Loading...
HomeMy WebLinkAbout08-19-2009 COUNCIL MEETING MINUTES COUNCIL MEETING August 19, 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, August 19, 2009 at 9:07 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Dickie Chang Honorable Daryl W. Kaneshiro Honorable Lani T. Kawahara Honorable Derek S.K. Kawakami Honorable Bill "Kaipo" Asing, Council Chair Excused: Honorable Jay Furfaro Chair Asing: Please note that Councilmember Furfaro will be here this afternoon. He is running a little late and excused (Mr. Furfaro did not attend the meeting because it was done before he arrived.) APPROVAL OF AGENDA: Mr. Kaneshiro moved for approval of the agenda as circulated, seconded by Mr. Kawakami. Chair Asing: Any discussion? Hold on. There being no objections, the rules were suspended. ROB ABREW: Aloha Mr. Council Chair. Twenty-eight (28) days ago we were told the rules. Mr. Chang: Rob, you want to state your name for the record please. Mr. Abrew: Rob Abrew for the record, sorry. Twenty-eight (28) days ago, we were told that the rules that are on file at the County Council Office are the rules that are now being used by this Council. At our last meeting, there was a question about a rule that I addressed and I will read a quote. It says, in the spirit of open government, County Attorney Al Castillo told the Council that the Council rules are merely guidelines. Okay, so now we have this body telling us that they are following the rules. Now we have the Attorney telling us that they are just guidelines and I pull up a definition of a rule. It says a habit of conduct with regard to right and wrong and a guideline says, suggest way of doing something. So for COUNCIL MEETING - 2 - August 19, 2009 you guys to decide if you want to have a rule or a guideline, please let the public know. For months, the Council has been... has debated these rules and how they are followed and no consensus has come out of it. Most of the issues were about the Chair's discretion on how the rules were followed. Some of the rules are ambiguous and debatable for sides to be taken and we have seen sides be taken, but some of these rules are black and white. When we are discussing rules, I would hope that we are just not focusing on certain issues in the rules that can (inaudible) personality, but all the rules. Concerning the agenda is what I am testifying on how the agenda is built. We have rule 15... it said, agenda and priority of business. (A), all communications submitted to the Council shall be time stamped upon receipt and presented to the Council Chair for deposition (sic). (B), all communications to be placed on the agenda must be initialed by the Council Chair and received by the Council, the Office of the County Clerk by 4:30 p.m. on the Friday two (2) weeks proceeding the day of the regular or committee meeting. (C), the Clerk shall prepare and post an agenda for all meetings of the Council and its committees in compliance with the provisions of HRS Chapter 92 HRS. I understand that. That is what our six (6) day notice is, that is what the Sunshine law is, but anything on that agenda per your rule has to be into the office by Friday before at 4:30. It goes onto say, pursuant to Chapter 92 HRS, the Council or committees shall not change the agenda once it is posted, but anything on that posted agenda has to be received by Friday at 4:30, two (2) weeks proceeding. There is a mechanism and Mr. Kawakami brought it up at the last meeting to add things to the agenda. You bring it here, you amend the agenda, you get two-thirds votes, it goes on the agenda. There is one item on the agenda today. Chair Asing: Your first three (3) minutes has gone. I will let you continue for another three (3) minutes. Mr. Abrew: Okay. I am sorry... in its communication 2009-288. That was presented to this body and to the County Clerk, Thursday at about 2:88 or 12:30 on Thursday the 13th which in my opinion should not have been posted on the agenda, should have been brought here, asked to be added to the agenda because it wasn't in by the rule you guys have in your guidelines that we were told you were following and presented here, and then it would be put on the agenda. At that point, there are some Sunshine guidelines that state that you cannot act on that communication or anything like that for two (2) weeks because it will affect a number of people. So that is how the agenda is built. We have solid dates and timelines that are black and white rules. We were told that the Council is following the rules, the County, the CA tells us that they are merely guidelines, so I guess it is up to this body's decision is, are we going to pick and choose the guidelines, are we going to be ethical and say, these are our guidelines as a committee and hold each one of you and either one of you responsible to the oath that you guys took when these were adopted in your Councilmembers... approved as Councilmembers. That is my only thing is, I believe it is an ethical matter, you guys are regulated, you guys are... each one of you in here are supposed to be the check and balance with each other on the Council. You guys Council, you guys oversee, you guys do COUNCIL MEETING - 3 - August 19, 2009 the check and balances, you seven (7) members do that. You are accountable to each other, but you are also accountable to the public. Thank you. Chair Asing: Thank you. Hang on. Mr. Kaneshiro: I have a question for you. Chair Asing: Councilmember Kaneshiro? Mr. Kaneshiro: I understand what you are saying, but at the same point, I want to make it clear that we as this body are not breaking any rules, any laws. Mr. Abrew: I understand you are not breaking any laws. You are breaking a Council rule you guys agreed to follow back in December. You guys, seven (7) members agreed to follow these rules. Two (2) we... or a month ago, the body of the County, the people of the County were told you guys follow these rules. Mr. Kaneshiro: Then there are certain circumstances where there is some real high priority issues that need to be placed on the