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HomeMy WebLinkAbout04-14-2010 Special Council Meeting Minutes SPECIAL MEETING APRIL 14, 2010 The Special Meeting of the Council of the County of Kauai was called to order by the Council Chair at the Council Chambers, Historic County Building, 3371-A Wilcox Road, Lzhu`e, Kauai, on Wednesday, April 14, 2010, at 8.37 a.m., after which the following members answered the call of the roll. Honorable Jay Furfaro Honorable Lani T Kawahara Honorable Derek S. K. Kawakami Honorable Bill "Kaipo" Asing EXCUSED- Honorable Tim Bynum Honorable Dickie S. Chang Honorable Daryl W Kaneshiro Council Chair Asing: Please note that Councilmembers Bynum, Chang, and Kaneshiro is coming, but they will be late. APPROVAL OF AGENDA Upon motion duly made by Mr Furfaro, seconded by Mr Kawakami, and unanimously carried, the agenda was approved as circulated. Council Chair Asing: With that, we will start the interview process. We have Dee Crowell for the board of water supply So Dee please? INTERVIEWS BOARD OF WATER SUPPLY: • Dee M. Crowell - Term ending 12/31/2012 Council Chair Asing: Good morning, Dee. DEE CROWELL. Good morning, Councilmembers. Council Chair Asing: You know, I'm going to be handling it the same way I normally handle the interviews, and that is to let the. yourself give some background. I don't want to assume that everybody knows your background, and anything you might want to share with the Councilmembers. So with that, I'm going to open it up and you can proceed. I SPECIAL MEETING 2 APRIL 14, 2010 Mr Crowell. I wasn't expecting this. As I said, good morning everybody My name is Dee Crowell, a candidate for board of water supply By way of background, I was also planning director for the county from 1993 to 2003, and in 1996 there was a charter amendment to place the planning director on the water board, so I was on the water board from 1997 to 2003. During that time I gained great appreciation and understanding of what the water board did, so when an opening came up in 2007 and I was asked to serve, I said sure, because it was a very rewarding experience, and I enjoyed being on the board and serving the people of Kauai. That's it. Council Chair Asing: Thank you. With that, any questions, Councilmembers? Councilmember Furfaro. Mr Furfaro: Thank you. Good morning, Dee. Couple things I want to touch on. When you were planning director and the PD was actually placed on the water board, part of that was in relationship to the planning commission and the planning department actually has the final review on the county's capital improvement plan. Mr Crowell. Right. Mr Furfaro: so that you have an overview of what kind of development's going on, and therefore, understand the critical portions of the capital improvement plan. And that is still the case? Mr Crowell. That the planning department prepares the CIP, yes, but not necessarily for the water department. Mr Furfaro: Understood. But for all other public improvements. Mr Crowell. Right. Mr Furfaro: And is it still. it is still the case that the planning director, along with the county engineer, is in fact on the water board as well? Mr Crowell. Yes. Mr Furfaro: Was that true that you were on the water board from '93 to 2003, or did the change happen somewhere in the middle there? Mr Crowell: In the middle, '97 Mr Furfaro: Ninety-seven. You have worked with Kukui`ula, as well as currently employed by the Resort Group? Mr Crowell. Yes. SPECIAL MEETING 3 APRIL 14, 2010 Mr Furfaro And if there were situations where as a member of the planning. as a member of the water department, if you had to present items for Princeville to either this council or the planning department going forward, would you be prepared to recuse yourself? Mr Crowell. The short answer is yes. The long answer is I don't see a situation where I. Well, you said the water board, or In front of the council or the planning commission? Mr Furfaro: As a member of the water board. Mr Crowell. As I understand the latest interpretation, which I received on Friday, I would have to not. I am prohibited from appearing in front of the council or the planning commission representing Princeville. Mr Furfaro: And so you are prepared to do that after reviewing that document on Friday? Mr Crowell. Yes. Mr Furfaro• And Dee, so there's no confusion, as I think there is some misunderstanding as it relates to the Princeville water system, which was founded as KCPIC and is currently the PUCI portion of Princeville, that is a private water system, and therefore, they do not go to you as a water board member for any confirmation of anything. As a private water company they their applications go before the public utilities commission for regulation. Mr Crowell. Right. I don't understand Princeville Utilities that well, but I know that it is a. Princeville Utilities provides water and sewer services to the Princeville area and even beyond the Princeville area and is regulated by the PUC and department of health. So any like CIP or work of that nature would have to be approved by the PUC in terms of how it affects rates. Mr Furfaro• I'm familiar with it simply because at one time I was secretary of that water company Mr Crowell. Oh. Mr Furfaro: And I think currently, as a private water company, they are helping the water department now with. they are the redundant water backup for Hanalei town if the county system fails. They are also providers for `Anini, as well as parts of Kalihiwai, simply because the water department's infrastructure has substantially fallen behind there. SPECIAL MEETING 4 APRIL 14, 2010 Mr Crowell. Yeah. Actually, Princeville Utilities sells water to the water department to go down the `Anini Road and into Kalihiwai valley Mr Furfaro: `Anini Beach Road and Kalihiwai Valley Mr Crowell. Right. Mr Furfaro: As well as `Anini Vistas, I believe. Mr Crowell. I believe so, yes. Mr Furfaro: Which is not part of. Mr Crowell. Not part of Princeville. Mr