Mayor Bernard Carvalho, Councilmembers, Council Chairperson William "Kaipo" Asing, and Planning Director Ian Costa and Committee. For the record, I am not opposed to the bike path in general. I am only opposed to the alignment of the bike path that COUNCIL MEETING - 100 - July 22, 2009 take this bike path onto the sands of Wailua Beach. I feel that it will definitely affect Wailua spiritual, social, cultural, and environmental quality of Wailua. I am also concerned about the public safety and the blatant destruction of prehistoric cultural Hawaiian sites. I would like to ask that the proposed route of the Ke Ala Hele Makalai multi use bike path be altered to run mauka of Kuhio Highway either in front of or behind the Coco Palms property. Further, by allowing the path to run west of the highway would result in better and safer access to the businesses along Wailua River and shops that are sure to materialize as the Coco Palms property is developed. This change will preserve the last beach on the eastside with easy access for recreation activities and cultural practices. This will also preserve Wailua Beach view plain and eliminate further distraction to vehicle operators who daily check the ocean conditions from Kuhio Highway. Allowing this path to be built on the vegetation line that buffers and filters runoff water to Wailua Beach from Kuhio Highway will allow petroleum and chemical contaminates from this high traffic corridor to enter the delicate marine environment of Wailua Bay during heavy rains. This increase in pollution will have a very negative impact under Federal marine environment so vital to our tourist industry and culture. This vegetation line is the home of many salt tolerant plants that is vital to Wailua accretion cycle and protects Wailua Beach from erosion. Many of these plants are harvested and used for medicinal and cultural practices today. Most importantly, the County of Kauai in conjunction with the advice of the State Historical Preservation Society and their western minded archaeologist have labeled the Wailua area to be of FONSI or Findings of No Significance. They intend to destroy this last remaining section of what once was a very large prehistoric and sacred burial site of the Kupuna Iwi O Wailua who were possibly the first Ali`i's with origins to Tahiti. This burial has been since desecrated by the construction of Kuhio Highway and the Coco Palms Resort. The iwi in this area were dug up and with very little infor... Chair Asing: Do you want to wrap up please? Ms. Herndon: I just have like two (2) more paragraphs. Thank you. The iwi in this area were dug up and very little information was recorded. Much of the good and artifacts found with these burials were stolen. I ask the public and whoever took these artifacts to please return them who you are. This is a quote. This area is protect and preserve and an ahu to be built in honor and respect of these kupunas. I am asking the Mayor, Councilmembers, and member of Planning reconsider the alignment of this multi use bike path. The Wailua corridor of Kuhio Highway is not pono. It just respects our kupuna. I do not want to see this mistake repeated what this bike path or the restrooms that once sat on the heiau of hiki naa kala. The safety of our people and our visitors are at stake. Whomever decides to jeopardize Wailua Beach and its sacredness will be held accountable. Wailua Beach was once the seed for native Hawaiians spirituality. Its rich historical significance and unnatural untamed beauty makes it one of the wonders of Kaua`i... our visitors and residents alike can enjoy. We feel that these points merit consideration, and hope that you will rethink the current route that the County of Kauai has proposed for Wailua Beach. Sincerely and respectfully, Sophronia N. Josselin. Chair Asing: Thank you. Can we have the next speaker please? COUNCIL MEETING - 101 - July 22, 2009 Mr. Nakamura: No further registered... Chair Asing: Is there anyone? Jimmy? Let me get Jimmy up first and then you can follow. JAMES TRUJILLO READ MAHELANI SILVA'S TESTIMONY: James Gerard Trujillo for the record. Thank you Chair Asing and members of the Council. I was asked to read from Mahelani Silva who had to leave earlier. This is from the United States Department of Interior National Park Service. This is information from their website regarding national register of historic places and describing the significance of this area, Wailua. The Wailua National Historic Landmark is significant under national criteria A, B, C, and D. I would be glad to submit this. In size, quality, setting historic association and informational potential, it is one of the most important archaeological site complexes in the Hawaiian islands with components spanning all phases of Hawaiian culture. Wailua was the principle residence. as well as administrative and religious center. of Kaua`i's paramount Chief, the Ali`i Nui for most of the year. The traditional name of this area, Wailua Nui, Hooa`no a of great sacred Wailua was (inaudible) with mana and kapu, and as such it became an important center for the formation of the highest ranking Ali`i for marital alliances. Wailua was set aside for the exclusive use of the Chief, his court, and priests. In this context, Wailua was comparable to other localities in the island such as Waipio and Kahaluu on the Big Island or Kualoa on Oahu. This is where Ali`i resided, young Chiefs were raised and trained, and numerous heiau were constructed. Further, the temple platforms within this landmark area are testimony to the impressive degree of religious, political, and economic power that is evolved on Kauai by your... prior to European contact in 1778. Most of the heiau and sacred sites in the National Historic Landmark complex are associated with legends, rulers, and events that played an important role in Hawaiian culture and our traditional significance to contemporary Hawaiians of native descent. The last reigning monarchs of Hawaii, King Kalakaua and Queen Lili`uokalani, they traced their descent to Wailua through the kamanakoa line. One of the oldest temple platforms, holo bolo ku is especially sacred. Traditionally, it is the oldest heiau on Kauai and it is associated with its birth stones... its associated birthstones was for generations the birth place of royalty. Hikina akala heiau and hauola the former place of refuge are also constructed prior to 1200 A.D. and like holo bolo ku heiau on Kauai have legendary associations with Polynesian lands to the south of the Hawaiian archipelago. Malai heiau is the largest surviving heiau on Kauai and one of the largest surviving temple platforms anywhere in the Hawaiian islands. Poli`ahu with which Malai heiau was associated is also impressive. The size of these structures and the traditional lore associated with them suggest that they were functionally readapted several times and continue to (inaudible) into the early post contact period. In addition, some of the structures can structural details that are unique to Kauai and that may serve as architectural horizon markers. The ancient places of worship are especially sacred to people of native Hawaiian descent. They are built on the places of the people of old and are imbued with Polynesian concepts of mana, super national and divine power, and kapu. Dual organizing principles of Hawaiian religion and social life. Mana was the gift of the Gods passed down from father to children in inherited fashion. COUNCIL MEETING - 102 - July 22, 2009 Everyone had some mana, the Chiefs had more of it. Mana was important in kingship especially in Ali`i marriages. The off spring of certain marital preferences produce more mana than others. Chair Asing: Can you wrap up Jimmy? Mr. Trujillo: I sure will. The last paragraph. Chair Asing: Good, thank you. Mr. Trujillo: There were no civil codes of law. Kapu, an elaborate system of religious tabus served to protect and reinforce the sacred mana. Coral offerings and temples and even fragments worked into the heiau construction and fish pond walls symbolize the sanctity of these structures and the relationships through the Chief who own or constructed them. With the genealogical ancestors and ultimately the Gods and it wrap it up, this area is of significant cultural, historical context. To do a cultural assessment would be appropriate before anymore construction goes on. As a supporter of the bike path, as somebody that uses the paved multi use path, I think it is most appropriate that it be located on hard substances already located, and the fact that Coco Palms and that area is all part of a complex that we need to better understand as well as better think out the plans for all forms of transportation and development in that area. Thank you. Chair Asing: Thank you. Can we have the next speaker please? GENE EIDENBERG: My name is Gene Eidenberg and I think the remarks that you have heard the last three (3) speakers are compelling with regard to the possibility that there had been some significant oversights or not enough attention paid to the cultural and archeological impacts of the bike path at its current prospective route. This is not to say that I am opposed to the bike path or that these funds should not be secured. A realist and the people sitting around this table carry heavy responsibilities and an opportunity to help in very serious employment situation here on the island and $4.2 million is nothing to just waive away. But I do think that there is a very heavy stewardship responsibility that comes with this particular grant that the County of Kauai is soliciting. I would love to see this money come. I would love to see people employed and I would love to see constructive purposes used around this intention, but not before careful consideration has been given to the cultural impact, and the archaeological implications and historic implications in these sacred areas. My guess is there are options. I don't come before you as an engineering expert where with a particular proposal for the alternative, but if this Council is willing to assume the stewardship that should come along with elected office, it would be appropriate to specifically take responsibility with the Administration, but as the elected Council, to ensure that this section in Wailua is not just blindly constructed when we have evidence now that there are open questions and profound implications with respect to the cultural impacts if we go forward with the plan as it currently exist. I think we can apply for the money, we can receive it, and we can take the time to carefully look at options and to understand just what has been done or perhaps what hasn't been done to fully understand the implications of what is currently planned. Thank you. Chair Asing: Thank you. Alice? COUNCIL MEETING - 103 - July 22, 2009 ALICE PARKER: Okay, Alice Parker, Lihu`e. I agree with the previous speakers as far as the path, and, again, save our shores and SOB, save our beach. Also, besides the spiritual things to think about in this area, there is also economics. I mean that is a lot of money and we really should address an alternative transportation reality and I think it would perhaps be much more realistic to build more inland, and also this would have more access to the shops, so it would, in fact, be alternative transportation. Thank you. Chair Asing: Thank you. Mr. Taylor? KEN TAYLOR: Chair and members of the Council, my name is Ken Taylor. I agree with the previous speakers. As most of you know, I have been a big supporter of the bike path over the last few years and I do believe that this money would certainly go a long ways in extending the bike path, but there are real problems with this area and I think that you folks could put some caveats in the process of accepting this activity where some of the issues and studies that need to be done... better studies need to be done in this area that have been brought up by others. And so I would say in the process of approving this, put some restraints on what any... this money and any County money could be spent on especially along the beach there because I do believe there are good alternatives to the bike path that would be beneficial. And so with restrictions on where this money could go, we can look at the alternatives and move forward. Thank you. Chair Asing: Thank you. ANNA CHAVEZ: Thank you for your hard work on difficult issues. This is another one. I have heard and I understand that there is shovel ready money. I understand the pain that people on this island are experiencing. Mr. Chang: Anna, I think you need to identify yourself. Ms. Chavez: Oh, I am sorry, Anna Chavez back again. And I have heard it said that we did everything right, we have an EIS, we did assessments, we have reports. Where were you all at the public hearings. We have letters that show that there is FONSI. No finding significant impact. So I can understand that some of you and some people are prepared to say, we did everything right on this project. We checked everything out. We've crossed every "t" and dotted every "i" and I am going to direct you back to something I introduced as a concept earlier this morning about unintended negative consequences. So while you may have done things just as you did in Kapa`a relying on reports that were prepared for Kapa`a and now you are looking at a different stretch and you have money, and you are on the brink of shovel ready money, stewardship is what comes to mind. The moment, the context for the pain this can cause. This is a slide of ideals, page 11, in the County presentation of what the path is supposed to stand for, and I would just say that create a first rate public amenity. I am going to ask you for what public, for all of the people who live here, for people whose religious beliefs or cultural beliefs or family beliefs, or in my case since I am not native Hawaiian, the care I have for my friends and fellow citizens and taxpayers... to improve or sustain the coastal environment. Earlier today, Caren Diamond showed us what boardwalks and construction on beaches can do to the coastal environment. COUNCIL MEETING - 104 - July 22, 2009 When I hear this path has to be on the lip of the beach in order to be coastal, I think that is hui. I don't know if that means something like in Hawaiian, but I meant hooey in the h.o.o.e.y. way, but if this is your island, then the path doesn't have to be on the fringe of the beach in order to be coastal. As long as it doesn't become a line on my (inaudible) crossing across the mountains, it is coastal compatible with canal and wildlife preserve and environments. If you are destroying the beach and eroding brackish environments and sensitive plants, it is not compatible. Maximizing existing amenities such as the Wailua Beach Park and railroad bridge. What amenities? We are talking about the future and potential new amenities, new stimulus created by small businesses if you relocate to the path inside. And it says compatible with existing path amenities. The bridge, so I would say that I looked at these ideals by the County and I thought to myself that this was your promise that you were going to receive the money with stewardship for the land, for the people, for the values of the community. If you didn't hear the objections in the first pass, I would ask you to go back, and look at all the reports that supported this and told you, you had public endorsement of it, and see who was speaking and how carefully there was community outreach. Thank you. Chair Asing: Is there anyone else? CHARLIE BRAUN: Good evening, I am Charlie Braun for the record and I... Charlie Braun for the record. I am just trying to think of wild things all the time and I have come up with the... nobody really likes to yield their altitude by morning if there could be a pedestrian overpass to shuttle people from the present beach path to the behind the stores path. I was also thinking of a water elevator where a stationary cable would pull a boat back and forth under the bridge for a lower esthetic disability and maybe a similar pedestrian bike and dog ferry across the Wailua River. Thanks. Chair Asing: Thank you. Is there anyone else? If not, oh... Arthur? ARTHUR DEFRIES: For the record, my name is Arthur DeFries. I would like to say one thing. I hear a lot of guys talk about (inaudible) for the... pertaining to the sites over there. There is one particular guy, but I would like to say on record, 1963, my Uncle guys were going to dig the... pertaining to the sewer treatment plant, so they had some problems. My three (3) Uncles was working on that project, so they had some mean problems there, so they wanted to get some legal advice from my Aunty. My Aunty is Aunty Emma, so I called her up and said Uncle guys are getting some problems over there and she told me this is what you have to do. You have to go there 1 o'clock in the morning and look at... (inaudible) Sleeping Giant and say who you are. You just say... let her... I am your Aunty and who is my grandfather and all of that. I am going tell you... then she tell me, you going hear something. I heard the priest coming down and the pig went right into the entry and today, get this guy, he said he is (inaudible). You know, I took out a stone that inside of anytime you go into sacred places, the sun rises here. On your left side is what we call the black corner. In the black corner, you no fut around. In the one corner, you can play around. In the back corner is the red corner... that is another sacred place. The yellow corner is another corner, but my Aunty told me, you have to go in the red corner. I said what the hell I going do over there. She said, COUNCIL MEETING - 105 - July 22, 2009 just wait for something come. I heard the pigs coming down, I heard the pigs go inside the right way, the way that when the sun coming up, you enter only through the white and the red. You know, the white and the red. This cloud in the back here, he went destroy the place over there. If I had the stone that was in the black corner, the guy would be dead today. He would be dead. I took that stone, I got `em in my house, just a small little thing. One day I was thinking, gee, I get a lot of problems over here, what the hell is the problem, so you go inside this black corner, you stick your hand inside of there, and you going find something. I got `em. I took `em out and it is just one small little stone, but that stone get plenty mana. I was planning on pass `em onto... I heard that there was no EIS study. (Inaudible)... the State and everybody else, so me and Maka was over there, so we went invite `em in, into the black corner. They been feel the vibes, but they never wanted to come in because they knew if they were to come in... because there were six (6) ways that they were looking. Now I talked about this... the Planning Commission is the Planning Commission and I don't give a damn for them. You know, I had tell the history... this one guy I going tell you guys. You guys might know him, Arthur Kini. You know Arthur Kini, when he developed in Hawaiian Homes area... now I going tell you the truth. That guy was the king. He was nothing. This is what Jack (inaudible)... eh, you going be the king, Ali`i Nui, but he was controlled by the Kahuna Nui's. The Kahuna Nui's is (inaudible)... eh, make them one standing committee and that is what he did. He made them a standing committee... when you develop anyplace in Hawaiian Homes (inaudible) Waimea, Waianae, Nakakuli, Waimanalo. He