HomeMy WebLinkAbout2004-03 Council Member Term Limits Article III, Section 3-2, Hawaii County Charter x +<r of„ Lincoln S.T.Ashida
Harry Kim
Corporation Counsel
Mayor +s '•
Gerald Takase
.+f,.• +�;�; Assistant Corporation
'r.•„•;,'+ Counsel
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 + Hilo,Hawaii 96720-4262 • (808)961-8251 • Fax(808)961-8622
May 26, 2004
Corporation Counsel Opinion 2004-03
Honorable Bob Jacobson
Hawaii County Council
County of Hawaii
25 Aupuni St.
Hilo, HI 96720
Dear Councilman Jacobson:
RE: Article III, Section 3-2, Hawaii County Charter
WRK. NO. 03-3641
You have asked the Office of the Corporation Counsel to opine on the
legal effect of the 1996 Hawaii County Charter (hereinafter"Charter”)
amendment pertaining to Council member term limits. Specifically, you ask
whether the present Charter language providing for term limits for Council
members of four consecutive two-year terms applies to members who were
elected in 1996, contemporaneous with the 1996 Charter amendment.
Our analysis of this issue began in 2001, when we first examined
nationwide case law concerning legal challenges made to term limit legislation.
Our preliminary research indicated there was a significant body of case law in
other jurisdictions which supported a finding that our term limit law would not
apply to those members of the Council who were elected contemporaneously
with the 1996 Charter amendment.
Pursuant to Section 11-2, Hawaii Revised Statutes, as amended
(hereinafter"HRS"), and Article III, Section 3-6 of the Charter, County Clerk Al
Konishi is charged with the responsibility of overseeing elections in our County.
Two important statutory functions of his office are the responsibility for
"maximization of registration of eligible electors throughout the State," and "public
education with respect to voter registration and information." (HRS Sections 11-
2(b) and (c), respectively). Mr. Konishi is also charged with the responsibility of
determining the suitability of those seeking elective office.
To this end, in February of 2003, Mr. Konishi authored a document entitled
"Findings: Review of Hawaii County Charter Provision on Council Term Limits."
Hawai'i County is an Equal Opportunity Employer and Provider
Honorable Bob Jacobson
May 26, 2004
Page 2
This document was forwarded to State of Hawaii Chief Election Officer Dwayne
D. Yoshina, and has been a public record since its issuance in 2003. This
document was published well in advance of the filing deadline for the 2004
election. For reference purposes, a copy of Mr. Konishi's written findings is
attached hereto as Attachment 1.
Recent media attention surrounding this issue reports a division in the
interpretation of this Council term limit provision. Specifically, notwithstanding
Mr. Konishi's conclusions, there is reported ambiguity whether a Council member
who was elected contemporaneously with the passage of the 1996 Charter
amendment is "covered" by the term limit law.
Earlier this year, in an effort to have this matter judicially examined, our
office explored the possibility of filing a petition for declaratory relief with the Third
Circuit Court. However, HRS Section 632-1 requires an "actual controversy" as
a condition precedent to the filing of a request for declaratory judgment. Thus,
we were unable to proceed without an adversarial party.
Although the media had reported a difference of opinion surrounding this
issue, no taxpayer, organization, potential candidate, or other person or entity
with standing affirmatively stepped forward to challenge the County Clerk's
written conclusions. As reported above, the County Clerk had determined as
early as 2003 that he would accept the filing of a candidate for Council office,
notwithstanding the fact the candidate had been elected contemporaneously with
the 1996 Charter amendment. Equally as significant, it was reported Council
Chairman James Arakaki declared his intention to run for reelection in 2004, as
he believed he was not precluded from reelection by this new term limit law.
The Corporation Counsel is charged by Charter with the following
responsibility (reproduced in pertinent part):
The corporation counsel shall be the chief legal advisor and legal
representative of all county agencies, the council and all officers and
employees in matters related to their official powers and duties. The
corporation counsel shall represent the county in all civil legal proceedings
and shall perform all other services incident to the office as may be
required by law.
Section 6-2.3, Hawaii County Charter
The conclusion concerning term limit applicability reached by the County
Clerk was one made pursuant to his official power and duty. Having examined
the basis and methodology of his findings, we concluded his position was legally
prudent and defensible, in the event of legal attack. Thus, we are obliged by the
Honorable Bob Jacobson
May 26, 2004
Page 3
aforementioned Charter provision and our Rules of Professional Responsibility to
represent this position.
The filing of a petition for declaratory relief would require at minimum, in
our opinion, a party asserting a position contrary to Mr. Konishi's findings.
Although many have spoken out regarding this issue, no one has stepped up to
the plate to allow a court to properly examine this issue. The Corporation
Counsel concluded the premature filing of a petition for declaratory relief, without
an identified adversarial party, would violate the Hawaii Rules of Civil Procedure
and constitute a frivolous filing. Clearly, our County's legal representative should
not be party nor responsible for such an unwarranted filing, which may result in
monetary sanctions levied against our office, which would be borne by our
taxpayers.
It is our understanding Mr. Arakaki has recently pulled papers for
reelection as a Council member. Although not filed, Mr. Konishi has previously
publicly represented he would accept such an application. To date, we are
unaware of any legal challenges filed against Mr. Konishi based on this
assertion.
Thus, although the Corporation Counsel stands ready to have this matter
heard and decided by a Court, we are unable to get there, since no person or
organization has been willing to participate in such litigation.
We will now summarize our research and conclusions in finding Mr.
Konishi's position legally prudent and defensible.
Article lll, Section 3-2, Hawaii County Charter
The present Charter provision pertaining to term limits reads in pertinent
part as follows:
The terms of the council members shall not exceed four consecutive two
year terms. Candidates shall be elected in accordance with the election
laws of the state, insofar as applicable.
As reported in Mr. Konishi's findings, the Charter amendment lacks a
stated effective date, lacks transitional provisions, lacks proper notice to our
voters, and lacks any significant legislative history. A detailed recitation of these
problems would be redundant and not productive here.
In contrast, a similar City of Cincinnati Charter amendment placed on their
November 1991 ballot read as follows:
Shall the proposed amendment to the Charter of the City of Cincinnati to
provide that no person shall hold the office of a member of the council for
Honorable Bob Jacobson
May 26, 2004
Page 4
a period longer than four consecutive two year terms of the council unless
a period of at least two consecutive two year terms of the council has
intervened without such person serving on the council; that the provisions
of this amendment shall apply commencing with the nominations for the
election for the council term commencing December 1, 1993, and that
consecutive terms of service on the council to which members were
elected prior to December 1, 1993 shall be counted in determining
eligibility for office under this section; and to give effect to the above
provisions by repealing existing Section 2 and 12 of Article IX be
approved?
State ex rel. Mirlisena v. Hamilton County Board of Elections, 67 Ohio St.3d 597,
622 N.E.2d 329 (1993).
Recognizing the opinion of the Corporation Counsel is merely an opinion,
the million dollar question, so to speak, is what would a Hawai'i court do, if asked
to determine the applicability of the Charter's term limit provision to members of
the Council who were elected contemporaneously in 1996 with the Charter
amendment.
Case law
In the above-cited State ex. rel. Mirlisena v. Hamilton County Board of
Elections, supra, the voters of the City of Cincinnati passed the above language,
which effectively placed term limits on city council members. This language
contained the effective date of the amendment, together with a retroactive
provision expressly including the terms of council members who were already
serving.
Complicating matters in the Mirlisena case was a separate charter
amendment introduced by the council which provided, inter alia, that there would
be no term limits imposed on any council candidate. Not surprisingly, both
charter amendments passed, adding further ambiguity to this issue.
Mirlisena, a councilman first elected in 1985, and who had been reelected
in subsequent elections in 1987, 1989, and 1991, sought reelection in the 1993
election, notwithstanding the fact he had served four consecutive two-year terms,
and would be theoretically barred from running again by the charter term limit
amendment.
The Supreme Court of Ohio found the retroactive provision of the charter
amendment unconstitutional. The Ohio high court reasoned as follows:
...the Ohio Constitution provides, in part, that "[t]he general assembly shall
have no power to pass retroactive laws * * * ." Since we have indicated
that we will apply, absent any direction from the Cincinnati City Charter,
1 r Honorable Bob Jacobson
May 26, 2004
Page 5
the general law of statutory interpretation in construing Issues 4 and 5 (the
above-described charter amendments), we will likewise apply the Ohio
constitutional provision as to retroactive legislation. We are buttressed in
doing so by the decision of the United States Supreme Court, Citizens
Against Rent Control v. Berkeley(1981), 454 U.S. 290, 295, 102 S.Ct.
434, 437, 70 L.Ed.2d 492, 498. where the court said that "* * * the voters
may no more violate the Constitution by enacting a ballot measure than a
legislative body may do so by enacting legislation."
Issue 5 provides, in part, "* * * that consecutive terms of service on the
council to which members were elected prior to December 1, 1993 shall
be counted in determining eligibility for office under this section * * *."
(Emphasis added). This is clearly an enactment which is meant to have
retroactive effect. Such an enactment is proscribed by Section 28, Article
II of the Ohio Constitution.
Mirlisena, supra, 622 N.E.2d at 331-332.
Other states that have grappled this issue conclude term limit legislation is
not retroactive, and should have prospective application only.
In U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994), the
Supreme Court of Arkansas examined an amendment to the Arkansas
Constitution, which established term limits on state constitutional officers, state
legislators, and placed other limitations on candidates for United States Senate
and United States House of Representatives.
The subject amendment, approved by Arkansas voters, provided as
follows:
ARKANSAS TERM LIMITATION
AMENDMENT
An amendment to the Constitution of the State of Arkansas limiting the
number of terms that may be served by the elected officials of the
Executive Department of this state to two (2) four-year terms, this
department to consist of a Governor, Lieutenant Governor, Secretary of
State, Treasurer of State, Auditor of State, Attorney General,
Commissioner of State Lands; limiting the number of terms that may be
served by members of the Arkansas House of Representatives to three (3)
two-year terms, these members to be chosen every second year; limiting
the number of terms that may be served by members of the Arkansas
Senate to two (2)four-year terms, these members to be chosen every four
years; providing that any person having been elected to three (3) or more
terms as a member of the United States House of Representatives from
Arkansas shall not be eligible to appear on the ballot for election to the
Honorable Bob Jacobson
May 26, 2004
Page 6
United States House of Representatives from Arkansas; providing that any
person having been elected to two (2) or more terms as a member for the
United States Senate from Arkansas shall not be eligible to appear on the
ballot for election to the United States Senate from Arkansas; providing for
an effective date of January 1, 1993; and making the provisions applicable
to all persons thereafter seeking election to the specified offices.
U.S. Term Limits, Inc., supra, 872 S.W.2d at 351.
Similar to the 1996 Hawai'i County Charter Amendment, the above cited
language from the Arkansas Term Limitation Amendment was silent on the issue
of whether terms served are counted in determining whether a candidate is
eligible for reelection.
The Arkansas Supreme Court held the constitutional amendment was
prospective; in other words, only terms served after the passage of the
amendment were to be counted in the term limit calculation. The Arkansas high
court opined as follows:
Constitutional amendments operate prospectively unless the language
used or the purpose of the provision indicates otherwise. Dennen v.
Bennett, 230 Ark. 330, 322 S.W.2d 585 (1959). We have also held that
with respect to an amendatory act the legislation will not be construed
otherwise. Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979); see
also Gannett River States Publishing Co. v. Arkansas Indus. Dev.
Comm'n, 303 Ark. 684, 799 S.W.2d 543 (1990). The same rule of
construction is equally applicable to a constitutional amendment. The
Amendment in this case is vague and ambiguous on the point of when to
begin counting terms. As already stated, two proponents of the
Amendment, U.S. Term Limits, Inc. and the State of Arkansas represented
by the Attorney General's office, interpret it to apply prospectively.
Arkansans for Governmental Reform took the same position before the
circuit court. Because of the vagueness in the Amendment on this point,
we agree. Only periods of service commencing on or after January 1,
1993, will be counted as a term for limitation purposes under Amendment
73.