agenda, so if we follow strictly by the rules, that means that we won't be able to put any of the agenda items if we follow the strict conditions that adhering to. Mr. Abrew: Yes you can. Mr. Kamakani (meaning Mr. Kawakami) addressed that issue. Mr. Kaneshiro: Mr. Kawakami, not Kamakani. Mr. Abrew: I am sorry, excuse my mispron... you can bring it to this body, anyone can bring anything to this body and ask to be added to the agenda if it is something that is very important, it is going to affect a lot of people and that... in Sunshine law rules state that that needs to be no action taken on it. Mr. Kaneshiro: Wouldn't you as a typical person that is out there rather it have it six (6) days where we meet the laws rather than put it on the floor today and have some discussion on it today without any of you having any knowledge that this would be on the floor. Would you rather have that then? Is that what you are saying? Would that... Mr. Abrew: My understanding is if it comes onto the floor today, no action could be taken on it. It would have to be deferred for two (2) weeks, then the public has two (2) weeks, you people have two (2) weeks to look at all the information. I would prefer rather to have the information by the Friday at 4:30, so the Council has a week to go through everything, the public has a week and a half to come down to the thing, and get everything. COUNCIL MEETING - 4 - August 19, 2009 Mr. Kaneshiro: Okay, I got your understanding, but procedurally, that is not true. If we put it on the floor, there could be some, you know, discussion that takes place. So that is your interpretation and we have our laws that we need to follow. Mr. Abrew: Okay. Here is the quote. It says, provided that no item shall be added to the agenda in the matter provided herein if it is of reasonable major importance and action thereon by the body will affect a significant number of persons. Chair Asing: Thank you. Mr. Kaneshiro: Thank you. Anybody else? Chair Asing: If not, I will call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: Councilmember Bynum? Mr. Bynum: I just wanted to say that I understand Mr. Abrew's testimony and, you know, we had lengthy discussion as a body about rules. We have proposal about addressing it under one method and it was the body's decision, but that wasn't the right way to proceed, but there is also, I heard, a commitment for us to address the rules in other fashions, and I trust in due time, you know, we will do that. So I understand Mr. Abrew's concern and I think eventually we may choose as a body to address that. But the body will decide what mechanism will be used, so (inaudible). Chair Asing: Any further comments on this issue? Ms. Kawahara: I had a question for Mr. Abrew. Chair Asing: Go ahead. You want him up? Ms. Kawahara: For just a quick question. Chair Asing: Go ahead. Come up please? There being no objections, the rules were suspended. Mr. Abrew: Thank you. Ms. Kawahara: Of course you do know that we had a large and long discussion about the rules, so I am interested in what you are saying and I heard you mention it also last time, two (2) weeks ago. With your reading of the HRS just COUNCIL MEETING - 5 - August 19, 2009 off the top of your head, if we had just... if we just followed the 92 HRS rules, then we would be in compliance, right? Mr. Abrew: Yes. Ms. Kawahara: Okay, I am just checking to see. I would have looked over it myself, but your understanding without... Mr. Abrew: Notice of the agenda if you do it six (6) days in... in the notice of the agenda. That doesn't come back to decide the times that the County Clerk receives it which is County stated and the State allows County to set procedures on how they receive and record documents. Ms. Kawahara: Okay, so the overriding is 92 and then the Council decides on the time. Mr. Abrew: I am not questioning this rule not abiding with HRS 92. All I am asking for is it is a rule of yours... now you as a body told us we were going to follow the rules and all I am asking is, you guys told us you guys follow through and follow the rules you guys adopted. This rule has nothing to do with any State law. The notice is done correctly. I agree with that. It is the information that is to go on that agenda that is the question here is if we were following the rules, that item I mentioned would not be on the agenda before it came here, and could be introduced here as a body discussed, but it wouldn't... no action could be taken on it until the next meeting. Ms. Kawahara: Okay, and I would say that there is some kind of commitment I think to look at the rules overall as we have been trying to do. Thanks. Mr. Kawakami: And this would be a good rule to look at, but, you know, like I stated at the last meeting, there is a purpose for the rules and it was... and the Charter to protect the people from the politicians, to protect the politicians from other politicians, but...(inaudible-mike not working)... I believe asking people that have been around the block, this particular rule was set in place to protect our staff from the politicians also. Now the Sunshine law is to protect the people (inaudible) notice of items that we place on the agenda, so (inaudible)... we submit testimony. Now this rule was put in place to protect our staff to give them due notice to be able to comply with the Sunshine law. Now there are matters that come up that may be sent over from the Administration, it may be something urgent that is sent over from a Councilmember, but I do believe that there is (inaudible) going to have to be some discretion (inaudible) with these rules, but you are proposing... if you have a solution that you would like to propose, I (inaudible)... will affect the impact that (inaudible) if you were to allow all seven (7) Councilmembers with all seven (7) different agendas to just bombard our staff with potential agenda items on the day that they need to post it to comply with Sunshine COUNCIL MEETING - 6 - August 19, 2009 law. Now there is, you know, consequences for every action and