HomeMy WebLinkAboutMIN CHC 1999-08-11MEETING OF THE
HAWAII COUNTY CHARTER COMMISSION
WEDNESDAY, AUGUST 11, 1999
ALPHABETICAL INDEX
Subject Page numbers
Adjournment 43
Announcements 43
Appointment of Necessary Staff/Corporation Counsel 11
Article 6 - 43
Attendance 1
Auditor 27
Boards and Commissions 2
Call to Order 1
Charter Commission Contact Address 5
Charter Review 25, 43
Article I 25
Article V 25
Chapter 3 25
(e) 25
(g) 26
Chapter 4 29
Communications
Corporation Counsel
Council Terms
County Managing Director
Departmental Reviews
Corporation Counsel
2
5, 25
20
11, 20, 22, 40, 43
5
5
•
•
Finance Department 25, 27
Finance Director 10
Financial Status Report 1
General Plan 34, 35
Legislative Auditor 27
Minutes Approval 1
Neighborhood Boards 40
New Business 5, 25
Next Meeting Date 3, 43
Non-partisan Elections 3
Noticing Requirements 4, 5
Parks and Recreation Department 43
Pension Board 27
Planning Commission 29, 31, 35, 40, 41
Planning Department 29, 31
Police Commission 7, 10
Public Hearing 5
Public Works 43
Regular Meetings 3, 4
Removal by the Mayor 10
Rules of Procedure 2, 5
Six with Three at -large 19
Special Counsel 6, 7
•
•
•
Special Election 3
Special Meetings 1, 2, 3, 4, 5
Statements from the Public 2
Sub -governments 40
Townships 40
Unfinished Business 2
HAWAII COUNTY CHARTER COMMISSION
Transcript of Meeting of August 11, 1999
Hawaii County Liquor Commission Conference Room,
Hilo Lagoon Center
Attendance: J. Ray, E. Alonzo (after 5:12 p.m.), K. Balog, S. Bess, M. Herkes,
S. Irvine, D. Kurozawa (after 6:54 p.m.), G. Martin, J. Santangelo,
G. Yoshiyama, Counsel Chris Yuen, Corporation Counsel R.
Wurdeman
Absent: R. Higashi
And 5 members of the public in attendance.
RAY: I'd like to call the August 11th Special Meeting of the 1999-2000
Charter Commission to order. In attendance this evening; myself John Ray, Kevin
Balog, Steve Bess, Marni Herkes, Sue Irvine, George Martin, John Santangelo and
Gary Yoshiyama, and we're expecting the other members shortly.
Minutes. Following the agenda, the first item, the minutes approval. We have sets of
minutes A through J from May 12th through July 28th. We're going to go through -
HERKES: I move that we approve all of them.
BALOG: Second.
RAY: Okay, discussion? Does anybody have a problem with approving
all the minutes at once? No? All in favor.
COMMISSIONERS: Aye.
RAY: Opposed? Minutes approved.
Financial Status Report. This is an informal report that I will make. If you'll
remember, we had a $30,000 appropriation for last fiscal year and $100,000
appropriation for this fiscal year. Last year, what we did was encumbered a contract to
Chris Yuen for $25,000 so at the end of the fiscal year, we showed a balance out of the
$30,000 of $702.45 which was not encumbered. So in other words, including the
$25,000, there was only $702.45 left out.
Out of the $100,000 encumbered for this year, our current balance is $97,815.31 and
the majority of those costs are for Sharron Henry, our Administrative Assistant,
•
• individual mileage and one bill to Chris Yuen. Are there any questions on that? So I
really don't have a sense to be able to project where we're going and I think it's a little
too early in the process as far any sort of projections on how this budget will stand but
anyway, so far we're in good shape. Any questions? No? Okay, good.
Communications. There are none.
Statements from the Public. There are none.
Unfinished Business. The Rules of Procedure. I'm going to ask Mr. Yuen to explain
the process we need to go through just so everybody understands that right now we're
operating from the last Charter Commission Review Rules of Procedure. Chris.
YUEN: In order to adopt a new Rules of Procedure, it's necessary to
advertise them in the paper, give the public an opportunity to comment and then pass
them. I don't know that it would be absolutely necessary to adopt new ones if we were
simply going to use the old ones unchanged but there has been a change in the regular
meeting time from 3:30 to 5:00 and if there's going to be that change then we need to
go ahead and go through that process of advertising the rules and then adopting the
changed rules at some later point.
• RAY: Other than the meeting time, there's one other minor change that
absolutely has to be and it's just the address, but does anybody have any input on
either the meeting times or anything else in the Rules of Procedure? I don't sense that
we're absolutely set on a time or a date. We've talked about a bunch of different, sort
of faster track scenarios. We were talking about a meeting every day this month not
long ago so I don't sense that we're set on a specific day or time or how many meetings
per month. Can I have some input there? Mr. Balog.
BALOG: Could you just, instead of giving us specific dates, say that when
properly noticed to the public, the Charter Commission would then meet on that date
instead of having a specific date and time?
•
YUEN: State law concerning meetings requires every Board or
Commission to have a regular meeting date and then you can have other meetings but
those are called Special Meetings and you have to do more advertising to have a
Special Meeting than a regular meeting.
BALOG: So you have to have a specific day and time?
YUEN: Yes.
BALOG: A day in the month and a time attached to it in your rules?
2
• YUEN: Yes, you have to have a regular meeting time and place. Now, you
can cancel all your regular meetings and have all Special Meetings but you're
supposed to have a regular time and place set in your rules.
RAY: Let's try to deal with our regular meetings. Is there any input from
the members how they'd like to see the meeting schedule set for the next fall? Do we
want to go with two meetings a month on Wednesdays? And the time as well, I'd like to
discuss, for the next meeting in particular, the meeting we've got scheduled for the
25th. We have some fairly lengthy presentations. We have John Henry Felix coming
over from City and County of Honolulu to talk about nonpartisan elections. We have
the County Elections Division coming in to talk about Special Election scenarios so I
would like to have that meeting start at 3:00 to accommodate not only the County
people, but other folks coming in from outer island. Marni.
HERKES: I would like to suggest that we set up one regular meeting date a
month, the second Wednesday of every month as a regular meeting date at 5:00. That
will be our regular meeting date. Other dates will be Special Meetings that we have in
order to take testimony and things. Is that legal, Chris? Can we do that?
YUEN: Yes and I guess I thought that that was what had actually
happened. I thought there was a discussion somewhere on this that came out to 5:00
but I could be wrong on that.
•
•
HERKES: Well, we've had lots of discussions.
RAY: There was a discussion but since then we've gone through so
many scenarios in terms of how often and when we wanted to meet that I thought I'd
like to bring it up again. Mr. Balog.
BALOG: If you follow what our schedule is for this month, is this the second
Wednesday already?
RAY:
HERKES:
meetings.
Yes.
Yes, second Wednesday and fourth Wednesday is when we have
BALOG: Okay, so would be second Wednesday at 5:00 and then you could
accommodate the schedule that the Chair is talking about by saying that this meeting
where we're inviting people in and we're taking extra testimonies and getting
information for subjects we want to discuss, we could start like at 3:30 or 4:00?
RAY: Well, that would be a Special Meeting anyway.
• BALOG:
Okay.
But you could always vary the time at the Special Meeting, right?
RAY: Any more discussion or input on the idea that we go ahead, in the
rules anyway, and it would read the second Wednesday of each month at 5:00 p.m.
unless otherwise - John Santangelo.
SANTANGELO: I think I'll pass. I think the last bit of conversation cleared - Just the
one question is having one stated meeting a month vs. two, with the kind of schedule
and the kind of work we have ahead of us, is it prudent to just have the one or would it
be prudent to have two?
HERKES: I think we will have two.
SANTANGELO: But those will be Special Meetings.
HERKES: We're just scheduling one.
SANTANGELO: So those would be special and they're going to be special if we
change the times anyway, right?
• RAY: I think that's a good point but Chris brought up the noticing
requirements. If we have two, we don't have to notice them. Do we have to notice the
cancellation? How does that work?
YUEN: I think we have to send to everybody that normally gets the
agenda, a notice of a cancellation of a meeting. I would suggest that you go with one a
month as a regular meeting and everything else be a Special Meeting because
advertising for a Special Meeting is not that big a deal and the Commission has been
doing that for all the meetings so far anyway. And rather than try to fit everything - I
can tell by just listening to the discussion and people's scheduling that it may work out
better to have one regular meeting and then to have Special Meetings where there's a
bit of flexibility on the time and place.
RAY:
ALONZO:
RAY:
Okay, anymore input on the meetings? Yes, Mr. Alonzo.
Mr. Chair, as far as the location site, it's going to be right here? It's
available throughout the next year?
I think it's safe that this is a good site to put.