U.S. Term Limits, Inc., supra, 872 S.W.2d at 361.
The rationale followed by the Arkansas Supreme Court was the same
followed by our County Clerk in interpreting the 1996 Hawai'i County Charter
amendment. In Mr. Konishi's written findings, he states at page 5 as follows:
This office is empowered to act in accordance with the letter and spirit of
the law. However, any law seeking to impose limits on the constitutional
Honorable Bob Jacobson
May 26, 2004
Page 7
rights of individuals must be clearly written. The letter of such a law must
be precise and complete. Even if a more expansive reading of the "spirit"
of the 1996 amendment may seem clear to some, without explicit
authority, this office should not and will not impose limits on the
constitutional rights of individuals. This office can not act merely on the
basis of our best guess about the "spirit" or the 1996 amendment,
particularly when that "spirit"was not clearly articulated by the drafters
who had numerous opportunities to do so in the normal course of Council
action. (Footnote omitted). (Emphasis in original).
An even more compelling argument in favor of prospective application of
the 1996 Hawai'i County Charter amendment is found in Woo v. Superior Court,
83 Cal.App.4t' 967, 100 Cal.Rptr.2d 156 (2000).
In Woo, Michael Woo, a Los Angeles City Council member who served
two consecutive four-year terms from 1985 to 1993, sought election in the 2001
council race. The city clerk advised Woo he was ineligible for election to the
council, based on a 1996 Los Angeles City Charter amendment imposing term
limits. In sum, the city clerk concluded that based on Woo's previous service of
two full terms, he was ineligible to be elected to the council.
In 1993, Los Angeles voters passed the following term limit amendment to
the city charter:
No person may serve more than two terms of office as Mayor. No person
may serve more than two terms of office as City Attorney. No person may
serve more than two terms of office as Controller. No person may serve
more than two terms of office as member of City Council. These
limitations on the number of terms of office shall apply only to terms of
office which begin on or after July 1, 1993. These limitations on the
number of terms of office shall not apply to any unexpired term to which a
person is elected or appointed if the remainder of the term is less than
one-half of the full term of office." (Italics added).
Woo, supra, 100 Cal.Rptr.2d at 159.
In 1996 and 1997, a Charter Reform Commission for the City of Los
Angeles drafted a new city charter, which was submitted to the voters in 1999.
Los Angeles voters approved the new charter, and the charter became effective
on July 1, 2000, repealing the former city charter.
The term limit provision in the new charter was identical to the language
cited above (the 1993 term limit language), except the italicized language
pertaining to terms counted in the term limit calculation was excluded. It was this
Honorable Bob Jacobson
May 26, 2004
Page 8
omission in language that the city clerk based his denial of Woo's eligibility for
seeking election to the council.
The City, defending its Clerk's position, argued the new term limit
language was unambiguous, and made no exception for terms commenced
before July 1993. The City further argued the deletion of the italicized language
indicated an intention to effect change.
The Court of Appeal, Second District, Division 3, of the State of California
rejected the City's arguments and reversed the lower court's decision. In finding
Woo was eligible to seek reelection to the council, the California appellate court
opined as follows:
A city charter is the city's constitution. (City and County of San Francisco
v. Patterson [1988] 202 Cal.App.3d 95, 102, 248 Cal.Rptr. 290; see
Domar Electric, Inc. v. City of Los Angeles [1994] 9 Cal.App.4t' 161, 170,
36 Cal.Rptr.2d 521, 885 P.2d 934 ["[T]he charter represents the supreme
law of the City, subject only to conflicting provisions in the federal and
state Constitutions and to preemptive state law. [Citations.]']) Accordingly,
we construe a voter-approved amendment to the city charter as we would
construe a voter-approved amendment to the state Constitution.
(Footnote omitted).
We also are guided by the principle that the right to hold public office is a
fundamental right of citizenship (Zeilenga v. Nelson [1971] 4 Cal.3d 716,
720, 94 Cal.Rptr. 602, 484 P.2d 578) that can be curtailed only if the law
clearly so provides (carter v. Corn. on Qualifications, etc. [1939] 14 Cal.2d
179, 182, 93 P.2d 140; Helena Rubenstein Internat. v. Younger[1977] 71
Cal.App.3d 406, 418, 139 Cal.Rptr. 473). Any ambiguity in a law affecting
that right must be resolved in favor of eligibility to hold office. (Carter, at p.
182, 93 P.2d 140; Younger, at p. 418, 139 Cal.Rptr. 473.)
Moreover, the ballot pamphlet did not set forth the text of the proposed
provision or facilitate a comparison with the existing provision through
which a voter could discover the purported change that the description
and summary failed to disclose. A voter would have had to turn to a
separate booklet containing the complete text of the proposed city charter
to discover the apparent inconsistency between the information provided
in the ballot pamphlet and the actual text of the term limits provision. We
do not suggest that an inconsistency between the ballot pamphlet and the
actual text of a measure necessarily must be resolved in favor of the ballot
Honorable Bob Jacobson
May 26, 2004
Page 9
pamphlet in all circumstances (Citations omitted). However, in these
circumstances, where the ballot pamphlet and the recent history of the
term limits law reasonably led the voters to believe that the law was
unchanged and where the fundamental right to hold public office is at
issue, we conclude that the voters did not intend to change the term limits
law so as to disqualify persons who had served two terms of office before
July 1993.
Woo, supra, 100 Cal.Rptr.2d at 162-164.
As Woo instructs us, the holding of public office is a fundamental right that
may only be curtailed if expressly provided by law. Where there is ambiguity, as
in the 1996 Hawaii County Charter amendment, any ambiguity must be resolved
in favor of allowing a potential candidate to run for elective office.
State ex. rel. Voss v. Davis, 418 S.W.2d 163 (Missouri 1967), an old case
found in our original research of this issue, and perhaps the only case which
mildly supports the position that the 1996 Hawaii County Charter amendment
has retroactive effect, is patently and easily distinguishable on its facts.
In Davis, the Supreme Court of Missouri held, inter alia, that the
constitutional authority and power to amend the Kansas City Charter carried with
it the right of the people to determine the length of term of their elected officials,
even though that incidentally would involve shortening the terms of incumbents.
However, in Davis, and unlike the present situation involving the Hawaii County
Charter, the Kansas City Charter amendments included the following language
(recited in pertinent part):
Sec. 489. Terms of office to be two years. The terms of office of all
elective officials, including the mayor, the councilmen and the judges of
the municipal court, shall be two years, and until their successors are
elected and have qualified.
The terms of office of officials elected at each biennial election after such
1965 election shall continue until ten o'clock in the forenoon of April 10th,
two years after the date when they were elected and until their successors
are elected and have qualified. This Section shall take effect immediately
upon adoption.
Sec. 490. Elections held every two years . . . (I)n the year 1967, and in
f each second year thereafter, a regular municipal election for the choice of
all such municipal officers to be elected by the people shall be held on the
last Tuesday in March. A primary election shall be held in the city, in each
election precinct thereof on the fourth Tuesday preceding each regular
municipal election. All candidates for office shall be nominated and all
Honorable Bob Jacobson
May 26, 2004
Page 10
elections herein provided for shall be held in accordance with the
provisions of Article XVI of this Charter, and the other election laws of this
state applicable to elections held in this city not in conflict with this
Section. This Section shall take effect immediately upon its adoption.
Davis, supra, 418 S.W.2d at 165-166.
Thus, Davis, an old case with distinguishable facts and negligible
precedent (shepardizing this case revealed one citation where it was
distinguished), is of limited import to our analysis and conclusion that the 1996
Hawai'i County Charter amendment has prospective application only. This is
because Davis was a case where transactional provisions were clearly stated in
the law.
In addressing your specific questions in your original communication to
our office of March 6, 2003, you ask for citations to "United States Constitutional
and Hawaii case law pertinent to his (Mr. Konishi's) findings and conclusions."
Our research revealed no reported United States Supreme Court cases on
this issue. Presumably, as Mr. Konishi points out at page 2 of his written findings,
the congressional promulgation of the 22nd Amendment to the United States
Constitution contained language, unlike the 1996 Hawaii County Charter
amendment, which adequately provided fair notice of the amendment's effect to
both the person holding office at the time the amendment was passed, as well as
the person holding office when the amendment became law. Thus, no litigation
ensued.
There are no reported Hawai'i appellate court cases on this issue.
You ask for the relevance of"Fasi v. Cayetano, 60 Hawai'i 282, 588 P.2d
915 (1978)." The correct title of this case is Hustace v. Doi, found at the same
citation. I believe Mr. Konishi cited this case for the proposition that a sufficient
justiciable case and/or controversy exists in the present Hawaii County Charter
matter, sufficient to warrant the filing of a request for declaratory relief.
As stated above, we do not conclude, based upon a reading of our Rules
of Civil Procedure and Rules of Professional Conduct, and absent an adversarial
party, that it would be permissible to bring this case before the Circuit Court.
Hustace involved a nonpartisan candidate for mayor of Maui County suing
Hawai'i's chief election officer to determine the validity of Hawai'i's election laws
with respect to the criteria for inclusion of nonpartisan candidates on the ballot for
the general election.
Honorable Bob Jacobson
May 26, 2004
Page 11
Unlike Hustace, there appears to be no one willing to challenge Mr.
Konishi's findings. As I expressed to you in my email communication of May 15,
2003, an adversarial party, in our opinion, would be necessary. This is because
our court rules require an actual case or controversy.
Your final question is, "Please advise what corrective action the Council
could take if there (sic) have been omissions or failures in the due process of
passing the term limits bill other than the County Clerk's conclusion that four
Council members elected in 1996 are still eligible candidates in 2004."
Your question presupposes it was the intent of the Council and the voters
to specifically include prior and/or contemporary elective terms of service into the
"term limit" calculation, when the Charter amendment passed in 1996. As stated
in our opinion, ante, the record is barren of any such conclusive determination,
given the limited legislative history, lack of stated intent on the public notice, and
lack of stated effective date and term calculation in the body of the law. Thus, we
cannot make the same assumption you do, as such would be inappropriate in
properly performing our function in independently reviewing the record and law,
and formulating an informed opinion.
Further, our opinion does not pass on the wisdom of such term limit
legislation, but is limited to researching and opining what a Hawaii court would
conclude, given the present record, constitutional considerations, and prevailing
national case law.
I thoroughly agree with both you and Mr. Konishi that a judicial
determination would be most conclusive. However, our research, conducted
independent of Mr. Konishi's conclusions, reveal it highly unlikely a Hawaii court
would disagree with Mr. Konishi's findings.
A final note worth repeating. As we expressed at the beginning of our
opinion, it is the responsibility of the County Clerk pursuant to law to determine
the eligibility of candidates for elective office in our County. The County Clerk
and not the Corporation Counsel, makes this determination. To the extent our
independent research arrives at the same conclusion and opinion as the County
Clerk, and is relevant for whatever purpose you seek it, we conclude there is
neither a conflict of interest nor breach of our ethical responsibilities.
Consequently, we render this opinion.
Since our opinion is intended for publication, any person having a different
opinion should not solely rely on our analysis and conclusions, and is herein
advised to contact an attorney licensed to practice law in the State of Hawaii if
he so chooses. The Corporation Counsel's opinion is intended to assist County
officers, and is not intended to be binding on the public at large.
Honorable Bob Jacobson
May 26, 2004
Page 12
Conclusion
We cannot say County Clerk Al Konishi's written findings concluding that
those members of the council elected contemporaneously with the Charter
amendment in the 1996 election must count their"1996 term" towards the term
limit calculation, are erroneous. In fact, the County Clerk's conclusions appear to
be consistent with the vast majority of national case law and precedent, and
consistent with our belief of what a Hawaii court would so hold.
Based on the foregoing reasons and authorities, the Hawaii County
Corporation Counsel concludes the 1996 Hawaii County Charter amendment
providing that council members shall be limited to four consecutive two-year
terms, has prospective application only, and does not prohibit council members
elected (or reelected) in that year (1996) from running for council office in the
2004 election.