never do it for the Hawaiians, he did it for the community. When he went in there, someplace I going tell you the truth. In Kewalo, Kewalo is Hawaiian Homes and there used to be a Chinese grave over there. All the Chinese had move out. What I going tell you this. I going tell you real fast. Everybody wanted to see a shopping center at Ala Moana and there was pertaining to... just like when we say the 999. How many of you guys know what is a 999? How many of you guys can tell me what is that? It is the old homestead act... same thing like Wainini, now they call `em `Anini. That was where the dry land is. The wetland is when you are looking into Princeville up into Hanalei mauka, that is where the wetland stay. Same thing like inside... when you talk about Kapa`a. Kapa`a, the dry land is where... pertaining to where the Mormon Church is, that is the dry land. The wetland is Kahuna Road and the same thing like inside... pertaining to the 999 in Hanapepe, both sides the dry land. The wetland when you are looking from on top, you see the waterfall, that is the wetland, so when they develop, you know, Prince Kuhio, he wasn't the Ali`i Nui, but he was the (inaudible)... pertaining to the island of Oahu because he was holding that whole thing. But in a nutshell, Arthur Kini, through the royal order of Kamehameha, the royal order of Kamehameha had control of the Hawaiian moneys. After that, when he went to the Hawaiian civic club because Charlie Kauhane wanted the control of it, but he wanted to be the speaker... when he had... when Arthur Kini got out in 1949 to '54... that every five (5) years, everybody get a chance. Honolulu had their chance, but Charlie Kauhane wanted to be the Speaker of the House from 1954 to '59... it supposed to be only five (5) years, but what I want to say... Chair Asing: Arthur, stay on the subject, okay. Mr. DeFries: I am against... you know, when you say Papaloa, there is one God we call Kanaloa. If not for Kanaloa, you no more the upside down rain that forms the rain out there, and then you get Kuu helping going up to COUNCIL MEETING - 106 - July 22, 2009 Kane... what is Kane, it is up in the mountains. When it rains, you go down to one God, what you call Lono pertaining to agriculture and you recycle the whole thing. But what I am trying to say that I am against Papaloa, I would like that road to go up to Wailua Homestead pertaining to the bike and in the back... get one intersection and have all the guys from... that is staying at Coco Palms, get one sidewalk over there and then the guys go in the back... in the back, there is a nice road that goes maybe... they can also... inside of Wailua Houselots... I praise the Lord for them, they had fight that thing, but it is supposed to come out through your boss pertaining to... what his name, Jimmy Burgess. He was thinking of Jimmy Burgess road would come down and they was going come down all the way down to Papaloa. But what I am trying to say is that... Chair Asing: Arthur, I have given you over the time limit. Mr. DeFries: I going take another three (3) minutes if nobody else going. Chair Asing: Arthur, you got over six (6). Mr. DeFries: Well, I can step back, maybe somebody else want to add in. We can go all night. Chair Asing: Thank you Arthur. We appreciate it. Mahalo. Mr. DeFries: I going come back again. Chair Asing: Thank you. Is there anyone else? 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: And can I have a motion to... is there a motion? Okay, any further discussion? Go ahead Councilmember Furfaro? Mr. Furfaro: Yes, first of all, for the record, I know there are three (3) projects going on in the Wailua Nui area. I think it is important that we note that two (2) of them are State projects, but, you know, I think the gentlemen that came up and talked to us about the stewardship of that area. It is a very important point, you know, these areas are, you know, wahi pana, they are very special. Thank you for the history of Tangaroa and Kanaloa, and all of the connections Arthur, but our dilemma here is really that this is for us to apply, receive, and expend $4.2 million on a shovel ready project. I have to tell you that myself... I am anxious to see an updated presentation from the building department because in these shovel ready projects, I want to make sure we understand if all of the pieces aren't in the right place and if we have unsubstantiated delays that need more research, this money could need to be repaid by us to the Federal government. And so I have some concerns especially as it deals with Hikina Akala and the great Malai as well as Ala Kuku`i, but I need to have some assurances... I am not absolutely sure I like the idea of a boardwalk type on the beach, but I would like to have an opportunity to hear again from (inaudible). I am not going to not withhold COUNCIL MEETING - 107 - July 22, 2009 my vote, but I just want to point out, you know, there are some risk over here that, you know, we have some stewardship for. Thank you Mr. Chair. Chair Asing: Any further discussion? Councilmember Kawahara? Ms. Kawahara: Yes Chair thank you. If somebody could let me know... we either... when we... if we accept this, the Public Works will apply, receive, and expend, right? That is what it is, so when we receive it, we are approving that they can apply for it. Chair Asing: Yes. Mr. Furfaro: And Councilwoman, that was my concern because it also says they can spend... Ms. Kawahara: Yea. What I have here is environmental assessment... this happened in 2004 and 2007, the final. I'd like to be able to look at these and before I make a decision on the expenditure and that section itself, I am not sure what the procedure is because I know that everything had been gone through already with the previous Councilmembers. So when we speak of stewardship and I need to vote on something like this, the question is the previous Councilmembers did get that information. And I need... I don't have that... I haven't been able to read all of these. I had started to read the reports and I am not sure where we are in this process except that we are getting possibly money, and that it is specific to an area, so I need an overview of how far this has gone and what kind of approvals and things the Council has already done for this section. Chair Asing: Okay, we have a representative from Building Division in the house, but what I would like to do is although I hate to, we have to take a caption break. We are over it by five (5) minutes and I don't want to get into trouble, so as soon as we get back, we have the representatives who are... who is familiar with the project and we will get that information, so we are in a caption break now. Thank you. There being no objections, the Chair called for a recess at 10:02 p.m. The meeting was called back to order at 10:17 p.m., and proceeded as follows: Chair Asing: Doug please? Someone, please get Councilmember Kawahara. There being no objections, the rules were suspended. Chair Asing: Does anyone have questions for Doug? If not, hang on, we are waiting for Councilmemb... Mr. Furfaro: Can we ask questions? Chair Asing: Oh, fine, yes. Mr. Furfaro: Okay. Doug, you have heard this question from me in previous years I think as well, so can you tell us a little bit more about some of COUNCIL MEETING - 108 - July 22, 2009 our options versus Papaloa, the beach, and the use of boardwalk material, color something to the sand. I mean do we have some other options maybe to go a little mauka? DOUG HAIGH, BUILDING DIVISION: Let me. During the environmental process was a stage of the project where we considered all alternates that were feasible. And particularly in the Wailua area, Wailua is a sacred place and the heiaus... people know much more than be about it. My understanding is that the whole area is very sacred and so no matter what, going through that corridor, it is a sacred corridor. So we were looking at two (2) options and actually one of the options that I initially preferred was going behind Coco Palms along the canal because it is a beautiful area back there. But during the public process, it was determined that the preferred route would be along the beach and there were numerous reasons for that. And so then we moved forward and with the way the environmental process works, a decision is made... first we do a draft environmental assessment, we get comments, we respond to those comments, and then we move forward to a final environmental assessment. We publish our FONSI and then there is a State FONSI, there is a 30 day protest period, and the FONSI (inaudible). Now on the Federal side, in addition, we actually did two (2) EA's. We do a State EA and we do a NEPA (National Environmental Policy Act)... environmental assessment... on that one, there is a special section 106 where we do an extra special review... it is section 106 consultation national historic preservation act and so there, they go in even further detail on the historic issues which we did. And the consultant, you know, consulted with many parties... three (3) primary, State Historic Preservation Division, she also worked with LaFrance who (inaudible). Mr. Kaneshiro: Kapeka. Mr. Haigh: And then also met with Office of Hawaiian Affairs. These were specific meetings and through those meetings, we even generated a list of further people, stakeholders to contact with the consultant did. And some of those contacts... well, we had Ian Costa, LaFrance, Sabra Kauka, Kunani Nihipali Hui Malama Na Kupuna O Hawaii Nei... excuse me for my Hawaiian pronunciation. Mr. Furfaro: You did well. Mr. Haigh: It is late in the evening. Sharon Ortiz, Friends of Lydgate Parks, Daniel Quinn, Division of State Parks, Mary Requilman, Kauai Historic Society, David Scott, Historic Hawaii Foundation, Ricky Tsuchiya, Historic Preservation Review, and then based on SHPDA recommendation... SHPDA, we added two (2) additional people consulted with or groups was Pohaku Nishimitsu, Halau Kanikapahuolohi`au and Kehaulani Kekua Kauai Heritage Center, so there was further outreach done during this section 106 process. So there was great effort to reach out as much as we could and get the input which way to go, and then the decision was made. If you want, I can go over the advantages, disadvantages that were noted in the decision making, but that is kind of the process we went. Mr. Furfaro: I just want to revisit, you know, my testimony from the past. I am very concerned about the boardwalk style. COUNCIL MEETING - 109 - July 22, 2009 Mr. Haigh: Okay, now the boardwalk... the coastal issues are... our design team right away acknowledged this specialness of the coastal issues, and so they brought Dr. Fletcher on their team who is probably the best known in one of the most prestigious coastal geologist in the State, so he is part of the team. And he has been working with the design team all along and we are developing boardwalk that has the lightest footprint on the sand as possible. So really in the boardwalk section, the only excavation into the sand is going to be archaelogical monitoring we are going to do in the areas where we are going to be putting these cork screw anchors in. The anchors themselves are just like a (inaudible) post diggers... just (inaudible) that goes down into the ground. But in the first four (4) foot, there is potential burials, so what we will be doing is hand digging that first four (4) feet with an archaeologist and a cultural specialist there during those process, so we make sure where we are putting these anchors. We are not going to be going through burials. Mr. Furfaro: You know, I just want to ask a little more about the money and then some of the questions I asked because, you know, I have been on the Council for seven (7) years now and Dr. Fletcher and the presentation... it doesn't mean that I still like the boardwalk idea, but let's talk about the money here for a second. This $4.2 million, that is what we are applying for in the grant. Mr. Haigh: That is what we are asking approval for the ARRA (American Reinvestment Recovery Act) moneys. Mr. Furfaro: And we have to provide them a project that is shovel ready, so that we can start within 18 months. Mr. Haigh: (Inaudible)... our obligation on this one is absolutely have to have your... I believe the money obligated by March 2010. The deadline that the State is giving us is mid-August... well, actually, the end of this month, but they can kind of extend it to September. Mr. Furfaro: And the State... the way this stimulus money does work now... Federal recovery act is basically we are still subject to oversight on the money from the State. Mr. Haigh: Yes, the State manages the money and they want to make sure it gets spent. The last thing that they want to see is the money not to get spent, so that is why they are giving us this earlier deadline, so that if there are problems, they can try to quickly spend that money elsewhere. Mr. Furfaro: So if this problem... the State wants to be able to redirect the money, could that possibly be because if we start the project, and we stumble into some gray areas and have to stop, they want the portion to be refunded purely at the County's level. Mr. Haigh: Well, I don't know what the refunding... what they don't want to do is commit money to a project and then it not get spent, and then have to... because the money you spend should be recoverable, but the money you don't spend... if you don't spend it within the timeframe, the Feds take it back, and COUNCIL MEETING - 110 - July 22, 2009 then if you want to finish the project, you have to spend your own money. That is the key issue. Mr. Furfaro: We have all heard the President speak about the tough scrunity the money is going to get. I am just worried about what does $4.2 million get. Can we do more of another part of the bike path and not so much be concerned with the bike area. I mean... Mr. Haigh: Well, right now, this Phase A section that we are saying shovel ready to go, the budget, the engineer's estimate is around $8 million. So we are going to have $4.2 million of Federal stimulus money and we also currently have still $3.1 million of STIP money. And so we are going to spend the stimulus money first, so it is possible if for some reason Wailua Beach section got hung up, we have the balance of the project where we can spend the money if we are allowed to do that. Mr. Furfaro: Got it. Ms. Kawahara: If I could... I want to really understand what you just said. Mr. Furfaro: Hold on a minute Doug. Chair Asing: Councilmember Kawahara, hang on. Mr. Furfaro: Let the Chair identify you. Chair Asing: Finish up Councilmember Furfaro. Mr. Furfaro: I am finsih now. I am current. Thank you. Chair Asing: Councilmember Kawahara? Ms. Kawahara: Sorry about that Chair Asing and Councilmember Furfaro. I really wanted to make sure I understood that, could you please repeat it. Mr. Haigh: Okay, the current engineer's estimate based on the 90% plans is around $8 million to do total Phase A which includes Wailua Beach section, Papaloa Road section, and the Kawaihau connection. And of that, $4.2 million is the ARRA money that we are asking for approval today. We have already gotten approval on the STIP funds from Council way past. So if the Wailua pro... side got hung up, what the plan is and this is what DOT is doing on all of their projects... they like having the mix because that way they can spend the ARRA money first, the money with the deadine, and then if a project gets hung up later, then the STIP money can keep going, but as long as you have spent that first $4 million... the first chunk that is ARRA, you are safe. You are not going to lose the funding. And the nice thing about the ARRA money is it is 100%, no matching required where with the STIP money, we have the 20% match which we are using with the land match, but still, we are trying to extend our soft match as far as possible to get this much Federal money as we can. COUNCIL MEETING - 111 - July 22, 2009 Ms. Kawahara: So what I am hearing is that if something in Wailua gets stuck or snagged, the money can be used somewhere else? Mr. Haigh: That is... what I am saying is we can spend the $4 million first, and then the balance later. Ms. Kawahara: And the whole project is $8 million. Mr. Haigh: Yea, the engineer's estimates are around $8 million. Now bids are coming in lower than the engineer's estimate, but that is... Mr. Furfaro: That is a good thing. Mr. Haigh: That is a good thing. Chair Asing: Let Councilmember Kawahara finish. Ms. Kawahara: So it is feasible that you are going to want to do it in order from the bridge to the Wailua Beach to Lanikai, so right? You are not going to... you can't skip Wailua Beach and spend the 4.2 on these other sides. Mr. Haigh: Well, during... once you enter into construction, you can start and do construction wherever you want. You don't have to start from one point and move to the other. We work with the contractor and schedule the work, so if there are issues... holding up a certain portion of it, we will go work somewhere else. Our job here is jobs. That is my number one job with the County of Kauai is to try to get projects out for jobs. I came from the construction industry. These are my friends who are out of work and there are a lot of them out of work. And so everyday I come to work, the first thing I think is what can I do to get another project out to bid, so my friends can get work. Ms. Kawahara: Okay, thank you. Mr. Haigh: You're welcome. Ms. Kawahara: I appreciate it. Chair Asing: Any other questions for Doug? Councilmember Chang? Mr. Chang: Thank you Chair. You know, Doug, just for my understanding, what year was the process to gather community members to decide that this was the best path? Mr. Haigh: Okay, the planning process... our first public input meeting was January 29, 2004, then we had another public meeting March 10, 2004. On June 8, 2004, we published the draft environmental assessment which then had a 30 day comment period during which we received comments from 12 government agencies and 31 individuals and organizations. On July 1, 2004, we had an additional public information meeting. Now these meetings were not a legal requirement, but we want the public to be involved and we want to do what is right. COUNCIL MEETING - 112 - July 22, 2009 I don't know what is right, you know, it is a public process. April 27, 2007, we published the State FONSI, Chapter 343, State Environmental (inaudible) and March 23, 2007, we had another public information meeting. Now on July 31, 2007, we sent out notices of public hearing... this is when we were going into the SMA process. It is a public hearing where we have to have a public hearing and we sent out notices. Included among the recipients were Sierra Club Hawaii and others. On August 28, 2007, the SMA permit hearing was convened by the Planning Commission and on September 11, 2007, the Planning Commission took the decision on the SMA permit. One thing I am missing a date on is when the Federal FONSI was published, so I apologize for that. I don't have that with me right this second. Mr. Chang: I just wanted to comment because thank you for keeping me... informing myself. It just seems that, you know, obviously, the overwhelming testimony that we had heard prior to you ucoming here was from people that, you know, obviously opposed the location and from what you intially said if I can recall correctly... you wanted to go along the backside, the canal... Mr. Haigh: