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HomeMy WebLinkAbout12-01-2010 Inaugural Meeting Minutes INAUGURAL MEETING December 1, 2010 The Inaugural Meeting of the Council of the County of Kauai was called to order by Mayor Bernard P Carvalho, Jr., at the Kauai War Memorial Convention Hall, Mhu`e, Kauai, on Wednesday, December 1, 2010 at 12:05 p.m. Mayor Carvalho• I hereby appoint Peter Nakamura as temporary County Clerk. Are the credentials of the Councilmembers in order? Mr Nakamura. The Credentials Committee has filed a report which shows that the credentials of the Councilmembers are in order and that the oath of office has been given. Mayor Carvalho• Mr Clerk, please call the roll. The following members answered the call of roll: Honorable Tim Bynum Honorable Dickie Chang Honorable Jay Furfaro Honorable Derek S.K. Kawakami Honorable Nadine K. Nakamura Honorable Mel Rapozo Honorable JoAnn A. Yukimura Honorable Jay Furfaro APPROVAL OF THE AGENDA. Mayor Carvalho: If there's no objections, the agenda is approved. The floor is now open for nominations for Council Chair APPOINTMENT OF COUNCIL CHAIRPERSON. Mr Kawakami nominated Jay Furfaro as Council Chair, seconded by Ms. Nakamura, and unanimously carried. Mayor Carvalho Chair Furfaro, I officially relinquish my title now as Chair of this Council and congratulations. Mayor Carvalho relinquished chairmanship of the meeting to Chair Furfaro Chair Furfaro. Mahalo and thank you very much for the vote of confidence by the members of the newly elected Council and congratulations as well to Mayor Carvalho for opening this meeting. As we step forward, I will now entertain nominations for Vice Chairman of the County Council. The floor is open for nominations. 2 COUNCIL MEETING December 1, 2010 APPOINTMENT OF COUNCIL VICE-CHAIRPERSON. Mr Bynum nominated JoAnn Yukimura as Council Vice Chair, seconded by Mr Chang, and unanimously carried. Chair Furfaro. On that note we are going to entertain a Resolution appointing the County Clerk. Mr Nakamura would you read a Resolution and I believe it might be amended.. Okay, thank you. I'm sorry I would like to recognize Councilwoman Nadine Nakamura, she would like to share a recusal letter with the body Nadine the floor is yours. Ms. Nakamura: Thank you Chair Furfaro. I just want to formally recuse myself from voting on Resolution No. 2011-01. Peter Nakamura is my brother in-law and I want to thank you for respecting my wish to not participate directly or indirectly on this vote. Chair Furf'aro: Thank you very much and make note we have a record as submitted on the recusal. I would like to now move towards the Resolution and I believe it may need to be amended. Ms. Nakamura was noted as excused from the meeting. Mr Nakamura. First Resolution Mr Chair is Resolution No 2011-01. RESOLUTIONS. Resolution No. 2011-01, RESOLUTION APPOINTING THE COUNTY CLERK OF THE COUNTY OF KAUAI. Mr Chang moved to approve the resolution, seconded by Mr. Rapozo. Mr Kawakami: Mr Chair? Chair Furfaro: Mr Kawakami. Mr Kawakami moved to amend Resolution No. 2011-01 as shown in the Floor Amendment attached hereto, seconded by Mr Rapozo. Chair Furfaro: It has been moved and seconded to approve Resolution No. 2011-01 as amended, now it is up for discussion. Mr Bynum. Mr Chair? Chair Furfaro: Yes Mr Bynum. Mr Bynum. Although it's a very difficult decision, I believe that there are significant unresolved issues regarding the Clerk and unfortunately I will not be able to support his nomination at this time and I would like to place a document into the record with some explanation for some of the reasons. 3 COUNCIL MEETING December 1, 2010 Chair Furfaro: So noted that there will be written narrative entered into the record by Mr Bynum. Is there any further comments on these amendments before I ask if there's public comment? Councilwoman Yukimura. Ms. Yukimura. Yes Mr Chair, regretfully I too must vote against the Resolution. I have also prepared a written statement explaining my position and I would like to have it entered in the record as well. In respect for today and the ceremonies that bring us all here together, I don't want to say anything further at this time. I'll leave it that, thank you very much. Chair Furfaro: Thank you Vice Chair Yukimura. Would the County Clerk's Office please so note that there will be additional written narrative placed into the record. I will now take any comments from the public if you so desire. Is that your purpose Mr Mickens? There being no objections, the rules were suspended. GLENN MICKENS Yes. Chair Furfaro Please come right up to the mic. Mr Mickens: Thank you Jay and congratulations on becoming Chair, JoAnn for becoming Vice Chair My name is Glenn Mickens for the record and I have a short testimony I would like to read for the record. I come here today to support the reappointment of Peter Nakamura as our County Clerk. Since Peter was appointed as our County Clerk, I believe it was twelve (12) years ago, I have found our Clerk's Office to be one of the most efficiently run in our County Government. Peter oversees an outstanding group of people who are accommodating, efficient and effective in handling the needs of the public, bills, communications, Resolutions and distributions of testimonies to the Council. Due to Peter's extremely efficient method of operating the Clerk's Office, I see no reason to spend tax dollars to bid for a new Clerk. As John Hoff wrote in yesterday's forum column, if it isn't broke, don't fix it. Also I would like to ask this new Council to amend two (2) Sections of the rules of the Council. Rule 10A introduction states, any Bill or Resolution may be introduced by any member; however, rule 10C placement on agenda states all Bills and Resolutions must be initialed by the Council Chair in order to be placed on the agenda. The net effect of these two (2) rules to give the Chair a veto power over the introduction of any bill or resolution. Our elected representatives should have the absolute power to initiate agenda items. Rules 15B gives the Council Chair the same veto power over communications and thus could keep any member, any one of you members. from getting their item on the