Very truly yours,
LINCOLN S. T. ASHIDA
Corporation Counsel
Attachment
cc: Honorable Harry Kim, Mayor (w/ attachment)
Honorable James Y. Arakaki (w/attachment)
Honorable J. Curtis Tyler, III (w/attachment)
Honorable Aaron S. Y. Chung (w/attachment)
Honorable Leningrad Elarianoff(w/attachment)
Honorable Gary Safarik (w/attachment)
Honorable Fred Holschuh (w/ attachment)
Honorable Joe Reynolds (w/ attachment)
Honorable Michael Tulang (w/ attachment)
S: Departments/Corp CounseVOpinion 2004-03 5-26-04/LSAmr
a
AL KONISHI 4 �<v "•'•. 4 JAY M.MENDE
County Clerk �' .f Deputy County Clerk
'r'••: CONSTANCE R KHUU
1 J Legislative Auditor
OFFICE OF THE COUNTY CL�Rk
County of Hawaii
Hawaii County Building
25 Aupuni Street
Hilo,Hawaii 96710
Telephone: 961-8255
Facsimile: 961-8912
February 7,2003
Dwayne D. Yoshina
Chief Election Officer, State of Hawaii
802 Lehua Avenue
Pearl City, Hawaii 96782
Dear Mr. Yoshina:
The purpose of this letter is to transmit to you the attached findings resulting from my review of
Section 3-2,Hawaii County Charter,relating to County Council term limits.
This letter and the findings are intended to be similar in substance to the communication which
was found by the Hawaii Supreme Court to be the basis for a justiciable case in Fasi vs. Cayetano,
60 Haw. 282, 588 P.2nd 915 (1978). It is intended that by taking a position at this time on the issues
raised and reviewed in the attached findings, all interested parties will have adequate opportunity to
obtain judicial guidance.
If you have a contrary view or if you have questions,please contact me as soon as possible. I
emphasize that time is of the essence.
Thank you for your assistance.
in
s
cc: Aaron Hiroshi Schulaner, Esq.
Deputy Attorney General, State of Hawaii
Lincoln S. T. Ashida, Esq.
Corporation Counsel,County of Hawaii
Michael J. Matsukawa, Esq.
Legal Counsel, Citizens for Equitable and Responsive Government
ATTACHMENT 1
Findings: Review of Hawaii County Charter
Provision on Council Term Limits
I. Timing -- Need to Act Now
This Office has conducted a review of the Hawaii County
Charter term limit provision relating to County Council. There
are questions relating to the application of the term limit .
The questions have arisen because: 1) two important provisions
were omitted from the 1996 amendment which established the
limit; 2) there was no explanatory information provided to the
voters relating to effective date and application; and
3) because there is no relevant legislative history relating to
the Council bill which proposed the limit.
Although this office is not legally required to take any
action at this time, this office believes that a timely
resolution of this issue should be facilitated. The worst case
scenario would be for this office to remain silent until the
July 20, 2004 candidate filing deadline. At that time, if
candidates, intended candidates .or the public disagreed with the
decision of this office, the 2004 elections could be disrupted
or held under a cloud of litigation. By acting now,
approximately one year prior to the first day candidates may
obtain nomination papers on February 1, 2004 and approximately
18 months prior to the 2004 candidate filing deadline, all
potential parties will have adequate time to carefully study the
evidence and law and, if necessary, seek guidance from the
courts. 1 More importantly, by raising these issues at this
time, the courts would not be compelled to act within a
compressed time frame, as it was with certain aspects of
reapportionment. 2
This document is intended to be similar in substance and
effect as the letter which was found to be the basis for a
justiciable case or controversy in Fasi v. Cayetano, 60 Haw:
282, 588 P.2nd 915 (1978)
II. Issue
The basic issue is how to treat County Council terms to
which persons were elected in 1996 simultaneously with the
approval of the County Charter amendment.3 So far, no one has
taken the position that the term limit should be applied
retroactively to count terms served by Council members rp for to
the 1996 General Election, although the amendment and related
documents are silent on the issue. Also, no one has taken a
1�-
position against counting terms to which persons were elected
following the 1996 General Election. There is a legitimate
question relating to terms to which persons were elected to in
1996 because of the combination of three unusual omissions by
the 1994-1996 Council:
1 . Lack of a stated effective date;
2 . Lack of explicit and complete transitional provisions
relating to persons elected in 1996 (as stated below,
Congress and the State Constitutional Convention both
included such provisions when they proposed term
limits for the President, Governor and Lieutenant
Governor) ; and
3 . Lack of any relevant legislative history.
Although none of these omissions, either individually or
collectively, would appear to jeopardize the validity of the
term limit, they do create doubt relating to the amendment' s
applicability prior to the 1998 General Election.
III . Sources of Problem
A. Deviation from Federal and State Constitutional
Models.
Congress, when it drafted what became the 22nd Amendment to
the United States Constitution in 1951, which prohibits anyone
from being elected President more than twice5, included language
relating to the person holding office when the amendment was
proposed and to the person holding office when it eventually
became law. By doing so, Congress anticipated and eliminated
implementation problems and it provided the electorate and
candidates with fair notice of the amendment' s effect. 6
The Hawaii Constitutional Convention of 1978, when it
drafted a proposed amendment to Article V of the Hawaii
Constitution limiting the number of terms to which a person may
be elected Governor or Lieutenant Governor, ' followed .the concept
of the 22nd amendment (limit on being elected.) . It also followed
the example of Congress by including in the State Constitution a
clear provision (Section 4, Article XVIII) 8 on how the amendment
would affect persons elected simultaneously with the approval of
the amendment. It did so, presumably, for the same reasons
Congress included a transitional provision in the constitutional
amendment relating to the President.
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2 -
In contrast, the Hawaii County Council in 1996, when it
drafted a proposed amendment to the Hawaii County Charter, (our
island' s "constitution") to limit the consecutive terms County
Council members could serve, it not only failed to follow the
concept of the term limits for President, Governor and
Lieutenant Governor,9 it also failed to include an effective date
and transitional provisions relating to:
A. Did terms (or partial terms) served prior to the
effective date of the amendment count towards the
eight year term limit;
B. Would a term to which a person could have been elected
to in the Primary Election of 1996 count towards that
person' s eight year term limit; and
C. Did a term, to which a person was elected to
simultaneously with the approval of the amendment
count towards that person' s eight year term limit.
The lack of a stated effective date10 coupled with the lack
of transitional provisions probably does not render the Council
term limit ineffective, however, , it does create due process and
other constitutional issues relating to persons elected to the
Council in 1996. Other potential issues, created by the failure
to follow the federal and state constitutional models, could be
the basis of additional questions, but they were not considered
in this review. "
B. No relevant legislative history.
A source which might normally provide guidance, does not
exist in this case. As discussed below, the 1994-1996 Council
did not produce any committee reports (it chose to waive a
committee referral -- see attached Exhibits referred to below)
or engage in relevant floor discussion to provide legislative
history or insights into the intent of the amendment as it
relates to these issues. Again, this would not normally be
fatal to a measure, but coupled with the above discussed
omissions, it eliminates an unimpeachable, unaltered and
disinterested source relating intent or purpose of the measure.
C. Lack of clear explanatory information to the voters.
. The 1994-1996 County Council missed a second opportunity
prior to the 1996 election to provide clear and complete
guidance on these issues. In June 1996, pursuant to the
provisions of the County Charter, 12 the County Council adopted a
resolution 13 requiring that public notices be run in the two
R
3
newspapers of general circulation in the County (the Hawaii
Tribune Herald and the West Hawaii Today. ) The resolution and
the resulting notice (see attached Exhibits referred to below)
did not provide any information to prospective voters relating
to the issues which are the subject of this review.
D. No Hawaii case law on point.
Another source of potential guidance does not exists . As
of the 2002 elections, no Hawaii courts have ruled on term limit
issues.
IV. Previous County Council Recognition of Problem
Somewhat telling evidence that the 1996 amendment is
deficient, is the 1996-1998 County Council' s attempt to clarify
the effective date issue in 1998 . 19 The attempt reveals that the
problem with the 1996 amendment was apparent almost immediately
after it was approved. As a follow-up to the only discussion the
1994-1996 Council had on the term limit issue, an amendment was
proposed by the 1996-1998 Council to lengthen the term of
members from two to four years. The amendment was rejected.
ls
The attempted amendment did three things . First it
recognized the omission of key provisions in the 1996 amendment;
second, it tried to retroactively fill that void; and third, it
included in the proposed 1998 amendment a complete and very
thorough explanation of the effective date and how terms should
be computed.
The recognition of the problem is stated, not in words, but
by omission. SECTION 3 of Ordinance 98-78 (see attached Exhibit
"L") , which contains a detailed explanation of the effect of the
proposed amendment, begins with the sentence:
To honor the spirit and intent of the 1996 term limitation
Charter amendment... (underlining added)
The 1996-1998 Council apparently could not also honor the letter
of the Charter provision, which was quite evidently, missing.
The best evidence of this is the great length that the Council
took in drafting SECTION 3. 16
SECTION 1 of the bill, entitled , "Purpose" is also
revealing, especially when it is read together with SECTION 7 of
the Ordinance. SECTION 1 stated:
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4
The effective date of the 1996 Hawaii County Charter
amendment establishing term limitations not to exceed eight
consecutive years in county council office is twelve
o' clock meridian on the first Monday of December, 1996.
Although, as discussed above, there is probably authority to
deem a ballot measure effective upon approval if no effective
date is stated in the proposal, the Council took additional
liberty by asserting the December effective date. Probably
without intending to do, the 1996-1998 County Council pointed
out the most glaring deficiency of the 1996 amendment by
including SECTION 7 in the 1998 Ordinance:
Upon approval of the Charter amendment proposed in this
ordinance by a majority of voters voting thereon, as duly
certified, the provisions of Section 3 of this ordinance
shall take effect at twelve o'clock meridian on the first
Monday of December after the 1998 election.
The contrast between the 1996 amendment and the 1998 -proposed
amendment is very stark. A side by side examinaton of both
provides conclusive evidence that the 1996 amendment was drafted
in an incomplete manner.
V. Limitation of Individual Constitutional Rights; Available
Remedies
This office is empowered to act in accordance with the
letter and spirit of the law. However, any law seeking to
impose limits on the constitutional rights of individuals must
be clearly written. The letter of such a law must be precise
and complete. Even if a more expansive reading of the "spirit"
of the 1996 amendment may seem clear to some, without explicit
authority, this office should not and will not impose Limits on
the constitutional rights of individuals. This office can not
act merely on the basis of our best guess about the "spirit" of
the 1996 amendment, _particularly when that "spirit" was not
clearly articulated by the drafters who had numerous
opportunities to do so in the normal course of Council action.
l'
At this time, more than eight years after the term limit
provision was drafted, questions relating to the spirit of the
law are more appropriately within the province of the courts and
the .consciences and intelligence of the candidates and voters.
This is especially true when considering the remedies
available to all parties. If a person is erroneously kept off
the ballot, she or he may not have an adequate remedy once the
S �.
Y
ballots are printed. On other hand, if a person is considered
to be on the ballot inappropriately, the electorate can affirm
its intent by refusing to elect that person.
VI. Exclusion vs. Inclusion
This particular issue has implications beyond the
constitutional rights of politicians. This office has
consistently taken the positions that: 1) doubts relating to
election laws should be resolved in favor of protecting the
constitutional rights of individuals; and 2) ambiguities in the
law should be resolved by placing issues and candidates on the
ballot and having the voters decide what is properly before
them.
The present policy of construing doubts in favor of ballot
access is consistent with principles dating back to the original
drafting of the United States Constitution. The drafters of the
United States Constitution considered and rejected term limits
because of their belief that excluding persons from holding
office is not conducive to democracy. The United States Supreme
Court in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779
(1995) , referred to the drafters' discomfort with exclusionary ,
provisions. The Court included in their decision James
Madison's comments from the 1787 Federal Constitutional
Convention:
A republic may be converted into an aristocracy or
oligarchy as well as by limiting the number capable of
being elected, as the number authorised to elect.