ALONZO: Can we lock in all second Wednesdays of each month from now
until when this committee's dissolved?
RAY: Sure. Okay, any more input on the meetings? Anything else?
Does anybody else want to suggest any other changes in the Rules of Procedure? So
Chris, what's the process for making this change?
BALOG: Marni made a motion so if someone seconds her motion then you
can take a vote. I'll second her motion.
RAY: Okay, so the motion is that the meetings in the Rules of Procedure
would read, under Section IV B, regular meetings will be held on the second
Wednesday of each month at 5:00 p.m. All in favor.
COMMISSIONERS: Aye.
RAY: Opposed? Okay. And the only other change would be just to
correct the address as for contacting the Hawaii County Charter Commission.
Okay?
YUEN: And now to finalize this, we will have to run a notice in the paper.
It will have to be called a Public Hearing and if any members of the public want to
testify about the rule, they can, and after that the Commission can vote to finalize the
rules and they get sent to the Mayor for signature and they don't become official until
the Mayor signs them.
RAY: So it's my understanding that until that happens, we'll be having
Special Meetings.
YUEN: Right.
RAY: Okay, moving on. New Business. Before we go ahead, on the
minutes, one thing I forgot to mention. Reading through the minutes, I was amazed. I
think I must have close to the world record for "you know". Anyway, I talked with Mr.
Yuen and he said that it's okay if I instruct our Administrative Assistant to eliminate the
extraneous filler, the "you know's" and such from the minutes so just to let you know,
we're going to go ahead and do that.
IRVINE:
HERKES:
I think that would be a good idea.
Do we get to vote on that?
RAY: New Business, Item VIII. Mr. Wurdeman is here. I asked him to
come in and so I'd like to go ahead and go through the Corporation Counsel section of
the Charter, so page 8, CHAPTER 2 CORPORATION COUNSEL. Mr. Wurdeman was
here during the initial Department Review and he furnished us with suggestions for
5
Charter changes so there were a number of them, just a couple that are applicable to
this section, so I'd like to ask Mr. Wurdeman to go over those. Mr. Wurdeman.
WURDEMAN: The first is sort of a housekeeping matter. We suggest that
language be added that "The Corporation Counsel could delegate any professional
legal duties of his office to his Assistant or Deputies." That's the practice and that's
never been challenged but we feel it might be appropriate to put it in so we won't be
challenged.
Second item is somewhat difficult to explain and it relates to Special Counsel. In this
case, it's when, as often happens, we are required to provide representation both for
the County, as an entity, and an employee or sometimes more than one employee. For
example, Police Department. Under State law, the Police Commission is given the
authority to decide whether in a given case, a police officer is operating within the
course of scope of his employment so as to warrant government paid counsel and they
do this. Sometimes they do it in strange ways. There was a case that occurred about
five years ago where they found that an officer who got into a fight in a cocktail lounge
and broke somebody's jaw off duty, was in the course of scope of his employment. So
in cases like that, we feel that's it's in the County's interest, and we should argue that
this person was acting on his own and not as an employee to protect the County.
Obviously at that point, we have a conflict. We are required to provide counsel but on
the other hand, we feel that to protect the public treasury, we have to disclaim the
employee's actions. In that case, it's been mandated by the Office of Disciplinary
Counsel, we must hire an outside counsel so we go to the County Council and we ask
for "special counsel" to represent the employee so that we can represent the County.
The County Council has, in the past, been very cooperative and has generally
approved such requests. Just a month or so ago, we went in on a request for an
employee who was being sued for having allegedly indecently exposed himself to a
young girl. We felt, as the County, that we were obligated to say that whatever he did
or didn't do was not done as an employee. in this case, it was not a policeman but it
was a person covered by Union Contract and Union Contracts have much the same
language as the law relating to policemen. The Council turned us down. I don't know
what the end result of that is going to be. The Union will probably have something to
say about that, but the point is that I think it's a good idea that we have Council
approval when we hire "special counsel" to represent the County. But that's a good
control on just willy-nilly hiring lawyers out but when we do, in these, not all that
common but is somewhat common, cases where we are forced by law or Union
Contract to provide a lawyer for an individual who may not have been loyally serving
the County at the time, that we should do so without having to go to Council for they
might turn us down. For example, if the Police Commission required that counsel be
provided in a certain case and the Council turned us down, which has never happened
although they threatened to, we'd be in a real fix. I mean, we wouldn't know where to
turn next. There'd be a dilemma there so our request is that "special counsel" be
6
defined as "counsel retained to represent the County" and not include in the definition
those cases where we have to hire people to represent individuals. That's pretty
complex stuff and I'm sure there's questions and I'll be glad to answer them.
RAY: Ms. Irvine.
IRVINE: I wonder why should it take two-thirds a vote of the County Council
for you to hire an outside person in the first place, for any reason?
WURDEMAN: I don't know. That's what it currently reads.
HERKES: So if you're caught in between the Union and the Council -
WURDEMAN: And the Police Commission.
HERKES: And the Police Commission, or Parks and Rec, or somewhere else
and other places -
WURDEMAN: The Police Commission, that's set up in State law. State law also
has a provision for firefighters which says that when a firefighter is acting within the
course of scope of his employment, counsel will be provided but it doesn't say how
• that's determined, who decides that. Most of the Union Contracts say the same thing.
They say course of scope, we provide counsel and that's fine. I agree with that. It's
proper. But when you get into an argument about whether the gray area, when a
person is on the edge of course of scope, that's when we get into a difficult situation.
For example, if the Union would come to us and say look, we think this guy was in the
course of scope, we're going to grieve it. We say no he wasn't. Then we get into a
discussion. Meanwhile the case is moving along. I mean, is the person going to get a
lawyer or not and we say, well, all right, we agree with the Union. We'll provide a
lawyer. Then we go to the Council and they turn us down. Then what? Real potential
for crisis there.
IRVINE: Is "special counsel" something defined or would it be better just to
say that counsel may authorize the employment of additional counsel for any matter
presenting a real necessity for such employment?
WURDEMAN: Well, "special counsel" -
IRVINE: Is that a term?
WURDEMAN: Is commonly used to mean someone outside the office.
HERKES: Just like a special prosecutor.
IRVINE: Okay.
WURDEMAN: Not as many questions as I thought.
YUEN: I have a question.
RAY: Mr. Yuen.
YUEN: I'm trying to figure out how to do this without, and where the money
is coming from, if the Council doesn't authorize it. Is there some general contingency
fund that would be available? The money has to be appropriated for some purpose. I'm
wondering if the section could be reworded so that the Council could make an
appropriation with the budget for the hiring of attorneys in a conflict of interest situation
without a specific matter being presented to it so that that could be then drawn on by
Corp Counsel when they felt that they were required to provide an attorney? I think, as
is presently worded, you have to go to Council with every specific request and then you
get tied up into the facts of a particular case where they may be unsavory to the
Council to appropriate the money for this particular employee and I think that is the way
it works now. I'm wondering if we found a way to reword this so that in situations like
you discussed, the Corp Counsel could go, as part of their regular budget request, to
the Council and have a lump sum that would be available for hiring attorneys in conflict
• of interest situations, if that would alleviate the problem enough? Otherwise, then
you'd have to find some other fund from which this is drawn even if you give Corp
Counsel the power to hire "special counsel" in these kinds of situations.
WURDEMAN: Right. Well, presently we have a line item in every budget for
"special counsel" and there is a lump sum there. So we go to Council once a year, at
budget time, and we argue for that and they hardly ever raise it. They lower it and we
dicker about that and the budget is passed with that lump sum in there. Then as an
individual case arises, we go back. To make it even worse, in some cases we'll go
back and they'll say well, you're authorized to hire "special counsel" up to $15,000 or
something. And then we say okay. So we retain someone and we write into the
contract that there's a cap of $15,000 which always turns out to be inadequate and we
have to go back to the Council again and by this time, the case is half way completed
and it's really impractical. I mean, you've got a lawyer who's involved in the case and
$15,000 has been expended, trial's next week, we're out of money. I mean what are
you going to do? You can't change horses at that point so it's not a very good system.
BESS: Mr. Chairman.
RAY: Wait. That's not quite the way it works. I was on the County
Council and been involved in a number of these and it seems that the Corporation
Counsel frequently uses the County Council as sort of a leverage or bargaining tool
and requests that we sort of be part of this negotiation. In other words, let's limit it to
this and say we only have that much money, or this or that, so that's more often than
not the discussion that I remember but I do think it's an incredibly flawed process,
especially when you get a bunch of new Council people or folks with no experience
whatsoever. And I remember the first time I was part of this. I thought what in the
world am I doing, trying to make a decision on some of this stuff with no background at
all so I think it is something worth looking at anyway. Mr. Bess.
BESS: I was just going to suggest - There seems to be two situations
where you're going to go with "special counsel". One is professional competence
where the office goes outside thinking that it may need -
WURDEMAN: If we ever got into something like an anti-trust case.