agenda. This veto power is also unjustified and should be eliminated. Thank you Jay Chair Furfaro: Thank you Glenn and because you have a little bat more freedoms, I will wait until I get to item seven (7) to address your questions and what our intents are when we get to the rules but for right now, we're dealing with the appointment and I appreciate your comments and the record will reflect as such but I will answer your rules question when we get there Mr Mickens: Thank you, I've always been most grateful that you have been capable of always answering the public's questions, thank you. 4 COUNCIL MEETING December 1, 2010 Chair Furfaro- You're quite welcome. If there is no further testimony, I would like to Oh. go ahead. Judge Laureta, please. ALFRED LAURETA. The amended Resolution includes the name of the proposed Clerk, is that correct? Peter Nakamura? Chair Furfaro: That's correct. Mr Laureta. I'd like to say at the outset that I support the Resolution, however, I would like to add these comments. Honorable members of the Council and Mr Chairman. Aloha and congratulations upon your election to the County Council. I am prompted by what I read in The Garden Island relating to the subject of how the County Clerk should be selected. Editorials advocating any point of view bear a lot of weight among its readers especially when an opposing point of view is lacking. Any suggestion that the selection of our County Clerk be referred to an executive search group assumes that the Council lacks the courage, the know-how and ability to make its own evaluation and decision as to who would be the best to carry out the functions and mission of the County Clerk as spelled out in our Charter The Council has the responsibility The excuse for avoiding this responsibility is supposedly the elimination of that bad words politics. Politics will be there unavoidably no matter whether any appointment is made by the Council in executive session, unanimously or by majority vote, or by an executive search group The appointment is political if you disagree with the selection. It is not politics if you agree. The people voted seven (7) members of the Council, there is more than enough brains, education and experience among you to conduct your own evaluation and make your own decision as to whom to appoint without outside political help Add to that, many of you have had the advantage of actual personal contact and experience with the character and personality of our current County Clerk and possibly that of other candidates under consideration. Go ahead and do that which we know you can and will do. If you choose to go the route of an executive search firm or group, I'd like to volunteer my services without pay to serve on that group Chair Asing: Thank you Judge Laureta. Mr Taylor, you wish to speak? The floor recognizes you. KEN TAYLOR. Thank you Chair and members of the Council, my name is Ken Taylor I first like to congratulate you Jay and Councilmembers for your reelection and election to the Council. I stand here today in favor of Resolution No. 2011-01 in support of Peter Nakamura for this position of County Clerk. My short years being here on the island, I've always found Peter and his staff to be extremely helpful in anything that's been asked of them and I highly recommend that you all vote accordingly Thank you. Chair Asing: Sir, Mr Stoessel please come up Mr Taylor thank you very much. HORACE STOESSEL. Good afternoon Councilmembers. I'd like to make two (2) points briefly This paper reported this morning that the County 5 COUNCIL MEETING December 1, 2010 Clerk is one of the highest paid employees in the County To state the matter more precisely, the County Clerk has the same salary as most other department heads. Here is how the salary of the County Clerk rose from a lower tier to the highest tier of Department Head salaries. When I served on the Salary Commission in 2004, the Commission spontaneously and independently decided to propose that the Salary of the County Clerk should match the salary of most other Department Heads. The decision was based on two (2) factors. First, a review of the responsibilities of the County Clerk. Second, the professional and timely service provided to the Commission by Peter Nakamura and his staff. My personal experience during the past decade matches that of the Commission. Peter Nakamura and his staff have responded promptly and professionally when I have requested information or documents. Second (2) point, even if there are grounds for not reappointing Mr Nakamura, and I have not heard from Councilmembers or The Garden Island that there are any such grounds, that would in no way give credence to the idea of spending taxpayer money to hire an executive search firm. The Mayor is proposing to re-hire the County Attorney Would those who advocate hiring an executive search firm to help find a County Clerk also advocate hiring an executive search firm to help the Mayor and Council find a County Attorney? Thank you. Chair Furfaro: Mr Stoessel, I also want to thank you for your volunteer services on the Salary Commission, thank you sir and thank you for your testimony Before I'm prepared to call this meeting back to order, we have an amended Resolution. oh excuse me. Mr Belles. You have the floor sir MIKE BELLES Good afternoon Mr Chairman, members of the County Council. First of all congratulations to all of you and reelection for others. In thirty-five (35) years of being an active attorney and practicing law in this community fifteen (15) years of which was with the County Attorney Office, I've never felt compelled before to offer testimony in support or against any particular appointee until I read the paper today and I know that all the things in the paper are not necessarily the gospel truth but it did concern me that there was some dissention or there were some possibility of not confirming Mr Nakamura. I personally have known him for over two (2) decades and in fact in my last term as County Attorney in 1988-1990, he was for part of that time Planning Department Director and subsequent to that he went on to be Housing Director and for the last ten (10) years, he's been