The subject issue presents the opportunity for this office
to retain its present philosophy or to adopt new, more
restrictive policies relating to ballot access. Such a change
would not seem consistent with fundamental constitutional
principles and recent trends favoring inclusion over exclusion.
Findings:
1. On December 12, 1994, Councilman James Rath introduced
Bill No. 5, which proposed an amendment to Section 3-2, Article
III, of the Hawaii County Charter, entitled, "Terms and
Composition, " to add the words:
The terms of the council members shall not exceed four
consecutive two year terms.
6
2. The bill did not propose inserting into the Charter
any provisions relating to:
i) effective date;
ii) whether to count terms served by Council members
prior to the effective date of the proposed
amendment;
iii) whether to count terms won in the 1996 Primary
Election (45 days before the proposed amendment
was to have appeared on the 1996 General Election
ballot) ; and
iv) whether to count terms won simultaneously with
the approval of the proposed amendment.
3. There were no such provisions in the rest of the bill.
4 . SECTION 5 of the bill stated:
Upon adoption of the ordinance, this Council, by
appropriate resolution shall provide that this
amendment be submitted to the electorate of the County
for approval at the next general election.
5. On December 12, 1994, Council Chair Elroy T. L. Osorio
approved the request of the Chair of the Finance Committee
(Rath) , to waive committee referral. (A copy of the letter
requesting and approving the waiver is attached as Exhibit "A". )
As a result, the bill was not considered by a committee and
there was no committee report produced to express the intent and
purpose of the bill.
6. Pursuant to Section 15-1 (a) , Article XV, Hawaii County
Charter, the bill passed three readings.
7. The bill was first considered on December 21, 1994 .
It passed first reading by a 9-0 vote. Although there was
limited discussion on the bill, there was no discussion of the
issues of effective date and computation of term limits.
8. The bill was considered again on January 4, 1996 and
it was passed on second reading by a vote of 7 yes and 2 absent.
Again, although there was discussion, it was limited to whether
council terms should be extended from two to four years.
9. The bill passed final reading on January 20, 1996 by a
vote of 8 yes and 1 no. There was no discussion of the bill.
7 �.
10. The bill became Ordinance 95-20 on January 25, 1995.
(A copy of the Ordinance and excerpts from the minutes of the
three meetings are attached hereto as Exhibits "B-E". )
11. Pursuant to Section 12-2. 5, Hawaii Revised Statutes,
nomination papers were made available to 1996 County Council
candidates beginning February 1, 1996.
12 . Pursuant to SECTION 5 of Ordinance 95-20, on June 3,
1996, Council member Keiko Bonk-Abramson introduced Resolution
No. 298-96. (A copy of the resolution is attached as Exhibit
..F". )
13. Resolution No. 298-96 was considered by the County
Council' s Committee on Finance on May 14, 1996. There was no
discussion of the issues which are the subject of this review.
(A copy of the relevant excerpts from the meeting are attached
hereto as Exhibit "G". )
14 . The Committee produced Finance Committee Report No.
258. (A copy of the committee report is attached as Exhibit
"H". )
15. Resolution No. 298-96 was considered by the full
Council on July 3, 1996 and passed by a vote of 9-0. There was
no discussion of the resolution. (A copy of the relevant
excerpts of the meeting are attached as Exhibit "I". )
16. The candidate filing deadline for the 1996 council
elections was July 23, 1996.
17. Pursuant to Ordinance 95-20 and Resolution 298-96, a
"PUBLIC NOTICE OF PROPOSED AMENDMENTS TO THE HAWAII COUNTY
CHARTER", was published in the West Hawaii Today and the Hawaii
Tribune Herald in September, 1996. (A copy of the notice, which
appeared in the September 15, 1996 edition of the West Hawaii
Today, is attached as Exhibit "J". ) The notice did not contain
any information on effective date and whether terms to which
persons could be elected to in the 1996 General Election would
be counted towards the term limit.
18 . The primary election was held on September 21, 1996.
No candidate was elected in the primary pursuant to Section
12-41., Hawaii Revised Statutes.
8
19. The proposed amendment was placed on the 1996 general
election ballot on card B, side 2 as Proposal 1. (A copy of the
ballot card is attached as Exhibit "K". )
20. Proposal 1 contained an explanation of the present
provisions and the effect of the proposal. It did not contain
any reference to effective date, treatment of prior terms,
persons elected in the Primary Election and persons elected
concurrently with the approval of the amendment.
21 . The general election was held on November 5, 1996 .
Proposal 1 was approved by a vote of 33, 542 yes to 10, 428 no.
22 . Nine persons were elected to the County Council at the
1996 General Election. of the nine, four are still presently in
office.
23. The right to run for political office, though not a
fundamental right, is constitutionally protected by the United
States Constitution and the Hawaii State Constitution, including
but not limited to provisions relating to due process, political
rights and equal protection.
24 . Any restrictions on such constitutionally protected
rights should be as explicit as possible and not vaguely worded
so as to require substantial administrative speculation and
interpretation for implementation.
25. Doubts created by vagueness and incomplete drafting
should be construed against restrictions on the constitutionally
protected rights of individuals.
26. The Hawaii County Charter, as amended by the subject
amendment, does not contain a clear and unambiguous provision
relating to persons who were elected to council terms prior to
and simultaneously with the effective date of the amendment.
27 . There is no relevant legislative history relating to
subject issues raised by the amendment.
28. The drafting of the amendment appears incomplete. The
amendment did not follow the clear models contained in the
United States Constitution or the Hawaii State Constitution.
29. The amendment as presented to the voters in the legal
notice to the electorate or on the ballot, did not contain any
�-
9 .
explanatory or other information relating to effective date or
computation of terms.
30. An amendment of the Charter which would retroactively
insert language relating to term limit computation, as proposed
in 1998, would not be respective of the due process rights of
the affected individuals. (A copy of Ordinance 98-78 is
attached as Exhibit "L". )
Based on the above findings, I conclude that:
1. The term limit contained in Section 3-2, Article III,
Hawaii County Charter, should be construed to begin counting
terms to which persons were elected beginning with the 1998
Primary and General Elections. Persons elected to the County
Council at the 1996 General Election simultaneously with the
approval of Proposal 1 and still presently serving, are eligible
to become candidates for the 2004 County Council election.
2. Nomination papers will be issued by this office to
such persons if requested and accepted by this office if
submitted.
3. Names of said persons shall be placed on the 2004
ballot for election pursuant to the Hawaii County Charter.
DATED at Hilo, Hawaii, this day of February, 2003.
Al Konishi, County Clerk
10
Notes
1 Recent litigation seeking the invalidation of the 2002
County Council Reapportionment plan illustrates how time
consuming it will be to obtain a judicial resolution of the
issues relating to the term limit. Two lawsuits were filed on
March 4, 2002, 4 . 5 months prior to the July 23, 2002 candidate
filling deadline and 6. 5 months prior to the September 21, 2002
Primary Election. Both are still pending. The case which has
moved the "fastest", Citizens for Equitable and Responsible
Government ("'CERG") , et al. vs. County of Hawaii, et al . , Civil
No. 02-1-0092 (Hilo) , is now at the first step of the appeals
process (a Notice of Appeal was filed on January 31, 2003 . ) The
second case, Boyd, et al . vs . Van De Car, et al. , Civil No.
02-1-0091 (Hilo) is still in its early stages (Plaintiff' s
Motion for Summary Judgment is scheduled for February 14, 2003. )
2 A motion for partial summary judgment in the CERG case
was heard on June 28, 2002, just a few weeks prior to the
candidate filing deadline on July 23, 2002 . The Court' s Order
denying the motion was filed on July 19, 2002, a few days prior
to the candidate filing deadline. If the court had granted the
plaintiffs' motion, the 2002 County Council elections would
have, at the very least, been delayed. This fact may not have
been lost on the court.
3 As discussed infra, it is assumed by this office for
the purposes of this review that the lack of a stated effective
date means that the amendment took effect upon approval by the
voters at the 1996 General Election. However, this office does
not assume that a court would take that position on this issue
which may be crucial in litigation relating to the specific
issue at hand. If this issue is litigated, this office will not
advocate a position on the issue but will rather defer to the
court.
4 The 22nd amendment reads: "No person shall be elected
to the office of the President more than twice, and no person
who has held the office of President, or acted as President, for
more than two years of a term to which some other person was
elected President shall be elected to the office of President
more than once. But this Article shall not apply to any person
holding the office of the President when this Article was
proposed by the Congress, and shall not prevent any person who
may be holding the office of the President, during the term
within which this Article becomes operative from holding the
11 �.
office of the President or acting as President during the
remainder of such term. " (underlining added)
5 It should be noted that the presidential restriction
is on election, not on service. As discussed below, this is
another way that the 1996 Council deviated from the Federal and
State models and which has already resulted in questions which
are noted here but not addressed in this review.
6 Because of the ratification process, Congress could
not know when the amendment would become effective, if ever.
The restriction relating to the Governor is contained
in Section 1, Article V, and the restriction relating to the
Lieutenant Governor is contained in Section 2, Article V.
8 "The amendments to Sections 1 and 2 of Article V shall
limit the term of any person elected to the office of governor
or lieutenant governor in the 1978 general election to two
consecutive full terms commencing from noon on the first Monday
in December, 1978. " This provision demonstrates that it is not
impermissible to apply a term limit to persons elected
simultaneously with approval of the limit if said limit is
imposed in a manner which respects the due process, equal
protection and other constitutionally protected rights of
candidates.
9 Prior to the expiration of the term of Mayor Stephen
Yamashiro in 2000, he publicly questioned whether he could be
elected to a third consecutive term and serve, if he resigned
shortly before serving "two full consecutive" terms. Since the
County Charter term limit provisions relating to Mayor and the
Council are worded to prohibit the serving of terms (as opposed
to being elected to a number of terms) the vague wording could
provide -a popular officeholder and a sympathetic court the
opportunity to arrive at such a result although it would not
seem to be consistent with the clear intent of the Charter. If
the drafters of the subject County Charter amendment had
followed the model of the 22nd Amendment, the present questions
and Mayor Yamashiro' s hypothetical question would have been
avoided. The drafters of the Council term limit also created
another source of speculation because rather than place the
service limit in Section 3-3, Article III, 'entitled,
"Qualifications, " (as it is in the case of the Mayor) the new
language was inserted into the section entitled, "Composition
and Terms. " It seems like an inconsequential difference but it
could be another potential issue if the provision is challenged.
R-
12
10 There is case law supporting the proposition that if a
proposed amendment lacks an effective date, it should be deemed
to have taken effect upon approval. However, if the proposed
amendment had contained either an effective date or transitional
provisions, its intent would be easier to ascertain. It could
be argued that there are no transitional provisions because it
was clear that the amendment was not intended to affect persons
elected in 1996.
11 Typically, term limits have been enacted to prevent
near permanent incumbency. However, the 1996 provision did not
address issues relating to districts in which there are no
incumbents, for example, because of redistricting or the
retirement of the incumbent. If an incumbent Council member
moves to a district with no incumbent and is elected, are terms
served in both districts combined in computing the applicable
term limit? This question is not examined here but is one which
could arise in the future.
12 Section 15-2, Article XV, Hawaii County Charter
13 Resolution 298-96
14 Proposition 3, General Election 1998, Ordinance 98-78,
Bill 229, Draft 2
15 Even if the amendment had been approved in 1998, it is
not certain that the proposed retroactive expression of intent
would be deemed relevant by a court considering due process
aspects of the 1996 amendment.
16 SECTION 3 read:
"Four-year terms of office for council members shall
commence in the year 2000.
To honor the spirit and intent of the 1996 term
limitation Charter Amendment, this ordinance establishing
conversion to four-year terms of office beginning in the year
2000 determines that any council members elected in 1996 and re-
elected to office in the 1998 and 2000 general elections shall
be eligible to serve consecutive terms of office until 2004 .
This ordinance finds that incumbent council members elected in
1996 may serve two (2) year terms until the year 2000, and one
(1) four-year term until the year 2004 .