BESS: Right. And then you'd have to get "special counsel" there and then
the other one, the conflict of interest. My suggestion is that the Corp Counsel should
have the power to decide whether or not there's conflict of interest but that there would
be the safeguard of Office of Disciplinary Counsel in the event that somebody
questioned whether or not you in fact, the guy really was in conflict of interest. It could
go to Office of Disciplinary Counsel and then, at least as far as the conflict of interest
kind of case, the Council would not be involved at all in that decision, whether to go
outside and get "special counsel" other than the budgetary process.
WURDEMAN: That would be ideal from my point. Yes.
BESS: I don't have your language in front of me, Richard, so I don't know
what you're suggesting as an amendment, but I don't know if, in this section, you want
to distinguish the conflict of interest issue from the professional competence issue.
WURDEMAN: I saw it as distinguishing between representing individuals and
representing the County. Representing the County would be something we would be
required to get permission for but we could do it your way just as well and probably
have the same result.
RAY:
HERKES:
Other comments? Ms. Herkes.
No, I have a later comment on another issue but not on this one.
RAY: Let's work internally on some language and see what we can come
up with as far as something to bring forward, okay?
IRVINE: I had one more comment. What about just under 5-2.3, it says the
Corporation Counsel may delegate any professional legal duties of his office to his
9
• Assistant or Deputies and incorporate this other part in there, "and may also hire
"special counsel" when a real necessity for such employment is found"?
BESS:
provision.
"Real necessity or" and then we can put in the conflict of interest
IRVINE: That's a necessity.
BESS: Well, it's a necessity but it's a special kind of necessity. I think
Corp Counsel, where there's conflict of interest, it should clearly have the authority to -
the Council lacks the competence to determine whether or not there's a conflict of
interest. I mean they may not have received the training that the Corp Counsel has
with regard to the conflict of interest -
WURDEMAN: Both the Police Commission and certain Council members, and I
think it is really more true of the Police Commission - you get into whether the guy did
or didn't do it which is not the issue.
BESS: Right.
HERKES: Mr. Ray, could we ask you to work with Mr. Bess and Mr.
• Wurdeman and come up with, and Mr. Yuen, some appropriate language and bring it
back to the Commission?
•
RAY: Sure.
HERKES: Can I bring up my other point?
RAY: Sure. It's on CHAPTER 2, right?
HERKES: It's on CHAPTER 2, 5-2.2. It says "may be removed by the Mayor
with the approval of the Council" and the Finance Director can be removed by the
Mayor period. Why do you get the approval of the Council when you get fired? Why is
that in there? Why is it different?
BESS: Confirmation.
WURDEMAN: I think it's lifted from State law and related to the Attorney General -
HERKES: Okay.
WURDEMAN: Which is the same kind of safeguard and it is because in cases
where there is a conflict between the Council and the Mayor, and the Council is
10
• seeking an opinion on something, that if that opinion displeases the Mayor that there is
some protection.
HERKES: Thank you.
RAY: Any other discussion on CHAPTER 2 CORPORATION COUNSEL
at this point? Okay, so we're going to work on that last issue and come up with some
language and so we'll leave this for now. Thank you, Mr. Wurdeman.
BESS: Mr. Chair, we focused on the "special counsel" issue but is there
consensus with regard to the housekeeping issue on 5.2.3? Mr. Wurdeman suggested
that we add some additional language making it clear about appointment of
necessary staff.
RAY: Does anybody have any problem with that? No? Okay, so we'll just
assume - no let's wait on that as well. Okay, thanks Mr. Wurdeman.
To go back to our agenda, New Business A., it says Managing Director Discussion. It
probably should have been Council/Manager Form of Government Discussion. In the
past couple of months, we've pulled together a fair amount of material and distributed
this material to the different Commission members and this is a topic that's come up on
• past Charter Commissions and it's one of the items, probably the item of greatest
potential impact on the Charter, that we'll be discussing. In regard to that, I'd like Mr.
Yuen to just briefly talk about what it would mean logistically, organizationally, to the
Charter if we should decide to pursue the Council/Manager form of government as a
serious option.
YUEN: Just very briefly, it would require a major rewrite of the Charter and
I would suggest that if the Commission were to propose a County Manager form of
government that it be presented to the voters in the form of a new Charter rather than
as 44 amendments to different sections of the Charter. In either case, it would be one
vote. If you went with 44 amendments, it would all be voted on at one time but it is
such a fundamental and basic change that if it is going to be proposed, it ought to be
done as a new Charter. The Charter is presently written in bodies, separation of
powers idea, between the Council and the. Mayor that is really largely eliminated under
the County Manager form of government where the Manager is directly accountable
and chosen, usually, by the Council. Apart from that, there are a lot of specific things
that need to be discussed and I think, if the discussion goes further, the members of the
Commission will bring up most of them. A very fundamental kind of issue that comes
up is whether you have a Mayor, somebody called a Mayor, or not. Many jurisdictions
which have a City Manager form of government have a person who is designated as a
Mayor and does the ground breakings and the ceremonial functions. Often times it is a
person who's either elected - it's an elected position. Generally speaking, the Mayor is
11
• also a member of the Council when it's done this way and may act as the Chair of the
Council, may be elected specifically as the Chair of the Council. There are other
jurisdictions which have a City Manager and they only have a Council and the Council
selects a Chair or somebody is selected as the Chair of the Council. They don't have
somebody named the Mayor.
RAY: Thanks, Chris. Mr. Santangelo.
SANTANGELO: I'm of the impression that the last Charter Commission did take a
hard look at this. It may have been hard or soft, and then it wasn't brought up for
various reasons. Is this part of it or can you add anything to why this didn't come
forward last time?
YUEN: I think that having been there, it was looked at. There were the
same kinds of packets of materials that were circulated as to how it worked. There was
some discussion. I don't believe it was ever brought up to vote because there clearly
weren't six people that wanted to present it to the voters and beyond that I can't really
speak for what was going through the minds of the various Commissioners. The
decision is basically, of course, not a legal one. It's a decision of what kind of
government you want to have which is a policy decision for the Commissioners to
make.
SANTANGELO: Thank you.
RAY: So let's just throw this out. We're trying to get sort of an informal
straw vote sense of how everybody feels about this and how much we want to pursue it.
As Mr. Yuen said, it would be a pretty monumental undertaking in terms of
reorganization or, in fact, a whole new Charter so let's make sure this is something that
we understand and do want to pursue and if we're going to turn him loose on it. Okay?
Mr. Martin.
MARTIN: Yes, you made mention of 44 possible points that would have to be
touched on. Is that just a fictitious number or is that something that you actually looked
at?
YUEN: That's not a real number. That's a made up one but there are quite.
a few things that are written in the Charter. The name "Mayor" may appear 44 times
and I don't want to exaggerate the - it would be a basic restructuring of the Charter.
Naturally, of course, there are plenty of places that have this form of government and
we wouldn't sit here and try to do it entirely from scratch because there's a lot of
freedom in how you exactly set this up. There are models for how this is done. I'm just
saying that it is a basic restructuring of the County government and should be
presented as a new Charter to the voters if it's going to be presented to them.
•
• RAY: Let me ask you this. Let's just take a hand count. Do you think
you've got enough information? Have you read enough? Do you understand this issue
enough at this point in time based on the information we've got? Does everybody feel
like we're pretty much up on what this is all about? So raise your hand if you do.
ALL HANDS WERE RAISED.
IRVINE: I have one caveat. I think I need to hear from Chris, maybe, what
State laws would impact what we're doing.
HERKES: No, what State laws would be impacted by what we're doing.
IRVINE: Well, one way or another.
YUEN: I took a quick look at this. Let me start with an overview. In State
law, the State Constitution says that the counties have the right to determine their own
structure and how they function on everything except for matters of statewide
significance. The first question is, does State law require you to have a Mayor/Council
form of government. I don't think so and I would like to make this as a tentative
statement because there's a couple of things I still want to look at. I think that the way
the State Constitution is set up, and just for my own sense, that the counties ought to
• be able to determine the way they want to govern themselves, that if the voters of a
particular county don't want to have the form of government where you have an elected
Mayor who is separate from the Council and they would rather have strictly an elected
Council and an appointed City Manager who has many of the functions that have
normally been carried out by the Mayor, I think that the County can go ahead and do
that. There are some complications to this. I did a computer search of every place the
word "Mayor" appears in State law, in the Hawaii Revised Statutes, and I don't have an
exact number but it's something like 44. Just to give you an idea or a flavor of what
some of these things are, they range from very minor things to fairly important things.