serving as County Council and I think it's important to point out that. my testimony has nothing to do with the amount of money any particular person gets but it goes to the degree of difficulty of the position held by the individual and here we have an individual that's behold (inaudible) one (1) boss but seven (7) bosses. And its a very difficult line to walk to maintain confidences, to maintain and respect privileges that attach to the office and to the individuals, and yet serve the body as a whole enforcing the will of the majority while respecting the rights of the minority, it's a very difficult task to do while at the same time following the direction of the County Council Chair In my experience and all my 6 COUNCIL MEETING December 1, 2010 years of observing Mr Nakamura, he's always done that very dutifully In addition to his high ethical moral integrity, I'd like to add that in terms of his sure intellect, I've always considered him, I don't use this phrase often as describing people as a true renaissance man. He's an enlightened individual with a varied background in government, widely read, and somebody that we should be very happy to have, being willing to serve this community I believe he served the community well for the last twenty (20) years and I think it would be a shame for ham not to continue in the current position and I'm very happy that he's willing to offer up his services. I'll just close by saying, I feel like I'm preaching to the choir because you all know him, you've all worked with him, in some cases you've worked with him and known him for a long time. So I really don't think that there's anything I can tell you that would be insightful or anything that would be wise beyond words that you don't already know I simply would like to conclude by saying, I strongly encourage you to support the nomination confirmation of Mr Nakamura as your County Clerk. Thank you very much. Chair Furfaro: Thank you Mr Belles. On that note, I will call the meeting back to order There being no one else to speak on this matter, the meeting was called back to order, and proceeded as follows. Chair Furfaro: I want to bring us to a quick review, we have a motion which was amended on Resolution No. 2011-01 and on that note before we ask on the amendment I will ask Councilmembers if there's any further discussion? Council Vice Chair Yukimura? Ms. Yukimura. Yes, please. Chair Furfaro. I'll recognize you. Ms. Yukimura. Thank you Mr Chair I am the one who suggested an executive search, I'm not going to be making a motion today because I don't believe there are votes for it but I did so because as Mr Iannucci, he said who Chairs or who was Chair of the Police Commission. the process ensures a strong level of professionalism and it wouldn't have prevented anyone from applying for the position. It also saves tax payer money in the long run by selecting managers who know how to provide cost effective operations, avoid lawsuits and take proactive action. The County Council actually set a precedent by appropriating fifty thousand dollars ($50,000 00) for an executive search that resulted in the appointment of Police Chief Darryl Perry who incidentally was bypassed in the prior Chief selection process that did not use an executive search and so that's my reason for proposing it and it is the will of the Council that rules and I am obviously in the minority but I did want to explain why I proposed, thank you. Chair Furfaro: Thank you very much. Mr Rapozo: Mr Chair? Chair Furfaro: Yes Mr Rapozo Mr Rapozo: Just a real quick comment. Chair Furfaro: The floor recognizes you. 7 COUNCIL MEETING December 1, 2010 Mr Rapozo- Because I think it's important to note that Mr Iannucci also said the reason why they went with the executive search was because they didn't feel they had any qualified personnel within. We have a qualified individual here that has been testified to by many of you today, so for those reasons I will not support an executive search. Thank you. Chair Furfaro: Thank you Mr Rapozo. Is there any further discussion? If not, Mr Clerk I want to ask that we do a roll call vote on the amendment and then go to the main motion. Mr Nakamura. Mr Chair this is on the amendment to Resolution No 2011-01. The motion to amend Resolution No. 2011-01 was then put, and carried by the following vote. FOR AMENDMENT- Bynum, Chang, Furfaro, Kawakami Rapozo TOTAL - 5, AGAINST AMENDMENT- Yukimura TOTAL - 1, EXCUSED & NOT VOTING None TOTAL - 0, RECUSED & NOT VOTING Nakamura TOTAL - 1. Chair Furfaro. Thank you Mr Clerk, can we now go to the main motion? Mr Nakamura. The main motion is to approve Resolution No 2011-01 as amended. Chair Furfaro: Can we have a roll call vote? The motion for approval of Resolution No. 2011-01, as amended herein, was then put, and carried by the following vote: FOR ADOPTION Chang, Furfaro, Kawakami Rapozo TOTAL - 4, AGAINST ADOPTION Bynum, Yukimura TOTAL - 2, EXCUSED & NOT VOTING None TOTAL - 0, RECUSED & NOT VOTING Nakamura TOTAL - 1. Chair Furfaro Thank you very much Clerk and on that subject, I would also like to take the time to inform the public that Eddie Topenio will continue to serve as the Deputy County Clerk. Mr Topenio is here with us today (inaudible) Thank you very much. On the next item we're going to is the actual Resolution adopting the Council rules. Mr Clerk (inaudible) that Resolution, I would like to take a recess to swear you in. There being no objections, the Council recessed at 12:29 p.m. The Council reconvened at 12:32, and proceeded as follows: Ms. Nakamura was noted present in the meeting. 