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13 �'
Any candidate (s) newly elected to the County Council
in the 1998 general election, upon serving one (1) two-year term
until the year 2000, shall be eligible to serve two additional
four-year terms of office until the year 2008. This will allow
council members first elected in 1998 to serve three consecutive
terms of office, thereby achieving parity with any incumbent
council members elected in 1996 and who are thereby eligible to
serve a total of three consecutive terms until the year 2004 . "
17 As discussed above, the drafter of the bill which
resulted in the 1996 amendment intentionally and knowingly
eliminated one key step of the process, committee consideration.
Had the bill not been "expedited" in this manner, a committee
report would have been produced, providing the Council another
opportunity to state the intent and purpose of the amendment.
It should be noted that the subject bill was one of the first
measures introduced and considered by the 1994-1996 Council.
This measure was not "expedited" in order to meet deadlines for
placement on the ballot. There are no Council records shedding
light on the reason why the drafter (who was also the subject
matter committee chair) felt compelled to employ the procedural
shortcut.
R
14 '
m Rath J,tY OF h�4
-ce-Chairman
*TE OfrM '-- -
COUNTY COUNCIL u M c,
County of Hawaii C0V.n11,
Hawaii County Building
25 Aupuni Street
Hilo,Hawaii 96720
December 12, 1994
Council Chairman Elroy T.L. Osorio
Hawaii County Council
25 Aupuni Street
Hilo, Hawaii 96720
RE: Attached Bill
Pursuant to Section 1(d) of Rule 4 of the Rules of Procedure of
the Council of the County of Hawaii, this written approval is
submitted in regards to Bill No. 5 ' which relates to an
Ordinance to initiate a Charter Amendment to Section 3-2,
Article III of the Hawaii County Charter relating to
composition and terms of the Hawaii County Council, waiving
said referral from .the Committee on Finance in order that
appropriate action can be taken by the Council.
In reviewing the contents of the referral, it is deemed
advisable that such waiver be granted.
J X:7
ath, airman
Committee on Finance
Approved:
Elroy T. L. Osorio, Chairman
Hawaii County Council
COUNTY OF HAWAII� -'�"' TATE OF HAWAII
BILL NO. s
ORDINANCE NO. 95 20
AN ORDINANCE TO INITIATE A CHARTER AMENDMENT TO SECTION 3-2,
ARTICLE III OF THE HAWAII COUNTY CHARTER RELATING TO COMPOSITION
AND TERMS OF THE HAWAII COUNTY COUNCIL.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Purpose. The purpose of this ordinance is to
propose an amendment to the Hawaii County Charter to provide term
limits for county council members.
SECTION 2. Section 3-2, Article III of the Hawaii County
Charter relating to composition and- terms of the county council is
hereby amended to read:
"Section 3-2. Composition and Terms . There shall be a
county council composed of nine members. One member shall be
elected from each of nine districts. The terms of the council
members shall be two years and shall begin at twelve o'clock
meridian on the first Monday of December after their election.
The terms of the council members shall not exceed four consecutive
two Year terms. Candidates shall be nominated and elected in
accordance with the election laws of the state. "
SECTION 3 . Material to be repealed is bracketed. New
material is underscored.
SECTION 4 . In the event that any portion of thix
ordinance is declared invalid, such invalidity shall not affect
the other portions of this ordinance.
SECTION 5 . Upon adoption of this ordinance, this
council, by appropriate resolution shall provide that this
amendment be submitted to the electorate of the county for
approval at the next general election.
I RODUCE
"It MEMBE COUNTY OF HAWAII
Hilo, Hawaii
Date of Introduction: December 21, 1994
Date of 1st Reading: December 21, 1994
Date of 2nd Reading: January 4 , 1995
Date of 3rd Reading: January 20, 1995 -
Effective Date: January 25, 1995 y
OFFICE OF THE COUNTY CLERK
County of Hawaii
Hilo . Hawaii JS j,
It&L CALL VOTE
AYES NOES Am EX
Introduced By: Arakaki
Date Introduced: Bonk-Abramson
Fast Reading: Childs
Published: De Lima
REMARKS: min
Osorio
Rath
Ray
Smith
ROLL CALL VOTE
hirt Tanuwr
ading: y 20 , -1995
AYES NOES ABS E?'
To Mayor. January 20, 1995 Ar �
Returned: January 25, 1995 X
"fective: January 25, 1995 Abramson X
AbUshed February 11 1995 Childs X
De Lima
REMARKS: Domingo X
Osorio x
Rath X
Ray X
Smith X
8 1 1 0 0
1 DO HEREBY CER77FY that the foregoing BILL was adopted by the County Council and published as
it,dicatgd above,
APPROVED as t Q`
FOR and LE TY
COUN
CORPORATION COUNSEL
COUNTY OF HAWAII
O CLERK
Ad QSc:!1 day
I9 4 4
MAY&,COUNTY OFHAWAII Bill NO_ 5
R
Reference: C-36
Ord.No.:
OFFICE OF THE COUNTY CLERK
County of Hawaii
Hilo—,Hawaii
':i5 Ji„1. Z5 1' 53
r • - ROLL car. -i o-TE
_. A= ... ES
Introduced By: Jim Rath ARA10►1CZ ABS
Date Iiit�duced: December 1, 1994
First Reading: December 21,
1994 130SK-AHR MON X
Published: N/A C�LD8 X
DE L33LA X
JtEMARJM 003cam X
OSC=O x
RATS X
RAY X
87aTN X
0
ROLL CALL VOTE
Second Reading: January 4,_1995 DES ABS I
To Mayor. ARM= X
Returned: HO=-A8RA=CDt X
Effective: C 93=w X
F `+fished: DS L2701 X
ltE L4RJM* DSO X
OSORZO X
RATS X
RAY X
ON= X
2 0 1 C
HEREBY CER77FY that the foregoing BILL was adopted by the County Council and published a
tndicated
COUNCIL CHAIRMAN
COUN77
ApprovedJDisapproved this day
of . 19
:.
MAYOR. COUN'T'Y OF HAWAII BiI1 No.: 5
Reference: �`^A
R E G U L A R - M E- E T I N G
SECOND SESSION
Hilo, Hawaii
Wednesday, December 21, 1994
The Regular meeting of the County Council was called to order
by Chairman and Presiding Officer Elroy T.L. Osorio at 9 :04 a.m. in
the Councilroom, Hawaii County Building.
ROLL CALL: Present: Councilmember James Y. Arakaki
Councilmember Keiko Bonk-Abramson
(Arrived at 9 :05 a.m. )
Councilmember Keola Childs
(Arrived at 9 :05 a.m. )
Councilmember Brian J. De Lima
Councilmember Takashi Domingo
Councilmember Jim Rath
Councilmember John Ray
Councilmember Al Smith
Council Chairman Elroy Osorio
Also present were:
Stephen K. Yamashiro, Mayor
Richard Wurdeman, Corporation Counsel
Harry Takahashi, Finance Director
Virginia Goldstein, Planning Director
Steve Christensen, Deputy Corporation Counsel
Patricia G. Engelhard, County Clerk
Kaipo Kincaid, Deputy County Clerk
Daniel Lee, Legislative Auditor
Cheryl Sumida, Legislative Auditor
Assistant II
Ed Andrade, Legislative Auditor Assistant II
Keith Eck, Legislative Auditor Assistant II
Lehua Cortez, Legislative Assistant
Ken Hupp, Executive Assistant to the Council
Chairman
Hansrenda K.M. Dutro, Council Services
Reporter
Jeanette Aiello, Senior Clerk Stenographer
' 29
Hawaii County Council December 21, 1994
ORDINANCE: A Bill for an Ordinance numbered 5, initiates a
BILL 5: Charter amendment to Section 3-2, Article III, of the
-(WAIVED/FC) Hawaii County Charter relating to Composition and
C-36 Terms of the Hawaii County Council--introduced by
Mr. Rath.
CHR. OSORIO: Mr. Rath.
Mr. Rath moved for the passage of
Bill 5 on first reading. Seconded by
Mr. De Lima.
CHR, OSORIO: Any discussion? Mrs . Bonk-Abramson,
followed by Mr. Arakaki.
MRS, BONK-ABRAMSON: I have a question for the maker
of this bill. I know we discussed this in our
previous format of the Council make up, and was the
wording the same? The terms of the Council shall not
exceed four consecutive two-year terms? Does that
mean that you can have consecutive terms of eight
years and then take a break, come back for another
eight years or so if you get elected?
MR. RATH: Right. And that' s---
MRS. BONK-ABRAMSON: So you just can't do more than a
consecutive amount of terms?
MR. RATH: Yeah, you gotta take a break.
MRS. BONK-ABRAMSON: Okay, thank you.
CHR. OSORIO: Okay, Mr. Arakaki.
MR, ARAKAKI: Thank you, Mr. Chairman. Mr. Chairman,
I 'll be voting for this bill today although I don't
agree with all the items in the bill. I 've voted
against something like this in the previous Council
but I do believe that the people do want term limits ,
therefore I ' ll be voting for it.
What I don't agree on is the two-year terms . I really
feel that we should have two four-year terms and no
more than eight years of service, but I don't think I
have the votes today to pass something like that. So
I ' ll vote for it and let the voters decide that's the
way they want to do it.
y.
148
Hawaii County Council December 21, 1994
Perhaps in the future, I may introduce--ac..-bill for.- -
consideration by this Council to let the voters -decide
whether they would want a two-year or four-year
Council term. Thank you, Mr. Chairman.
CHR. OSORIO: Thank you, Mr. Arakaki . Mr. Domingo.
MR. DOMINGO: Thank you, Mr. Chairman. I think
Mr. Evans, this morning, brought up some good points
in considering this matter this morning; and he
indicated that there is a system and we keep in check
and evaluate the performance of a politician every two
years now, and I seem to go along with the same idea
in feeling that the people should be the ones to
alternately decide, and they do, as to who will be
serving them in. a County Council or any lawmaking body.
I feel that to impose such limits upon this whole
issue is also limiting the people and their right to
decide an individual' s ability to serve in government.
People, by voting at the polls, have said that right,
and what we will be doing is, in some ways, curtailing
that right that is before them. But as often
mentioned in this Council, if we would put this before
the public and have them decide whether they really
want it, I have no problem on this particular issue.
One point to consider is, it's not, this comment is
not made for any personal gain or anything because as
you all obviously know, it probably won't affect me.
CHR. OSORIO: At all, that's for sure. - Any other
comments? (There were none. ) If not, Madam Clerk,
would you call the roll?
The roll call vote on Bill 5 was as
follows :
AYES: Councilmembers Arakaki,
Bonk-Abramson, Childs,
De Lima, Domingo, Rath, Ray,
Smith and Chairman Osorio - 9 .
NOES: None.
CHR. OSORIO: That ' s really good. Bill 5 is adopted
on first reading. I hope you all feel the same way
when it comes up again.
149
R E G U L A R M E E T I N G
THIRD SESSION
Hilo, Hawaii
Wednesday, January 4, 1995
The Regular meeting of the County Council was called to order
by Chairman and Presiding Officer Elroy T.L. Osorio at 9:03 a.m. in
the Councilroom, Hawaii County Building.
ROLL CALL: Present: Councilmember James Y. Arakaki
Councilmember Keiko Bonk-Abramson
Councilmember Keola Childs
Councilmember Brian J. De Lima
Councilmember Takashi Domingo
Councilmember Jim Rath
Councilmember John Ray
Councilmember Al Smith
Council Chairman Elroy T.L. Osorio
Also present were:
Harry Takahashi, Finance Director
Richard Wurdeman, Corporation Counsel
Virginia Goldstein, Planning Director
Riley Smith, Deputy Chief Engineer
Ted S.H. Hong, Assistant Corporation Counsel
Steve Christensen, Deputy Corporation Counsel
Frederick Giannini, Deputy Corporation
Counsel
Joseph Kamelamela, Deputy Corporation Counsel
Patricia G. Engelhard, County Clerk
Daniel Lee, Legislative Auditor
Cheryl Sumida, Legislative Auditor
Assistant II
Ed Andrade, Legislative Auditor Assistant II
Keith Eck, Legislative Auditor Assistant II
Billie Baclig, Legislative Assistant
Merle Lam, Legislative Assistant
Lehua Cortez, Legislative Assistant
Ken Hupp, Executive Assistant to the Council
Chairman
Hansrenda K.M. Dutro, Council Services
Reporter
Jeanette Aiello, Senior Clerk Stenographer
175
Hawaii County Council January 4, 1995
_ORDINANCE A Bill for an Ordinance numbered 5, initiates a
LL : Charter amendment to Section 3-2, Article III of the
(C-36) Hawaii County Charter relating to Composition and
Terms of the Hawaii County Council, introduced by
Mr. Rath on December 21, 1994 for first reading; was
presented for the second of three required readings.