There are many functions and powers that are given to the counties by State law in
which the Mayor is given a particular role and in almost all of these cases, I think it can
fairly be said that when the State Legislature passed this law and they said "Mayor",
they simply assumed that the County would have a Mayor and they weren't saying that
you've got to have a Mayor instead of a County Manager form of government. Just to
start with the examples, there are number of Boards and Commissions that are set up
under State law where it says that the Mayor shall appoint certain members to the
Commission. There's an Advisory Commission to the Department of Business and
Economic Development. There's a County Arborist Advisory Committee. There's a
Commission on the Status of Women. There are several other things. But moving to
the areas that are perhaps more serious and need to be looked at very carefully, the
County is authorized to issue bonds and the Mayor is supposed to sign those bonds.
The State law says the Mayor signs the bonds. We talk a little bit about rules and
•
13
regulations. When rules and regulations are adopted, which they can be by the
Planning Commission, by the Water Commission. The Water Commission can set
rules about who has to hook up and how many hook ups you can have. Those are
under State law. The State Statute says those are signed by the Mayor. There are a
couple of instances, and these are the ones that give me concern at this point, where
the State law specifically describes the Mayor as being the Chief Elected Official of the
County. I think there are only two or three of those. In Liquor Control, which is
delegated to the counties, there are functions that are carried out by the Mayor. The
Mayor, for example, appoints, and this is in the Charter as well, the Mayor appoints the
Liquor Commission. It defines the Mayor as being the Chief Elected Official of the
County. The same thing is true for certain motor vehicle licensing requirements in
CHAPTER 286. At this point, I don't think that this is an insurmountable problem and I
don't think that you need enabling legislation from the State to go to a County Manager
form of government. If the Commission wants to continue on this, I would like to look at
it in a little more detail and present a little more of a formal opinion about this. I need to
say one thing further though, and this is a complication of all of this. If the Charter does
go to a City Manager form of government, I feel that one individual will have to be
designated in the Charter as having those powers which are delegated to the County
Mayor under State law and that person can be called the City Manager. I don't think it
has to be called the Mayor. But if you go to the kind of system where you have a Mayor
and a City Manager, I feel that it would be very dangerous from a legal point of view, to
try to put some of those functions with the City Manager and some of those with the
Mayor. I think that all of those functions where State law says the Mayor has this
power, will have to still go to the person who is called the Mayor and then you will have
a split in certain powers between the City Manager and the Mayor, and I can give a
more comprehensive listing of what all these State delegated functions and powers are.
The final thing that I'd like to say about this is that even after I do a more formal work-
up on this question which I would want to do, it's impossible to give you 100%
assurance that the City Managing form of government is legal in Hawaii without some
further authorization of the State Legislature. As I sit here, I think it is but this is the
kind of thing that lawyers can only give opinions and if the voters enact the City
Manager form of government and somebody wants to challenge the authority of the
City Manager to do certain things, it is possible that a court could say that it is not
authorized under State law. I say that as a possibility and I think no attorney can give
you an absolute 100% assurance that that couldn't happen.
SANTANGELO: Thank you, Chris. This is kind of like getting into the problem
solving. I sense where the Chairman is going is do we have enough information to
have some opinion whether we want to pursue this or not. On my side, I looked at it
and some things that caught my attention were out of looking at our peers and some
figure popped out. Of 1900 of them or something, there were 1200 of them, or two-
thirds, that were very similar to us that use this form of government, number one.
Number two, dealing in today's society and the importance of an administrative
14
• expertise, I kind of like the idea myself, at least looking at it. The Mayor problem, again
in a problem solving solution, in the past we had a Council that the Chairman basically
took on the responsibility of a Mayor and in this form, it is possible for that individual
not to vote, to show guidance and leadership, break ties. So it's interesting how that
can work but I guess I'd like to fall into what the Chairman was asking us, do we, as a
group, have enough information that there's a will or a want for us to move forward on
this. I personally like it but I wouldn't want to move forward or to press moving forward,
if there wasn't a fair, clear amount of support from my fellow Commissioners. Is that
where you're going, John?
RAY: Yes and no, but I definitely want you to understand the complexity
of this and let's be serious about it if we're going forward. If it's just something we're
sort of not really that interested in or whatever, let's try to figure that out. Mr. Martin.
SANTANGELO: John, to finish, the thing there was about this conflict with the
Legislature or with the State law. If we were to place this on the ballot and it was to
pass as a new Charter even, and I think that could be done, then it seems like there
would be four years for the Legislature to grapple with this before we moved to that
form of government because we are electing a Mayor shortly.
RAY: I don't know that it would be four years. I think we decide that.
BALOG: Wouldn't that depend on the language of the Charter amendment
itself?
SANTANGELO: So you could say that in two years or something? Okay. But there
seems like there would be some lead time but I just wanted to put that out there. Thank
you.
RAY: Okay, Mr. Martin.
MARTIN: I guess to augment what Mr. Santangelo is saying about are we
serious in pursuing it, it comes back to something that Chris said, we go through it, we
jump through all the hoops, put it in place and come to find out that it's not legal under
the State umbrella. Chris, is it possible to get a ruling from the Attorney General or
somebody?
YUEN: All of those things, the Corp Counsel opinion and the Attorney
General opinion, are just opinions. The Hawaii Supreme Court has disagreed with the
Attorney General opinions many times.
BALOG: They actually have the last -
15
• MARTIN: They say yes is no. We know that.
YUEN: And unfortunately, I won't say it's completely impossible but it's
extremely difficult. I would say it is virtually impossible, to get the Hawaii Supreme
Court to give, what you would call, a pure advisory opinion in advance of doing
something. Some states, the government, and its actually very useful, can present 'if
we do this, is it legal?' and the Courts will answer that. In Hawaii, they don't.
RAY: Okay. Ms. Irvine.
IRVINE: I guess the one other thing that we have to think about is we may
be enthused about this but has anybody talked to anybody outside this Commission
about whether the voters might even consider this? I'm not sure.
RAY: Anybody want to respond to that? Ms. Herkes.
HERKES: We have had testimony in favor of this and have some very strong
opinions from some people that I've talked to, so yes, there are some voters out there.
MARTIN: How many is hard to say but yes, there is some consensus.
HERKES: Well, you won't know. We're not restructuring, we're re -
restructuring because we had this in our Charter when we first set up a Charter - Can
we get a copy of that first Charter so that maybe we can just put it out, just change a
little language and see if that's the kind of structure?
RAY: You mean under the original Board of Supervisors? Yes, sure,
that's all available to us. Other comments?
YUEN: I'm pretty sure that there wasn't - the Board of Supervisors was set
out State enabling legislation back in the Territory of Hawaii. There were territorial
laws that said you had a Board of Supervisors in Hawaii County and I think that the first
Charter was in '68 and went to a Mayor form of government and since then, all the
Board of Supervisors language has been purged out of the Statutes and has been
replaced to conform with the Council form of government.
RAY: Mr. Bess.
BESS: One question. Chris, I don't know to what extent rather than
seeking opinion from the AG's office that you go for a declaratory judgment ruling.
Somehow or other, accelerate the process by actually getting a decision from a Court
and then that would be appealed and it would be a matter of such importance that you
could get the Court to rule in a timely fashion, I would hope four or five months prior to
16
• an election. Is that possible?
YUEN: No. In some states, you will see judicial opinions that come out
from their Supreme Courts entitled "In re ballot question such and such". I'II double
check this but I'm almost certain that you can't do that in Hawaii. There are declaratory
judgments but they require actual controversy between parties. You have to have
somebody sue somebody else over a declaratory judgment and then you can't take it
directly to the Hawaii Supreme Court. It starts off in Circuit Court and Circuit Court is
not going to be good enough. You would have to start off with two people that had
opposing points of view on this and they would bring a suit to Circuit Court and then
you would have to get the loser to appeal it to the Supreme Court and it's very likely
that all of the Courts would decline to hear it in advance of there being a real question
because it's just something that's being contemplated at this time. As I mentioned -
BESS: I'm not suggesting that we do it at this stage of the game prior to
the time that the Charter Commission suggests that we change the form. We take
action. We're presenting this amendment. Now it's going to go on the ballot at some
point in time down the line. Then you've got something that's real and perhaps, you
could talk the AG into suing us but to do it through the Court rather than through the
AG's office.
S YUEN: It would be highly desirable to be able to do this and it makes so
much sense and the kind of thing you're talking about - I think we've all seen things that
have happened where governments have taken certain actions and things have gone
on, sometimes for years, and then it finally gets to the Hawaii Supreme Court and it
gets thrown out when, if people had known when it was even being contemplated that it
was not going to be legal, that they wouldn't have started off down that road. I hate to
say you can't do something. It would be a creative kind of case to try to get the Hawaii
Supreme Court to make a decision on this before it was actually brought up to the
voters and it would be a first if we got them to do it. I don't know that they've outright
said that they won't do something like this but it would definitely be a first.