That was my personal preference and my personal preference doesn't weigh in these decisions. I might try to nudge things a little bit, but to me, it was kind of overwhelming that... well, my impression was and as we moved along the process, people were pushing more to go along the coast. That was my impression and that is where our consultant say is the best alternative. Mr. Chang: Excuse me, but in addition to the consultants, you had Hawaiian practitioners and perhaps... I know you mentioned people like Sabra Kauka if I heard correctly, LaFrance... you also had the late Pohaku Nishimitsu, Kehaulani Kekua as such, and they all felt that that area was pono or did they have concerns. Mr. Haigh: Well, I won't say that... they were given an opportunity to comment. I don't have the record of what their comments were, but they were given an opportunity to comment and this was... and we were doing this... our consultant was working with OHA because OHA was one of our key State agencies to coordinate with. On the Kapa`a/Kealia... we also... we developed a special memorandum of agreement on this historic issues because it is so sensitive. This is what drove us to do EA's in these areas was because it is a very sensitive area. And so we actually have a special agreement between National Historic, State Historic Preservation, Federal Highway, and the County of Kauai. And in Kapa`a/Kealia, we had OHA was signatory to that, but on the Lydgate to Kapa`a, my understanding, they chose not to be signatory because they were comfortable with (inaudible)... that the regulatory agencies were doing the right thing. Mr. Chang: Okay, thank you. Chair Asing: Thank you. Any other questions for Doug? Councilmember Kaneshiro? Mr. Kaneshiro: So Doug I guess what I am hearing is that I do see a letter from OHA here responding to the request for comments about the proposed grant and this was issued on April 16, 2009. What I am hearing from OHA is that COUNCIL MEETING - 113 - July 22, 2009 even though they do support the intent, their recommendation is that as you move along with this project and in case you should, you know, somehow discover some native Hawaiian (inaudible) or traditional deposits, at that point, all construction has to be stopped, is that correct? Mr. Haigh: That is our standard procedure and we have an archaelogical monitoring plan specifically for this project that was submitted and approved by SHPDA and we are actually... right now even doing more than that plan. As I mentioned to (inaudible) the hand digging of each hole where we are going to be doing excavations for the boardwalk... it is not really excavation, we are going to be screwing a... and we didn't want this thing to go through variance. Mr. Kaneshiro: Given that, what I also hear from you is that if that occurs because this project roughly is estimated by consultants to cost roughly up to $8 million, you still have the opportunity to continue spending this money to possibly meet the requirements of this grant. Is that what I am hearing? Mr. Haigh: I think you are absolutely correct that if we move along the project and we discover a burial on Wailua Beach and we have to stop and it is going to take significant time to resolve how to handle that, we can spend the money... we should be able to easily... based on the engineer's current estimate, we should easily spend the full grant amount we are asking approval for and not, you know, be impacted by the burial and the beach. Mr. Kaneshiro: I am fine with the answer. Chair Asing: Thank you. Any other questions for Doug? 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: With that, can we have a motion to approve? Mr. Kaneshiro: I think there was a motion to approve, wasn't there? And a second and just further discussion. Chair Asing: Thank you, any further discussion? Mr. Kaneshiro: Given some of the facts that... if I may Mr. Chair, I am sorry about that. Chair Asing: Yea, go ahead. Mr. Kaneshiro: It has been a long day I guess. For your recognition, thank you. Given the facts that Mr. Haigh has pointed out, I feel confident that... for my part, you know, I think, of course, there are some issues that we need to look at as Mr. Furfaro has pointed out. I understand that, but at the same time, I feel that, you know, the circumstances of us going forward to accept this money, I think is prudent for us to do, so I will be supporting that request to accept the money. So as stated by Mr. Furfaro and some other members of the community, there might be some concerns, but I am sure that as those concerns COUNCIL MEETING - 114 - July 22, 2009 come up, there will be proper channels to be able to work out those concerns and if there is any kind of stalls or barriers that come up because of that, we will still be able to use part of this money to spend for other parts of the same project that may not have so significant impacts, so I will be supporting the proposal on the floor today. Thank you. Chair Asing: Any further discussion? If not, go ahead. Councilmember Bynum? Mr. Bynum: I just want to say that I appreciate Mr. Haigh coming up here and giving us a history of the public process that has gone on here. I think I probably was at every one of those meetings, maybe not, but this is a project that I followed closely for many years. I went through a large public process and including environmental asessments. My mentor on a lot of these issues was LaFrance who I miss almost everyday because I think as an island with her passion and stewardship and leadership in the burial issues, we may not have made, as an island, some of the mistakes that we made. But I feel fairly confident that the County has engaged in a long public process and I paid close attention to the concerns that I have heard over the last couple of months, and I started to do that follow up and I will continue to do that follow up, but I am not hearing anything that would keep me from supporting this project tonight. Chair Asing: Thank you. Any further discussion? If not, all those in favor say aye. Ms. Kawahara: I have one last question because I just needed the term that Mr. Haigh used that you had a special... Chair Asing: Do you want to have Doug Haigh up? Ms. Kawahara: Yea, just one quick question. Chair Asing: Okay. Ms. Kawahara: Because the term that you used. Chair Asing: Doug, the rules are suspended. There being no objections, the rules were suspended. Chair Asing: Councilmember Kawahara, go ahead. Ms. Kawahara: Thank you Chair. You said that you had a special archaelogical plan... Mr. Haigh: Okay, in the monitoring... Ms. Kawahara: Monitoring thing. Mr. Haigh: Okay, we have an archaelogical monitoring plan that is specific for this project. That was one of the requirements of our MOA with COUNCIL MEETING - 115 - July 22, 2009 those organizations I talked about today... had developed this plan, so that is going to say how we are... Ms. Kawahara: Thank you. Chair Asing: Do you want to come up? You know, this is unusual and I am just going to grant you the time only because I think you have a driving passion and please... I am going to give you three (3) minutes to make whatever comments you have and then we will call the meeting back to order. Ms. Palmeira: One thing I wanted to comment on some of Doug Haigh's comments and my... Mr. Castillo: Excuse me. County Attorney Al Castillo. Regarding this irregular procedure, maybe we should take a recess because it sets a really bad precedent that is covered by OIP and I suggest that we... not that I don't... because this... she has expressed opinions already. The caution that I have is, then you are allowing the public now, if you do this, to participate in your deliberations and that is not allowed, so if you want to go there and set a precedent, I am just telling you as your legal advisor, I am advising that it shouldn't be allowed. Chair Asing: Okay, thank you. I am sorry, I am going to have to take the advice of the County Attorney. I will not go against the County Attorney, so... Ms. Palmeira: I will, however, testify on the next item. I do believe that it is still is coming up on the agenda. Thank you. Chair Asing: Thank you. I would like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: All those in favor say aye? The motion to approve C 2009-258 was then put, and unanimously carried. Mr. Nakamura: Change tape. Chair Asing: We will have a short break to change the tape. There being no objections, the Chair called for a recess at 10:45 p.m. The meeting was called back to order at 10:46 p.m., and proceeded as follows: Chair Asing: With that, Mr. Clerk, can we have the next item please? Mr. Nakamura: Council Chair, we are back on page 1 of the Council's agenda and the first item is communication C 2009-248. COUNCIL MEETING - 116 - July 22, 2009 C 2009-248 Communication (07/01/2009) from the Director of Parks & Recreation, transmitting for Council consideration a Resolution establishing a crosswalk, stop signs, shared-use path, and redefining traffic lanes on Papaloa Road: Mr. Chang moved to receive C 2009-248 for the record, seconded by Mr. Bynum. Mr. Nakamura: I believe there are members of the public who are interested in testifying. Chair Asing: Does anyone want to talk on this one? No? Mr. Nakamura: We have Waldeen Palmeira, James Alalem, and Mahealani Silva signed up for this. Chair Asing: Okay, Mr. Alalem, do you want to come up now? There being no objections, the rules were suspended. JAMES ALALEM: I never know I was supposed to talk about crosswalks and stop signs. Chair Asing: Oh, that is fine. I mean I am not forcing you. You can go back and sit down. Mr. Alalem: I can still talk about bike path? Chair Asing: No, we are talking about this item is the crosswalks, stop signs for the... and traffic lanes. Mr. Alalem: I don't like stop signs and I no like crosswalks. Chair Asing: Thank you. Is there anyone else who wants to speak on this item? If not, I will call the meeting back... Arthur? ARTHUR DEFRIES: You guys already voted on the matter, but I was hoping that when you say drill, he is talking columns okay. When we get the high tide, let me tell you, Coco Palms, when get high tide, the water he come and the water going hit the columns, how long are the columns going to last with the wave whacking them columns. The other thing, I am against Papaloa. They wanted to go to my friends project up in Wailua Houselots. (Inaudible) Houselots because they never went with their program in Wailua Houselots, but what I am saying about Papaloa... Chair Asing: Arthur, this is on Papaloa. COUNCIL MEETING - 117 - July 22, 2009 Mr. DeFries: I am against that Papaloa Road. I want the road to come up by Tang Lin (not sure of the spelling) place, and then use... in the back of Coco Palms, there is a nice road back there and you can take that thing in the back and you can come out through Tang Lin's place and bypass that Papaloa Road. The other thing that I am thinking about the guys in Wailua Houselots, a lot of them get their post office box at Kapa`a. You bypassing... (inaudible) Safeway and giving Foodland clear shot for all the people to go Foodland. Remember now, if Mr. Kawakami was living, you have to take care Mr. Kawakami, Big Save, you know what I mean. Big Save is a big thing. It has been here since 1963 in Kapa`a and they went move `em from (inaudible) Coral Reef, and then right in the front of Big Save, that is where the post office was, then what they went do, they moved the post office in the back, so people come shopping and all the guys from Wailua Houselots and even up Wailua Homesteads, they come down and they shop because why, they have to P.O. box at Kapa`a. So you guys talk about making the road come out and service pertaining to Big Save, and then you get that road that come out, and they can go right straight down... you know, a lot of guys come around the other way... you know, you are taking care... I am going to tell you the truth why I hate about this one here. Auguiar (not sure on spelling) project, private road... this one here is going to take care of one private road for the guys down there, down on the beach. Eh, the guys up in Auguiar properties, get plenty guys that have been paying their property tax from 1949, and (inaudible) nothing from the County, nothing. They also went build nine (9) fr*n houses over there... Chair Asing: Watch your language. Arthur, watch your language. Mr. DeFries: All I am saying is that, Mr. Chairman, you guys should have deferred this thing and tried to get a better thing that can happen to help the people... the people at Wailua Homesteads, they can come around the back way and then come down through the Kapa`a Middle School, and still go down to Big Save, but the guys in Wailua Houselots because they are (inaudible)... they went screw that... they could have come out... from your boss, Mr. Burgess place and come out through there and come down, and then work with them, but they never did it. They went screw `em. What I am saying is, you guys are having it on record, approve something, eh, the wave when high tide... eh, I have been... I surf pertaining to Coco Palms in 1958, me and my cousin, we bought the first surfboards here on this island. So what I am trying to say is that Wailua, you know, pertaining to these changes... Chair Asing: Thank you Arthur. Thank you. Can we have the next speaker please? Mr. Nakamura: This would be on communication transmitting for Council consideration a resolution establishing a crosswalk, stop sign, shared use path, and redefining traffic lanes on Papaloa Road. WALDEEN PALMEIRA: Aloha. COUNCIL MEETING - 118 - July 22, 2009 Mr. Bynum: Aloha. Ms. Palmeira: Okay, I do have some comments on the previous speaker, but I will reserve that to the end. Okay, again, my name is Waldeen K. Palmeira and I am representing myself and Hui Na Makaiwa O Wailua Nui Aho`ano of Wailua Kauai. Okay, this has to do with the communication C 2009-248 and the related resolution is Resolution No. 2009-46 referencing the July 6, 2009 letter from County of Kauai, Department of Parks & Recreation to Honorable Kaipo Asing and members of the County Council requesting your approval to secure a shared use path, construction right-of--way easement with specific reference to DLNR parcel TMK (4)-4-6-14, portion of 30. Will anybody be reading this before or should I read it? Was this already read? Mr. Nakamura: No, we are still on 248 and then... the communication.. . Ms. Palmeira: Which communication? Chair Asing: We are on communication 248. You have an agenda? Mr. Nakamura: We haven't read the communication 261 yet. Ms. Palmeira: So 248 is on the funding? Mr. Bynum: No. Mr. Nakamura: 248 is on Papaloa road resolution, yea, sorry. Ms. Palmeira: So I will just continue. Let me see, July 6. Okay, the State of Hawaii, Department of Land & Natural Resources, Land Division... I am referring to the letter reference number 09KD-039 to Douglas Haigh, Department of Public Works, May 11, 2009. The grant of perpetual non-exclusive easement to the County of Kauai bike pedestrian purposes and issuance of a right- of-entry permit, tax map key (4)-4-14:30, the Board of Land & Natural Resources approved your request for a perpetual easement and issuance of a right of way permit. Okay, basically, the point is and I am going to continue to read some of the tax key maps. Chair Asing: Why don't we do this then. Let us receive this communication and then we will let you talk on communication 261. Do you have 261 that is on page 3. Do you have page 3? Staff, can you give her a copy of page 3, so that she has that... Ms. Palmeira: Okay, you are on the legal document? COUNCIL MEETING - 119 - July 22, 2009 Mr. Nakamura: Not yet, almost. Mr. Bynum: We are trying to accommodate what you want to talk about. Chair Asing: Let me call the meeting back to order. Ms. Palmeira: Okay, go ahead. The meeting was called back to order, and proceeded as follows: Chair Asing: We are going to receive this item. After we get through with this item, then we will do 261, and then you can talk on 261, okay? There being no objections, the rules were suspended. Ms. Palmeira: I would also like to talk on this item. Chair Asing: Okay. Ms. Palmeira: Okay, I think the main tax key map number if I am correct is tax map key (4)-4-6-14, portion of 30 dated May 8, 2009, Board of Land & Natural Resources PSF number 09KD-39. The point that I would like to make is that this tax map key was not in the original environmental assessment... whether this is an administrative or likely... excuse me. The point is that when there is a new tax key map number added to an SMA as well as in this case on this legal document... Chair Asing: You know, I have to stop you. You are... you say that you want to talk on this, but you are reading 261, so I can't allow that, and that is why I wanted to receive that item, then you will be able to talk on 261. Ms. Palmeira: Okay, I think the person who brought it to me pointed to this one. Mr. Nakamura: We have a motion and a second to receive 248. Chair Asing: Can we do that so that you can talk on 261? Ms. Palmeira: Alright. Chair Asing: Okay, thank you. What I would like to do is call the meeting back... Ken Taylor? COUNCIL MEETING - 120 - July 22, 2009 KEN TAYLOR: Chair and members of the Council, my name is Ken Taylor. I think the problem here in going forward with this... if I heard correctly, the concerns from the community on earlier testimony is that if for some reason, the beach boardwalk didn't get done, then any work on this road and all of this activity would be for not if the bike path was eventually to be moved back behind Coco Palms. So I think from what I heard and talking to individuals during the break, they would really like to see the boardwalk moved behind Coco Palms. If that took place, this roadwork would not be needed because the road would be in a different... the path would be in a different place. Chair Asing: Okay, thank you. Can we have the next speaker please? ANNA CHAVEZ: Hello gentle people. My name is Anna Chaves. We are speaking about 261 are we not? Mr. Bynum: Not yet. Chair Asing: No. Mr. Bynum: Wait, soon. Mr. Kaneshiro: That is where we are trying to go. Mr. Bynum: We are trying to get there. JAMES TRUJILLO: James Gerard Trujillo for the record. Thank you Chair for the indulgence. A question regarding this multi path, multi use path... will this be a path area that dogs will be allowed on? I ask that because this is in a residential area where many residents of the condominiums and housing development potentially will be using this... Chair Asing: Jimmy, it is a good question, but we will not be able to answer you at this time. Mr. Trujillo: And that answer would be coming forth when? Chair Asing: Yes, we will work together with the Parks Division and come up with some rules and regulations or whether it will be allowed on the... thank you. I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: There being no objections, the rules were suspended. COUNCIL MEETING - 121 - July 22, 2009 Ms. Palmeira: I may be wrong, but I believe that this item refers to three (3) tax key areas that were also a part of the modification of the SMA last Tuesday at the Planning Commission and the tax map keys 4-3-2:2 and 10 and 4-... Chair Asing: Where are you picking up that information from? We are on 248. 