Mr. Rath moved for the adoption of
Bill 5 on second reading. Seconded by
Mr. Childs .
CHR. OSORIO: Mr. Ray.
MR. RAY: Mr. Chairman, I support this bill and I also
hope we support an eight year term limit with two
four-year terms to go on the ballot and that we
support an aggressive public education process prior
to the next election to address the voter' s needs to
really understand the issues involved.
I strongly believe that two-year terms are a huge
waste of time and money in many ways and that from an
efficiency standpoint, the public would be much better
served by four-year terms. Thank you.
CHR. OSORIO: Mr. Arakaki.
MR. ARAKAKI: I concur with Mr. Ray' s remarks. I
always felt that two four-year terms would be the way
we should be going and I supported the eight year
limit on two year terms because I believe in term
limits.
But I think what Mr. Ray suggested is more reasonable
and I think that this Council should consider that and
put that on the ballot and let the people decide which
way they want. Thank you.
CHR. OSORIO: Mrs. Bonk-Abramson.
MRS. BONK-ABRAMSON: Well, I can see the pro ' s and
con' s of having four years rather than two years for
personal reasons because you have to run for office
every two years but the voter' s did vote on it twice
already and I think we've heard their idea about
supporting two year terms .
213
Hawaii County Council January 4 , 1995
In fact, this new body is elected because we had two
year terms and it got changed around quite radically.
I think that ' s what the voter ' s wanted so we can keep
putting it back on that ballot but they wanted
two-year terms, Mr. Ray and Mr. Arakaki . Like it or
not, that ' s what they want. Thank you.
CHR. OSORIO: Mr. De Lima.
MR. DE LIMA: Well actually, that ' s not totally
correct. The two-year term has always been tied to
another issue. When it first was adopted by the
voter' s, it was tied to single member districts . It
did not ever stand alone. The second time it was put
on the ballot, it was tied to a term limit bill and
that measure was not published in a time frame for it
to appear legally on the ballot and as such, that was
challenged.
So I think there' s a lot of room for indicating that
there has never been a two to four year term placed on
the ballot in a way that it was not surrounded with
any legal challenge to allow the voters to decide that
issue. Now I, for one, understand the value of a four
year term and as Mrs . Bonk-Abramson indicated, there' s
pro' s and con' s.
I think from a point of view of an elected official,
four year terms serve a lot of benefits in not having
to run. The cost of elections are extremely
expensive. On the other hand, I think two-year terms
are very effective by allowing the voters to be able
to replace someone that they feel hasn't been
responsive or doing the job and I can see both sides
of the issue.
I 'm satisfied with the two year terms and I will be
satisfied with four consecutive two-year terms, but I
have no objection for the matter as Mr. Ray suggested
be placed on the ballot. Thank you.
214
Hawaii County Council January 4, 1995
CHR, OSORIOi Any further discussion? (There was
none. ) Madam Clerk, call the roll.
The roll call vote on Bill 5 was as
follows:
AYES: Councilmembers Bonk-Abramson,
Childs, De Lima, Rath, Ray,
Smith and Chairman Osorio - 7.
NOES: Councilmembers Arakaki and
Domingo - 2.
CHR. OSORIO: Bill 5 is adopted on second reading.
ORDINANCE A Bill for an Ordinance numbered 14, temporarily
BILL 14 : suspends the issuance of any building permit for a
(WAIVED/ dwelling on a lot within the State Agricultural Land
HSPWC) Use District by amending Chapter 5 (Building Code) of
-82 the Hawaii County Code 1983, introduced by Mr. Rath.
Mr. Rath moved for the adoption of
Bill 14 on first reading. Seconded by
Mrs. Bonk-Abramson.
AMENDMENT: Mr. Rath moved to amend Bill 14 to
Bill 14, Draft 2, as circulated.
Seconded by Mr. Childs .
CHR, OSORIO: Mr. Rath, would you explain Draft 2 as
being different from the original?
MR. RATH: Sure. The original measure was put on for
a suspension of building permits. This clarifies
that. It' s the second dwellings, be it either ohana
or farm dwellings . This, of course, is a temporary
measure for a period of 60 days to be extended however
by the Planning Director, that ' s the difference.
CHR. OSORIO: Mr. Childs .
MR. CHILDS: Thank you, Mr. Chairman. I wanted to ask
the Planning Director, if she might be able to come
forth for a question.
(At this time, Planning Director
Virginia Goldstein came forward to
address the members of the Council. )
y.
215
R E G U L A R M E E T I N G
FOURTH SESSION
Hilo, Hawaii
Wednesday, January 20, 1995
The Regular meeting of the County Council was called
to order by Chairman and Presiding Officer Elroy T.L. Osorio at
9:07 a.m. in the Councilroom, Hawaii County Building.
ROLL CALL: Present: Councilmember James. Y. Arakaki
Councilmember Keiko Bonk-Abramson
Councilmember Keola Childs
Councilmember Brian J. De Lima
Councilmember Takashi Domingo
Councilmember Jim Rath
Councilmember John Ray
Councilmember Al Smith
Council Chairman Elroy T.L. Osorio
Also present were:
Richard Wurdeman, Corporation Counsel
Ted H.S. Hong, Assistant Corporation Counsel
Rudy Legaspi, Mayor's Executive Assistant
Jay Kimura, Prosecuting Attorney
Patricia G. Engelhard, County Clerk
Daniel Lee, Legislative Auditor
Cheryl Sumida, Legislative Auditor
Assistant II
Ed Andrade, Legislative Auditor
Assistant II
Keith Eck, Legislative Auditor Assistant II
Alapaki Nahale' a, Legislative Auditor
Assistant
Ken Hupp, Executive Assistant to the
Council Chairman
Hansrenda K.M. Dutro, Council Services
Reporter
Jeanette Aiello, Senior Clerk Stenographer
252
Hawaii County Council January 20, 1995
ORDINANCE A Bill for an Ordinance numbered 3, amends
ILL Ordinance 94-71, as amended, the Operating Budget for
(C-25) the County of Hawaii for the Fiscal Year ending
June 30, 1995, by increasing revbnues in the- Federal
Grants - Fed Transit Admin account by $361, 000; and
appropriates same to the Mass Transit - Motor Vehicle
account; introduced by Mr. Rath on January 4, 1995,
was presented for second and final reading.
Mr. Rath moved for- the passage of
Bill 3 on second and final reading.
Seconded by Mr. De Lima and carried by
the following roll call votes:
AYES: Councilmembers Arakaki,
Bonk-Abramson, Childs,
De Lima, Domingo, Rath, Ray,
Smith and Chairman Osorio - 9 .
NOES: None.
CHR, OSORIO: Bill 3 passes second and final reading.
ORDINANCE A Bill for an Ordinance numbered 5, initiates a Charter
ILL : amendment to Section 3-2, Article III of the Hawaii
C-36 County Charter relating to Composition and Terms of
the Hawaii County Council; introduced by Mr. Rath on
December 21, 1994 for first reading and
January 4, 1995 for second reading, was presented for
third and final reading.
Mr. Rath moved for the passage of
Bill 5 on second and final reading.
Seconded by Mr. De Lima and carried by
the following roll call votes:
AYES: Councilmembers Bonk-Abramson,
Childs, De Lima, Domingo,
Rath, Ray, Smith and Chairman
Osorio - 8 .
NOES: Councilmember Arakaki - 1.
CHR. OSORIO: Bill 5 passes third and final reading .
293
COU OF HAWAII STATE OF F All
RESOLUTION
WHEREAS,pursuant to Section 15-1(a)of the Hawaii County Charter(1991),the Council of the County
of Hawaii adopted Ordinance No. 95-20 after three readings on separate days,by the affirmative vote of no
less than two-thirds of its entire membership, and with an effective date of January 25, 1995; and
WHEREAS,Ordinance No. 95-20 proposes to amend Section 3-2 of the Hawaii County Charter(1991)by
adding that the terms of council members not exceed four consecutive terms; and
WHEREAS,pursuant to Section 15-2 of the Hawaii County Charter(1991),upon adoption of an
ordinance proposing amendments or revisions to the charter,the council shall provide by resolution that
the full text of the proposed amendments or revisions be published in at least two daily newspapers of
general circulation in the county at least forty-five days prior to submission to the electors of the county;
and
WHEREAS,pursuant to Section 11-119(b)of the Hawaii Revised Statutes,whenever the chief election
officer is responsible for the printing of the ballots,the exact wording to appear thereon,including,but not
limited to,questions and issues shall be submitted to the chief election officer of the state no later than
4:30 p.m. on the sixtieth calendar day prior to the applicable election.
NOW,THEREFORE,BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that it
hereby directs the Clerk of the County of Hawaii to take the necessary steps provided for in Section 15-2
of the Hawaii County Charter(1991),and to submit the amendments proposed by Hawaii County
Ordinance No. 95-20 to the electors of the county at the next general election.
BE IT FURTHER RESOLVED that copies of this resolution be sent to Dwayne D.Yoshina,Chief Election
Officer of the State of Hawaii and the Clerk of the County of Hawaii.
Dated at Hilo,Hawaii,this 3rd day of June 1996.
INTRO UCED BY:
1, sue. -•--___--
COUNCIL MEMBER,COUNTY OF HAWAII
CRK
• ROLL CALL VOTE
COUNTY COUNT' AYES NOES ABS EX
County of Hawaii
Hilo,Hawaii
Arakaki X
Bonk-Abramson X
I hereby certify that the foregoing RESOLUTION was by the Childs X
vote indicated to the right hereof adopted by the COUNCIL of De Lima X
the County of Hawaii on
June 3, 1996 Domingo X
Osorio X
ATrFST:
Rath X
Ray X
dj 1 Smith X
9 0 0 0
Reference C-1079/FC-258
COUNTY CLERK CHAIRMAN&PRESIDING OFFICER RESOLUTION NO. 2.0j,8
Finance Committee-35 May 14, 1996
from seeking that, maybe it has its own merits.
However, the trade off of having a six-month lame
duck come in, or five-month lame duck versus
someone who' s busy campaigning is maybe a little
bit of a trade off but in either case the voters
maybe not getting as much service as he would like
but I think you've raised some good points. I 'm
gonna stew on it but I appreciate the chance to
comment on it, I may support this.
ACTING CHR, DE LIMA: All those in favor of the
motion---Mr. Osorio.
MR. OSORIO: I kind of agree, too. That makes
sense to me, too.
ACTING CHR, DE LIMA: Okay, all those in favor?
The motion was carried by the following
vote:
In Favor: Committee Member Osorio,
Domingo, Ray, Ex-Officio
Member Bonk-Abramson, and
Acting Chair Arakaki
Opposed: None
Absent & Excused: Committee Member
Smith and Chairman Arakaki
ACTING CHR. DE LIMA: Motion is carried.
UNFINISHED The Acting Chair directed the Committee to take up
BUSINESS: the next order of business, Unfinished Business :
Comm. 1079 : RESOLUTION FOR A CHARTER AMENDMENT RELATING TO
(Res . 298) TERMS OF COUNCIL MEMBERS
From Council Chair Keiko Bonk-Abramson, dated
March 19, 1996, transmitting a resolution
directing the Clerk of the County of Hawaii to
take the necessary steps provided for in Section
15-2 of the Hawaii County Charter (1991) and to.
submit the amendments proposed by Ordinance 95-20
to the electors of the County at the next general
election. The ordinance states that the terms of
the Council members shall not exceed four
consecutive two-year terms .