BESS: I guess the thing that concerns me about all of this is that when you
listen to the legal arguments here, well, do we have a choice. My feeling, number one,
is that the State law is very clear about structure and organization and if this isn't
structure and organization, I understand that you can't give a 100% limitation, but I
would hate the legal arguments to preclude us from considering this issue because one
of the things that I find attractive about this form of government is that from the limited
testimony we've had, and in observing the way County government has been
functioning, it appears that there's a real dissatisfaction with separation of powers, that
everybody's talking about more balance and that the Council wants to perform more
functions that, perhaps, border on being administrative, if not administrative. I'm not
taking any position here with regard but the way it's working is that you have two
17
• bodies, and possibly some duplication of effort, and I'm interested in cost of
government and I see that this Manager form of government may reduce costs and
while I have enough general information, theoretical information, as to how this system
works, I'd just like to see what the practical implications are. If it were put into effect,
could we save money? And I'd like that discussion to occur.
HERKES: I think Mr. Bess has touched on what I was going to say but I'd like
to expand on it more. We've gotten bogged down in semantics here and the word
"Mayor" and lost track of what is the goal. Why would we change the Charter? What
do we want to do in order to change it? And I think no matter whether we use the word
"Mayor", don't use the word "Mayor" and we get sued, we still have a different direction.
We're still going in a different direction. We're going in efficiency, we're going in a
better form of government. What we've heard over the last few years, is a lot of
dissatisfaction with the way the government's working. People don't feel included and I
would hope that this would be a way that they could and I think that we need to set up
some goals as to what we want to accomplish.
RAY: Is that the Charter? Is that the position or is that the person that's
in the seat? I think this is the discussion we ought to be having, but if you look at our
current Charter and you look at the Managing Director position and you look at the
other Counties' Charters and some have a bit more definitive language in terms of job
qualifications and whatever, but under the present Charter there's no reason that the
Managing Director couldn't operate in a much more independent, professional type
position. Not so much independent maybe, but certainly more professional.
HERKES: Never has.
RAY: I'm certainly interested in what we can do in regard to moving
things in a more professional direction. One thing I've been playing around with is
some potential language or some things we might do in the present Charter in regard to
the Managing Director position and I don't have anything formally to suggest now but
that is another tact we might take is to try to move the Managing Director more, in a
business terminology, to the Chief Operating Officer of the County, the Mayor
functioning still as the CEO, but the Managing Director as your Chief Operating Officer.
Whether we could do that effectively, I don't know but that's something that interests
me. Mr. Balog.
BALOG: Kind of along your same thoughts, in my mind, I don't agree that
the voters are so upset with the way the person running the government. It's how the
government is run. It's more with how efficient we are. It's not so much that they don't
like a Mayor. There's people who don't like people who sit on a Council that we're
discussing that may be the people electing Managing what?
18
•
•
RAY: Hiring a Managing Director.
BALOG: A Managing Director. I keep thinking of it over and over again.
We're trying to say that we want to be more efficient, more efficient so if you play all of
this out now, we have our Council elected every two years. You get six new Council
people in in two years and they terminate Managing Director that was just hired two
years ago that's going to have the powers, maybe, to authorize bonds or whatever, 44
times mentioned in the Charter, whatever it is, appoint people or whatever - whatever
those duties are that we're going to try to incorporate or however we do it. I would
much rather favor what the Chairman suggested and try and see if we could have our
Managing Director now be a Financial Officer of the County, the Chief Financial Officer,
and be efficient from that standpoint because I view a Council as more of a legislative
body than a body that should be getting six votes or whatever amount of votes you are
going to come up with, to get a Managing Director and then instructing that person how
to run each department. I'd rather see a little more cut and go more with somebody
who would try and run the County more efficiently.
RAY: In terms of one point you brought up, as far as the potential for
turnover, two year terms and whatever. I think that's pretty effectively dealt with in most
models that I'm aware of. In other words, you issue a contract with somebody, there
has to be just cause so I don't think you have that much of a threat effectively, of a new
Council coming in and firing somebody just willy-nilly or whatever, but you did bring up
the two year term and that's a real dynamic under the present Charter. The two year
that the Council has and the four year terms of the Mayor, that's something that
certainly is a huge advantage to the Mayor's Office. Mr. Santangelo. Oh, Ms. Irvine,
first.
IRVINE: You folks have been touching on this two year term vs. four year. I
feel if we were to go with a professional manager that if we had a Mayor or a head of
the County Council, so to speak, who would be in the position of Mayor, that that
Chairman of the County Council really should serve for more than two years and should
be elected island -wide. I know Roland Higashi had talked about going back to a six,
with three people elected at -large and I really feel that if somebody's going to
represent our island, they should be elected island -wide rather than be elected from
one Council District. That is the model I have from Lexington, Kentucky. They do elect
part of their Council from each district for two years and then they elect, I think, three
people at -large for four year terms. It would make the dynamics of the County Council
a little different but it might be a thought.
RAY: That's something that we need to keep in mind and I don't want to
get too far off on that tangent right now because that's a whole other discussion we'll
be taking up. But yes, that's a good thing to keep in mind is how all that would work in
relation to the City Manager. John.
19
SANTANGELO: Back to this Managing Director and the two year. One of the
advantages that appeals to me about a Managing Director is that you're hiring
expertise so it's not like an elected official that has to, say, come up to speed, so the
theory is you're bringing in a person, he or she, that has expertise in this area and
that's where your efficiency's going to come from. I wouldn't want to get involved in the
two or four year. That's something that goes later on. It's interesting that we've
glossed over the fact that our home rule is like a child asking the parent. It is at the will
and whim of the Legislature. We are only allowed this form of government because of
the Legislature rather than it's part of our right so in that, I would like, if we choose to
go forward with this Managing Director, to do that and to establish the fact that if we're
going to have a County government that we have some control over that and let the
State grapple with that. I go back to, and it seems from the discussion, and that's the
question I need answered because I know a lot of us have read the stuff but do we
really have the information to move forward? I think if we have a consensus that we
want to move forward on, I'd like to see some of the discussion limited. Then we'd
know; focus on this, let's get learned here. Let's get the education that we need so
that's kind of where I'm at still.
RAY: Who needs what kind of information? There are some websites we
haven't fully explored. There's some fees involved. Councilman Tyler and I had a
meeting last week and he just got back from a NACO Conference and there was a good
• panel dealing with this directly and he put us in touch with one of the key panel
members from the Vinson School of Government, University of Georgia, who's in Asia
right now. He'll be back in his office next week and sounds like he's a potential wealth
of experience. I'm very comfortable as far as my understanding of what this is all about
so you need to tell us what information you need or if you do need more, I'm sure there
are resources in the State if we want to explore this further. Probably folks that have
been involved in County and City governments with this set-up. I'm sure there are
people around if we want to search them out. I've been surprised that there hasn't
been more public support for this, especially from West Hawaii. This is something I
heard about, a lot of people discussing, years in the past but it's certainly not anything
people have been breaking down the door to bring up before the Commission right
now. Somebody did bring up what's their sense of public interest in this. I think it's
certainly a level of interest but I don't have a strong sense that people feel real strongly
about it one way or the other.
SANTANGELO: I guess the information I need is are we interested in moving
forward with this.
RAY:
are.
I know whether I'm interested or not but I don't know whether you
SANTANGELO: You asked the question. I just don't know if we got there.
20
• BALOG: Is it possible for us just to poll ourselves and say is this something
we want to proceed with or we'd rather right now say maybe we'd like to have our
Council look at other things that have come even more strongly than this which I feel
will be something like nonpartisan elections?
•
RAY: Sure.
SANTANGELO: It's not to the exclusion of anything.
RAY: Let's just focus on this. I can't come up with the perfect question to
ask off the top of my head. This isn't one question, this is the way we're going to go.
How many people are interested enough in this issue that they would like additional
materials, would like us to pursue speakers or whatever to bring this issue more in front
of the Commission? So how many people would like additional information. Raise
your right hand.
HANDS RAISED: E. Alonzo, S. Bess, M. Herkes, S. Irvine, J. Santangelo,
G. Yoshiyama
HERKES: Is there some precedency here as to whether we can handle any
more information?
IRVINE: Quite frankly, John, I've read all 44 pages that came from
Pennsylvania, it seems to be the number for the day, and we've had another I don't
know how many pages quite a while ago and it's just like some of the issues they bring
up, I'm not sure our island will go for this. I think we might discuss a lot and think we're
doing something and think there's a movement for change and then we take it to the
electorate and find out that we'd done a lot of work and they either don't go to the polls
at all or don't know what we're talking about and don't go with a major overhaul of
County government.
RAY: There's no question it would be a major challenge to present this to
the public in a clear, fair way. Mr. Balog.