I would just like to take into thought about what impact that would have on our staff: Now this rule is to protect the staff from the politicians and we do have a hard working staff, and if we didn't have that rule in place, I could just imagine the potentially disastrous results that we would have on their workload, so just take that into thought. Chair Asing: Any other questions? If not, thank you very much. I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Mr. Kaneshiro: Thank you Mr. Chair, but Mr. Kawakami made a very good point. There is the issue of how we can get things on the agenda if you think about it and this is the means of being able to get the public to get things into us, give the staff enough time to be able to look over it and at the same time, place it on the agenda. As Mr. Kawakami has stated, you can imagine if we got bombarded by all of these request six (6) days before the agenda? Can you imagine that people? I mean this whole office and this Council Services and even the Councilmembers would be in disarray, so I think it is a good procedure. If you look at it, it has been done for years, you know, this rule has been in place for many years, and I think it is a way to control and be able to get things timely on the agenda as required by the rules of HRS. I would say HRS Chapter 92, so with that. Chair Asing: Councilmember Bynum? Mr. Bynum: Yea, I just want to speak in support of Mr. Kawakami's analysis of that, of this. I mean it is exactly correct and just for the public's information, you know, that is the standard that we try to meet is to meet that two (2) week deadline for all the reasons that you stated. I think Mr. Abrew's point though is that the way the rule is currently stated is kind of absolute, and it is something that we may want to look at in terms of making... still having that standard that under most circumstances, we are going to meet the two (2) week deadline, but as you have said, there are instances where it is in the public's interest and in the efficient running a government's interest to put things on that comply with the Sunshine law. So, you know, I didn't expect to have this discussion today, but I think it is a good one because, you know, we can clarify... perhaps clarify that rule in the future endeavors, but for the public to understand the rationale. Thank you Mr. Kawakami for explaining that. Chair Asing: Thank you. Any further discussion? If not, all those in favor say aye? The motion for approval of the agenda was then put, and unanimously carried. Chair Asing: Next item please? COUNCIL MEETING - 7 - August 19, 2009 Mr. Nakamura: Excuse me. The next matter is approval of the minutes of the following meeting of the Council. MINUTES of the following meetings of the Council: Council Meeting of July 22, 2009 Mr. Bynum moved for approval of the minutes as circulated, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: Mr. Chair, at this time if we could go to page 2 of the Council's agenda on communication C 2009-281. C 2009-281 Communication (08/07/2009) from Council Chair Bill "Kaipo" Asing, informing the Council that the County's Auditor, R.C. Holsinger Associates, P.C., will be present to update the Council on the progress of the 2009-2010 fiscal year audit: Chair Asing: Thank you. With that, I would like to suspend the rules. There being no objections, the rules were suspended. Chair Asing: John? Good morning, how are you? JOHN HOLT, PRESIDENT OF R.C. HOLSINGER ASSOCIATES, P.C.: Good morning. Fine, thank you. Mr. Chair, Councilmembers, Iappreciate you having us here to give you an update of the progress of where we are with the audit of the County of Kauai. Previously, we have met... Chair Asing: For the... Mr. Holt: My name is John Holt. I am President of R.C. Holsinger Associates, the independent auditors for the County of Kauai and I am here with our Honolulu Office with Vivian Vier who is our manager. To give you an update of our status... previously in June, we met with the Department of Finance and laid out a timetable conducting the audit on a timely manner for the current fiscal year. Presently, we are still going through the planning process. We have identified the major Federal funds that we will need to audit during this time period and one of the funds that we are still looking at our the ARRA (American Recovery Reinvestment Act) funds or commonly referred to us as the stimulus money and what needs to be done. The Federal government has designated those funds as high risk funds and require us to audit those funds, so we are in the process of determining the level of that work that needs to be done. High risk does COUNCIL MEETING - 8 - August 19, 2009 not mean that there is a problem with internal controls or that there is an issue. It just means that there is a high level of interest and they want to make sure those funds are being audited. Let's see. The majority of the field work will start in September and it is our intention to meet the reported deadline as of October 21 to have a draft report for Council. We have informed the Department Heads of the audit and the process that is ongoing and we have received back from the departments their correction action plan, and we are in the planning process of reviewing the corrective action plan from last year to see that those procedures are in place. I can note to the Council that all of the items have been addressed in responses to all of the findings, so we are in the process of reviewing those findings. The other thing that we would like to do whenever we meet is to make sure the communication is working when we have been retained by Council and just wanted to know if there was anything in particular that Council had specifically for us to address or to be concerned about. Chair Asing: Thank you. With that, any questions for John? If not, thank you very much. I appreciate your being here. When did you get in? Mr. Holt: Thank you. Chair Asing: When did you get in? Mr. Holt: I got in last night and the rest of the team was here since Monday. Chair