ACTING CHR, DE LIMA: The Chair recommends that we
adopt the resolution to place the term limits on
the ballot. _
Page 19
Finance Committee-35 May 14, 1996
MR. DOMINGO: So moved.
ACTING CHR. DE LIMA: Is there a second?
MR. RAY:. Second.
ACTING CHR, DE LIMA: Any discussion? Mr. Ray.
MR, RAY: What do we have before us already?
Didn't we already vote?
ACTING CHR, DE LIMA: Basically, all this does is
initiates and codifies the process of actually
putting something that we already passed on the
ballot. It's housekeeping.
SIR. RAY: Suppose we wanted to change this? For
instance, we've had a couple of discussions since
that and I 'd be much happier if we could, ideally,
and I think I mentioned this before, if we had,
say, three items on the ballot, two-year terms,
yes or no; four-year terms, yes or no; eight-year
term limits, yes or no. I think that would be a
lot clearer for the voters in not hinging these
things together. This is the question, if we
wanted to pursue that, is there any way we could
not---I mean if that was the will of the Council,
is there a way we could undo this or---
ACTING CHR. DE LIMA: Quite frankly, time is
fleeting. If you undertook the process now you
would need three readings, so probably if we
started, we waived it, it would take us to the end
of June and then we have to pass a resolution and
I think July is the deadline to getting these
matters codified and that doesn' t even address the
issue whether we got six votes to do any of that.
So, my suggestion is let' s put on the ballot what
we've already passed and if anybody is motivated
to try to get something else on the ballot, get
going.
MR. DOMINGO: Like right after this meeting, yeah?
ACTING CHR, DE LIMA: Ms. Bonk-Abramson.
MS. BONK-ABRAMSON: This is the same one we tried
to approve a while ago right? It' s just the
formality at this point?
Page 20
Finance Committee-35 May 14, 1996
ACTING CHR, DE LIMA: It 's just the formality of
notifying the Lieutenant, now the elections
division, to place this matter on the ballot. Any
other discussion?
The motion was carried by the following
vote:
In Favor: Committee Members Osorio,
Domingo, Ray, Ex-Officio
Member Bonk-Abramson, and
Acting Chair De Lima
Opposed: None
Absent & Excused: Committee Member
Smith and Chairman Arakaki
ACTING CHR. DE LIMA: Motion is carried.
STATEMENT BY ACTING CHR, DE LIMA: There is, we had already
KATHARINE filed the real property tax board of review report
CANNON-EGER but we have Katharine Eger here. She drafted the
REGARDING report for our review and we understand that the
COMM. 162.01: Real Property Tax Division is undertaking a tax
review and they' re gonna be making recommendations
soon but Kathy, why don't you come and speak to
the matter.
Today our agenda moved more quickly than usual,
KT, so---
MS. EGER: So, I see, Mr. Chairman. Thank you
very much for this opportunity. I 'm at a loss to
explain the delay in the transmittal to the Mayor
and to the Council of the report. In the past,
the Board has been also at a loss, to explain the
failure of anyone to notify the Board of the
hearing of its report and so we requested
notification of the hearing date in order to be
able to answer any questions that you might have
regarding either administrative or legislative
matters that are mentioned herein. I 'd like to
remark only on the matters in the report, not on
anything that may still be coming before you from
the task force that' s been working so many months
on a comprehensive review of Chapter 19 .
Page 21
W-11 PORT OF THE
CONIN-111 1'(-TI ON I7INANCE
DATE: May 14, 1996 RC: Comm.10791
PLACE: Councilrooni
TIME: 1:40 p.m.
Chairman and Members
Hawaii County Council
Hilo, Hawaii 96720
Your Committee on Finance, to which was referred Resolution No. 298-96, reports as follows:
Resolution No. 298-96, transmitted by Council Chairwoman Keiko Bonk-Abramson on
March 19, 1996, places the contents of adopted Ordinance No. 95-20 on the 1996 election ballot.
The Hawaii County Council adopted Ordinance No. 95-20 after three readings on three separate
days by the affirmative vote of no less than two-thirds of its entire membership with an`effective
date of January 25, 1995. Ordinance No. 95-20 amends Section No. 3-2 of the Hawaii County
Charter(199 1) by adding that the terms of council members not exceed four consecutive terms.
Pursuant to Section 15-2 of the Hawaii County Charter, upon adoption of an ordinance
proposing anieudments or revisions to the charter, the council shall provide by resolution that the
full text of the proposed amendments or revisions be published in at least two daily newspapers
of general circulation in the county at least forty-five days prior to submission to the electors of
the county.
lNirsuant to Section 11-119(b) of the Hawaii Revised Statutes, whenever the chief election
officer is responsible for the printing of the ballots, the exact wording to appear thereon,
including, but not lintited to, questions aad issues sliall be submitted to the chief election officer
of lire state no later than 4:30 p.m. on the sixtieth calendar day prior-to the applicable election.
Your Committee on Finance concurs with the intent and purpose of Resolution No. 298-96and
rccommends its adoption.
I
ll1I
AYES NOES A&E EX Respectfully submitted
AI AKAKI X
DE LIMA X CO EEO -IN E
DOMINGO X
SMI111 X
osoluo X BRIAP-PIDII LIMA, ACTING CHAIUMAN
RAY X X
BONK-ABRAMSON EO.A1 FINANCE REPORT NO. y' 258
ADOPTED: "it IN n `i IN5
Hawaii County Council June 3, 1996
CHR, BONK-ABRAMSON: Now we' re speaking to
Resolution 280-96, Draft 3 . Any comments or
questions? (There were none. )
The roll call vote on
Resolution 280-96, Draft 3 , was as
follows :
AYES: Councilmembers Arakaki,
Childs, De Lima, Domingo,
Osorio, Rath, Ray, Smith and
Chairwoman Bonk-Abramson - 9 .
NOES: None.
(Note: See additional submitted
written testimony, Communication No.
1013 .04)
CHR, BONK-ABRAMSON: Thank you, Madam Clerk. This
resolution passes. Resolution 298-96, Madam Clerk.
RESOLUTION A Resolution numbered 298-96, directs the Clerk
NO. 298-96: of the County of Hawaii to take the necessary
(FC-258) steps provided for in Section 15-2 of the Hawaii
(C-1079) County Charter (1991) ; to submit the amendments
proposed by Hawaii County Ordinance 95-20 to the
electors of the County at the next general election,
Council terms, introduced by Ms . Bonk-Abramson.
Mr. De Lima moved for the passage of
Resolution 298-96 and to adopt Finance
Committee Report 258 . Seconded by
Mr. Rath and carried by the following
roll call vote:
AYES: Councilmembers Arakaki,
Childs, De Lima, Domingo,
Osorio, Rath, Ray, Smith and
Chairwoman Bonk-Abramson - 9 .
NOES: None.
CHR. BONK-ABRAMSON: Thank you. Resolution 298-96 is
approved. Resolution 305-96, Madam Clerk.
3513
PUULIC NOTICE OF P110PUaC-D AMENDMENTS county or any agency Ihe.eof but Ilia term shall not include an inde-
TO THE i IAWAII COUNTY Ci IAnTEr' pondenl callredor.
(d)-Ofliccr^k+slu-tes tlhr fall:noing:
Tire Hawaii Cuutdy Garton is Ilia dkr.+xnrnt wid•:h sets .ill lows (1)Mayor aw menibors of tM conh
of local gwotnmoM in the Cormly of I l:wm!i.Theo emerhrinenls have (2)Any pNsoo elected or appointed as administrative head
been proposes!lu Vie Cormty Clhatter by Ilia I lowaii County Coula. o1 any agency of vie county or appointed as a member of any board
Two amotMdnhents,called proposals &'2',will be placed on a bal- of Commission provided for in this charter.
b1 before On electorate in lite General Election on November 5,1996. .(3)Any person appointed by a board or commission as the
Pursuant to Section 15.2 of the Hawall County Charter,the full text administrative head of any agency of the county.
M to two amen dnvenls is putlislled below Mt ordinance form.Material (4) Deputy, assistant or division chief appointed by the
to be repealed is bracketed.New material is underscored.Also pro- administrative head of any agency of the county.
vided is a digest of each proposal followed by lite ballot question as It (5) Assistant or deputies of the corporation counsel and
will appear on lire ballot in Ilre General Election. prosecuting attorney.
BULL TEXT OF CIIAnTEn AMENDMENT (e)*State'means die State of Iiawaii.
PnOPOCAL 1 (f)'Vacancy"shall have the followkhg meaning:
Ordinnnce 95-20 Any elective office shall become vacant on(lie happening of any one
SECTION t.Purpore.The pi rpc::e of lids ardinanre is to pr^pose of 11+e following events before expiration of the term:
an amendrnont to ti+e 1lanaii County Chador to provide term hinila for (1)Death.
county council members. - (2)Resignation.
SECTION 2.Section 3 2,Article 111 rf the Hawaii County Chnrler (3)Upon Ilia determination by One county dark that the offi-
rel.iling to compxisition and loans of Ilia courtly council is hereby cer was not a duly qualified elector of de county,and,if required,not
amended b mad: 'Secllei 3-2.Conghosition and Terms.There shalt a duly qualified elector of the district of which the officer was elected
be a county council composed of nine members.One member shah he Immediately preceding the election or appointment.
elected from each Wilkie dishicts.The terms of the council monrbers (d)Ceasing to bo a resident voter of the county as deter-
shall be two)ears and shall begin at hvelve riduck meridian on Ilia mined by Ilia County clerk and In the case of an officer elected to a
first Monday of December after their election. seat requiring residency In a district,ceasing to be a resident voter of
1t19ml�el�_tiilil)Ll1VL A1SGHesUl2uL0o1J9CS3l111f911No veer terms. Uzi district as de(ermined by the county clerk.
Candidates shed be nominated and elected In accordance with the (5)Absentee from the aunty,unless on county authorized
election laws of Ilia SOW business, for a period of three consecutive months, without good
DIGEST OF PROPOSAL 1 cause.
This proposal vxhutd limit the term o(cokmcil members so that no (6)Removal by recall as provided by this charter.
council member may be elecled for more than hour consecutive two (7)Removal by Impeachment proceedings for malfeasance,
year terms.It Ode proposal Is passed,a council member may otly be misfeasance,nonfeasance,or maladministration In office as provided
elected for bur straight toms,thus serving a total d etghl years in a by this charter.
row.A council mender may be elccled for more than four terms as (8) Upon the determination by three Impartial, licensed (.
I"as Ilia lenns are rat coruecrdive. physicians selected by the council that the officer Is mentally or phys-
BALLOT QUESTION 1 Ically infirm or disabled and will be unable to discharge the officers
Council terms.Should Ile Icrm of council members be limited so that duties for die remainder of the term.Such action shall be initiated by a
their terms may col erseed bur consecutive two year terms? majority vole of the entire council.
PRESENT PROVISION: (9)Upon filing nomination papers for another elective office
Presently Section 3-2 u1 11+e I lawaii County Charter provides that idurkhg Iho officers own term of office.)U.(erm of the office sough
council member are elected for two year terns with no limit on the �pyins betore�end a!pIM vgng1 ill oUice(vA
cumber of Trms that a council member may serve. (10)Upon the conviction of any totally Ill any jurisdiction.
PnOPOSEO AR7ENDWiEHT: It ally of Ile above entils occurs after the electiork but prior to the
It approved,Ilia County Chillier would be amended to provide that commencenmit of die term,office Is vacant at Ilia time the term c:om-
the term of a cnun�fl nminber will W,limited to four consevulive two menses..
year terms or n total of eight years in a row.TI its amendment duos not DIGEST OF PROPOSAL 2
provent a member from serving mall than bur terms as long as the This proposal provides.that N an elected official files nomination
terms are not consecutive. papers for another eloctr«office the office currently held world be
1('Q[)I�f1QPS?S1��1_W_•CE.:Y q7_. declared vacant only If die term of office to offi ial Is seeking begins
IF YOU Qllq r �F,.Yl(I(1_EflQ'(?SAL I VOTE"HO" bsiore Ilia and of the lernn of office currently held.