Furfaro: Dee, I think your nomination certainly brings a wealth of knowledge to the water department in your role as past planning director, and your involvement and understanding how the county's capital improvement plan is developed. It is also true that you were the planning director when the current general plan was developed. That was under your time as planning director, am I correct? Mr Crowell: Yes. Mr Furfaro Okay, thank you very much. Council Chair Asing: Thank you. Any other questions, Councilmembers? Councilmember Kawahara. Ms. Kawahara. So Mr Crowell, good morning. Thank you for being here and thank you for being willing to serve on the board. So you are aware of the recent rendering of rule interpretation from the county board of ethics in regards to your type of appointment? Mr Crowell. Yes, I received it on Friday Ms. Kawahara. From. I'm going to be asking the (inaudible), but from your understanding, there was a 2007 board of ethics request or advisory opinion, and this new one, is it different from that advisory opinion? Mr Crowell. Yes, it is. Because before I was appointed, I asked the question of the ethics commission whether, you know, what are. what could. what can I/cannot do, and they basically referred to restrictions or regulations in the Kauai County Code. Since then, you know, this whole ethics thing became an issue about, you know, representing third parties in front of other SPECIAL MEETING 5 APRIL 14, 2010 boards. So you know, I assumed rightly or wrongly that that 2007 opinion would cover me under my term. Ms. Kawahara. And that was a 2007 Mr Crowell. But now that the term is ended and I'm going for a new term, I accept that there are new rules that can apply; the county can change its mind. Ms. Kawahara. Okay And I want to thank you for taking initiative to find out in 2007 about your status and how it would work in relation to your private job and appointment to the board. I'm going to have questions for the county attorney after, but thank you very much, and looking. and right now we're just doing interviews, so the questions that I have for the attorney, I guess, will be helpful for the decision. Thank you. Thank you Mr Crowell. Council Chair Asing: Do you want to have the county attorney up? Ms. Kawahara. Yes, if I could. if everybody's done. Council Chair Asing: Why don't we finish up first? With that, any other questions, Councilmembers? If not, I really don't have any questions for you. I've known you for a long time. Your experience, extensive experience and background, in my opinion, you will be an asset to the board. So I really don't have any problems. You're qualified, you're able, you want to serve the community, and with that I will be supporting you to get on the board. It is so important and essential that we as councilmembers look for qualified people to serve on the board. As far as any other questions on how the board handles their respective agendas is their kuleana. I am not going to. we are not going to get involved in telling the board what they can and cannot do. It is their responsibility Our responsibility is to make sure that we have good candidates, and approve good candidates for all positions on all commissions and boards. So with that said, if there are no other questions for Mr Crowell, thank you. So you want to step down? Thank you very much. Mr Crowell. Thank you. Council Chair Asing: With that, can we have the county attorney up, please? AL CASTILLO, JR., County Attorney- Good morning Council Chair, Councilmembers, Al Castillo, County Attorney Council Chair Asing: Good morning. With that, Councilmember Furfaro? SPECIAL MEETING 6 APRIL 14, 2010 Mr Furfaro Thank you. Thank you Lani, for letting me ask the first question because. So I want to make sure I understand the differences from the 2007 ethics committee summation and the current one. In 2007 he would have been allowed to appear, but just recuse himself and now he is not allowed to appear at all. Mr Castillo- May I should give it a little bit of a historical background so that it. Mr Furfaro: Yeah, you can take the seaweed off of this for me. Mr Castillo: Okay, all the opala. You know, first of all, there has been a shift. We had prior county attorneys, including myself, opine on this subject matter, and you know, at the time there was a so-called a. for the people out there, a gap in. or some sort of ambiguity And in the manner that we opined, the past county attorneys, is. was to allow for people to serve on boards and commissions (this fine community) and do a balancing test on whether or not there is a true conflict of interest. What I did not want to happen is to have a bright line rule and be so strict, but what happened was because you have the charter and you have the code, what happened was the ethics commission made a new ruling. And in the new ruling, the ethics commission basically said you are prohibited. So it's changed. So the interpretation, if you. to the question that you asked, yes, Mr Crowell under that time would have been able to testify before the council, and it is clear, subsequent to the new ruling by the ethics commission, Mr Crowell cannot testify regarding. on behalf of a private interest. The qualifications. I believe Mr Crowell understands whether or not he qualifies. You know, before the council today is whether or not he is qualified. Whether or not he does recognize that he will be prohibited from testifying before you or the planning commission on behalf of a private interest, I believe that he understands that, and I think those are the issues before this council this morning. I don't know if I've answered your question. Mr Furfaro: Perhaps my question to Mr Crowell, in looking at this piece, should not have been about recusing himself in front of the planning commission and/or the council, but I should have asked him, would he not appear on behalf of any (period) But you know, he's a great resource in this community We have called