8 COUNCIL MEETING December 1, 2010 Chair Furfaro: I would like to now so note that there is a Resolution adopting the rules for the County Council and Mr Peter Nakamura, would you read the so titled Resolution? Mr Nakamura. Next Resolution for adoption Mr Chair is Resolution No. 2011-02. Resolution No. 2011-02, RESOLUTION ADOPTING THE RULES OF THE COUNCIL OF THE COUNTY OF KAUAI FOR THE ORGANIZATION OF COMMITTEES AND THE TRANSACTION OF BUSINESS. Mr Rapozo moved to approve Resolution No. 2011-02, seconded by Mr Chang. Chair Furfaro: I do want to take this time to address Mr Taylor and Mr Mickens. I do so note that as you recalled two (2) years ago I had hoped to introduce a Resolution changing and setting up a Committee to review the rules. I do want you to know that it is my intent as Chair of the Committee of the Whole to appoint two (2) Committees from the Councilmembers made up of three (3) members each to begin a review of the rules that will be posted and will be able to be attended by the public to contributed. Who those particular three (3) members are, I have not come to that conclusion as Chairman of the Whole. I will also be Chairman of the Whole of which the Human Resources Committee of the Council falls and I will be asking three (3) members to serve on that sub-Committee as well. So on that two (2) notes I would ask if there's any more comments from the elected Council before I go to any comments from the public? Is there any public comments on this Resolution? Mr Taylor, you're free to come on up There being no objections, the rules were suspended. Mr Taylor Chair, members of the Council, my name is Ken Taylor Jay, I first like to thank you for your comments about setting a Committee in motion but under those circumstances I would ask that at this point in time the rules and regulations be deferred until that action takes place. I think that will do two (2) things, it will expedite getting it done and then we will be able to move forward, so I appreciate the idea of putting a Committee in place and having public comment meeting on this issue, so thank you. Chair Furfaro: Thank you Mr Taylor I would like to so note that I understand the urgency (inaudible) of you and report back within sixty (60) day period. I also want to acknowledge the question that was posed. As Chair I will practice the very common. competent Chairs of the various Committees and I would ask that any Chairperson may in fact put any item on the agenda as long as they have a second member endorsing such to come to my leadership to place it on the agenda, so we will act under that rule until such time that we review (inaudible) all I ask is a second endorser of the bill be an actual member of that Committee and that's how we will operate until such time we review the rules. Mr Taylor- Thank you. That's very good news and I think that's a real benefit to the community for the Council to act in that fashion, again I gust like to repeat my on Resolution 2011-02 defer until the new rules and regulations are adopted. Thank you. Chair Furfaro: Thank you for your comments. Is there anyone else who would like to speak? 9 COUNCIL MEETING December 1, 2010 ROB ABREW Aloha members and congratulations. One (1) question I have to ask and I don't know if I can find it in the Charter do the rules the Council adopt have the effect of law? Chair Furfaro- I would, at this point I went to hotel school, I will defer that question to the County Attorney? Mr Abrew- Okay Do we have a County Attorney right now? Chair Furfaro: Ali. Okay here's the short answer that I'll give you. we need. whenever there's more than two (2) people together in the same place, we need a set of rules to govern the operation. So my short answer to you is we need to have a set of rules from the day we take office so that there is an understanding that there is parameters and guidance. The only verbal commitment I made at this point is setting up a Committee to review those item, secondly I will encourage, because Sunshine Law allows two (2) members to collaborate on a bill and so forth, I will act with addressing at any item but I know two (2) members of the Committee have come forward and that's the short answer for that. Mr Abrew- Thank you Jay, I dust saw some conflict in the Charter of what was considered a rule and how it's considered law Thank you. Chair Furfaro- I'll try to satisfy your question by sending it to the County Attorney's Office. Mr Abrew- Thank you. Chair Furfaro: Thank you. Come right up Lani. LANI T KAWAHARA. Good afternoon Councilmembers and congratulations Vice Chairwoman JoAnn Yukimura and congratulations to Council Chair Furfaro. I'm here this morning because I'd like to request that you do a review as you suggested of the Council rules. As you mentioned before two (2) years ago the rules have been in place and set in place for several years with few if any revisions. The rules have mostly served their purpose, however, during my term questions arose about rule 10 and any Councilmember's right to place bills or resolutions on the agenda, and I appreciate the fact that you recognize that there may be problems with that rule and that you're going to be looking at it but for the record I'd like to place this in the record and read it. Chair Furfaro- We do have a copy of your testimony Ms. Kawahara. Yes and did submit copies for you. Chair Furfaro. You have the floor, go ahead. Ms. Kawahara. Thank you. The body's rules are required to establish the basic structure and manner of the Council's operation. As a result of the prior disagreements and general lack of understanding of the procedures required in Rule 10, 1 believe a review of this rule is warranted at this time. 10 COUNCIL MEETING December 1, 2010 I am specifically concerned about Rule 10(a) which states that any bill or resolution may be introduced by any member and on a side note without having to have a seconded even if it is in the Committee. and Rule 10(c) which states all bills and resolutions must be initialed by the Council Chair or in the Chair's absence, Vice Chair in order to be placed on the agenda. Rule 10(c) seems to assume that the Chair must initial bills or resolutions in order for them to be placed on the agenda. this to me conflicts with the right of any Councilmember to introduce legislation or resolutions. Please review Council Rule 10(a) and 10(c) for contradictions, clarifications and possible revisions. I have some notes here about the Rules of Order from Robert's Rules that you could look at for any kind of reference Thank you for your consideration. Also if I could take a quick minute to recognize the appointment of Mr Nakamura. congratulations Peter Nakamura on the County Clerk and I would like to ask that the Councilmembers as the overseeing