Asing: Oh good. Well, take some time to enjoy the island too. We want you to enjoy the island too. Mr. Holt: I appreciate the County being off on Friday to allow me to do that. Chair Asing: Thank you. Mr. Holt: Thank you. Chair Asing: With that, 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 to receive? Mr. Chang moved to receive C 2009-281 for the record, seconded by Mr. Kaneshiro, and unanimously carried. COUNCIL MEETING - 9 - August 19, 2009 Chair Asing: Next item please? ERNESTO PASION, DEPUTY COUNTY CLERK: We are back on page 1. Communications for receipt. Communication C 2009-277, communication C 2009- 278, communication C 2009-279, and on page 2, communication C 2009-280 C 2009-277 Communication (07/14/2009) from the Chief, Engineering Division, transmitting for Council consideration a Resolution establishing a 15 m.p.h. speed limit for the entire length of the Iwipolena Road Extension within the Kekaha Residential Unit 4 Subdivision: Mr. Chang moved to receive C 2009-277 for the record, seconded by Mr. Bynum, and unanimously carried. C 2009-278 Communication (07/24/2009) from the Director of Personnel, transmitting for Council information, the fourth quarter reports (April-June 2009) relative to vacancies, established positions, new hires, reallocations, and promotions: Mr. Chang moved to receive C 2009-278 for the record, seconded by Mr. Bynum, and unanimously carried. C 2009-279 Communication (07/29/2009) from Councilmember Derek S.K. Kawakami, providing written disclosure regarding his oral declaration at the July 22, 2009 Council Meeting of a possible conflict of interest on communication C 2009-253 and Proposed Draft Bill No. 2321 (relating to plastic bag reduction), because of his family's involvement in a retail establishment at which he is employed: Mr. Chang moved to receive C 2009-279 for the record, seconded by Mr. Bynum, and unanimously carried. C 2009-280 Communication (07/31/2009) from the Director of Finance, transmitting for Council information the Period 12 Financial Reports -Statement of Revenues as of June 30, 2009: Mr. Chang moved to receive C 2009-280 for the record, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Next item please? Mr. Pasion: Next item is communication for approval which is communication C 2009-282. C 2009-282 Communication (06/30/2009} from the Chief of Police, requesting Council approval to enter into a software maintenance agreement (with Priority Dispatch Corporation of Salt Lake City, Utah) for two (2) software programs that the Radio Dispatchers are trained to use when handling medical E-911 calls, and to indemnify Priority Dispatch Corporation as stated in the service agreement: Mr. Kawakami moved to approve C 2009-282; seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? COUNCIL MEETING - 10 - August 19, 2009 Mr. Pasion: The next item is another communication for approval, C 2009-283. C 2009-283 Communication (07/23/2009) from the Fire Chief, requesting Council approval to establish one (1) Temporary As Needed (TAN) operator position for the newly acquired brush truck assigned to Hanapepe Fire Station: Mr. Kawakami moved to approve C 2009-283, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Pasion: The next item is a communication for approval. Communication C 2009-284. C 2009-284 Communication (07/31/2009) from the Executive Assistant, Kauai County Housing Agency requesting Council approval of the following: 1) the repurchase of Hookena at Puhi Unit No. 602, located at 2080 Manawalea Street, Lihu`e, Hawaii, for $277,690.00; 2) the leasehold resale of Hookena at Puhi Unit No. 602 for $199,900.00; and 3) authorization of the County Clerk to sign legal documents related to the repurchase and resale transactions: Mr. Chang moved to approve C 2009-284, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Next item please? Mr. Pasion: The next is a communication for approval. Communication C 2009-285. C 2009-285 Communication (07/31/2009) from Beth Tokioka, Executive Assistant to the Mayor, requesting Council approval to accept and expend $4,000.00 from the National Oceanic Atmospheric Administration (NOAA) National Marine Sanctuary Program to the County of Kauai to initiate a "Preserve America" community project to frame and display six (6) to eight (8) historic documents for public viewing and enjoyment: Mr. Kaneshiro moved to approve C 2009-285, seconded by Ms. Kawahara, and unanimously carried. Chair Asing: Next item please? Mr. Pasion: On the top of page 3 is a communication for approval. C 2009-286 Communication (07/31/2009) from the Executive Assistant, Kauai County Housing Agency requesting Council approval of the following: 1) the repurchase of 4876-B Nunu Road, Kapa`a, Hawaii 96746 for $166,900.00; COUNCIL MEETING - 11 - August 19, 2009 2) the leasehold resale of 4876-B Nunu Road, Kapa`a, Hawaii 96746 for $201,500.00; and 3) authorization of the County Clerk to sign legal documents related to the repurchase and resale transactions: Mr. Chang moved to approve C 2009-286, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter on page 3 is communication C 2009-287. C 2009-287 Communication (08/03/2009) from the Housing Director, requesting Council approval of the following: 1) the purchase of 4914 Aliali Place, Kapa`a, Hawaii 96746 for $213,741.00; 2) the leasehold resale of 4914 Aliali Place, Kapa`a, Hawaii 96746 for $201,500.00; and 3) authorization of the County Clerk to sign legal documents related to the repurchase and resale transactions: Mr. Chang moved to approve C 2009-287, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: On page 3 communication C 2009-288. C 2009-288 Communication (08/13/2009) from Council Chair Bill "Kaipo" Asing, requesting Council approval of the following: 1) a proposed schedule relating to the County Auditor selection process; 2) appointment of a 3-member Selection Committee to screen applicants; and 3) deadlines and dates for receiving applications, screening of applications, executive session interview of finalists, and final adoption of a resolution