248 does not contain that information that you are making reference to, so if you want to talk on 248, then... Ms. Palmeira: No, I believe the Papaloa is in regards to the bike path. Chair Asing: We are now on 248. Why don't you let us receive this and you can talk on 261. Ms. Palmeira: Okay, I apologize. Chair Asing: Can we? I can't stop you from talking and that is why it is difficult for me because by law, I need to allow you to speak. Ms. Palmeira: I am sorry. Chair Asing: But you need to speak on the item. Ms. Palmeira: Well, that is why I asked if it was read initially. Chair Asing: Okay, it is not the item that you are making reference to, so if you could go sit down and we could... or you want to stay there. I will call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: We will receive 248 and then we will go to 261 and then you can talk on 261. There being no objections, the rules were suspended. Ms. Palmeira: I hope that my rights are not being denied right now because... Chair Asing: I am offering you all the rights and even more. I tried even to stretch it for you. Ms. Palmeira: My point is that this portion of land, Papaloa which will connect the bike path to the Papaloa side actually involves major changes which I was advised legally that you would actually need to open an EA, have a COUNCIL MEETING - 122 - July 22, 2009 supplemental EA to do this and those are the tax keys that I read for the Papaloa section that relates to this bike path. Chair Asing: Okay, are you through? Ms. Palmeira: I think so for now, yes, thank you. Chair Asing: I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: Can we have a motion to receive? Mr. Furfaro: I think we have one. Chair Asing: Okay, any further discussion? All those in favor say aye? The motion to receive C 2009-248 for the record was then put, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: If we can go to page 3 of the Council's agenda under the legal document. This is communication C 2009-261. LEGAL DOCUMENT: C 2009-261 Communication (07/06/2009) from the Director of Parks and Recreation, transmitting for Council approval to secure a shared-use path construction right-of--entry and easement at the Department of Land & Natural Resources parcel for improvements to the Lydgate Park to Kapa`a Bike/Pedestrian Path as follows: • Grant of Perpetual, Non-Exclusive Easement to the County of Kauai, Bike/Pedestrian Purposes, and Issuance of aRight-of--Entry Permit, Kapa`a, Kawaihau, Kauai, Tax Map Key: (4) 4-6-14:portion of 30, dated May 8, 2009 (Board of Land and Natural Resources PSF No. 09KD-039 (Kaua`i)); and • To indemnify, defend, and hold the State of Hawaii, Department of Land & Natural Resources harmless. Chair Asing: Thank you. Why don't we suspend the rules. There being no objections, the rules were suspended. Chair Asing: Do you want to come up now? ANNA CHAVEZ: I am sorry folks. It has been a long day for everybody. Anna Chavez again. I had a question please with regard to 2009-261. COUNCIL MEETING - 123 - July 22, 2009 The clause that says to indemnify, defend, and hold the State of Hawaii, Department of Land & Natural Resources harmless. The question is this. If in future discussions of any type, you believe as the County that the reports that lead... that you relied on, so you had reliance on the State reports, the State FONSI. Let's just assume for conversation purposes that in a future conversation, you come to believe that you relied on the State, but the State FONSI and the State documents and conclusions were drawn in error or were somehow flawed. Then does this mean that the County is exposed because you are indemnifying the State. Thank you. Chair Asing: Thank you. I don't believe so. You have another question? Ms. Chavez: Is that a legal opinion Sir? Chair Asing: No, that is not a legal opinion. You will not get a legal opinion today. I can take that information and send it over to the legal department if you want. Ms. Chavez: Thanks. Chair Asing: Okay, I will do that. Ms. Kawahara: Thank you. Chair Asing: Staff, please note legal opinion required from me to the County Attorney's Office and a reply sent to... I am sorry, I didn't get the name. Ms. Kawahara: Anna Chavez. Chair Asing: Okay, with the reply carbon copy sent to her. Okay, with that, anyone else? Mr. Nakamura: Council Chair, besides Ms. Palmeira, there are some other people, but go ahead. WALDEEN PALMEIRA: I am sorry, were you going to say something? Ms. Kawahara: Oh, I am trying to get some paper. Go ahead. Ms. Palmeira: Okay, regarding the grant of perpetual non- exclusive easement to County of Kauai for bike pedestrian purposes and issuance of aright-of--entry permit, Kapa`a, Kawaihau, Kauai, tax map key (4)-4-6-14, portion of 30. I would like to point out that the final environmental assessment for the subject project was published in OEQC environmental notice on April 23, 2007 with a finding of no significant impact. At this point and this day that you will be accepting this, this environmental assessment was already completed two (2) years ago. And according to Hawaii Administrative Rules, HAR 11-200-26 provides in relevant part... if there is a change in size, scope, intensity, use, location, or timing, among other things which have a significant effect, the original statement that was changed shall no longer be valid because an essentially different action would be COUNCIL MEETING - 124 - July 22, 2009 under consideration and a supplemental statement shall be prepared and reviewed as provided by this Chapter. The modification requested which also includes the previous item that was accepted would add three (3) parcels to the permit which was approved by the Planning Commission on the day that...actually, when it was done, we stepped out for a brief recess by which our testimony was then not accepted in that record on the day that the modification to their SMA was done. And part of the testimony on that day was the same thing that there is a law called Hawaii Administrative Rules 11-200-26 which says that, basically, if you want to change and add to an EA, that you would have to actually provide a supplemental EA to be in a legal standing. And what this does is, it adds a sidewalk on one parcel to be demolished and reinstalled. DPW intends to... well, I guess this is the document... obtain another parcel to provide a consistent road right of way... alignment and construct the shared use path, they plan... DPW plans to demolish an existing sidewalk on another parcel and move it approximately three (3) feet mauka to abut the property line. While DPW claims that these modifications do not alter or change the shared path use path project or its concept it anyway, they were not addressed in the EA, and since they may have a significant affect on the environment, the original EA is not valid because we now have an essentially different action under consideration. This also may pertain to H.R.S. Chapter 343 regarding public lands... more of a ceded lands as shown in your document. I am not... I am clear and want to ask you that in light of the fact that we... like I mentioned earlier, there was no archaeological inventory survey, there was no cultural impact assessment and for this highly historical area in which we have a number of places on the register... the national historic register and by the way, we did submit a letter from our organization in 2004 which we were then not even placed on the list, but we did... and there were many people who were against this path on the beach from the beginning. At this point though... Mr. Furfaro: I just want to comment on something, so we are all square here. Ms. Palmeira: Okay. Mr. Furfaro: This piece is an existing State road that has a sidewalk attached to it. This is not a parcel and if I am corrected, could somebody please correct me. Ms. Palmeira: It is the same project, however. Mr. Furfaro: Understood. Ms. Palmeira: Okay. Mr. Furfaro: But this is an existing State road, State parcel where... sidewalk and we are widening the sidewalk... Mr. Haigh: (talking from the audience, inaudible). COUNCIL MEETING - 125 - July 22, 2009 Ms. Palmeira: I am only here to... at this time, to clearly state to you that we will follow this up with legal counsel on the matter of the... modification to the original EA which there are laws that state that you actually are required to do a supplemental EA. However, we were not in that process last week and we are asking for a reconsideration. I would like to add something also that is pertinent because of the timing and in the memorandum of agreement that Mr. Haigh mentioned. Chair Asing: Your first three (3) minutes is up. I will give you three (3) more minutes. Ms. Palmeira: Okay, thank you very much. In the memorandum of agreement that Mr. Haigh mentioned, yes, OHA did not sign that, however, and in addition, they did not sign it because they noted the cultural sensitivity of that area. I would also like to say that I believe the bridge work will be starting on Monday and we also... we were in conversation with the Department of Transportation person who notified us, the engineer... basically in the memorandum of agreement, there is a mitigation area concerning the petroglyph field and in that agreement, there is a section that states that there would be subsurface testing to make sure that the petroglyph field is not affected by the bridge work. And at this point in time, this is just one example even prior to this project beginning that these documents and this work... for example, the subsurface testing on this petroglyph field is not in place and I would like to notify you that, of that fact. Because when we met with the engineer... he is actually going to meet us tomorrow and it shouldn't be our responsibility, however, at some point in time, when that does not take place... if it does or does not, then the Hawaiian community will be there to protect our precious and historic petroglyph field. So I am just mentioning this because, like I said, it is part of the memorandum of agreement and that has not taken place yet. And, additionally, when Mr. Haigh speaks about the monitoring plan... a monitoring plan is not sufficient... I mentioned it before... we are asking for archaeological inventory survey and what that affords is the... prior to any construction, there is the testing that goes on in that survey to identify how you... how this will be done meaningful and well and we will continue to seek that these... that this takes place. One final thing to wrap up concerning the original item is that this whole project with the finding of no significant impact should actually have triggered and... Chair Asing: Do you want to wrap up? That was the six (6) minute mark. Ms. Palmeira: Yes, an environmental impact state... an EIS. Like I mentioned earlier and I will restate it. The TMKs that were included and that you will... are addressing on this resolution... if you go ahead and you will be accepting that resolution, we are against that and that is your right and it will be our right to follow up with this matter. Thank you. Chair Asing: Is there anyone else? COUNCIL MEETING - 126 - July 22, 2009 Ms. Kawahara: Waldeen, I want to thank you for your testimony and your sincerity and your composure there while we were all trying to figure out on the agenda. Ms. Palmeira: Thank you very much. Ms. Kawahara: If there was a tone or anything, I just want to recognize that I acknowledge your composure. Thank you for your testimony. Ms. Palmeira: Thank you very much. I just wanted to mention that there are a lot of things going on here and we also had been in contact, excuse me, with Mayor Carvalho and we were lead... we may be meeting soon to discuss this matter further. Chair Asing: Thank you. Ms. Palmeira: Thank you very much. Chair Asing: Is there anyone else? If not, I would like to... Mr. Nakamura: Council Chair, we do have some people registered for this one. Sharon Goodwin. SHARON GOODWIN: Council people, my name is Sharon Goodwin. I'm pretty stunned and awed with by what the previous speaker has said and I really don't have anything to add. Thank you. Chair Asing: Next speaker please? Mr. Nakamura: The next speaker is Sandra Herndon. SANDRA HERNDON: Every time I sit down here in this seat. Sandra Herndon for the record. I look up at that clock and I am amazed that we are still here. First of all, I want to thank you for your tenacity. Thank you for your willingness to hear the community because as Waldeen has testified and as I indicated earlier, this is an extremely sensitive area and I think that all of you on some level have this sense of how important this is. I am not an engineer, I don't know how this is all going to work out, but I just want to let you know that we have tremendous amount of faith in you to do what is pono and that means really looking at this thing from every angle and sensing in your heart what is right. So thank you, thank you very, very much from the bottom of my heart and I have one more thing that I want to testify on if we ever get to plastic bags. Ms. Kawahara: Thank you. Chair Asing: Is there anyone else? Mr. Nakamura: Council Chair, the next speaker would be James Alalem followed by Mahealani Silva COUNCIL MEETING - 127 - July 22, 2009 JAMES AT,AT,EM: I just want to thank you for your guys patience. It is almost 11:30 p.m. With that, that is all. Thank you. Ms. Kawahara: Thank you Mr. Alalem. Mr. Alalem: Thank you for your guys patience. Mr. Nakamura: The next registered speaker is Mahealani Silva. JAMES GERARD TRUJILLO, SPEAKING FOR MAHEALANI SILVA: James Gerard Trujillo for the record. Mahealani had asked me if I would speak about the cultural significance. The thing I read from the National Historic Register spoke about that. The issue of the construction and the new actions and all of that requires a significant amount o£ what do you call that, contemplation. This matter is one that is going to continue to... will haunt us until we get it right and I hope that you will be able to take that time, due diligence, and get it right. It is very complex, it is an issue of planning, it is an issue of sensitivity and awareness, and mahalo those who are bringing it to our attention of how significant this area is and what we can do in alternate to that. Thank you. Chair Asing: Thank you. Is there anyone else who wants to speak on this? If not, I'd like to... Mr. Castillo: The County Attorney wants to. I am sorry. Chair Asing: Arthur? ARTHUR DEFRIES: For the record, my name is Arthur DeFries. I would like to address pertaining to Furfaro's question pertaining to the sidewalk. Remember now, the sidewalk would be the other lane. We are talking the other lane, right? We are talking another lane. If not for that sidewalk that you are talking about, it wouldn't be reality. That is going to be the road, okay. This is why I am talking about in the back of Coco Palms, it belongs to the State. It can go in the back and also you can get a nice crosswalk over there and get one nice stop light over there for the people who come out of Coco Palms. It is coming to reality. Have you seen Kauai Nursery what they did? When you pass by, you can see the trees now. Before you couldn't see the trees. Kauai Nursery went in there with five (5) guys and they did a marvelous job, a beautiful job... in the back, get a chance to look what is in the back there. You can make a pathway back there, go across of Tang Lin and forget about Papaloa. Let Papaloa be what it was for all these many years. That is not for the whole community to go crosswalk over there, (inaudible). That is it. Chair Asing: Thank you Arthur. Do we have anyone else? Mr. Castillo: Council Chair, Al Castillo, County Attorney. I would like to address the request from Anna Chavez. Ms. Chavez requested a legal opinion. I welcome you to contact my office and... Chair Asing: Arthur... COUNCIL MEETING - 128 - July 22, 2009 Mr. DeFries: Talking from the audience. Mr. Castillo: Ms. Chavez, I welcome you to contact the County Attorney's Office, so that we can specifically know what your question is. If it is of a general nature, then we may be able to answer that, however, if the question that you have touches upon the liabilities of the County in regards to the indemnification, then there might be a privilege. I don't know. I don't know what the nature of your exact legal question, so I would like to understand it and if I may at that time, I would be able to tell you whether that information is privileged. Thank you. Chair Asing: Thank you. Mr. Furfaro: Mr. Chair, may I ask... Chair Asing: Go ahead. Mr. Furfaro: If the County Attorney was posing a question that you wanted that question to respond to or were you only posing a question to have them make contact with you? Mr. Castillo: You know, instead of doing it on the record right now and going through the specific, I think it would be prudent for Ms. Chavez to get together with us, so we can understand the nature of your question and answer her question properly. Chair Asing: Thank you. With that, is there anyone else? Okay, I would like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: Can I have a motion on 261 please? I believe there is no motion. Oh, hang on. There being no objections, the rules were suspended. CHARLES BRAUN: I am Charles Braun for the record. I don't feel that I left you... everybody is satisfied with my last remarks and I would like to think of a... satisfactory answering (inaudible)... that I would think of a speed walk on top of a pedestrian overpass. That will control... that would make safe speeds for people going up and down. Chair Asing: Thank you. Is there anyone else? 