BALOG: I just feel for myself, just looking at what to me is part of our goal
and our job, is to look at the Charter and see what we can change that makes sense
and to be part of it, like Mr. Bess says, to put it the best way, is to be more efficiently
and cost savings but I just don't see this as something that's knocking me over and
throwing me on my butt that is one of the pressing issues that makes me tick on this
Commission. I don't need no more information. I even brought my stuff that was
mailed about this stuff just in case we talked specifically about some of the stuff that
we've had to read and I don't need any more things to read.
21
• RAY: Okay. Mr. Martin.
MARTIN: On what Kevin is saying and I think what I'm hearing from across
the room is that we go through the motions, put it forth and it doesn't even get a ground
swelter. You can sell ice to an Eskimo, it's possible, it's been done before so with
whatever we come up, if in fact we do want to come up and how we present it to the
public is what's going to make or break the issue and any issue, whether it be the
nonpartisan, whether it be this particular one that we're grappling with right now in the
Managing Director, and it's not for us to decide, whether it be right or wrong, I think it
comes out to what the public wants and it comes down to that ground swelter. I've
heard some talk about it. Maybe not enough but I have heard some so are we willing to
pursue it? And once we are, then how do we sell it is what it comes down to.
RAY: I don't think we have to decide that right now.
MARTIN: Oh sure, I'm not saying that but that's the jest of it.
RAY: Marni.
HERKES: Mr. Ray, I remember when we were hiring, was it hiring an
attorney, we had a straw vote. No, it was hiring the secretary as to whether it was going
to be Civil Service, we had a straw vote. Do you want a straw vote today?
RAY: Ido, but -
HERKES: That's what I think. You do, but when you mention more
information, I just kind of went "oh" but I would like to hear that guy.
RAY: You're not going to hear that guy. What you're going to get is
basically the same type of stuff you've already gotten. It's going to be how ever many
pages from the Institute of Government at the University of Georgia on City Manager
form of government and what they think the pros and cons are, so I don't think it's going
to be formatted in any different way than what we've already received.
HERKES: I had an advantage probably, that I don't think anybody else in this
room, in the League of Women Voters and the AAUW put on a forum and we had a
Township Manager and a City Manager - They were both married to airline pilots so
they came to Kona for vacation and we had them talk to us and the Head of the
Neighborhood Board of Oahu. A lot of this material that they brought was from that City
Manager so that information - It's very valuable to have somebody in that role talk to
you about what it's like.
RAY: Was that something you would like?
22
• HERKES:
RAY:
•
•
Yes.
Okay. John.
SANTANGELO: I didn't mean to say that more information, and as sensitive as Mr.
Balog wants to be, I agree with a certain part of that. What I want to know is are we
interested in pursuing this and the point that Kevin brought up was, and part of that
discussion would be at what cost. There's things that have been discussed like
nonpartisan and other things that may come before us, I wouldn't want to pursue this at
the cost of other things like that. I think those are important. On the other hand, what
the public thinks, I don't know how we can possibly second guess them. This panel was
brought together to get it's collective intelligence to look at things and say do we feel
that this would create a higher quality of life for the County, and if we do, let's pursue it,
and that's what I'm wondering. How do we feel about this and can we take a straw poll
to pursue this or not?
RAY: Mr. Balog, and then let's call for the vote.
BALOG: I agree with that, with the last part. We were brought together, and
it's true for us collectively, to think if you do make a change, if it's for the betterment of
the County and we had a summary that was put out and if you go by this summary,
there's some things on here that are real hot items that a lot of guys spoke out against
and some items that nobody's talked about period. One person brought up and no one
else but I just think that John is right, that we have to just, for us to know right now, if
we're going to pursue this, let's do it and if we aren't and we feel it wouldn't be for the
betterment of the County, then you go that route too, but whatever it is, just get it over
with and let's do it. Don't keep saying well, let's see if we need more information or
less information, or whatever. If we're going to go for it, worry about how you're going
to do it after you figure out you're going to go for it but take a straw vote to see if you're
going to go for it.
BESS: Coming back to why this City Manager appeals to me is because it
appears to be an efficient, professional form of government. It may or may not be at
lower cost. It certainly seems to provide for a greater degree of accountability. Those
are the things that I would like us to focus on and I'm not necessarily hung up on going
City Manager. If we can play with the existing Charter and achieve those same
attributes, I'm hot for it and I would certainly be willing to go the route of exploring, and
early on in the issue, a look, are we going to provide for more professionalism and
accountability in terms of administering this government and let's see where we get
with that. And come back to City Manager if we realize the structure itself doesn't
provide for that. I'II pull back from - I'm appreciate hearing from the guy from Georgia.
It's not a function of more information, it's a function of really discussing this and really
coming to an honest opinion about whether or not we really want to go this route or not
23
• but I look at the practical side of this, about going the City Manager and think, my
goodness, maybe John, your idea is best. Let's look at the Charter and try to fine tune
it with these attributes that are so, to me, very appealing about the City Manager form
of government.
RAY: Okay. Ms. Irvine.
IRVINE: John, could you speak to what you think might be able to be done
with the Managing Director's position as it is, that would make it more like this Council
Manager?
RAY: I haven't come up with anything really dramatic or exciting. I'm still
working on it. It would be hard and it really boils down a lot to who the person is. I
mean, right now if you had the person that were so inclined, I think they could creatively
do a whole lot with our present structure of government to make things much more
professional in terms of how it is structured. Mr. Martin.
MARTIN: Just a point of clarification. I know we're going to take this straw
vote very shortly here but we have two members missing so just keep that in mind.
RAY: Okay. Let's just have a show of hands of who would like to at least
• pursue this further to the point of us following up on some of these additional websites,
this new contact we've gotten that Curtis brought up and see where that leads us, so
show of hands, your right hand.
HANDS RAISED: E. Alonzo, S. Bess, M. Herkes, S. Irvine, J. Santangelo,
G. Yoshiyama
RAY: So for now, we will see what we can pull together and I'll also see
what I can come up with and -
MARTIN: If I may. So now you're going to allow our counsel to also pursue
his endeavors in finding more information for us?
RAY: In a limited way, not -
MARTIN:
indicated.
I think we should release the hounds. That's what the body just
HERKES: You have to pay for them when you release them, you know.
We've only got $97,000.00.
BALOG: Hey, that's the breaks. Go back to the Council and ask for more
24
•
•
money.
RAY: Agenda. New Business. We've concluded for this evening, the
discussion on the Council/Manager form of government so we're going to proceed to
item B. Charter Review- Articles I, so page 2, Article I. Does anybody have any input
on this initial short Article I?
BESS: Mr. Chairman, I would move that we tentatively, with the ability to
come back, approve the language in Article I, as stated in the present County Charter.
MARTIN: Second.
RAY: All in favor?
COMMISSIONERS: Aye.
RAY: Our first act. Progress. Okay, now we're on a roll. Article II.
BESS: So moved.
HERKES: Second.
RAY: Any comments on Article II? No? All in favor?
COMMISSIONERS: Aye.
RAY: So this is all just very tentative. Okay, now to get more into the
meat of it, to move to Article V, CHAPTER 2, CORPORATION COUNSEL, which I
think we've already addressed as well as we can this evening.
CHAPTER 3, DEPARTMENT OF FINANCE. Unfortunately Mr. Takahashi is on
vacation right now so otherwise he would have been here this evening. As you know,
he's submitted a fair amount of material to us so my suggestion is that we - There's
some things we could discuss without him here, one thing that I think came up was -
no, the qualifications is covered in another section so does anybody have anything they
want to discuss on Department of Finance this evening? Ms. Herkes.
HERKES: The third sentence in (e) - there's something wrong with it and I
think they've left part of the old Charter in there. "Examine all contracts...." and then
after the semi -colon, "approve every such document shall be subject to director of
finances' approval but the director of finance shall not approve...." so I think I'd take out
from "shall" to "approval" and then it reads all right. I think they've just left something in
there from the other one.
25
"(g) Maintain a general accounting system for the city" which I agree with. "Require all
county agencies and executive agencies to report and remit all receipts to the finance
director as often as the finance director deems desirable." You guys that were on the
Council, is that something - that seems to me to be kind of nitpicky. Seems to me that
you give the agencies and executive agencies a budget, tell them what they can spend
their money on and then you let them spend the money on it.
RAY: I'm not aware that that was an issue, certainly not a problem that
I'm aware of, Marni, but we can -
HERKES:
that.
IRVINE:
another.
It was an issue when the Mayor was the Finance Director, I know
I think it was the problem of shifting funds from one place to
HERKES: No, it was the problem that every single receipt came across. I
mean if a department head wanted to go to Honolulu, and it was in his budget, he had
to come and ask permission of the Finance Director. That's ridiculous.
SANTANGELO: That's not the case, is it?
• RAY: Not that I'm aware of.
HERKES: Not anymore, I don't think.