appointing the auditor: Chair Asing: What I would like to do is just explain a little bit. You know, based on the overwhelming response from the community, the residents of Kauai voted to establish the Office of the County Auditor in 2008. In order to comply with the Charter, the Council has begun the process to select the County Auditor. According to the Charter, the Office of County Auditor will be established within the legislative branch. The duties of the auditor is to conduct or cause to conduct independent annual and bi-annual of all County funds and accounts to be considered by a Certified Public Accountant or firm conduct performance audits of funds, programs, and operations of any agency or operation of the County as requested by the Council by resolution. And also conduct follow up audits and monitoring of compliance with audit recommendations by audited entities. So what we have done is we did check with other islands and the Board of Water Supply in their method of picking the... as an example, the engineer for the director for the Board of Water Supply, the Police Department. We also checked with the Big Island who just went through the picking of the auditor there, and so the process that we COUNCIL MEETING - 12 - August 19, 2009 are following is a combination of all of those entities. We are trying to find a good, fair method, and that is the reason we are using the method that we are using to select the auditor. With that, Councilmember Kaneshiro? Mr. Kaneshiro: You know, looking at this, I would recommend, in fact that the three (3) member selection committee be... to screen the applicants would consist of the Chair, the Vice Chair, and also the Chair of Public Works/Elderly Affairs. The reason for that is that Public Works is... the Public Work's Department is one of the largest departments in the County, so it would be prudent to at least have the Chair of Public Works Committee sit on this selection committee also, so that would be my recommendation. And what they would do is they will screen the resumes and provide the names to the Council, to the full Council of the three (3) finalists after they have gone through this process, come before, and give the full the Council, you know, who will interview the three (3) finalist, and finally make a final selection via a resolution. So, you know, in discussion, I thought this might be the procedure that we could follow and use and in doing so, you know, we fall within the HRS 92-2.5(b-la and b), so we will also be meeting those requirements under the HRS. So, you know, for discussion purposes, I think, you know, that would be the way I think perceive maybe perhaps, so we could take this up and (inaudible). Chair Asing: Can I have a second? Ms. Kawahara: Second. I think it is very logical and well presented. Mr. Kaneshiro: Mr. Mickens I guess wanted to say something. Chair Asing: With that, Glenn? There being no objections, the rules were suspended. GLENN MICKENS: Thank you Kaipo. For the record, Glenn Mickens. In your testimony, Kaipo, I believe I heard you mention performance audit. Does that have anything to do with the performance audit that you guys okayed the $500,000 for maybe five (5) years ago? Chair Asing: Pardon me. I am sorry. Mr. Mickens: You mentioned, I believe in your testimony, performance audit in this thing. I am not sure I understand... over the years, I have never seen you guys have to put this out or have a committee to decide who is going to be on this. Chair Asing: It is unusual because this is the first time we are doing this. COUNCIL MEETING - 13 - August 19, 2009 Mr. Mickens: Right. Chair Asing: We are having an auditor for the legislative branch and we have never had that before. So what we tried to do was look elsewhere and we did look at the Big Island. The Big Island, I believe, two (2) years ago, did establish the Office of the Auditor, so we are kind of following their process and this is the process that they have used, and we think it is a good process. We also checked with the Department of Water on the process they used. We checked with the Police Department on the method they used, and we took a kind of a combination of all of that and that is the reason we are using this method. Mr. Mickens: In the past, I never saw any problem with the way... there weren't that many auditors I believe... when you had an auditor come in, each year I believe... Chair Asing: This is permanent. It is not a temporary thing. I mean you voted for it. Mr. Mickens: Right, right. Chair Asing: You know, it is a Charter amendment that we are following. Mr. Mickens: Then my question was, is this related to the moneys, the $500,000? Chair Asing: No. Mr. Mickens: You mentioned performance audit. This is going to be a true performance audit then that this office will come in? Chair Asing: It is the Office of the Auditor. We will be hiring an auditor, he will have an office here, and he will be performing audits. He would have a staff to help him do his work, so there are a lot of things that the auditor will be doing. Mr. Mickens: But it is separate from the moneys that you appropriated for a performance audit. Chair Asing: Exactly. Mr. Mickens: Okay, that is where my confusion was in this. Okay, thank you Kaipo. Chair Asing: Thank you. With that, I'd like to call the meeting back to order and I believe we did not... COUNCIL MEETING - 14 - August 19, 2009 Mr. Kaneshiro: Also, I wanted to make a clarification on the attachment of this communication. If you look at the communication in the back pages of 2009-288, on item c, it is stated that the ad was placed in the Honolulu Star Bulletin and not the Honolulu Advertiser. So I want to make it clear that it was placed in the Honolulu Star Bulletin and not the Honolulu Advertiser. It is just for clean up because I guess if you look at the communication in the back pages, it mentions the Honolulu Advertiser just for clarification. Chair Asing: And the Garden Island. Mr. Kaneshiro: But that wasn't a mistake, that was correct. Chair Asing: Go