him recently on ag/open bills. We have called him as it relates to the past capital improvement plans for the county That he can continue to do. Mr Castillo: Yes, and you know, there's a. When you were asking that question, I believe, you know, you were I guess on step ahead of the game, because say for instance he does qualify here, he is accepted, he is appointed, he is a board member, you know, at the board hearings, what you have there is you do have two county attorneys there that will always determine whether not or opine on whether or not there is a conflict of interest regarding the subject matter So SPECIAL MEETING 7 APRIL 14, 2010 that is the area in which Mr Crowell would have to make a decision on whether or not he needs to recuse himself regarding the subject matter that's being presented, and at his assistance would be two deputy county attorneys that could give him guidance as to. if he has any concerns or questions regarding that fact. Mr Furfaro: And the other item, you know, I wanted to clarify, his role with Princeville as there is a private water system in place there that does not necessarily have any action with his appointment on the local water board, because the private water board certainly comes under the jurisdiction/regulation of the public utilities commission. And I want to thank you for that clarification. For myself, I don't know sometimes if I'm coming or going. In the last six months, I've resigned after 10 years as the president of Habitat, I have resigned as the treasurer of the Salvation Army, in particular as it relates to the food kitchen, you know, and I have already I have stepped down a long time ago as executive director and founding director of Leadership Kauai. But you know, it's getting to the point that we have fine resources like Mr Crowell that are now finding themselves, and I think the Chair mentioned his background and our need to have continuity going forward, and that's why I use the word recuse, because there will be times when we would like to have him in front of this council on items. And I understand clearly now, he will have counsel wherever he's at, including yourself, that says okay, time out, you've gone beyond the area that you should contribute testimony to. Mr Castillo And I really appreciate Mr Crowell working with the boards and commissions in making sure that he recognizes the change in our law, and he recognizes what he needs to do and what he is prohibited from doing. Thank you. Mr Furfaro Thank you. Thank you again Lam. Ms. Kawahara. Yes, thank you. Council Chair Asing: Go ahead, Councilmember Kawahara. Ms. Kawahara. Thank you, Chair Good morning Al. Mr Castillo- Good morning. Ms. Kawahara. So the question, I'm glad that Jay asked those questions, Councilmember asked those questions. The other question that I had and it has come up is whether or not because of the ruling in 2007 and the change in the ruling recently, does Mr Crowell have to be notified that the board has withdrawn or amended the opinion it issued in 2007 before he can become on the board for this? Because I don't know how it works. I mean because the ruling in 2007 would specifically cover Mr Crowell, right? Or yeah, it was brought up by himself. And then the question that. was. that came up that we received, I think SPECIAL MEETING 8 APRIL 14, 2010 everybody received it, I just want to be able to say that I paid attention to it, that the question was does he need to be formally notified? Mr Castillo: Let me. and I see you reading from something, and you know, I think what you're reading from, and correct me if I'm wrong, is a communication from Horace and Phyllis Stoessel. Ms. Kawahara. Yes, for everybody yeah. Mr Castillo: I fully appreciate the tenor in which he submitted that question to you, because the angle that it was coming from was one of being helpful, and he posed the question in a very responsible way And the way that I would like to answer that question, and you're talking about notification, is the board of ethics interpretive rule was approved on March 11 of this year So to me, it took effect March 11 of this year, and from that period on the ethics commission has defined for us, the county, as to, in these circumstances, what is allowed and what is prohibited. So whether or not he's notified or receives notice or acknowledges notice may not be relevant to me. The rule came into effect on March 11, and therefore, he, like anyone else, has to abide by that interpretive rule. And again, like I said, he did the due diligence, and you know, that's. The notice part is not. I don't think, dispositive of the issue. Ms. Kawahara. It seems. yeah, it seems like it would be hard to bind him in a 2007 decision specifically, yeah? But when something's released and approved and it covers anybody in which it might be relative to. is that what you're kind of. Mr Castillo: No, my point is we had a difference of the fact regarding the rules on this. previous to March 11. Ms. Kawahara. Right. Mr Castillo- From March 11, you know, from that day forward, we know what the rule is by the ethics commission, and we abide by it. I think that's the plain and simple way of explaining the legal situation. Ms. Kawahara. Okay, so whatever's in the past gets. Mr Castillo Yes, rules change, rules get clarified, and we had a clarification, and we're good to go. Ms. Kawahara. Okay, thank you Al. Mr Castillo: You're welcome. Ms. Kawahara. Thank you Chair SPECIAL MEETING 9 APRIL 14, 2010 Council Chair Asing: Any other questions for the county attorney? If not, thank you very much. Mr Castillo: You're welcome. Mr Castillo: What I'd like to do is open it up to the public now Is there anyone in the public who wants to speak on this item? If not, I'll call the meeting back to order, and the meeting is now adjourned. Thank you very much everybody There being no further business, the Chair adjourned the meeting at 9.02 a.m. Respectfully submitted, PETER A. NAKAMURA County Clerk