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: Do we have a motion? Mr. Bynum moved to approve LEGAL DOCUMENT: C 2009-261, seconded by Mr. Chang. COUNCIL MEETING - 129 - July 22, 2009 Chair Asing: Any further discussion? Ms. Kawahara: I have discussion Chair Asing: Go ahead. Ms. Kawahara: Again, this project was from... you are, in my mind, you are correct... I see a connection between all the communications and the resolutions that were being discussed and the confusion about where... which one we were addressing. I can understand that. Again, in 2000, this started 2004, and continues to 2007, and here we are today. I would like to say that I have... I hear your concerns and I want you to be able to do and I want to recognize that what you... and I want you to do what you have to do to get what you need answered, answered. I don't know if you were able to get those answers here today. Whatever it is that you are concerned with, I hear that concern especially about the SMA permit being applied, so I have a concern about that and I just want to... I want to support you in continuing what you need to do to get recognition on the points that you bringing up. Thank you. Chair Asing: Thank you. Any further discussion? If not, all those favor aye? The motion to approve LEGAL DOCUMENT: C 2009-261 was then put, and unanimously carried. Chair Asing: The next item please? Mr. Nakamura: We are back on page 1 of the Council's agenda. Chair Asing: Arthur, if you continue, I am going to have you removed from here. Mr. DeFries: Talking from the audience. Chair Asing: Then please do. Arthur, thank you Arthur, I appreciate that. Mr. Nakamura: Back on page 1 of the Council's agenda Mr. Chair. Communications for receipt. We have communication C 2009-249, communication C 2009-250... on page 2 also for receipt C 2009-251, C 2009-252, C 2009-253, C 2009-254, C 2009-255, and on page 3 of the Council's agenda, communication C 2009-260 for receipt. C 2009-249 Communication (07/06/2009) from the Assistant Chief Procurement Officer, transmitting for Council information, the Fiscal Year 2008/2009 Fourth Quarter Statement of Equipment Purchases: Mr. Kaneshiro moved to receive C 2009-249 for the record, seconded by Mr. Chang. COUNCIL MEETING - 130 - July 22, 2009 C 2009-250 Communication (07/09/2009) from Council Chair Bill "Kaipo" Asing, transmitting for Council consideration a Resolution to repeal Resolution No. 2006-20 and reappoint Theresita Kinnaman and Jean Nishida Souza to the Public Access, Open Space, Natural Resources Preservation Fund Commission: Mr. Kaneshiro moved to receive C 2009-250 for the record, seconded by Mr. Chang. C 2009-251 Communication (07/16/2009) from Councilmember Dickie Chang and Vice Chair Jay Furfaro, transmitting for Council consideration, a resolution to establish a Special Advisory Committee to review and recommend amendments to the rules of the County Council of the County of Kauai: Mr. Kaneshiro moved to receive C 2009-251 for the record, seconded by Mr. Chang. C 2009-252 Communication (07/09/2009) from Councilmember Derek S.K. Kawakami, transmitting for Council consideration, an amendment to Chapter 19, Article 1, Section 19-1.4, Kauai County Code 1987, relating to prohibition of intoxicating liquor in public parks and recreation facilities: Mr. Kaneshiro moved to receive C 2009-252 for the record, seconded by Mr. Chang. C 2009-253 Communication (07/09/2009) from Councilmembers Tim Bynum and Lani T. Kawahara, transmitting for Council consideration, an amendment to Chapter 22 of the Kauai County Code 1987, relating to plastic bag reduction at retail establishments: Mr. Kaneshiro moved to receive C 2009-253 for the record, seconded by Mr. Chang. C 2009-254 Communication (07/16/2009) from Council Vice Chair Jay Furfaro, transmitting for Council consideration, an amendment to Chapter 8, Kauai County Code 1987, relating to extending the deadline for obtaining building permits for additional dwelling units on non-residentially zoned land: Mr. Kaneshiro moved to receive C 2009-254 for the record, seconded by Mr. Chang. C 2009-255 Communication (07/10/2009) from Council Vice-Chair Jay Furfaro, providing written disclosure regarding his oral declaration at the July 8, 2009 Council Meeting of a possible conflict of interest and recusal on item C 2009-239 (relating to accepting donation of picnic tables), because he is the Secretary for the Salvation Army and Treasurer for the Kokua Soup Kitchen: Mr. Kaneshiro moved to receive C 2009-255 for the record, seconded by Mr. Chang. C 2009-260 Request (07/16/2009) from the County Attorney for an agenda item on July 22, 2009 to consider the evaluation of officers and/or employees where consideration of matters affecting privacy will be involved and associated matters: Mr. Kaneshiro moved to receive C 2009-260 for the record, seconded by Mr. Chang. Ms. Kawahara: I have a question. Chair Asing: Yes, go ahead. Ms. Kawahara: The C 2009-251, that is just the communication. If I could have a quick question. Mr. Furfaro: Just receive and... COUNCIL MEETING - 131 - July 22, 2009 Ms. Kawahara: Receive and just discuss... Mr. Kaneshiro: There is a resolution in the back. Chair Asing: Thank you. Any further discussion? If not, all those in favor say aye? The motion to receive C 2009-249, C 2009-250, C 2009-251, C 2009-252, C 2009-253, C 2009-254, C 2009-255, and C 2009-260 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 communications for approval. Communication C 2009-256. C 2009-256 Communication (07/01/2009) from the Anti-Drug Coordinator, requesting Council approval to apply for, receive, and expend $11,000 from the National Methamphetamine Training and Technical Assistance Grant to organize and educate community members and stakeholders on the need for an adolescent residential substance abuse treatment center on Kauai: Mr. Furfaro moved to approve C 2009-256, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: At the bottom of page 2 for approval is communication C 2009-257. C 2009-257 Communication (07/06/2009) from the Housing Director, requesting Council approval to decline repurchase of Unit No. 44, Villas at Puali, located at 1988 Hokunui Place, Lihu`e, Hawaii 96766, and provide the owners the ability to sell the unit on the open market for aone-year period: Mr. Chang moved to approve C 2009-257, seconded by Mr. Kaneshiro, and unanimously carried. Mr. Nakamura: We are on page 3 of the Council's agenda on communication C 2009-202. We have a letter from the Housing Director requesting a deferral of this matter. 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. Kaneshiro moved to defer C 2009-202, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: We are on page 4 of the Council's agenda Mr. Chair on claim. Communication C 2009-262 and communication C 2009-263. COUNCIL MEETING - 132 - July 22, 2009 CLAIMS: C 2009-262 Communication (07/01/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Alan K. Buchan for damages to his personal property, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2009-262 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Mr. Kaneshiro, and unanimously carried. C 2009-263 Communication (07/06/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Myles Azeka for damages to his vehicle, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer to the County Attorney's Office for disposition and/or report back to the Council, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: On page 4 of the Council's agenda for approval is a committee report from your Committee on Planning, Committee Report No. CR- PL 2009-06. COMMITTEE REPORT: PLANNING COMMITTEE REPORT: A report (No. CR-PL 2009-06) submitted by the Planning Committee, recommending that the following be approved on second and final reading: "Bill No. 2291 A BILL FOR AN ORDINANCE AMENDING SECTION 8-24.1, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE," Mr. Kaneshiro moved for approval of the report, seconded by Mr. Furfaro, and unanimously carried. (See later for Bill No. 2291) Chair Asing: Next item please? Mr. Nakamura: We are on resolutions Mr. Chair. The first resolution for approval is Resolution No. 2009-46. RESOLUTIONS: Resolution No. 2009-46, RESOLUTION ESTABLISHING A CROSSWALK, STOP SIGNS, SHARED-USE PATH, AND REDEFINING TRAFFIC LANES ON PAPALOA ROAD, KAPA`A DISTRICT, COUNTY OF KAUAI: Mr. Bynum moved to approve Resolution No. 2009-46, seconded by Mr. Kaneshiro. COUNCIL MEETING - 133 - July 22, 2009 Chair Asing: Hang on. I'd like to suspend the rules. There being no objections, the rules were suspended. Chair Asing: You may have the floor. WALDEEN PALMEIRA: Waldeen Palmeira for the record. Again, I believe that this is in reference to the Papaloa Road specifically Tax Map Keys 4-3- 2:2 and 10 and 4-1-5:6, Wailua Kauai. Although the resolution does not specifically list the tax key map, it is sort of a blanket resolution, however, it does relate to the bike path... the Lydgate to Kapa`a bike path in which there was an original EA which did not include these tax key maps... these tax map keys that I just read and that was included... was not included in the original SMA use permit dated 9/11/07 which at that time addressed specifically TMK 3-9-6, 4-1-3 to 4-1-5, 4-3-12, 4-3-9, and I will continue... 4-5-1 to 4-5-8 and 4-5-10 to 4-5-13. In addition, the final environmental assessment, again, did not include the three (3) tax map keys that I already stated... 4-3-2:2 and 10 and 4-1-5:6. Again, the final environmental assessment for the Lydgate Park Kapa`a pedestrian bike path did not include these and just for the record, there is an HAR 11-200-26 which provides in relevant part that if there is a change in size, scope, intensity, use, location, or timing among other things which may have a significant affect, the original statement that was changed, shall no longer be valid. Essentially changing the project because what you will have with this new construction is an area that was not even looked at in their original EA. And additionally, in your legal document that was previously done, there was no previous archaeological assessment or archaeological inventory survey even though OHA signed a letter saying that you should be aware and contact SHPDA... that is not adequate for these... to be added to the original EA. There is that law HAR 11-200-26 by which modification... Iwas advised means that the original EA would no longer be valid. Thank you very much. Chair Asing: Thank you. Is there anyone else? Arthur? Ms. Palmeira: And for those reasons, I would ask you if you would choose to defer or to not accept this resolution for reasons that I stated. Thank you very much. Chair Asing: Thank you. Arthur? ARTHUR DEFRIES: Thank you Mr. Chairman for having me come up. I would like to, first of all, I want to thank you guys funding these guys. I hope all of you guys buy a six (6) month pass or a one year pass pertaining to the Kauai Bus. But the other thing that I want to... just imagine that you live in Wailua Houselots, right? You are coming out of there, there is another stop sign, that is all that I want to say. If you have that (inaudible) there is no stop sign, then you can go right down. I just want you guys to understand that. COUNCIL MEETING - 134 - July 22, 2009 Chair Asing: Thank you. I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: Can I have a motion to approve? Mr. Nakamura: We have a motion Mr. Chair. Chair Asing: Do we have a motion? Mr. Nakamura: Yes. Chair Asing: Any further discussion? If not, roll call. Mr. Furfaro: I have one... Chair Asing: I am sorry, go ahead. Mr. Furfaro: I would just like to... since I am reviewing the material here. The scope (inaudible) easements and the right-of--entry permit... if I could... you know, I am going to support this tonight, but I would like to ask the questions about particular tax key numbers if they raise any new questions for the County Attorney on this... Chair Asing: We can send a communication to get that information. Mr. Furfaro: Thank you Mr. Chair. Chair Asing: Thank you. Any further discussion? Councilmember Bynum? Mr. Bynum: Yea, I understand the testimony about legal concerns regarding these issues and we are going to send a communication, and I don't want to diminish that, but I also want to say something about this project in terms of, should it perceive what it means for Papaloa Road and, you know, this is where we just put affordable housing and their changes happening there providing structured parking for the Kintaro area for the first time. It is... it is kind of unsafe and scary place the way it is right now and the roadway... and it is not an easy pedestrian place because there are breaks on the sidewalks, there are pukas, and we are going to have people living in affordable housing, visitors traversing this area, and if this goes through, there is going to be significant pedestrian improvements for people in that area particularly people with disabilities that currently have... areas where they can't traverse... are they going to be connected, so that area is going to be connected with good pedestrian access, additional COUNCIL MEETING - 135 - July 22, 2009 parking, changes to the traffic flow which will be safer for the neighbors living there and particularly the elimination of left turns off of Papaloa on the Kuhio Highway... I personally believe will help improve some of the traffic flow in that area as well because that is very scary place. I am there frequently, I never make that left turn out of Papaloa. You don't want to take your life into your own hands and so just from a traffic point of view and pedestrian point of view, these are very significant improvements and I appreciate that the consultants and the Building Division when looking at this, didn't just look at the path in terms of that project, but looked at the... along with State Highways, that whole area about trying to make significant improvements, so that is kind of aside issue from what we discussed earlier, but I do think there are some very significant improvements for the population in that area for traffic safety. Chair Asing: Thank you. Councilmember Kawahara? Ms. Kawahara: Thank you Chair Asing. I would like to echo Councilman Furfaro's question to the County Attorney specifically about the tax map keys... what the studies we are covering and whether or not what that responsibility is between what was in the tax map keys that were covered and... Mr. Furfaro: We are going to send a communication. Ms. Kawahara: Also, what I would like to say that the only... the reason I probably will support this because... it is because if the path doesn't... the bike path doesn't go through, these are improvements that are being done that make it a safer area and I believe that. So putting up a stop sign, refining the traffic lanes, and putting a crosswalk will make it a better experience for pedestrians and safer regardless of whether the path goes through there. So I am not saying that I am approving of the path going through there right now, but I am saying that these improvements are to be done whether or not the path will be there, so thank you. It is my understanding. Thank you. Chair Asing: Thank you. Any further discussion? If not, roll call please. The motion to approve Resolution No. 2009-46 was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Asing TOTAL - 6, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: Kawakami TOTAL - 1. Chair Asing: Next item please? COUNCIL MEETING - 136 - July 22, 2009 Mr. Nakamura: The next resolution for approval is Resolution No. 2009-47. Resolution No. 2009-47, RESOLUTION REPEALING RESOLUTION NO. 2006-20, AND REAPPOINTING MEMBERS TO THE PUBLIC ACCESS, OPEN SPACE, NATURAL RESOURCES PRESERVATION FUND COMMISSION: Mr. Chang moved to approve Resolution No. 2009-47, seconded by Mr. Bynum. Mr. Bynum: We are reappointing Tessie and Jean yea? Chair Asing: Yes. Mr. Bynum: I would just like to take real briefly because I know it is late, but to really appreciate the service that Tessie Kinnaman and Jean Souza have provided to the Open Space Access Commission and they just really are dedicated to that work and have done a great job. Thank you. Chair Asing: Thank you. Any further discussion? If not, roll call please? The motion to approve Resolution No. 2009-47 was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Asing TOTAL - 6, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: Kawakami TOTAL - 1. Chair Asing: Next item please? Mr. Nakamura: The next resolution is Resolution No. 2009-48. Resolution No. 2009-48, RESOLUTION TO ESTABLISH A SPECIAL ADVISORY COMMITTEE TO REVIEW AND RECOMMEND AMENDMENTS TO THE RULES OF THE COUNTY COUNCIL OF THE COUNTY OF KAUAI: Mr. Bynum moved to approve Resolution No. 2009-48. Chair Asing: Why don't we hang on for now? Do I see some hands? I see some hands. With that, what I would like to do is suspend the rules and have the public testify first. There being no objections, the rules were suspended. Chair Asing: Ken? COUNCIL MEETING - 137 - July 22, 2009 KEN TAYLOR: Chair and members of the Commission, my name is Ken Taylor. I am very disturbed about this resolution. Taking two (2) individuals that have expressed themselves in the past to be somewhat opposed to open government and I don't know what to say about the Honorable Judge, but I think it is wrong. I think it is wrong to put these individuals. It is like putting the fox to guard the hen house. I would like to suggest that either nominations from the Council be taken for some people or I have made a list... may I suggest that an ad hoc committee should be made up of the following group. Three (3) members, maybe five (5)... I like five (5) list in no particular order and I would like to submit this for consideration and... as I say, I believe that... which been a whole long time talking about open government and transparency, and all of these kinds of things, and for this resolution to come forward like it has is a real slap in my face and that is my feeling, and I am asking that you either not accept this resolution or you modify it and take some consideration for adding others and removing these three (3) individuals. I am not saying that there is anything... these are good people, but I don't believe that they have any business dealing with this particular issue. And I would much prefer to take the rules and regulations as I asked back in December and January to bring them to the table and take them one at a time to let the community put input and change, add, whatever. To me, a committee dealing with this issue is primarily doing it in the closet when the whole process that we have been talking about is open, transparency, and moving forward with community participation. That is what government is supposed to be and this resolution does not do that and I am sad to think that two (2) of our distinguished Council people would think that this would be an acceptable option, so thank you. Mr. Furfaro: Mr. Chair... Chair Asing: Go ahead. Mr. Furfaro: Maybe I would like to take a minute. I don't need you Mr. Taylor, you have been excused. Maybe I could take a minute and just kind of focus on some of the thinking behind this resolution to answer any questions up front. I am sorry that Mr. Taylor is saddened by my joint introduction of this resolution by Mr. Chang, but I do think that we are way over for a comprehensive review. The thinking was the areas that we had some need I think for specific review. If we looked at some of the things in Mr. Bynum's presentation today, we talked in terms of, you know, these interpretations of managing the agenda over approving the agenda. I think Mr. Bynum made reference several times to pass Chairman Kouchi in his style and familiarity with the current rules, I think Mr. Chang and I read that that might be a good person to have on the committee. Secondly, the parliamentarian that we identified in Mr. Phil Tacbian really identifies the fall back point in rule 20 where it says, where our rules are silent, we would refer to Robert's Rules of Order for those types of interpretations. Then, of course, with the Charter crossing over the State and OIP guidance crossing overs, you know, I thought it was a good idea, and I think Mr. Chang concurred that we thought someone with the legal overview and someone who is familiar and in COUNCIL MEETING - 138 - July 22, 2009 particular, maybe a retired Judge... we have three (3) on the island would be a good name. So, you know, I have seen myself take a few shots which is fine. That comes with being a big boy and being in politics. I have seen commentary saying that the resolution was introduced by the black knight and I am not sure what that refers to, but there are editorials to that, and his sidekick Mr. Chang. So I would like to remind everybody that the rules are due for a comprehensive overview. The rules we are dealing with started in 1933. They had a review in 1988 by Kei Inazu. It specifically dealt with some things as the make up of standing committees and so forth, but I am also open to the fact that maybe an odd number of adding two (2) more people and so forth would be something acceptable. But, you know, I don't think there is a happy place for everybody and to make it in such a way that it gets prolonged. And therefore, the resolution says not to exceed 90 days. Hopefully, a smaller committee could come back in 60 days, 45 days. I would also like to point out very clearly