ahead. Ms. Kawahara: Chair, thank you Chair. Could I ask if you would also address and looked at the way that the State does their hiring practices when you had gone out to see how other people had done it? Chair Asing: Yes. Ms. Kawahara: Okay, because I know we use a weighting kind of thing and a rating thing, and it seems to work really well, so I was wondering if that was going to be... how it would be done with the weighting factors. Okay, thank you. Mr. Kaneshiro: So with that, if I could Mr. Chair, I want to make a motion to approve the schedule for the County Auditor selection process, deadlines and dates, and the three (3) member screening committee consisting of the, again, Council Chair, Council Vice Chair which would be Mr. Furfaro and the Chair of the Public Works/Elderly Affairs Committee which would be Mr. Bynum. Mr. Kaneshiro moved to approve C 2009-288 (approving the schedule for the County Auditor selection process, deadlines and dates, and appointing the three (3) member screening committee consisting of the Council Chair, Council Vice Chair, and the Public Works/Elderly Affairs Committee Chair), seconded by Mr. Kawakami. Chair Asing: Any further discussion? Councilmember Bynum? Mr. Bynum: I appreciate the work that the Chair has done to set up this process. I think it is a good one and, you know, just to clarify for Glenn and any other members of the public. In the past, the Council has funded maybe money for a consultant to do an audit. This is what the voters asked us to do is to create an office, a permanent Office of the County Auditor under the legislative branch which will supervise financial audits, but also do performance audits based on request I think from the Council, and this is a permanent position. In this year's budget, COUNCIL MEETING - 15 - August 19, 2009 there is funding for the position for staff and a budget because that staff may choose to use the outside consultants for whatever performance audits that the Council chooses. So it is a very significant change in terms of providing accountability to the public for the work that is done by the County of Kauai and it is something that I fully support, and I think everybody here does. Chair Asing: Thank you. Any further discussion? Councilmember Kawakami? Mr. Kawakami: Just a comment and, you know, correct me if I am wrong, but I guess historically, how many performance audits have been called, maybe one performance audit, and it is in our power to enact audits. I mean that is the Council's duty, so, I mean, like you said, this is what the voters voted on. Along with this auditor and a salary, there is going to be a number of staff, but, you know, my question pertains to the process. And say hypothetically, we only have three (3) applicants, does that mean that the work of this committee is done because it just goes up to three (3) finalists or do they still screen them, and come back with a recommendation as to, you know, like the weighing factor, you know, of the three (3) finalists seem to perform better or... Chair Asing: Let me just do it this way. I think we would have to kind of play that by ear, but I would think that the screening committee would like to sit down and even if it is three (3) at least talk, discuss the applicants and possibly when they bring it to the full Council, at least the Council will have a little more information. Mr. Kawakami: Thank you. Chair Asing: Any further discussion? Councilmember Bynum? Mr. Bynum: Yes, just one further clarification. This was placed on the Charter by Council resolution that was introduced by Councilmember Furfaro and I believe unanimously carried. So the initiative of this came from the Council based I think on, you know, input from the community, former Councilmembers over the period of time, so I just want to make that clarification. Chair Asing: Thank you. Ms. Kawahara: Chair, is it okay if I do some submit the rating factors type of paperwork that we use at the State? Chair Asing: Sure. Ms. Kawahara: Because I found it very useful. Chair Asing: Okay, that would be helpful. COUNCIL MEETING - 16 - August 19, 2009 Ms. Kawahara: Okay, thank you, so I will be submitting that at a later date. Thanks. Chair Asing: Any further discussion? If not, all those in favor say aye? The motion to approve C 2009-288 and appoint the 3-member screening committee was then put, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for Council approval is a LEGAL DOCUMENT: C 2009-289. LEGAL DOCUMENTS: C 2009-289 Communication (07/28/2009) from the Emergency Management Officer, requesting Council approval to enter into a license agreement between the County of Kauai and Bank of Hawaii "Trust Services" which extends the lease of the County's 800 MHz radio site located on a site known as Kukuiolono Park in Kalaheo which expired on June 30, 2009, and automatically extends the lease for three (3) years until June 30, 2012 as follows: • First Amendment of License Agreement: Mr. Bynum moved to approve LEGAL DOCUMENT: C 2009-289, seconded by Mr. Kawakami. Ms. Kawahara: Chair? Chair Asing: Yes. Ms. Kawahara: I do have discussion, but I was hoping that a representative was going to be here from the... Chair Asing: Do we have anyone here? Mr. Nakamura: We don't Council Chair, but what we could do is we could see if we can locate somebody from the Civil Defense Agency and move this to the end of the agenda and go to the next matter. Ms. Kawahara: Thank you. Chair Asing: I will move this to the end of the agenda and get them here. Ms. Kawahara: Thank you. COUNCIL MEETING - 17 - August 19, 2009 Chair Asing: Thank you. Mr. Nakamura: The next LEGAL DOCUMENT for approval on page 4 is attached to communication C 2009-290. C 2009-290 Communication (07/29/2009) from the Executive on Transportation, Transportation Agency, transmitting for Council approval a recommendation to indemnify the landowners to establish a bus stop on Island School's property as follows: • Right-of--Entry Agreement by and between Island School and the County of Kauai for the Kauai Bus to establish