body of the County Clerk be very sure to, to be sure that the County Clerk performs his duties in the way that make sure that all of our records and legislation information is transparent especially with the upcoming technology that we're going to be paying for That I hope that he will be able to train and assess all of his staff members so that those can. all of our documents will be linked to the live streaming. I hold you all accountable for that to make sure that that happens and that happens through the County Clerk. Thank you. Chair Furfaro: Thank you very much for your testimony I do want to share with you. the current rules when they are silent make reference that we follow Robert's Rules of Order and I would hope that that's something that we continue. Second piece is I clearly want a message to go out to the other six (6) Councilmembers that I am a pretty good delegator and the fact of the matter, I will delegate those task to those Chairmembers as we have very competent group here and I thank you for your suggestions. Ms. Kawahara. Thank you. It is a very competent group and I'm very happy to see you here, congratulations. Chair Furfaro: Is there anyone else that would like to testify on this Resolution? If not, I'm going to call the meeting back to order There being no one else to speak on this matter, the meeting was called back to order, and proceeded as follows: Chair Furfaro Mr Clerk, we do have a motion and a seconded, am I correct? Mr Nakamura. Yes Mr Chair Chair Furfaro: Thank you. Is there any further discussion by the Councilmembers? Mr Bynum. Mr Chair? Chair Furfaro. Yes. Mr Bynum. I just want to thank you and applaud your initiative to appoint a Rules sub-Committee, I think, but it is appropriate that we 11 COUNCIL MEETING December 1, 2010 adopt rules today, we have to have rules to operate by the current rules that have been existence for a long time and so I appreciate the commitment to make a thorough review of our rules. Thank you. Chair Furfaro: Thank you Mr. Bynum and that is the intent, it's not a suggestion, it is an action plan for this Council. So is there any further discussion? If not, Mr Clerk may I ask that we take a roll call vote on this Resolution? The motion for adoption of Resolution No 2011-02 was then put, and carried by the following vote: FOR ADOPTION Bynum, Chang, Furfaro, Kawakami Nakamura, Rapozo, Yukimura TOTAL - 7, AGAINST ADOPTION None TOTAL - 0, EXCUSED & NOT VOTING None TOTAL - 0 Chair Furfaro: Thank you very much. Mr Nakamura. Next Resolution Mr Chair is Resolution No 2011-03. Resolution No. 2011-03, RESOLUTION RELATING TO THE APPOINTMENT OF THE CHAIRPERSONS, VICE-CHAIRPERSONS, AND MEMBERS OF THE SEVERAL STANDING COMMITTEES OF THE COUNCIL OF THE COUNTY OF KAUAI. Ms. Yukimura moved to approve the resolution, seconded by Mr Chang. Chair Furfaro: I would like to ask if there's any discussion before I ask the Clerk to call a roll call? I would like to let the audience know that I will be sharing with you when we go into the auditorium the list of those Committees and people tasked with those challenges, but if you would like a copy now from this Resolution, we will be glad to give you one. Thank you Councilwoman Yukimura and may we have a roll call. The motion for adoption of Resolution No. 2011-02 was then put, and carried by the following vote. FOR ADOPTION Bynum, Chang, Furfaro, Kawakami Nakamura, Rapozo, Yukimura TOTAL - 7, AGAINST ADOPTION None TOTAL - 0, EXCUSED & NOT VOTING. None TOTAL - 0, RECUSE. None TOTAL - 0 Chair Furfaro Thank you very much. Mr Nakamura. Next matter is communication Mr Chair, Communication C 2011-01. COMMUNICATIONS. C 2011-01 Communication (11/23/2010) from Mayor-Elect Bernard P Carvalho Jr submitting for confirmation purposes, the appointment of Alfred B. 12 COUNCIL MEETING December 1, 2010 Castillo Jr, Esq., as County Attorney- Mr Bynum moved to approve, seconded by Mr Chang. Chair Furfaro: It has been moved and seconded to approve the confirmation of Al Castillo Jr., as the County Attorney as provided for in this communication, is there any discussion from members? Mr Rapozo: Mr Chair? Chair Furfaro. Yes. Mr Rapozo: Sadly I'm not going to be able to support this communication and for reasons that I really am not at liberty to discuss right now but I will say over the last two (2) years, you know I just have a very high level of expectation of the County Attorney's Office and some of the recent issues that have come through the last term of office, I was not satisfied and for those reasons it's very difficult to do but I will not be supporting the appointment at this time. Chair Furfaro: Thank you for your comments Mr Rapozo Is there any more comments before I ask for comments from the public? Hearing none, the floor is open to entertain anybody that wants to speak from the public. There being no objections, the rules were suspended. There being no one to speak on this matter, the meeting was called back to order, and proceeded as follows: Chair Furfaro: Okay, this meeting is now called back to order, I guess this will now be a roll call vote Mr Clerk may I ask for a roll call vote? The motion for approval of C 2011-01 was then put, and carried by the following vote. FOR ADOPTION Bynum, Chang, Furfaro, Kawakami Nakamura, Yukimura TOTAL - 6, AGAINST ADOPTION Rapozo TOTAL - 1, EXCUSED & NOT VOTING. None TOTAL - 0 Chair Furfaro: Thank you. Mr Valenciano, I don't want to make the same mistake twice so. we will go to recess for a moment to get Mr Castillo to get sworn in, thank you. We are in recess. There being no objections, the Council recessed at 12:44 p.m. The Council reconvened at 12:45 p.m., and proceeded as follows: Chair Furfaro: Mr Clerk, I'm going to call the meeting back to order, may I ask if there's any further business of this body today? Mr Nakamura. No. There's no further business Mr Chair 13 COUNCIL MEETING December 1, 2010 Chair Furfaro: If there are no objections from the members at the table here, this meeting stands adjourned. ADJOURNMENT. There being no further business, the meeting was adjourned at 12:45 p.m. Really submitted, PE ER A. NAKAMURA County Clerk Atts. /ds t OF 1906 COUNTY COUNCIL