SANTANGELO: That certainly wasn't my -
HERKES: I think it was changed by the Mayor. But remit all receipts to the
Finance Director - is that something that belongs in a County Charter? It just seems to
me that that's -
BESS: Well, if there's a question in his mind, it just leaves him the
discretion to be able to just do a quick check and see if people are abusing their
authority.
HERKES:
BESS:
If it isn't desirable, he doesn't ask for it.
Yes, if there's no reason for it, he doesn't have to do it.
SANTANGELO: And Harry's a pretty reasonable person. It might be good to at
least get him to answer that, Marni.
26
HERKES:
RAY:
Takahashi.
I'd like to just pursue that to see whether that's - yes.
Okay, yes, earmark that and let's follow up on that with Mr.
Anything else under Department of Finance?
HERKES: The Auditor, when not in conflict with the Charter. The Auditor of
the County is provided by law. Do we have an Auditor or is the Treasurer our Auditor,
or is that something you want to leave? That came up before, yes.
RAY: That is a discussion which we have already embarked on with Mr.
Takahashi so I'd like to have him here because that's something that we very much
need to talk about and address.
HERKES: Okay.
IRVINE: John, yes, I feel that's a big subject too because every time the
County gets audited at the end of every year, the outside Auditors say we need to have
an internal audit and I do have those papers. I guess I haven't passed them out to
everyone because maybe we didn't have our Secretary doing that at that time but
maybe everybody should get these papers and I'II pass them out. But Takahashi talked
about the problem. There's a Legislative Auditor at the County Council and then if we
set up an Auditor here, and he was worried that they didn't have specific duties to find,
in his testimony.
RAY: In both cases, right? So it creates a lot of misunderstanding.
IRVINE: Yes, so I wonder, would it make any sense to ask the Legislative
Auditor to come by when he's here to discuss this so that we could clarify what we're
doing? I mean, or is Legislative Auditor a good name for what goes on in that office?
Maybe it just creates confusion.
RAY: Right, yes, we can pursue that, sure. Okay. Also under the
Department of Finance, 5-3.4. The Pension Board. Have we received anything?
HENRY: No sir.
RAY: Does anybody have any thoughts in regard to the Pension Board?
YUEN: This covers a small group of people. This is old County pensions
and Gary will probably explain this better than I do but this is not the pension system
that everybody's in now. This is people that are on these really old County pensions.
That's who's covered by this Pension Board.
27
HERKES: Do we need this Pension Board?
YUEN: They have one and I think that things do come up under these old
pensions and there is a Pension Board like this. Ronnie?
(Indiscernible comment from one of the guests.)
BESS: Does this Pension Board currently have any control over any
funds? Did it actually serve as fiduciaries in the management of pension funds or have
all their funds been transferred to ERS?
RAY: I don't know.
YUEN: I'm just going by memory here and I don't think that they actually
invest funds or handle funds. I think that they do things like who is a beneficiary when
somebody dies and they didn't designate. There's a very limited responsibility of this
Pension Board. I just remember when I was serving in Corporation Counsel, I talked to
somebody who's on this Pension Board who was not very happy because they didn't
have anything to do and was commenting how little responsibility and how few people
were involved in these pensions. Beyond that I really can't say anything but I'm pretty
sure that they're not sitting on a stash of money and investing it.
• IRVINE: We do have a letter dated April 29, 1999 from the Department of
Finance to John Ray concerning the Hawaii County Pension Board and they said "In
response to your letter of April 15th requesting comments from the Pension Board, we
placed the subject on the agenda for our next meeting, June 1, 1999" and it's signed by
Ruth Walker. She says "we will submit our comments shortly thereafter." She's the
Chair of the Hawaii County Pension Board. So maybe we should just follow up with a
letter to Ms. Walker and ask her to justify their existence.
RAY: We have. You remember our second round of follow-ups went out
but we'll follow up and make sure something wasn't lost in the loop there.
Let's take a five or ten minute recess right now and get everybody back before we
proceed to the Planning Department discussion.
RECESSED The Chairman called a short recess at 6:40 p.m.
RECONVENED The meeting reconvened at 6:54 p.m.
RAY: I'd like to reconvene the meeting. I'd like to welcome our newest
Commissioner, Dr. Daryl Kurozawa who just arrived all the way from Kailua-Kona.
28
We're now at CHAPTER 4 PLANNING DEPARTMENT. I'd like to mention for the
record that we have yet to receive any formal comments from the Planning
Commission. We have solicited those but as far as I know, they haven't formally.
agendized. Maybe we can come up with some discussion this evening that will
encourage them to do so. But anyway, let's just go ahead and start our initial
discussion on this CHAPTER 4 PLANNING DEPARTMENT. Mr. Santangelo.
SANTANGELO: Well, the one thing, John, that you and I on the Council
experienced sometimes, when you have certain things that really bring out the needs
and the different needs between people and with this Planning Commission, I'm just
wondering if this Board would consider maybe looking at creating another Planning
Commission, one East Hawaii, one West Hawaii because it got really obvious to me
that there was really different needs there and it would give a certain amount of
autonomy to an area that has social/economic differences from East Hawaii. It's a
Commission. I would envision it to be identical to what we have in East Hawaii but to
have, not a separate Mayor or a separate County, but again, a separate Planning
Commission and we do have past Commissioners here so it'd be interesting to see how
they jump to the mike. But that was the thought I had.
BALOG: Well, I don't know if any of them jump to a mike.
• RAY: We did receive a couple of letters that refer to the possibility of
separate Planning Commissions for East and West Hawaii and also one letter from Mr.
Graham in Hawi which also came up with some suggestions in terms of how the
Commissioners would be appointed. He came up with a suggested scenario where the
Mayor would appoint a certain number of members and the Council Members would
appoint a certain number of members so anyway, that's an interesting possibility as
well. Does anybody have any comments on the idea of separate Planning
Commissions? Mr. Balog, I believe, was on the Planning Commission.
•
BALOG: Just to comment on my esteemed fellow Commissioner's
comments. We actually discussed this item on the Commission level and with the
Planning Department and this discussion came out. The final analogy was that the
Department, as well as Commissioners that were presently - well, this was about
maybe a year or a year and a half ago. Oh, I've been off for a long time already so
maybe two years ago. They felt that the representation that came as far as what was
done in another part of the island was helpful for them to make decisions on their part
of the island. They didn't feel they didn't have enough representation for their own
specific area. It went from that to now being appointed the same way the Council
Members are elected specifically by Council Districts so that even further gave the
people within those districts more representation instead of having at -large members
on the Commission and every scenario that came down - it never came down to when a
vote was ever taken. You couldn't point your finger at something and say well, this was
29
• an East vote vs. a West vote on the Commission level which sometimes was said, or
was implied, that was happening on the Council level. It was more of a "this is what the
Commission felt was best for this particular application and this particular area".
RAY: Kevin, what about the workload and the logistics of making
meetings. That's something that's always seemed like this Commission, in particular, is
just an enormous amount of -
BALOG: There was talk of electing the Commission. Nobody on the
Commission was for having elected Commissioners but they were rather in favor of
having more - actually the Commission needs more help, assistance on the workload.
The main reason why things were done late and the workload was heavy is information
came into the Commission two days before a meeting. Eighteen agenda items, a stack
this thick, depending on what you're doing so stuff like that was hard. I still keep in
touch with them. They now have two meetings a month but they still don't have - I think
our workload was - we averaged about 25 agenda items a month plus two or three
contested cases. They're down to about 10 agenda items and no contested cases so
the workload, from what used to be a lot of workload, has shrunk down and now they
have two meetings but there's people on there now who have said if they had to be
appointed and being told if they had to show up to two meetings a month, they wouldn't
have taken that position. So I think there has to be some balance that the people that
• you are choosing, you have to know that they're professional people. They aren't all
retired and that they do need some consideration for their time that they're serving
more than just getting mileage and sometimes, when they had to stay at a late meeting
because you're at a meeting in Kona and you live in Waimea, because you aren't two
districts away and it's midnight, they won't pay for your hotel room. It's stuff like that
that's very disturbing to Commissioners.
RAY: Wouldn't that be an argument for separate Commissions and
cutting the workload in half?
BALOG: I don't think so. Honestly, I don't because there's meetings that -
they're few and far between but when something does happen, personally I believe if
you're serving a County in a non-compensory way and something goes longer than
what it should go, if you're tired, the County should allow you to say, I'm tired, I don't
want to drive, I want to rest, instead of saying you've got to live two districts away to get
compensated to stay in a hotel room. That's all I'm saying.
RAY: But like you said, if you're a professional person and you've got to
be at work the next morning, it probably doesn't make any difference.
BALOG: Well, they don't have that problem now.
30
• RAY: Ms. Herkes.
HERKES: I find that the, and Chris, this is probably a question for you too,
that the Planning Department is amazingly backward in their communication tools.