a bus stop on their property: Mr. Chang moved to approve LEGAL DOCUMENT: C 2009-290, seconded by Mr. Kaneshiro. Chair Asing: Any discussion? Mr. Chang: Yes Mr. Chair. Chair Asing: Yes, go ahead. Mr. Chang: I'd like to thank Janine Rapozo and her staff. I have had some calls from some concerned parents from Island School. The bus presently stops at the Kauai Community College in front of the one stop center which I believe... but there is construction going on for the new located book store, so with that construction, the children are having a hard time crossing the campus to get to get to Island School. So consequently, many of them have to walk along side of the road, and that is minimum of about 10 to 12 minute of a walk. So there are many, many parents... I know Charlie Cowden up from the northshore and many on the westside really are very appreciative of this bus stop and especially in light of coming around the corner to our winter season. You know, I think it would be great for in climate weather that the children get dropped off right in the front of Island School, so I just want to take this time to thank our Transportation Department, Janine Rapozo, and her staff' for making this happen. Chair Asing: Thank you. Mr. Chang: Thank you. Chair Asing: Any further discussion? If not, all those in favor say aye. The motion to approve LEGAL DOCUMENT: C 2009-290 was then put, and unanimously carried. Chair Asing: Next item please? COUNCIL MEETING - 18 - August 19, 2009 Mr. Nakamura: The next LEGAL DOCUMENT is attached to communication C 2009-291. C 2009-291 Communication (08/03/2009) from the Environmental Services Management Engineer, Public Works, Solid Waste Division, requesting Council approval of the right-of--entry agreement and indemnification of Kekaha Agriculture Association as follows: • Right-of--Entry Agreement (to permit an area for the County and its contractors to conduct beverage container redemption operations): Mr. Bynum moved to approve LEGAL DOCUMENT: C 2009-291, seconded by Ms. Kawahara, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matters are CLAIMS. CLAIMS: C 2009-292 Communication (07/30/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Peggy Ellenburg-Pettler on behalf of Miriam Pettler for medical expenses, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Kaneshiro moved to refer C 2009-292 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Mr. Bynum, and unanimously carried. C 2009-293 Communication (08/04/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Kira Seabury for medical expenses, loss of pay, and pain and suffering, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Kaneshiro moved to refer C 2009-293 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Mr. Bynum, and unanimously carried. COMMITTEE REPORTS: ECONOMIC DEVELOPMENT/HOUSING COMMITTEE REPORT: A report (No. CR-EDH 2009-08) submitted by the Economic Development/Housing Committee, recommending that the following be received for the record: "EDH 2009-6 Communication (7/13/2009) from Dickie Chang, Committee Chair, requesting that the Director of Economic Development be present to provide an update on the Kauai Marathon," Mr. Kaneshiro moved for approval of the report, seconded by Ms. Kawahara, and unanimously carried. COUNCIL MEETING - 19 - August 19, 2009 PARKS/TRANSPORTATION COD~IlVIITTEE REPORT: A report (No. CR-PKT 2009-02) submitted by the Parks/Transportation Committee, recommending that the following be received for the record: "PKT 2009-1Communication (7/23/2009) from Randy Wichman (on behalf of the Board of Directors of Hui Malama O Kaneiolouma), requesting agenda time to brief the County Council with a historical overview of the Po`ipu Beach Mauka Preserve, Kaneiolouma Heiau Complex," Ms. Kawahara moved for approval of the report, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The matter on page 5 is a resolution which is Resolution No. 2009-51. RESOLUTIONS: Resolution No. 2009-51, RESOLUTION ESTABLISHING SPEED RESTRICTION FOR IWIPOLENA ROAD, WAIMEA DISTRICT, COUNTY OF KAUAI: Mr. Kawakami moved for approval of Resolution No. 2009-51, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 6, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: Furfaro TOTAL - 1. Chair Asing: Can we have the County Attorney up please? There being no objections, the rules were suspended. EXECUTIVE SESSION: Pursuant to Haw. Rev. Stat. ("H.R.S.") §92-7(a), the Council may, when deemed necessary, hold an executive session on any agenda item without written public notice if the executive session was not anticipated in advance. Any such executive session shall be held pursuant to H.R.S. §92-4, H.R.S. §92-5(a), and Kauai County Charter §3.07E. (Confidential reports on file in the County Attorney's Office and/or the County Clerk's Office. Discussions held in Executive Session are closed to the public.) ALFRED B. CASTILLO, JR., COUNTY ATTORNEY: Good morning Council Chair, Councilmembers, for the record Al Castillo, County Attorney at your service. Mr. Bynum: Good morning. Ms. Kawahara: Good morning. Mr. Castillo: So just for clarification, are we on page 5? COUNCIL MEETING - 20 - August 19, 2009 Mr. Chang: Yes. Mr. Castillo: Okay, so this is in regard to... I am requesting guidance from the Council Chair. Chair Asing: Yes, go ahead. Mr. Castillo: And the reason why I am requesting guidance is because I have 1, 2, 3, 4, 5 matters under executive session and basically all of the wording are basically the same, so I would like permission to combine all of this and read it at all one time. Chair Asing: Please do. Mr. Castillo: Okay, thank you. This is in regard to ES-394, ES- 395, ES-396, ES-397, and ES-398. ES-394, ES-395, ES-396, ES-397, and ES-398: Pursuant to Haw. Rev. Stat. §§92-4 and 92-5(a)(4) and (8); and Kauai County Charter §3.07(E), the purpose of this executive session is to consult with the Council's legal counsel to receive legal updates, overviews, and recommendations for purposes of obtaining Council approval of proposed settlement of a workers' compensation