that this Council cannot delegate its authority to any other group. Ultimately, people that are familiar with the law, the parliamentary procedures, the actions of the Chair are reflected in this resolution, but they would make recommendations to this body. This body would be the decision makers. The recommendations would be made on a public agenda and on that note, I would like to ask Mr. Chang if there is anything that he would like to add since we are co- introducing this before we take anymore public testimony. Chair Asing: Thank you. Go ahead. Mr. Chang: Yes, thank you Chair and thank you Councilmember Furfaro for including myself. First of all, let me begin by addressing Mr. Taylor if I may. I don't know how you would, I guess, categorize myself personally and Mr. Furfaro about opposing open government. Just to let you know, this has been bothering me for a month and a half since we first tried to open it up between Councilmember Bynum and Councilmember Kawahara. Unfortunately, it wasn't an agenda item. We all understood that. They were able to get voices heard and spoken on June 16 which was a Wednesday meeting. On June 12, Friday, I had introduced... to try to put together a resolution that we can open government and by that, I felt the need to perhaps overlook the rules including the four (4) concerns they had, but all the rules, 21 of them. Now with all that being said, you know, we know that we are going to make mistakes, I made mistakes, and for the public out there just to let you know, we could have sat together... an ad hoc committee of Councilmembers... myself, Councilmember Bynum, Councilmember Kawakami... myself, Councilmember Kaneshiro, Councilmember Kawahara. We could have done that. In my opinion, that would not have been the way. People would have questioned that way, so by chatting with Councilmember Furfaro and really relying a lot on his recommendations, we decided to take people. And we picked the number 3 because we figured if it was smaller, hopefully it could be done in 45 days, 60 days, or no longer than 90 days. My thought then and, again, everybody has their own opinions, but I felt that by an outside ad hoc committee reviewing the rules as we are conversing among ourselves, this would give us a little bit more time to take care of a lot of the other business that we have going on. COUNCIL MEETING - 139 - July 22, 2009 Now in reference to what Mr. Furfaro said with Phil Tacbian, Ron Kouchi, and the Honorable Judge Masuoka, and understanding the Robert's Rules and parliamentary procedures, I felt that Phil Tacbian was a great name. Now in all due respect to Phil, I got a lot of respect for Councilmember Ron Kouchi... not only has he been on the Council, but he has also been a Council Chair that Councilmember Bynum has a lot of respect for. Now with that as a little footnote, Ron Kouchi has no plans, he has no desire, he might change his mind, but nothing in his near future or anything indicates that he wants to run for public office. So while chatting with Ron and I asked him how does he feel, Mr. Kouchi said, like any other business, it is always great to review rules, recap the rules, is something that may or may not be missed at one point or another, and, you know, I don't really know Judge Masuoka well except that I know of his integrity, and I know of his character and his respect within the community, and I was thrilled when a retired Judge along with these people volunteered to serve on this board. Have I made mistakes? I probably have, but, you know, I wanted to try to get something going that we can move along the process. For those of you that stayed all day and for all the viewing audience out there that probably forgot after hours, we have gotten a lot of things accomplished and we are planning to move ahead by next Monday, we are going to be working on this, working on this, working on this. Now there was an editor... excuse me, the writer that wrote this article in the paper dated June 18 mentioning those names that I had talked about... I have been categorized now as defending them for not being the old boy network. When I talked to the writer of this article, he himself realized that I was not making reference to these fine men and residents. I was making reference to our Council as Councilmember Kawahara had earlier said that this is not a rubber stamp Council and what I was making reference to as now having three (3) Freshman, one Sophomore experience of seven (7), ten (10), 26, 27 years, this is not an old boy back door network. That is what I was making reference to was to this Council and not out of these respected gentlemen that I want to say for the record, I respect them, and whatever they are categorized as, they got all my respect, and I feel that they were extremely honest, good, respected citizens. So thank you Mr. Furfaro for guiding me and helping me through this, but this whole process all began because I had a lot of pain, I have kept quiet for a long time... again, I apologize to everyone that I didn't a-mail to. I think I personally called back everybody that personally called me, but until you can get the process in line, I would rather have an understanding, opinions, and do things lawfully before I jump ahead and make additional mistakes which I apologize through the eyes of those that think that this might not be the right decision. I just wanted to get it out on the floor. Thank you. Mr. Furfaro: I have just one short thing. I thank you for letting us have this time. I also want to point out that I did ask another parliamentarian who was willing to serve, but he is also currently on the Ethics Commission and it seems to me from following other issues in the County that plate was pretty full. But I do want to say that these three (3) individuals that are in the resolution, in advance, have been willing to serve. Thank you Mr. Chair for the time. COUNCIL MEETING - 140 - July 22, 2009 Chair Asing: Councilmember Bynum? Mr. Bynum: Yea, I will try to avoid discussion, but just a comment. We are doing extraordinary things today. I just want to say that I appreciate the efforts that Councilmember Chang and Mr. Furfaro make and I don't question their motives at all. I think they are very sincere as I think everyone here is about trying to find a way to address these important issues. In the same newspaper article, I said that I don't have any objections to this committee. I don't think it should delay discussion of the primary resolution we tried to introduce on June 3, I don't think it will. It is a resolution like others that is subject to amendment and discussion which we will get to, but these three (3) individuals, I can fully entertain the thought process that went into it. Phil Tacbian gave me lessons in parliamentarian work. He is the person that Council uses to tell us about parliamentary process and I have had follow up conversations with him. I do have respect for Ron Kouchi very much and I think that he would be a great contributor to these discussions and I had the... I was often in the courtroom when Judge Masuoka was on the bench. He was very strict, stringent, by the book, and I know that he is passionate about justice, so I understand the rationale behind all of these folks, and I have no objections to those selections or no question about the motives of this proposal. Ms. Kawahara: Chair Asing? Chair Asing: Councilmember Kawahara? Ms. Kawahara: Thank you. I had questions about the committee because it wasn't clear. Will they be subject to Sunshine law? Will they be meeting in public? Mr. Furfaro: I would think we would want to post that, yes. I would certainly think that when they came to do their report as part of the agenda. Ms. Kawahara: Oh, their final report, but the discussion to get to their... Mr. Furfaro: I would think so that there would be public notice that... Ms. Kawahara: That they are meeting and the public would be welcome to participate? Mr. Furfaro: Why not? Ms. Kawahara: Okay, so I was curious about whether or not they were going to be required to follow the Sunshine law as asub-committee. Okay, it COUNCIL MEETING - 141 - July 22, 2009 has been a long night. I am very tired as I think everybody is. So we are discussing this now? Mr. Bynum: We should probably take more testimony. Mr. Furfaro: I want to point out that I just wanted to give some of the rationale that Mr. Chang and I came to and number 1, the review of all the rules, number 2, how we arrived at a group, and why it was a small group, and that we are not transferring our duties. Chair Asing: With that said, why don't we do this Councilmembers. Let's hear from the public first and then we will call it back to order, and then we can have further discussion. So with that, I would like to suspend the rules and have the public up please. There being no objections, the rules were suspended. Chair Asing: Is there anyone in the audience who wants to speak on this issue? Jimmy? JAMES GERARD TRUJILLO: James Gerard Trujillo for the record. Mahalo Chair. Councilman Furfaro, Councilman Chang, thank you for introducing this. I believe it is in support of the work that Councilman Bynum and Councilmember Kawahara have put forth in regards to clarity and better understanding. Apparently, you know these rules are dynamic, they are not static. There is an opportunity to better understand it through this process and I think your proposal is one that should go forward, yet I would like to speak to the issue of diversity of this group. Three (3) men on this group while their record as public servants and members of our community in good standing cannot be denied, the fact that there is not a single woman in this group speaks to the issue of exclusiveness. I do believe and one woman who presented today, Carol Bain would be an ideal candidate. I also think that having a member of the public... just a member of the public and not a former political public servant... someone such as Bruce Pleas would be a ideal person to sit in on a group like this. I would recommend that this is public process as Councilmember Kawahara had suggested subjected to the Sunshine laws. Mahalos Councilman Furfaro for being clear as to what this group would do and the service they would provide and how in their final report we would be as the public, privy to their findings and testimony input given by the public. Councilwoman Yukimura would also be another fine woman to add to this group. Her experience as a member of this body would lend itself well. I am not necessarily sure that there has to be a Chair, but I do think that we need to broaden this group. I think that the inclusion of women in this group would be most important and I thank you for the time. Mr. Furfaro: Jimmy, I just want to say again. The thinking was to keep the group small, get it done quickly, make a presentation, but with some COUNCIL MEETING - 142 - July 22, 2009 criteria. I apologize if there was an oversight of Mr. Chang and (inaudible)... within those three (3) areas of the criteria, we didn't identify a female and I am the proud father of three (3) very talented ladies. Mr. Trujillo: Lucky you are. Chair Asing: Thank you Jimmy. Is there anyone else? Come up please. CHARLES BRAUN: I am Charles Braun and I was thinking earlier about the question of the... the people in the e-mail should get the raw version immediately and the people that synthesize in the background should also send their copies to the people when they are done. Thank you. Chair Asing: Thank you. Ms. Kawahara: Thank you. Chair Asing: Is there anyone else? JoAnn? ARTHUR DEFRIES: I am in favor of this resolution, but as far as the... I get some concerns that... when I was arrested at one time, Judge Masuoka wanted to see me in jail, but afterwards, I had to run away to Canada for five (5) months and then my good old friend said that I can come back home, that everything is taken cared of. I got my $25 back and at that time... there is another guy that... Phil Tacbian... I have a lot of aloha for him. He is an Anahola boy, he is a Kapa`a graduate, and it is good to see Masuoka, another Kapa`a graduate, but we have nobody from Kauai High School. It would be nice to have somebody from Kauai High School and (inaudible)... Dr. Newall (not sure of spelling), I got to know him very well, I respect... he is fine man and that if you guys can add that two (2) names that would be very colorful. But what I am saying is that as far as for the guy Kouchi, I went go lobby him, but it (inaudible) ILWU was saying... the ILWU told me, he going come see me. I was hoping to get the guy from Hanapepe to be the... something like the County Clerk, be the head County Clerk, but I couldn't get his vote. I am going to tell you this guy, Eddie Medeiros. Eddie Medeiros is the... grandson... if Eddie was alive today, I don't think the grandson would be doing things that he is doing today, but I am going to tell you one thing, as far as Eddie Medeiros (inaudible) Mr. Sarita for that (inaudible) and besides that, Jerome Hew, when I talk to him out here, he told me, I am going to stay down below, I am not going to come up, but when I went to Canada to have some fun and I came back, that guy had slide in. I almost throw him off the building, but, you know, I was pissed off because I couldn't get Kouchi's vote and I could have got Sarita's vote through Eddie Medeiros, but I never wanted that to get as far as... but I would really like to see Dr. Newall and a person from Kauai High School be involved in this. Thank you. COUNCIL MEETING - 143 - July 22, 2009 Chair Asing: With that, JoAnn? JOANN A. YUHIMURA: It is past midnight. Mr. Bynum: Good morning. Ms. Yukimura: Good morning. Well, Councilmembers, Council Chair, JoAnn Yukimura for the record. I appreciate the endorsements from the couple of previous speakers, but I am not a candidate, so thank you. I just want to say that I don't have any objections to the creation of a special advisory committee on rules unless it is used to slow down the process that has been started here tonight with the Chair's sincere willingness to work on the issues raised and all of the Councilmembers' stated affirmation of wanting to work together. So I would expect that introduction of the resolution requested by Councilmember Bynum would not be stopped because of the creation of the committee. As I stated earlier, if you want the advisory's committee input on the resolution, then I would hope that you would ask for their input asking them to put these items first on their agenda and giving them a limited time within which to deliver their input to the specific issues that are moving through the Council anyway is my hope. I do think that more diversity on the committee would be good... is an excellent idea. In fact, I don't think it will slow the committee down to have a couple more... two (2) or three (3) more on there, so that is just my input. Mr. Furfaro: (Inaudible). Ms. Yukimura: I am sorry. I am busy with farm worker housing. Thank you. Chair Asing: Is there anyone else? If not, I would like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Mr. Kaneshiro: Are we in discussion now on the matter? Chair Asing: Yes. Mr. Kaneshiro: Thank you for the opportunity, but for me, I am not able to support this resolution. Basically, my feeling is that I was voted by the people of Kauai and Niihau to make a decision openly and I feel that I have the capabilities of being able to do that. I do not need to rely on an advisory committee to make recommendations to me and at that point, you know, make decisions. I think if we are going to go through a process like this, the fair way to do a process like this would be to have an open Council meeting as we have all been elected to do... have that public participation if need be and from there, we, ourselves, make adjustments and if need to be changes to the rules would then put the burden on us COUNCIL MEETING - 144 - July 22, 2009 to do so. And the simple reason is this, we have already shown that from the original presentation, we have already changed the committee members... I think about four (4) or five (5) times just within the 10 or 15 minutes we have had discussions here. We have changed it in about 10... I would say 10 different people, so I mean how are we going to come to a point where these are the people that we are really going to get on the committee? How are we really going to reach there when we have already had discussions on this in less than 10 minutes for 10 different people? So I think, you know, there is a process we are going through... we have a good process in place and the whole idea is give the people the opportunity and give to speak and be able to open it. We can talk about openness and we have been talking about this from 9 o'clock this morning, so I believe 10 o'clock this evening which is over 11 hours or whatever. And now we are proposing to have an advisory committee who would work in some chambers and come up with recommendations and present this recommendations to us to be discussed on the floor, so to me, I mean it is just not making too much sense. I am a very lay person, I am a very common sense person, and this is only my own perspective and I have no... it is not an issue and I really respect Mr. Chang and Mr. Furfaro for bringing this up. I know it will get us into some good discussion, but at the same time, for me, you know, as an elected official elected by the people of Kauai, I have the duty to be able to do it, and make decisions right here on the floor rather than rely on advisory committees to make recommendations. And at the same time, when recommendations are made, I mean what weight would their recommendations be? I mean how do we weigh that out, so, you know, all of a sudden, we are going to start setting a precedence now of making advisory committees to take up tough issues. I don't think that is the way we as Council bodies should function. I think that we should have open discussion, sit here, work on it... if we need to work on it for hours and hours and go to committee, go back again, take public testimonies, then let's do so, and we make the final decision at that point. I am afraid that this would lead to advisory committees for many of the ordinances that we take up and many other resolutions that appear here on the Council floor. And in all respect to Mr. Furfaro again and Mr. Chang, I know we have been in a very hard issue and hard pressed issue for these past several months because many of us haven't had the opportunity to really speak how we wanted to speak on one particular subject and many times, the only time it came up to be would be a call from the paper or I writing something to the paper. And, you know, I know it was (inaudible) consideration from my colleagues and in all respect to them. I respect what they are trying to do. I respect what we are trying to accomplish, but I think for me personally, I can accomplish the same goal here without an advisory committee, so that is my perspective and I am not here to offend anyone. I am just telling my personal perspective about how I feel about this resolution. Thank you. Chair Asing: Thank you. Councilmember Chang. Mr. Chang: Yes, thank you. First of all, Councilmember Kaneshiro, thank you for bringing up your concerns because I can agree 110% to what you said. The original intent of how I felt what I needed to do as an individual COUNCIL MEETING - 145 - July 22, 2009 was to get this opened and get it out in