FULL TV XT OF CIIAmEn AMENDMENT BALLOT QUESTION 2
PROPOSAL 2 Vacancy In Office.Sliould we repeal Ilia provision that creates a
Ordinance 96-06 vacancy when an elected official runs for another elective office,dur-
SECTION 1.Intent and Purpose.Tile change reflecled ki this oidi. Ing their own term of office,and replace N rdlh a provision that creates
nance is viewed by tie Council as a silicate effort to bring die County a vacancy N the term oldie office sought overlaps Ilia perm of the office
Charter kdu harmony with Ilia Constitution of rho State of Hawaii and held?
Ile Hawatl Revised Slahrtes. PRESENT PROVISION:
As long as an elected Counly official fulfills his/tor duties to the Ptesmity Section 13-1(1)(9)of the Hawaii Counly Charter provides
office, there is no reason to force the olodod olk!al to vacate Iflat that an office is declared vacant N the office holder files to run for
office simply because papers are filed to run for another office wild+ another elective office.
begins alter that respective term ends.A County elected off dal who PROPOSED AMENDMENT:
wishes to run for an elected office that begins after his/her term should If,approved,Una Calmly Charter would be amended to provide that
be treated equally without regard to the office being sought. an office would be declared vacant N the elected official ran for anoth-
However,N a County elected official wishes to run for an office,the er elected office and[that tome began before the crud of Ilia term of to I
term of which begins before the and d his/her current electeA office, office held.Art elected official could run Hx another elected office,and
that seat should be considered vacant at lite time one's nominaton retain Ida office,N the form began after the end of to term of 01e office
papers are filed to run for election to a non-copermikhous office. held.
SECTION 2.Section 13-1 of the Hawaii Counly Charter(1991),as IF YOU Ag E€WIT 11 PROPOSAL 2,VOTE"YES".
amerhderJ,relating to General Provisions is thereby amended to real IF YOU U1SL1rAnEE WITH PROPOSAL 2.VOTE"NO".
as folloyrs: Copies of Ile lull text(Ordinance Nos.95-20,9G-0G)and the respec-
"ARTICLE X111" live digest and ballot question of Proposals'1"and 12",are on pile at
GENEnAL PnOVIS10NS On County Clerk's Office in Hilo and the Office of the Mayor In Kallua-
Sectlon 13-1.Definitions.As used M this charter: Kona.For further Information,please call 961-8255.
(a)'Agency'means any office,department,board,commission or
other governmental unit of the county. DONALD IKEDA
(b)`Executive Agency'means any agency or deparUnord al die County Clerk
executive brand of tie county government. (No.6870-West Hawaii Today:September 15,1996) _(c)'Employee"means any person,except an officer,employed by the
SIDE 1 t r ALISI'I 11-M.,01 YIILL OF J 1 - - SIDE 2 _
I
lUP 13
cOUNIY OF HAWAP
SIAIE Or I4AWAN frAIE OF HAWAII
OFFICIAL BALLOT OFFICIAL BALLOT
GENERAL ELECTION GENERAL ELECTION
DOMID OF EDUCATION TUESDf Y, NOVEMBERS, 1996
SECOND SCIIOOL BOAR11 DISTRICT Pn(-POSED AMENDMENTS
(COUNTIES OF I IAWAII, MAUI and KAUAI) TO TILE IIAWAII COUNTY CIIARTER
TUESDAY, NOVEMBER 5, 1996
VOTE DOTII SIDES (OVER) VOTE BOTH SIDES (OVER)
This stub shall be removed by lite Election Olhcial only.
let Dc artmenlal PROPOSAL 1. Council terms. Should
p the term of council members be limited
School District e8 ([iawaii) so that their terms ma ntli,exceed lour
Vole For Not Mor Th r Or (1j' consecutive two year err ?
FOX, Robert A. + PRESENT PROVISIO : Presen Se lion
3-2 of the Hawaii Cou Charter pr ides
WATAfJAf3EE, Herber -S-��! r that council members are elec ed lor_lw year
terms with no limit on the numb f" terms I
flint a council membe ay-sery
PROPOSED AMEN MENT:If appro ed,the
County Charter would 13"merlded to provide
flint the term of a In i)tlnoil-Membe will be
limited to f;ur conse utive two`ydar•terms or
a total of eiyhl years a r This anJendmanl
does net pe-vent a member fr'brit-get bing more
than four It rms as onU78s'1he-1er s are not
consecutive.
l--�� IF YOU AG�1EE 11 pi�YES > r
PHOPO�AL 1, VE 'YE
IF YOU DI`.'%Gfl[�'YiII.iji
I'f IOPUSAI 1�V 1 E 'PIU� NO t
2 n� PROPOSAL�2 Vacanc in office.
Should we elleal (Lte-np ovision that
creates a ac��gqt y wit n an elected
official rtm. follbnothor loctive office,
during the own j rn I office, and
replace it wi h_a—prdvis1 it that creates
a vacancy�(Rh�ter nZt.Ile office sought
overlaps fife lrm (ZCi r. office held?
PRESENT, PR WS ON:/Presently Section
13-1 (1) (9)\\of the HawAli County Charter
provides Ihala�officlsis declared vacant it
the office holder files to run for another
elective ice.
1'ROPU E:1 AMEND It approved, the
County h.rrlL�w��uI be amended to provide
that an ofli4o would a declared vacant it the
\ / efeclrs oft: i5l,ran for another elected office
\�!! and U n1 I.-t b9an before the end of the
! form r f if C. tic Ilela.An elected official could
run I ran,; herded office, and retain the
011ie it Il,e term b gan after the end of the =
term orlitar-o ' e h d.
c
IF YOU AGREE WITH
PROPOSAL 2, VOTE 'YES.' YES > 4-
117- YOU DISAGREE WITH
PROPOSA!.2, VOTE 'NO.' NOw-> +
601 VOTE BOTH SIDES (OVER) B 602 VOTE BOTH SIDES (OVER)y B
B62 SEI82
r >
COUNTY OF HAW �;• STATE OF HAWAII
".,•��,• BILL NO. 2 2 9
Draft 2
ORDINANCE NO. 98 78
AN ORDINANCE TO INITIATE A CHARTER AMENDMENT TO SECTION 3-2,ARTICLE
19I OF THE HAWAH COUNTY CHARTER RELATING TO COMPOSITION AND TERMS
OF THE HAWAII COUNTY COUNCIL.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Purpose. Section 3-1,Article III of the Hawaii County Charter states,the
legislative powers of the county shall be vested in the county council. Its primary function shall
be legislation and public policy formulation. These responsibilities include dedicated research,
continual public input, institutional knowledge of county government and its budget,and careful
policy determination;as a result,the dccision-making process or legislative oversight for certain
measures may take months and,sometimes,years. During election years, measures may be
neglected or deferred and only subsequently resurface among newly elected council members.
To ensure continuity and stability in the legislative branch,terms of council members should be
longer. Therefore,the Hawaii County Council finds it necessary to change the current limit of
four consecutive two-year terms to two consecutive four-year terms.
In the 1996 general election,the voters of Hawaii County enacted an amendment to the
Hawaii County Charter establishing term limitations of council members not to exceed four
consecutive two-year terms.The effective date of the 1996 Hawaii County Charter amendment
establishing term limitations not to exceed eight consecutive years in county council office is
twelve o'clock meridian on the first Monday of December, 1996. A provision for incorporating
existing term limitations within a conversion to four-year,terms of office is provided in Section
3 below.
SECTION 2. Section 3-2,Article III of the Hawaii County Charter relating to the
composition and terms of the County Council is hereby amended to read as follows:
"Section 3-2. Composition and Terms. There shall be a county council composed of
nine members. One member shall be elected from each of nine districts. The terms of the
council members shall be[two]h=years and shall begin at twelve o'clock meridian on the
first Monday of December after the election. The terms of the council members shall not
exceed [four]=consecutive [two]f=year terms. Candidates shall be nominated and elected
in accordance with the election laws of the State."
SECTION 3. Four-year terms of office for council members shall commence in the year
2000.
To honor the spirit and intent of the 1996 term limitation Charter amendment,this
ordinance establishing conversion to four-year terms of office beginning in the year 2000
determines that any council members elected in 1996 and re-elected to office in the 1998 and
2000 general elections shall be eligible to serve consecutive terms of office until 2004. This
ordinance finds that incumbent council members elected in 1996 may serve two(2)two-year
terms until the year 2000,and one(1)four-year term until the year 2004.
Any candidate(s)newly elected to the County Council in the 1998 general election,
upon serving one(1)two-year term until the year 2000,shall be eligible to serve two additional
four-year terms of office until the year 2008. This will allow council members first elected in
1998 to serve three consecutive terms of office,thereby achieving parity with any incumbent
council members elected in 1996 and who are thereby eligible to serve a total of three
consecutive terms until the year 2004.
SECTION 4. Material to be repealed is bracketed. New material is underscored.
SECTION 5. If any portion of this ordinance,or the application thereof to any person or
circumstance, is held invalid,such invalidity shall not affect other provisions or applications of
the ordinance which can be given effect without the provision or the application,and to this end,
the provisions of this ordinance arc declared to be severable.
SECTION 6. Upon adoption of this ordinance,this council,by appropriate resolution,
shall provide that this amendment be submitted to the electorate of Hawaii County for approval
at the next 1998 general election.
SECTION 7. Upon approval of the Charter amendment proposed in this ordinance by a
majority of voters voting thereon,as duly certified,the provisions of Section 3 of this ordinance
shall take effect at twelve o'clock meridian on the first Monday of December after the 1998
election.
INTRODUCED BY:
COUNCJL MEMBER, UNI'Y OF HAWAII
JR/rf
Hilo,Hawaii
A .
Date of Introduction: June 1, 1998
Date of 1st Reading: June 1, 1998
Date of 2nd Reading: June 16, 1998
Date of 3rd Reading: July 1, 1998
Effective Date: July 22, 1998
REFERENCE: Comm: 896
2 -
OFFICE OF THE COUNTY CLERK
County of Hawaii
Hilo .Hawaii
ROLL CALL VOTE
Introduced By: John Ray AYES NOES ABS EX
Date Introduced: June 1, 1998 Arakala X
Frst Reading: June 1, 1998 Chung X
Published: N/A . Leithead Todd X
Ray X
REMARKS. Reynolds X
Santangelo
Smith X
Ier X
Ya on
0
Second Reading: Jtme 16, 1998 ROLL CALL VOTE
To Mayor. N/A AYES NOES ABS EX
Rchutted: N/A Arai aki x
Effective: N/A (hung
Published: N/A I.eithead Todd X
Ray X
REMARKS. Reynolds X
Santangelo X
Smith g
Tyler X
Yagong X
7 2 0 0
1 DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as
indicated above.
Approved/Disapproved this day C IL CHAIRMAN
Of 19 �40-�10�
COUNTY CLERK
MAYOR, COUNTYOFHAWAII Bill No.: 229 (nrAff 2)
Refemnce: C-816/FC-24`�
Ord.No.: 98 78.
r .•
OFFICE OF THE COUNTY CLERK
County of Hawaii
Hilo , Hawaii
FR
ROLL CALL VOTE
Introduced By: AYES NOES AB EX
Date Introduced: .
First Reading: Chun
Published: Leithead-Todd
Ray
REMARKS: Reynolds
Santangelo
Smith
Tyler
Ya
ThiTd ROLL CALL VOTE
Reading: July 11 1998
To Mayor. July 7, 1998 AYES NOES ABS EX
Returned: July 23, 19 9 8 Arakaki
Effective: July- 22, 1998 Chung x
iblished: July 29, 1998 Leithead-Todd x
Ray x
REMARKS. Reynolds X
Santangelo X
Smith x
Tyler x
Yagong X
74— 2 0 11 0
I DO HEREBY CE Krniw,,. was adopted by the County Council and published as
Indicated above. FORM
ORP02ATION
COUNTY OF HAWAII
Date
Appmv#d48i:wprPared this 14 day 2CIL HAIRMANof 19 /�LERK
K� R. COUNIOOF HAWAI! Bill No.: 229 (Draft 2
j �v
Reference: C-816 FC-242
Ord.No.: Ub 7b