OFFICE OF THE COUNTY CLERK JAY FURFARO, CHAIR Council Services Division JOANN YUKIMURA, VICE CHAIR Elections Division TIM BYNUM DICKIE CHANG PETER A. NAKAMURA, County Clerk DEREK S. K. KAWAKAMI pA""way 1i4 Telephone: (808) 241-4188 NADINE NAKAMURA OF Facsimile: (.808) 241-6349 3371-A WILCOX ROAD C?rI LTHU`E, KAUAI, HAWAPI 96766 rn MEMORANDUM ° rn r < December 1, 2010 r,, t+ r9 r ifl From: Tim Bynum Re: Reappointment of County Clerk After long and serious consideration of the issues, I have decided that I will not be voting for Peter Nakamura to be reappointed as County Clerk this term. At a prior meeting I recommended that the Council appoint one of our capable current staff as an interim County Clerk and conduct an open search for the best-qualified candidate available to lead Council Services. Had we gone this route, Mr. Nakamura could have applied as a candidate in the search process. While I recognize Mr. Nakamura's talents, contributions and strong work ethic, there are, in my opinion, unresolved issues. The following are among those that led to my decision. UIPA The Uniform Information Practices Act is State law and requires that an agency provide a response to requests for public documents within ten business days. The Clerk has repeatedly failed to respond as required by law in the required time frame and, in a number of instances, has completely ignored the request and not responded at all. For example, a UIPA request for documents was made by Council members on May 26, 2009 and no response was received until July 8, 2009, and then only after follow-up memos from the Council members and an admonition from the County Attorney. As another example, The Garden Island on their web site (http://thegardenisland.com/app/sunshine/) lists records requests made to various County departments, all of which were responded to within the timeline required by State law, except for those requests filed with the County Clerk. The requests made to Council Services were all ignored and not responded to at all. Other members of the public have informed me that their UIPA request for documents have gone unanswered. Records The Kauai County Charter requires the Clerk to "take charge of, safely keep and dispose of all books, papers and records which may properly be filed in his office and keep in separate files all ordinances, resolutions and regulations and cumulative indices of the same, or exact copies thereof, enacted or adopted by the council." AN EQUAL OPPORTUNITY EMPLOYER Page 2 One of the Clerk's important responsibilities is to keep the County Code up-to-date. One can do a Google search of any Hawai'i county, except Kauai, and easily find an updated code. Not only can the public not find the Kauai County Code online, an up-to-date codified version has not been available in any form since 2006. When Council members sought electronic minutes of Council meetings, the Clerk informed Council members in writing that he "had difficulty locating electronic copies of Council meeting minutes" and that "extensive agency efforts have been required to search for and prepare the records for copying." This response and other instances related to key Council records have raised alarms about the integrity of Council records and led to the submission to the Clerk of the following written inquiry in July 2009: "Is it the case then that our key public documents exist only on paper in the Historic County building? Is it the case that our office documents are not backed up on the County network? Is it the case that we are not availing ourselves of the backup capabilities provided by the County IT department? Does this not leave an unacceptable risk that these key public documents could be lost completely?" There has been, to this date, no response to this written inquiry and my concerns about the integrity of County records remain. Salary Issues The County Charter requires that department head salaries be determined by the Salary Commission. The County Clerk is a Department head. By Salary Commission resolution, requirements for department head raises include: 1) "employee's completed performance evaluation evidencing that the appointee has met or exceeds job requirements" and 2) "the appointing authority's recommendation on whether a proposed increase should be granted" Although neither criterion was met, the County Clerk received a pay raise in December 2009. Other department heads and the mayor did not receive a salary increase in December 2009 due to economic conditions. This has led to a situation where the clerk's current salary at $114,848.00 is higher than that of the Mayor's. Over the last several years, without the knowledge of the Council body, the Clerk accepted and was paid unused vacation time. This is contrary to the County's policy and practice with other County employees. Unused vacation time pay paid to the clerk is in the neighborhood of $50,000.00. The funds were apparently available without a separate appropriation because of salary surpluses in the Council Services budget resulting from vacancies. (Positions have remained unfilled for extended periods of time. Example: In the FY06-07 budget, a clerk typist position was added by a unanimous vote of the Council. Despite repeated Council requests and promises from the Clerk made in each budget cycle, the position remains unfilled four years later.) The Garden Island opined in November of this year, "When the council goes to organize itself, we also hope the members do their due diligence to ensure the current county clerk and the individuals holding other key positions are still the most appropriate choices for those jobs." This position I am taking and observations I have made are a result of my process of due diligence and the belief that this course of action is in the best interest of the County and its citizens. STATEMENT BP COUNCILMEMBER JOANN A. YUKIMURA '10 OEC -1 P4 A Appointment of the County Clerk December 1, 2Q1~E OFFICE O1 1F1 COUNTY CLE1 COUNTY OF KAUA'1 One of the responsibilities of a Councilmember is the appointment of the County Clerk, and I take this responsibility most seriously The Clerk is the department head of the "legislative