discussion. Now that we have discussion and now that we have, in my opinion, accomplished a lot in which case we know come Monday that there is going to be a lot of communication, there is a lot of different kind of commitment, I don't see that we... I agree with you. I don't see that we need to get all these other people involved because we have been voted by the constituents to do our job and I have no problem, you know, backing down on this specifically because of the fact from what we have already determined and what we've already got the commitment... we are going to try to work together, so now that we can openly discuss rules and hopefully get things on the agenda that we can be talking about it as this body that we are elected, I have no problems to say, the reason I did what I did was for the intent of moving things forward. And now that things are moving forward, I have absolutely no problem saying that I believe that we can move forward without an advisory board. Mr. Kaneshiro: Mr. Chair, if I may, I just wanted to add a comment to Mr. Dickie Chang's comment, and I believe as I was listening to all the testimonies today and I was here thinking about a lot of the issues that were brought up, I thought that we were moving into a real positive direction. And, you know, in no way that I am trying to throw a negative input into this whole process that we are going through, but as I am concerned about how we make decisions, I had to throw this on the floor. And in all respect, you know, for Mr. Furfaro again, and for everyone else that spoke in support of this resolution, you know, I think that even if the body is going to go there and do this if they are going to go there. I am only one vote on this whole body, so I am not sure it is going to go... I think we should at least take the opportunity, first of all, of experience what we had just talked about all day today. Let's try the process first, let's move ahead with this, and if it is a deferral on this if there needs to be, then fine to be, but I am not here able to vote right now on this resolution as the resolution stands with amendments proposing on changes. So I just wanted to bring that up. I think we need to give the process some time and we've all came to an agreement, all of six (6) of us sat here and said, including the Chair, we will start from Monday. I, you know, would like to see we try the process first before, you know, really jumping into and presenting resolutions, making advisory committees, changing the rules and regs and looking at that, and so forth while we are attempting to do that ourselves. Thank you. Chair Asing: Thank you. Any other comments? Ms. Kawahara: Yes, we are still on discussion, yea? I completely agree that you elected us to be able to make decisions and on something so critical about the rules that we will function under. Again, it is to be a public process. I believe leaving it on with the Council on the floor is a good idea, and if I am hearing correctly, the sub-committee... did you just say you are withdrawing it or making it not... Mr. Furfaro: Let's make sure we all understand that there is no motion on the floor. I think what Mr. Chang said was he is feeling so good about COUNCIL MEETING - 146 - July 22, 2009 today's meeting that maybe he is reconsidering that he won't vote for this, but we don't even have a second on this yet. Ms. Kawahara: Again, I do believe that you voted us in to make decisions and this is one of the main decisions we make at the beginning of our year and as a allowed and wisely put into the rules, it says that they can be amended therein. Today has been extremely draining. I was beginning to think that this Council would not be able to do... make decisions on this because of the personalization that was going on rather than the issues. So when I began to think that the Council wasn't going to be able to work on this together and reach a consensus, I too am hopeful of what I heard will be changing on Monday will happen and since we don't have a motion for anything right now, but I do have a concern that... that there are issues here that are beyond just the rules that we are discussing this about. So, again, I am waiting to see what will happen with the sub- committee offer, but I first figure that you have given us your trust to make decisions and that we could do it. Thank you. Chair Asing: Thank you. Councilmember Bynum? Mr. Bynum: When I first learned of this proposal when it came out on the agenda and I had to stop and think about it. And, you know, I want to be honest... part of me said, oh, this is a tactical move for a little while. Mr. Furfaro: (Inaudible). Mr. Bynum: I don't know who that was, but, you know, I just... and part of it is because there has been so little dialogue amongst us over the last few weeks, and it seems like it has been going more into like a compartmentalized which was uncomfortable and is uncomfortable. And so, you know, just got my thoughts out... it was like, at first I was kind of suspicious, but then I really like Councilmember Furfaro and Councilmember Chang. I really like Kaipo Asing believe it or not. I really like Daryl and I thought about it more and more, and I really started to warm to the idea. I thought that, you know, because I've said publicly that I things have been dysfunctional here. I think things have... there has not been a level playing field which is like the basis of everything. I've said those things are strong, I believe they are true. You know, I would hope that, that is all going to change, and I... as Councilmember Furfaro said, we are not going to advocate our responsibilities to anyone, and so as I looked at this issue and I did discuss it with Councilmember Kawahara... we are allowed to do that, two (2) of us, and, you know, I said, we shouldn't be afraid of this, we should trust our Councilmembers and we should embrace it, and we should look at the advantage of bringing in really qualified and quality people to help us look. But it talks about the rules and we have been talking about information, so we prepared an amendment which we have circulated that says... that deals with some of maybe... and that is what we do... people make proposals, we make amendments, we dialogue, and see if we can come to a consensus, and our amendment would do two (2) things if we were COUNCIL MEETING - 147 - July 22, 2009 to consider it. One is to expand the scope to look at the distribution of information. You know, we have always said it is about the rules and the distribution of information, and the other is to add individuals to bring the diversity that some people have spoke to and the individuals that we talked to... that I talk to were Dr. Neil Clendeninn, Andrea Brower, and Dianne Zachary. And I think that if we looked at the... if we expanded it and make it a more diverse group and we looked at access... or distribution and access to information both internally and for the public and the Council rules, a lot of really positive stuff could come out of that. And so I really started to warm to the idea and I still am. I... let me make it clear that this kind of committee is anticipated and called for in our rules. It is already established and, you know, fresh eyes, and a good public process or something that I think are pretty valuable. So I really warm to the idea and I would want to be supportive of this resolution as amended. On the other hand, balancing it, I think Daryl makes a pretty compelling argument as well that we can rise because I have faith in this group and I think if we could rise to the ability. So I am a little torn and that is the whole point of the democratic process, isn't it? To hear the input from your colleagues, from the public, and even though you walked in going this direction because I tell you, I walked in here saying, I want this committee with these amendments. I want it and still a big part of me does, so, you know, but I think Daryl makes a strong and compelling argument, so I want to see what my colleagues think. But, you know, if we were to proceed with this, I would be moving to amend if we were to proceed with this. If we are not, I would not like to vote against it, I would like to defer it, and leave it open as an option. So those are kind of our options on the table and I would love to hear from others. Chair Asing: Councilmember Furfaro? Mr. Furfaro: I want to say that there is some harmony around the table, there is some unity... there seems to be some agreement that we are going to do some things, and I think we have re-established the faith of the `ohana here. We are going to try, so as far as I am concerned, my rationale for putting this on is there... it may not get a second and it will die without a second, and I am fine with that. I appreciate everything that everybody said here at the table, but, I too, would at least ask for a deferral and I will tell you why. Because this came up at the inaugural meeting, okay. It came up at the inaugural meeting that we (inaudible) what we do is fine, but it is something that we were asked to do as well. I just thought the timing was fine. It sounds to me that Mr. Chang and he is the co- introducer, he is good with the progress that we have made so far, and he is feeling both ways. We can handle this both ways. You said it, our rules do provide for us to (inaudible)... we cannot delegate our responsibility. They would just report to us the recommendations, so I am fine with a deferral. Mr. Bynum: May I make a Bugg... Mr. Chair? COUNCIL MEETING - 148 - July 22, 2009 Chair Asing: Go ahead. Mr. Bynum: May I make a suggestion that we proceed with this discussion, bring it on the floor, amend it, and see if that would float, and then contemplate a deferral. Mr. Furfaro: I can tell you that I don't see that we have the votes right now, so... Mr. Bynum: I don't know, I don't know. Mr. Furfaro: I would like to defer is where I am coming from. Chair Asing: I guess it is time for me to make some comments. Mr. Kaneshiro: We are all in this together. Chair Asing: I happen to agree with Councilmember Kaneshiro and Councilmember Chang. I think we have done a lot today. I think we have opened up the process. You heard my statements, you've heard statements from Councilmember Bynum, Kawahara, Chang, Furfaro, and Kaneshiro, and, you know, all indications are that we will be working together. And also that... besides that, you know, I have on the floor again where I normally do my work rather than the Garden Island, and I have given my commitment on what I will be doing. So I can support, you know, what Councilmember Chang and Councilmember Kaneshiro as to not doing anything right now, and moving forward what he had talked about earlier today. Mr. Furfaro: So Mr. Chair, do I understand that rather than Mr. Chang and I asking for a deferral and getting a second to that, you would prefer that it just die for lack of a second? Chair Asing: Well, I would prefer that, but, you know, I have respect for you and Councilmember Chang, and if you desire, I can support that move to defer. Mr. Furfaro moved to defer Resolution No. 2009-48, seconded by Mr. Chang. Mr. Bynum: Are we done discussing? Mr. Furfaro: Yes, we are now. Mr. Furfaro: With a deferral and a second. Chair Asing: With that, let's have the vote. All those in favor? COUNCIL MEETING - 149 - July 22, 2009 Ms. Kawahara: What are we... what are we voting on real quick please. Mr. Furfaro: No, there is no discussion on a deferral. Ms. Kawahara: Oh no, I don't even know what we are voting on. Mr. Furfaro: We are voting on the deferral. Chair Asing: On a deferral. The motion is to defer. Mr. Bynum: So it will come back in two (2) weeks, right? Chair Asing: The motion is to defer. Ms. Kawahara: To defer what? Chair Asing: Defer action on the resolution. Ms. Kawahara: Okay, when it comes... Mr. Bynum: Point of order. Chair Asing: Go ahead. Mr. Bynum: We had a motion... don't we need a motion and a second before we defer it? Chair Asing: That is what we had. Mr. Bynum: I didn't know we had a second. I made a motion to approve. Mr. Furfaro: I made a motion to defer, Mr. Chang seconded it. Mr. Bynum: No, I meant... so this item will come back in two (2) weeks? Mr. Furfaro: It could, yes. Mr. Bynum: It will. Chair Asing: It will. Ms. Kawahara: It will. COUNCIL MEETING - 150 - July 22, 2009 Mr. Bynum: Okay. Mr. Furfaro: Are you folks clear? We didn't make any date certain. Mr. Bynum: I understand. I heard what the clerk said, so... Chair Asing: Okay. All those in favor say aye. The motion to defer Resolution No. 2009-48 was then put, and unanimously carried. Chair Asing: With that... Mr. Nakamura: We are on bills for first reading. First bill for first reading is Proposed Draft Bill No. 2320. BILLS FOR FIRST READING: Proposed Draft Bill No. 2320 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 19, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO PUBLIC PARKS AND RECREATION: Mr. Kaneshiro moved for passage of Proposed Draft Bill No. 2320 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for August 18, 2009, and that it thereafter be referred to the Parks/Transportation Committee, seconded by Mr. Furfaro. Chair Asing: Do we have any public comment? If not, the meeting is still in order. Roll call. The motion for passage of Proposed Draft Bill No. 2320 was then put, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Asing TOTAL - 6, AGAINST PASSAGE: None TOTAL - 0, EXCUSED & NOT VOTING: Kawakami TOTAL - 1. Mr. Nakamura: We are on page 5 of the Council's agenda, a bill for first reading, Proposed Draft Bill No. 2321. Proposed Draft Bill No. 2321 - A BILL FOR AN ORDINANCE ESTABLISHING A NEW ARTICLE 19, CHAPTER 22, KAUAI COUNTY CODE 1987, RELATING TO PLASTIC BAG REDUCTION: Mr. Furfaro moved for passage of Proposed Draft Bill No. 2321 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for August 18, 2009, and that it thereafter be referred to the Public Works/Elderly Affairs Committee, seconded by Mr. Kaneshiro. COUNCIL MEETING - 151 - July 22, 2009 Chair Asing: I am going to make a comment. I would like to ask both Councilmember Kawahara and Councilmember Bynum to share the information that they have received and not shared with other Councilmembers so far. I believe that that information is valuable information as it relates to the bill. Yes, go ahead. Mr. Bynum: You know, when you had discussed that earlier, I was... my head was spinning because I can tell you that I certainly had no intent to withhold information from anyone. In fact, one of the resolutions that I have tried to place on the agenda in the past, is a rule change that clarifies that all communication related to public policy, that goes to the County Attorney's Office, goes via the Council Chair or the Committee Chair as appropriate, and that it is disseminated... that the body... that we ask as a body for that information and that it be disseminated. You know, I haven't had a chance to look at it, but when this bill was sent to the County Attorney's Office and correspondence came back from them, my assumption is that it came addressed to Kaipo Asing and all Councilmembers, and it should have been distributed to everyone. Chair Asing: Councilmember Bynum? Mr. Bynum: I said I don't know, but that was... Chair Asing: Councilmember Bynum, well, again, again, I mean be accurate. You know that that information came back to you and Kawahara only. Mr. Bynum: No, I don't know that Mr. Chair. I just said that I don't know that. I just told you that my assumption is that it would go by that policy that I said... I ascribed to, so why are you telling me what I know and what I don't know. Chair Asing: With that policy that we have, did it go over with your name and Kawahara's name? Mr. Bynum: I told you I am not certain. I am sitting here under the assumption that it went under the protocol that I have suggested that we do. If it didn't, it wasn't intentional, I can tell you that. Why I would I want to withhold that. Chair Asing: You tell me. You... that is not me. Mr. Bynum: Well, I am telling you right now, I wouldn't. Chair Asing: That is not me, you tell me. Mr. Bynum: I just did. COUNCIL MEETING - 152 - July 22, 2009 Chair Asing: You held it back, I didn't. Ms. Kawahara: Please... Chair Asing: With that, any further discussion? Ms. Kawahara: Yea, you addressed me I believe too yea? Chair Asing: Pardon me? Ms. Kawahara: I believe you addressed me too, yes? Chair Asing: Yes. Ms. Kawahara: This is one of the reasons why I have a question as to why... this is the reason why I have concerns about whether or not this Council can make that decision. The tone that we hear on this floor and have been hearing tonight is not professional or acceptable tone. So when the sub-committee proposal was withdrawn, that was my concern and I believe that because of the tone that I am hearing now Mr. Asing, Chair Asing, and Councilmember Bynum, there is something going on here that is beyond just information access to the agenda. Chair Asing: It is your opinion. Ms. Kawahara: Yes, so I believe there is something going on beyond just access to information and the issues that we brought up and that is what I wonder that we can... if that we can address the... that is what I am going to say right now and I see that there is another Councilmember that wants to discuss this event... have a discussion here, but Chair Asing, for these reasons that I am hearing, and hearing this back and forth, it has made me question that this Council can work together. Chair Asing: You have an opinion and I respect that. Ms. Kawahara: I appreciate that and I am glad that you hear that, so I believe there is another Councilmember that wants to speak. Chair Asing: With that, Councilmember Furfaro? Mr. Furfaro: Yes, I'm... sure hope we don't get to all bets are off for Monday. Hey listen, I have to tell you, I would like to... all of us to have this kind of joint respect at the table and I had to make a difficult decision here because I am listening to the dialogue on the table and the resolution that I introduced had the potential of ending 3 to 3 and would have gone away, okay, and that is not what I wanted to happen. It doesn't make me comfortable to defer it, but then I see across the table that you folks had the (inaudible)... so let's all try and just get to COUNCIL MEETING - 153 - July 22, 2009 Monday, so I needed to say that. I did not want to run the risk of a 3 to 3 vote, and that I didn't want to get to a point that it died for a lack of a second either. To me, you know, I am saying, I know we can do this, and we got that resolution that can... that is going to go dormant for a while, but can come back, so... Chair Asing: And I want to say Councilmember Furfaro... Ms. Kawahara: Thank you. Chair Asing: That that is the reason I did what I did. I wanted to assist you and at the same time, leave it open for all of us. That is the intent of the action that I took. I know that I could kill it. My vote would kill it, but I didn't do it. Mr. Furfaro: Thank you Mr. Chair. Chair Asing: With that, any further discussion? Go ahead. Mr. Bynum: Just, you know, I think I am a pretty patient guy, maybe too patient, and to have my truthfulness and my integrity questioned repeatedly, it is a little... I get a little testy about that, that is why I warmed to this idea of a committee because I think fresh eyes and a public process that isn't engaged in kind of this personality stuff could be a real benefit. You know, in this