claim, and evaluate employees' ability to return to work. This deliberation and/or decision making involves matters that require the consideration of information that must be kept confidential as, inter alia, it concerns significant privacy interests. The significant privacy interests relate to a medical history, diagnosis, condition, treatment, or evaluation and which, pursuant to state or federal law, including Health Insurance Portability and Accountability Act, are protected from disclosure. The meeting was called back to order, and proceeded as follows: Chair Asing: Before I call for a motion to move into executive session, I am going to take a short recess because I believe we may have someone here for the item that Councilmember Kawahara wanted to handle, so we will take a short five (5) minute break. Mr. Castillo: Thank you. There being no objections, the Chair called for a recess at 9:55 a.m. The meeting was called back to order at 10:05 a.m., and proceeded as follows: Chair Asing: With that, Alton, can you come up? Peter, you want to read that item again please? COUNCIL MEETING - 21 - August 19, 2009 Mr. Nakamura: Mr. Chair, we are back on page... I am sorry, on a LEGAL DOCUMENT on the bottom of page 3 of the Council's agenda which is communication C 2009-289. C 2009-289 Communication (07/28/2009) from the Emergency Management Officer, requesting Council approval to enter into a license agreement between the County of Kauai and Bank of Hawaii "Trust Services" which extends the lease of the County's 800 MHz radio site located on a site known as Kukuiolono Park in Kalaheo which expired on June 30, 2009, and automatically extends the lease for three (3) years until June 30, 2012 as follows: • First Amendment of License Agreement. Chair Asing: Thank you. With that, maybe you want to explain the program first. There being no objections, the rules were suspended. ELTON USHIO, CIVIL DEFENSE: This lease is for one of the tower sites for our... I am sorry, Elton Ushio, I am with the Civil Defense. I am the Grant Coordinator currently acting as Plans and Operations Officer. Okay, this lease agreement is for one of our tower sites for our 800 MHz radio system and while I haven't personally worked in the administration of this particular lease or in this area, I know that we have a number of sites and a number of agreements for our various towers around the island. Chair Asing: Okay, thank you. Ms. Kawahara: Thank you. Thank you Chair Asing. Thank you Elton for coming over. The reason why I brought... ultimately, I am going to approve... I am going to vote to approve this, but I did have questions. It came up during budget and one of the question was... I understand that this is one of the backbones of your radio service. You do have several and in the budget, though, we had looked at the amount that was being paid for that particular site and it seems it is about 69% of the whole budget for these MHz and radio site leases, so it just stuck out a little bit, so I was wondering if there weren't negotiations because it came up on the 30th, and it was... it is going to be ultimately renewed. If there was a way that I would send a communication or something about finding out about other sites since it was so high. Mr. Ushio: Two (2) prong question. The first one about the negotiations. My understanding is that on the County's end, negotiations were handled via our Civil Defense Administrator and our Director of Finance on the County's behalf with the... I believe Bank of Hawaii was negotiating on the part of the landowner. As far as the second part about alternate sites, I would imagine that would be an issue that I would have to bring up for discussion with our Administrator and our Telecom Administrator as well, and as well as the various COUNCIL MEETING - 22 - August 19, 2009 public safety and different user agencies that use the 800 MHz radio system and the contractor that provides the service. Ms. Kawahara: Thank you and it is just a three (3) year contract is what I am reading, and, again, because it just pops out because the monthly rate for this particular site is more than the yearly rate for three (3) other sites, and they are also the 800 MHz sites mostly. So thank you for coming in and I will just send a communication to ask about maybe looking at alternate sites and if it is just the reason is because there is no other way and other place to put it, I would just like to see that. Thank you very much. Mr. Ushio: Thank you. Chair Asing: Thank you. With that, I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: I believe we have a motion and a second. Any further discussion? Councilmember Bynum? Mr. Bynum: Yea, just to say that I would be interested in understanding that communication because these sites... this site seems to be ten (10) times what... more than ten (10) times what some of the other sites lease is and I can't recall what the answer was, so I appreciate that we will get a communication. Chair Asing: Any further discussion? If not, all those in favor say aye? The motion to approve LEGAL DOCUMENT: C 2009-289 was then put, and unanimously carried. Ms. Kawahara: Thank you. Chair Asing: With that, what I would like to do is have a motion to move into executive session as stated by the County Attorney. Mr. Bynum moved to go into executive session on items ES-394, ES-395, ES-396, ES- 397, and ES-398, seconded by Mr. Chang, and unanimously carried. Chair Asing: We are going to wait until the parties arrive for the executive session, so we will be in recess... why don't we just... why don't we do this, we will be in recess until 1:30, and at 1:30, we will take up the public hearing of two (2) items. Thank you. COUNCIL MEETING - 23 - August 19, 2009 There being no objections, the Chair called for a recess at 10:10 a.m. The meeting was called back to order at 11:42 a.m., and proceeded as follows: ADJOURNMENT: There being no further business, the meeting was adjourned at 11:42 a.m. Respectfully submitted, ~ ---~ PETER A. NAKAlVIURA County Clerk /lki