department" of the county He plays a central role in the spirit and standard of performance for all county government. The Clerk has a fundamental impact on the Council's ability to perform its duties. The County Clerk provides the services to Council members that enable us to do our jobs. The job of the Council is to improve life on Kaua' i through the passage of laws and resolutions, including the County Budget. The Council also performs oversight, investigative, eminent domain, salary-setting and audit responsibilities as part of the "checks and balances" of local government. Two separate and important functions of the Clerk are to conduct elections and be the custodian of all legislative and other county records. The Council's appointment of the County Clerk is a critical fiduciary duty that affects public money, property, operations and customer servicing. This appointment deserves and demands due diligence and fair process. I am aware of Peter Nakamura's many excellent qualifications. When I was mayor, I appointed Peter head of the Housing Agency; he did a commendable job. Later, under my administration, the Planning Commission appointed Peter as Planning Director. I appreciate and acknowledge his skills and gifts, which are considerable. However, we are obligated to look at a candidate's whole record, not just their gifts and strong points. Regretfully, I am not able to support the appointment of Peter Nakamura as County Clerk at this time for two reasons. First, due to a ruling by the County Attorney, those of us who are newly elected and not incumbents have not had time to perform the required due diligence. Until a few minutes past my swearing-in today as a Councilmember, I have not had access to critical information, including personnel files and relevant executive session minutes. Neither have I had access to the County's legal or human resources advice and counsel-critical pieces of due diligence. The County Attorney opined that I could not have access to the information or counsel until I became an officer of the county by being sworn in. Second, there are issues which due diligence requires be cleared up before I can vote for Mr. Nakamura. The most serious is a 2009 pay raise that Mr. Nakamura accepted which he knew, or should have known, was not legal. It may be that the former Chair of the Council acted improperly and against Mr. Nakamura's will and advice. However, knowing the law and how to properly establish pay raises is Mr. Nakamura's job, and I believe Mr. Nakamura must be held personally responsible for accepting what appears to bean illegal pay raise. It would have been illegal to allow such a pay raise for a subordinate, but to allow an illegal pay raise to personally benefit him brings up serious ethical implications. By law, a pay raise for a department head in 2009 required a recommendation from the appointing body The Clerk's appointing body is the County Council. There is no record, to my knowledge, of a council recommendation of this pay raise. A vote, taken at a properly noticed meeting is the only way the Council can make a decision. Others may have been responsible for this error, but I believe Mr. Nakamura also bears responsibility, which he failed to exercise with sound discretion in accepting the pay raise. Sound discretion is a fundamental criteria of performance. When Mr. Nakamura took office, he took an oath to uphold the law-this is a fundamental duty of the County Clerk. I hate to raise these issues, but because other council members want to proceed without allowing other avenues of due diligence prior to a vote, the matter is before the Council today, and I must exercise my vote to the best of my ability and to my best understanding of my duty and responsibility as a Councilmember. (An executive search with an interim appointment would allow us all the necessary time, as well as the help of an objective third party, to do due diligence, but there does not appear to be the votes to approve such a process. An executive search is well worth the money It saves taxpayers money in the long run by selecting managers who know how to provide cost-effective operations, avoid lawsuits and take proactive action. The County Council set a precedent by appropriating $50,000 for the executive search that resulted in the appointment of Police Chief Darryl Perry who, incidentally, was bypassed in the prior chief selection process that did not use an executive search.) Council Services Kauai County Council Corny-nurication Referral Slap fClzair's Pnitiall (Meeting Date) Council Agenda Public Hearing Committee: (Ccmmdttee game) o m m o o a o 0 o e o m n o a m a• o 0 o b Route Copies to council Members Route Copies to file -- t tier' - RECOVE '10 1jC -1 A9 '31 C E`tux..0't' , December 1, 2010 Council Members Kauai County Council 3371-A Wilcox Road Uhu'e, HI 96766 Dear Council Members: This is to inform you that I am recusing myself from voting on Resolution No 2011-01 appointing the County Clerk of the County of Kauai. Peter Nakamura is my brother-in- law Although I have been advised by both the County Attorney and the Council's legal counsel that I have no legal conflict of interest regarding Peter Nakamura's re- appointment as County Clerk, I consider Mr Nakamura a member of my immediate family and, as such, consider it inappropriate to participate in any discussion or vote of the Council regarding his re-appointment. Sincerely, 146 , Nadine K. Nakamura Council Member 11/30/2010 15:41 8082461511 ALNEVELYN PAGE 01/01 From: atMWlaureta,ratnevelyn®hawaiiantei.neb Subject: Resolution E1o2011-01, Appointing County Cleric Date: November 30,2010 1:42S1 PM HST Tc: =KAUAI COUNTY COUNCIL Cer elfredlaurotaeahnevejynChawaiiantel.nab Honorable Members of the Kauai County Counak Atoha and congratulations upon your election to the County Council' i am prompted by what I read In The Garden island retailing to the subject of how the County Clerk should be selected. Etlt ws advocaUrtg any point of view bear a lot of weight among Its readers especially when an opposing point of view is latkkhg. Any suggestion that the selection of our County Clsdc be referred to an executive search group