meeting... it looks like it is almost done, but it is not, we have an executive session tonight. You know, I was a little suspicious of the kumbaya kind of feeling that was happening. And then, you know, but, hey, that is where I want to go. That is where I want to end up and so, but, you know, I don't like having my integrity questioned. So if I got a little testy a minute ago, I apologize. Mr. Furfaro: We accept the apology Mr. Bynum. Thank you very much. Chair Asing: Thank you. Any other comments? Ms. Kawahara: Just for all the people out there that have been following this and all the supporters that are for open government and transparency, I had said that I thought that this... the sub-committee suggestion was maybe a way to delay to distract, but because there... because of the discussion tonight, I don't think that is so. I wanted to make that public record. Because of the discussions and the tone and the environment that we have been in tonight in discussions about transparent government. I want to say that I am glad that it wasn't... this sub-committee idea wasn't killed because I do believe that it is gone beyond just issues here, and having fresh eyes on it with amendments that we were discussing I think has merits. Mr. Kaneshiro: Thank you Mr. Chair. We need to get back to the kumbaya feeling and I think we need to stick to the agenda which is plastic bags. So COUNCIL MEETING - 154 - July 22, 2009 I think we still have some public testimony to take and I know it is getting late. It is almost 1 o'clock and I am getting tired, so I would prefer that we stick to the agenda item which, again, is Proposed Draft Bill No. 2321 relating to plastic bag reduction. Chair Asing: Thank you. With that, I'd like to suspend the rules. There being no objections, the rules were suspended. SANDRA HERNDON: Good morning. Sandra Herndon for the record. Mr. Chang: Good morning. Ms. Herndon: Good morning. Ms. Kawahara: Good morning. Ms. Herndon: Where is the coffee? I am here to speak in favor of this Bill 2321. I think reduction is good. I think a total ban is better. I think and there are a lot of reasons why and I would like to just name three (3) of them. First of all, reusable bags are sturdier, multi functional, and readily available in many stores on the island already. It would be another great business opportunity for some enterprising individuals to produce them here if we needed more and that way the money that we spend on bags could stay here on the island and really support bus. The second issue that I have with plastic bags is that the technology that is used to make them relies on oil which is a... the convenience of a plastic bag although it seems like it is really, you know, a slam dunk in terms of using it, and it is cheap. I mean they are really, really inexpensive... the ultimate cost is way, way higher because of the escalating cost of foreign oil imports. The other problem is that there is no affordable adequate system in which to recycle them. So they fill up the landfills because... and it takes a thousand years for that stuff to decompose more or less. So I say this as an opportunity for Kauai to move ahead, make a commitment to environmental consciousness, joining our sister counties, Maui and the Big Island... major cities like San Francisco, Los Angeles, Seattle, not to mention progressive counties around the world like China, Canada, Australia, and Israel, as well as a multitude of smaller, but committed countries. So I thank you, so I really thank you for staying to hear me. I feel like this is just one small thing that we could do for our island and I thank you for considering it. Mr. Chang: Thank you. Ms. Kawahara: Thank you for your dedication in staying. ELLI WARD: Good morning, Elli Ward for the record and I didn't think I could last this long. I am usually in bed by 10 o'clock. COUNCIL MEETING - 155 - July 22, 2009 Mr. Chang: So are we. Ms. Kawahara: Me too. Ms. Ward: But I am so glad I stayed because I really get to appreciate the work that you all do, the dedication, and you know, even all the conflicts that I have witnessed. I mean I think every family has its ups and downs and this might be just, you know, a down time, but I am... hopes brings eternal in my heart. I think one day we will see something good happen. My testimony is actually for my husband and myself. He usually lets me do the talking and he does the research. We support this bill and urge you to ensure its speedy passage. Our County has waited for too long to tackle this issue. Let us not waste more time as we continue to contribute to the global catastrophe being created by plastic debris. In our throw away society where we are accustomed to plastic wrap, plastic package goods, and drinking water out of plastic bottles, we have to stop and ask ourselves, where does all this plastic end up. Sadly, the answer is everywhere. To make matters worst, plastic last forever. Sandy mentioned a thousand years, well, that is forever to me. To quote (inaudible) who work for the Sacramento based Californian's against waste group. The best thing we can do is change our behaviors and value durability instead of disposability. There is a crisis happening right now. We have got to stop the flow of plastic today. People really want some more organization to fix this problem, but we are the only ones, the only people that can fix it. There is some good news, there is a growing awareness about the harm caused by plastic bags to our population, our environment to marine life and wildlife. It is hard to ignore the daily citings of plastic bags flying around the highways, our own neighborhoods, and in our beaches. Slowly there is acknowledgement of the consequences of global warming and pollution (inaudible) and shipping of these bags to their destinations. This bill will be a strong reminder to our community that we must all link arms, go one step further, and change our harmful habits. Education continues to be needed, however, this bill will inject energy into educating our community to take responsibility for eliminating our dependency on plastic. We all have reusable cloth bags and now is the time to use them. Cloth bags, not paper, nor plastic. Thank you very much. Chair Asing: Thank you. Ms. Kawahara: Thank you and thank you for staying so long also. Chair Asing: Is there anyone else? Mr. Taylor? Oh, I am sorry, we are going to have to take a caption break. There being no objections, the Chair called for a recess at 12:54 a.m. (July 23, 2009). The meeting was called back to order at 1:10 a.m. (July 23, 2009), and proceeded as follows: COUNCIL MEETING - 156 - July 22, 2009 Chair Asing: With that, Mr. Clerk, we had testimony I believe. The rules are suspended. There being no objections, the rules were suspended. Chair Asing: Mr. Taylor? KEN TAYLOR: My name is Ken Taylor. I am very much in support of this bill. I don't think it goes far enough, but it is a start and I hope before it finishes we can get it to be a little stronger. You know, one of the things when you drive down the highways., 90% of the trash that you see along the roadways is plastic bags and fortunately here on the island, we have a lot of groups and individuals that do a lot of pick up along the highway. But if we had to pay to pick this stuff up, it would be a very costly situation, so there is some real benefit, and... so I do hope that we can move this along rapidly and get it in place. And I also support other speakers on this issue tonight, so thank you very much. Chair Asing: Thank you. Is there anyone else? CHARLES BRAUN: Good morning. Chair Asing: Morning. Mr. Braun: I am Charles Braun for the record. Well, I think a ban or reduction law would be too stiff. I think society is turning against the plastic bag to an extent and to an extent that the plastic bag is left is useful (inaudible)... the need for it. When I go the supermarket, I appreciate that the cashier has to spin around between the cash register, the scanner, and the bag and the belt, and I want them to do their job very quickly, so I think that they should have their bags where they are... even though I was thinking that if you do bring a personal bag, you can put that on the belt ahead of your groceries, then she could pick it up quickly or he could pick it up quickly, and put your stuff in it as long as they don't think that you are not shoplifting their bag. But, anyway, the bag has handles, you can tie it and it is waterproof, so you can keep dirty things in it like dirty clothes... you can keep things you might keep clean like books and papers in it... it is just wildly used for around the home. It is one the few free things that we have. So then as far as the social consciousness towards plastic goes, those blue plastic pickup bins are starting to be used and we might eventually have enough to ship off to recyclers where they can reuse the plastic. It doesn't really last forever, but at the same time, it degrades in the process, so the recycling (inaudible) is not quite as long as the original (inaudible), but it is still good plastic for a while. Let's see, more thoughts on it are that... as far as using resources, I mean, I am sure that they use oil, but the alternative of (inaudible) using trees... I think that that is... the paper bag is probably more bulky, you might use more tree material than the plastic uses as oil material. The plastic bags are more consistent and I really (inaudible). But I do agree that they are hard on marine life because they... the COUNCIL MEETING - 157 - July 22, 2009 whales can swallow them and choke... (inaudible) we can pick up the plastic bags from the water and our social consciousness will continue picking things up. We can't pay to have people do everything that has to be done, so the few people that do pick up the bags are appreciated. Chair Asing: Do you want to wrap up please Charles? Mr. Braun: I am checking to see if I can. Pretty much yes. Thank you. Ms. Kawahara: Thank you. Chair Asing: Jimmy? We will take a short break. Everybody in place please. There being no objections, the Chair called for a recess at 1:14 a.m. (July 23, 2009). The meeting was called back to order at 1:15 a.m. (July 23, 2009), and proceeded as follows: Chair Asing: With that, the rules are suspended. There being no objections, the rules were suspended. Chair Asing: Jimmy? JAMES GERARD TRUJILLO: James Gerard Trujillo for the record. Like posting minutes and agendas on the website and having access to your mail, Bill 2321, it is about time. Mahalos for that. I think that you will receive a fair amount of testimony in support of this bill from individuals and families like mine or from organizations like zero waste Kauai or surfrider, Malama Kauai, the Sierra Club, for all the right reasons regarding environmental impacts that plastic bags have. As Mr. Braun suggested, you know, plastic bags serve a purpose, but their usefulness is generally regulated for the trash and in this day and age, there are just some things that we just can't afford to throw away. And I know there might have been a lot of trash talking during this meeting previous... this testimony is in support of the bill. I hope that there are four (4) votes in favor, if not more. I know that as a member of the Solid Waste Advisory Committee, this was identified as one strategy amongst others to reduce the impact in our landfill. Eliminating plastic bags hopefully is just the first step and perhaps Styrofoam containers are next. But I would like to thank Councilmembers Kawahara and Bynum for introducing this. I look for a speedy approval and hope that the Integrated Solid Waste plan somehow there will be approval for additional progressive ordinances and resolutions such as this. Thank you. Chair Asing: Thank you. COUNCIL MEETING - 158 - July 22, 2009 Ms. Kawahara: Thank you. Chair Asing: Is there anyone else? 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: Do we have a motion? Any further discussion? If not, roll call please. The motion for passage of Proposed Draft Bill No. 2321 was then put, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Asing TOTAL - 6, AGAINST PASSAGE: None TOTAL - 0, EXCUSED & NOT VOTING: Kawakami TOTAL - 1. Chair Asing: Next item please? Mr. Nakamura: The next item is Proposed Draft Bill No. 2322. Proposed Draft Bill No. 2322 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (ADU Building Permit deadline extension for non-residentially zoned land): Chair Asing: What I would like to do now is suspend the rules first. There being no objections, the rules were suspended. Chair Asing: Jesse? JESSE FUKUSHIMA: Good morning Councilmembers, my name is Jesse Fukushima. I would just like to ask if someone would clarify the process of which this bill will be going through. As you well know, there are people out there that are directly affected by this... will not provide testimony I think at the appropriate times (inaudible) testimony at the public hearing, at the Planning Commission, or the Council is when you will see people come forth to provide testimony in favor of this extension. Thank you. Chair Asing: Jesse, by policy, the bill goes through the Planning Commission. It is referred to the Commission, the Commission will work on it, and then send it back up again, so that is the process. COUNCIL MEETING - 159 - July 22, 2009 Mr. Fukushima: Would you have an idea Mr. Chairman as to the approximate timetables that would be involved should the bill go into a very smooth traditional state from Council to Planning Commission and back to the Council again. What are the timetables, approximate timetables we are talking about. Chair Asing: Jesse, I don't know, but I tell you what I can do. If you can check with the County Clerk, I am sure that he can help you. Mr. Fukushima: Okay. Chair Asing: To give you some idea as to the possible length of time it will take. Mr. Fukushima: Thank you very much. Chair Asing: Thank you. Mr. Furfaro: I just wanted to say, Jesse, I just checked with the Clerk and we do not, as of tonight, have a date for it to be referred to the Planning Commission, so I reiterate what the Chairman said that you need to be checking with Mr. Nakamura. Mr. Fukushima: Okay, will do. Thank you. Chair Asing: Thank you. Is there anyone else? If not, I would like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Mr. Furfaro moved to refer Proposed Drat Bill No. 2322 to the Planning Commission, seconded by Mr. Chang, and unanimously carried. Mr. Nakamura: The next matter is a bill for second reading. BILLS FOR SECOND READING: Bill No. 2291 - A BILL FOR AN ORDINANCE AMENDING SECTION 8-24.1, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE: Mr. Chang moved for adoption of Bill No. 2291 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Kaneshiro, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Asing TOTAL - 6, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: Kawakami TOTAL - 1. COUNCIL MEETING - 160 - July 22, 2009 Chair Asing: Did we receive 392? Mr. Nakamura: There is no motion on ES-392 Mr. Chair. We received the communication, but... ES-392 Pursuant to Haw. Rev. Stat. sections 92-4, 92-5(a)(2), (4) and (8), and Kauai County Charter §3.07(E), the purposes of this executive session are to consider the evaluation of officers and/or employees where consideration of matters affecting privacy will be involved and associated matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. Chair Asing: We are not going to move into executive session. Mr. Nakamura: (Inaudible) this request, the Council may defer it, may receive it, or whatever the Council wishes at this point. Mr. Furfaro: Why don't we move to receive. Mr. Furfaro moved to receive ES-392 for the record, seconded by Mr. Chang, and unanimously carried. Mr. Nakamura: No further business Mr. Chair. Chair Asing: No further business, the meeting is adjourned. Ms. Kawahara: Hello. Mr. Bynum: Hello, I thought we had an executive session. Chair Asing: No, we don't. Ms. Kawahara: We received this one. Mr. Castillo: She had hers. Ms. Kawahara: I have my own that was discussed earlier, so I would like to request the support of my colleagues to go into executive session at my request. Mr. Nakamura: Mr. Chair, we have actually adjourned the meeting. Chair Asing: We received the item. Mr. Nakamura: This relates to an unanticipated executive session is my understanding. COUNCIL MEETING - 161 - July 22, 2009 Ms. Kawahara: Not anticipated. Mr. Nakamura: My understanding is that this is an executive session separate from the one that was received. Chair Asing: And we voted to receive. Mr. Nakamura: This is an executive session that was unanticipated. Mr. Furfaro: This is an unanticipated executive session that Councilwoman Kawahara is talking about. Mr. Nakamura: We received the posted one. Ms. Kawahara: 392. Mr. Nakamura: Yes. Chair Asing: Let's have the County Attorney up please. Mr. Nakamura: One second Council Chair. Hang on one second. Chair Asing: Al, hold on. Mr. Nakamura: Council Chair, can we take a short recess? Chair Asing: Okay. There being no objections, the Chair called for a recess at 1:25 a.m. (July 23, 2009). The meeting was called back to order at 1:27 a.m. (July 23, 2009), and proceeded as follows: Chair Asing: With that, the rules are suspended. There being no objections, the rules were suspended. Chair Asing: County Attorney? Mr. Castillo: County Attorney Al Castillo. Good morning Council Chair, Councilmembers. The purpose of this executive session is upon request and it is under Chapter 92-5 of the Hawaii Revised Statutes which is to consult with the County Attorney on questions and issues relating to... pertaining to the Council's powers, duties, privileges, immunities, and liabilities. COUNCIL MEETING - 162 - July 22, 2009 Chair Asing: Thank you. I would like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: Pleasure of the group? I will not be supporting an executive session. Mr. Bynum moved to go into executive session, seconded by Ms. Kawahara. Chair Asing: Is there any discussion? Mr. Furfaro: I want to make sure... my take on this is we would need five (5) votes to go into executive session. Chair Asing: Yes. Mr. Furfaro: Okay, and this is at the request o£ Ms. Kawahara: Councilmember Kawahara, myself. Mr. Furfaro: Kawahara and Bynum? Ms. Kawahara: Just Councilmember Kawahara. Mr. Castillo: It is my understanding it is Councilmember Kawahara. Ms. Kawahara: Just me. Mr. Castillo: And under subsection 4. Mr. Chang: So this is an un... Mr. Castillo: Well, it is regarding, you know... first of all, it is regarding something that... this subject matter presented itself during this Council meeting, I don't know what time, what time yesterday. And it is... if I am to frame it correctly, it is Councilmember Kawahara's request to consult with the County Attorney regarding questions and issues pertaining to the Council's powers, duties, privileges, immunities, and liabilities. Chair Asing: Thank you. With that, there is a motion and a second to move into executive session. All those in favor say aye? The motion to move into executive session was then put, and failed by a vote of 3:3 (Chair Asing, Councilmember Chang, and Councilmember Kaneshiro voting "no"). COUNCIL MEETING - 163 - July 22, 2009 Chair Asing: Thank you. Motion fails. The meeting is adjourned. ADJOURNMENT: There being no further business, the meeting was adjourned at 1:30 a.m. (July 23, 2009). Respectfully submitted, ~1 ~ PETER A. NAKAMURA ~ -" County Clerk /lki