assumes that the Councl lacks the courage, the know-how mid ability to make its own evaluation and decision as to who would be the best ro carry out the functions and mission of the County Clerk as spelled out in our Charter. The Oouttel has that rmsponsills y The excuse for avoiding this responsibility is supposedly the elim'nnation of that bad word "POLITICS *PoNesw will be there unavoidably no matter whether any appointment is made by the Councl In executive essalon, unaMmously or by memly vote, or byan executive search group. The appointment Is Wltcai" tr you disagree with the selection. R Is nor "polt[W It You agree. The people voted T members to the Council. There is more than enough brains, education and experience amoral you to conduct your own evaluation and make your own decision as to wham to appoint vaUtout ouisidg' poOlIcbl" help. Add to that, many of you have trot the advantage of actual personal contact and experlence with the character and personally of our current County Clark and possibly that of other CWXWMes under consideration. Go attend and do that which we know you can and will do. Martell) uJ La ON ct CC.5 x_ aal W i~ t- w ~u tai= by TESTIMONYSUBMIT-TED_TOCOUNT)t-COUNCIL_1214140 1. THE NEWSPAPER REPORTED THIS MORNING THAT THE COUNTY 'CLERK-IS'ONE OF THE`HIGHEST PAID'EMPLOYEES'IN THE"COUNTY. TO STATE THE MATTER MORE PRECISELY. THE COUNTY CLERK HAS THE SAME SALARY AS MOST OTHER DEPARTMENT HEADS. HERE IS HOW THE SALARY OF THE :COUNTY CLERK ROSE FROM A LOWER TIER TO THE HIGHEST TIER OF DEPARTMENT HEAD SALARIES: WHEN I SERVED ON THE SALARY COMMISSION IN 2004 THE COMMISSION SPONTANEOUSLY AND INDEPENDENTLY DECIDED TO PROPOSE THAT THE SALARY OF THE COUNTY CLERK SHOULD MATCH THE SALARY OF MOST OTHER DEPARTMENT HEADS. THE DECISION WAS BASED ON TWO FACTORS. FIRST, A REVIEW OF THE RESPONSIBILITIES OF THE COUNTY CLERK. SECOND, THE PROFESSIONAL AND TIMELY SERVICE PROVIDED TO THE COMMISSION BY PETER NAKAMURA AND HIS STAFF. 'PAY PERSONAL EXPERIENCE DURING THE PAST DECADE MATCHES THAT OF THE COMMISSION. PETER NAKAMURA AND HIS STAFF HAVE RESPONDED PROMPTLY AND PROFESSIONALLY WHEN I HAVE REQUESTED INFORMATION OR DOCUMENTS. Z EVEN IF THERE ARE GROUNDS FOR NOT REAPPOINTING MR_ NAKAMURA-AND I HAVE NOT HEARD FROM COUNCILMEMBERS OR THE GARDEN ISLAND THAT THERE ARE ANY SUCH GROUNDS-THAT WOULD IN NO WAY GIVE CREDENCE TO THE IDEA OF SPENDING TAXPAYER MONEY TO HIRE AN EXECUTIVE SEARCH FIRM. THE. MAYOR IS PROPOSING TO RE-HIRE THE COUNTY ATTORNEY. WOULD THOSE WHO ADVOCATE HIRING AN EXECUTIVE SEARCH FIRM TO HELP FIND A COUNTY CLERK ALSO ADVOCATE HIRING AN EXECUTIVE SEARCH FIRM TO HELP THE MAYOR AND COUNCIL FIND A COUNTY ATTORNEY? HQRACE STOESSEL December 1, 2010 Honorable Chairman Jay Furfaro and Members of the County Council of Kauai Kauai County Council 3371-A Wilcox Road Lihue, HI 96766 SUBJECT": Resolution 2011-02 adopting the rules of the Council of the County of Kauai for the organization of committees and the transaction of business. Dear Council Chair Furfaro and Members of the County Council of Kauai: I would like to request that this Council revisit its Council Rules. As Chair Furfaro has mentioned before, the rules were set decades ago and since then have rarely if ever been updated. The rules have mostly served their purpose. During my term, however, questions arose about Rule 10 and any councilmember's right to place bills or resolutions on the agenda. This body's rules are required to establish the basic structure and manner of the council's operation. As a result of the prior disagreements and general lack of understanding of the procedures required in Rule 10 (General Provision Regarding Bills, Resolutions, Motions and Amendments regarding placement of bills or resolutions on the agenda by any member), I believe a review of this rule is warranted at this time. I am specifically concerned about Rule 10(a) which states that "Any bill or resolution may be introduced by any member" and Rule 10(c) which states: "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." Rule 10(c) seems to assume that the Chair must initial bills or resolutions in order for them to be placed on the agenda. This conflicts with the right of any councilmember to introduce legislation or resolutions. Please review Council Rule 10(a) and 10(c) for contradictions, clarifications and possible revisions. In a quote from Roberts Rules of Order- "It is wrong to assume, as many do, that the Chair sets the agenda. It is common for the Chair to prepare a proposed agenda, but that becomes binding only if it is adopted by the full assembly " Please refer to RONR (10th ed.), p. 363,1. 8-20; see also p. 16 ofRONR In Brief. Thank you for your consideration. Sincerely, Lani T Kawahara PO Box 1565 Kapaa, HI 96746 (808) 652-6741 t fs0[ u, i#^r€. fov r DI ! Ole - December 1, 2010 FLOOR AMENDMENT Resolution No 2011-01, Relating to the Appointment of the County Clerk introduced by- Derek S. K. Kawakami, Councilmember Amend Resolution No 2011-01 in its entirety as follows: "Section 1. Appointment if the County Clerk [ is hereby appointed the County Clerk of the County of Kaua'i for the term commencing December 1, 2010.1 Peter A. Nakamura is hereby appointed the County Clerk of the County of Kauai for the term commencing December 1, 2010. Section 2. This resolution shall take effect upon its approval." (Material to be deleted is bracketed. New material is underscored ) RK OP Bernard P. Carvalho, Jr. o ~~o Gary K. Hen Mayor --~` % Administrative Assistant RECEIVED yTE ~ P4? OF OFFICE OF THE MAYOR '10 NN 23 P 3 36 County of Kauai, State of Hawaii 4444 Rice Street, Suite 235, Lihu`e, Hawaii 96766 FICE OF TEL (808) 2414900 FAX (808) 241-6877 THE OF OUNTY CLERK COUNTY OF KAUA'f November 23, 2010 Members-Elect of the Kaua'i County Council 3371-A Wilcox Road L-ihu'e, Hawai'i 96766 Re: Appointment of the County Attorney Dear Councilmembers-Elect: 1 am pleased to submit for your confirmation the name of Mr Alfred B Castillo, Jr., Esq., to serve as the County Attorney effective December 1, 2010 at 12:01 pm. Your favorable and timely consideration is appreciated. With warmest regard r- z "7- Bernard P Carvalho, Jr. Mayor, County of Kauai C620 of