They will not fax me or e-mail me meeting notices and I don't know if that's a State law
and I have a feeling that they won't put their agenda on the web. That they won't get
them to people. They won't video conference Planning Commission meetings.
There's a lot of things that could be done to make Planning Commissions much more
open to the public besides starting a second Commission. I'm not really against a
second Commission. I think financially it's probably not as efficient and I think there is
some value in having an island -wide body. I think it does make a more cohesive
governance but I think there's lots of things that the Planning Commission could do to
make it less onerous for the general public as well as the Commissioners to comment.
RAY:
address that?
Is there anything you think, in the Charter, we could do though, to
HERKES: I'm not sure. I've been reading it and I don't see where I could put
it in there but I think that we're trying to solve a problem that has other solutions,
meaning that I don't know if the Charter needs to be changed. Maybe it's some minds
that need to be changed.
IRVINE: Quite frankly, I thought this was a very interesting suggestion
because I think that people can't be asked to volunteer two mornings a month, is what it
is right now. They used to just run meetings till midnight as you said, but I thought it
was mainly a West Hawaii suggestion that we do split it and I would, as a resident of
East Hawaii, be happy to allow a little more autonomy for that side of the island if they.
feel it would be a good idea or if there's that notion.
RAY: Okay. Mr. Balog.
BALOG: Just a couple of things. One is we went through Commission rules
and what Ms. Herkes is bringing up about notification and trying to get stuff out to the
public. Through rule there is so much you can do and I think the Planning Department
or Commission has done more probably to get things out noticed than most other
Boards of Commissions but the failure with that is that public still has this, quote,
feeling that they're excluded from what happens and we've tried. It was the first year
when I was Chairman, they did do a few live TV feeds of Commission hearings but it
came down to is the County willing to pay for that or not, and the answer was no, and
they took their few TV feeds and that was it. I think if something like planning and at
least to Planning Department - Personally I think the Planning Department probably
should be split up. One should be handling everything except Planning Commission
and the other side should be handling only Planning Commission and I'll tell you the
31
• reason why. You have a staff member who works for the Planning Commission but one
day a week has to go sit at the front counter. Then you have another staff member who
works for the Planning Commission and one day a week they sit at the counter so
before you know it, the staff that is supposedly helping this body doesn't have the time
to do their job. And the other thing, it just popped to my mind when Sue said oh, to
oblige West Hawaii and East Hawaii to give more autonomy. One of the things that
came up was that was brought up by, in fact, I think it was the Commissioner from
Kona, Katayama. Don't quote me on this but one of the things that she brought up was
that she felt that if you had two separate Commissions, if Kona made a decision and
they looked at a rule slightly differently because you have discretionary views and they
said yes or no to a specific scenario and someone didn't like what they said, they'd
come to East Hawaii and say more or less the same application, just in a different
place, let's see what we can do over here. I'm just saying, so they started arguing back
and forth and you can say so much to the rule, but every application you're looking at,
as that application right now in that area, and a lot of things that influence a body like
the Planning Commission or the Land Board or even the State Land Uses, if you have
50 or 100 people sitting in front of you and seeing your County Council ranting or
raving one specific way and there's been times that you go in different direction than
the public and that's one of the harder decisions to do but in general, if the public in
that area comes out strongly and the rule says well, you have discretionary views, just
look at if they need it or don't need and you find, oh well, there's one thing over here on
• the rule tree, sub -section A, number 4 that says you don't need this, they'll point to that
so I'm just saying it was looked at kind of thoroughly.
RAY: Ms. Herkes.
HERKES: Mr. Ray, I believe that Maui has three Planning Commissions, Maui
County, they have one in Lanai, one in Molokai and one on Maui.
RAY: They are separate islands so it is somewhat different.
MARTIN: Unless they bridged them in the -
RAY: Wait, hold on.
HERKES: Can I finish my statement? In that context, they are still the same
County and they would have solved some of these problems of conflicts and going
back to another Commission or something so I would really appreciate it if we could
bring somebody from the Maui - I don't know if whether the Planning Department,
whoever's in charge of the Planning Commissions and ask them how it works with more
than one Planning Commission. I think Maui's the only island that has different
Planning Commissions.
32
• RAY: Okay, we'll get some information on that. Hold on. Mr. Alonzo.
ALONZO: Basically, the Planning Department is understaffed so a lot of times
the staff is overworked and when they're overworked, sometimes there's a double load
of work that has to be done to distribute to the Commission. As far as getting the
materials on time or late, there's a workload on that. Also, a couple of years ago,
maybe three or four years ago, County Council wanted to take away some of the power
from the Commission but it didn't pass. Also, like the (indiscernible) Fund, the
Commission asked the County Council to take over it and they refused because the
workload for them to read up on all the material would take too much time for them and
they bring it back to the Commission. But having two Planning Commissions on both
sides, yes, you would reduce the workload but when you make decision-making like
Commissioner Balog was saying that if you have an application in West Hawaii that
isn't approved, they would come to East Hawaii. This is disapproved but the same
format is there and then you're going to have conflict and the more is going to land
courts, end up in courts, or Board of Appeals have to do some research and it will tend
to delay projects or further progress on future.
RAY: Okay.
BALOG: I just had one comment about Maui, Lanai and Molokai deal. It's
hard to compare that County having three Commissions with splitting a County that is in
• one land mass with that and I'll give you the reasoning behind that. In theory, this
island has two major towns, or I guess they're called towns, or cities or whatever you
want to call them and in that sense, because you have on one island, similarities in
East Hawaii and West Hawaii. It's driveable. They're connected by roads, land mass,
that's one thing. You couldn't take, I believe, some projects that were applied for on the
island of Maui and take that project to Molokai because it wouldn't make sense to a
developer or whatever. You could possibly take a project, in my opinion, that is for
East Hawaii, if you wanted to have, let's say, what don't we have over here? We don't
have, what is that hardware store?
•
SANTANGELO: Eagle.
BALOG: Eagle. Let's say Eagle wants to come into East Hawaii and the
people where they go, say they don't want Eagle and they still put in their application.
They have to go through a permit process. They get denied. Then Eagle goes to Kona
and they say this Commission over here denied us but we want to come to this island.
Here we are. And the people in Kona say well, eh, right on. And it's almost the same
application, the same situation. They're denied in one place based on supposed rule
and in the other place, they could possibly be approved because people come out and
testify in favor. So how do you say one rule was wrong, apply this rule here and say,
well you're denied because of a rule and over here you're approved because of rule? I
33
• think it's a tough, tough answer.
RAY: Mr. Santangelo.
SANTANGELO: The reason I brought it up is, and I wouldn't want to do something
because it would make a certain people feel good, but if we look at administratively,
like you said, efficiency, workload and then taking the social/economic similarities in
areas and we are more agricultural over here and they have differences in West Hawaii
and that very thing that Kevin brought up is the reason why I would favor something like
that. If the East Hawaii, and you delineate where the authority is, and if in East Hawaii
they did not want this Eagle but in West Hawaii they did, that would just show that
there's a difference in needs, wants and if it was approved over there, that's the way it
should work. And so in looking at, again, the expense is one thing but the travel, the
ability to serve and to do the work properly, it seems to me that it makes sense in this
instance especially, more than anything else in government, and a way of testing it that
the Commission could be a nice way of checking this out. So, I see the very argument
supporting that.
RAY: Steve, Mr. Bess.
BESS: One of the things that concerns me is I think there's a need for a
• General Plan, the entire island. There may be functions that make sense to split off
but certainly with regard to coming up with a General Plan rather than the
implementation of a zoning ordinance or a particular variance action, that you ought to
have a General Plan and that would go against having two separate people coming up
with their own plan.
•
SANTANGELO: Once every ten years, yes.
BALOG: Well, that's been debated too.
RAY: Hold on.
BESS: No, 1 would hope that any splitting off, if there were to be splitting
off, that these people are governed by the General Plan, right?
RAY: Sure.
BESS:
means.
And that there is a uniform application of what that General Plan
RAY: Absolutely, but you could under law have a pass by ordinance, any
number of designed districts or whatever and it wouldn't operate any differently, right?
34
They all operate under the General Plan and then you'd have a specific Regional Plan
or a Commission or group that dealt with that so 1 don't see that would be any different.
BESS: So when it comes to Regional Plans, let me ask, do you see that
the Planning Commission, if there was a Planning Commission in Kona, would have
their own ability to come up with their own design, standards -
HERKES: We have a design.
BESS: Yes.
RAY: Excuse me.
HERKES: Okay. He was looking at me so 1- sorry.
RAY: I think we're talking about two separate things as fair as -
BESS: I may be confused, sorry.
RAY: Ms. Herkes.
HERKES: I renew my request for Maui to come. They have a General Plan.
They have Regional Plans. They have all of these problems and they have some of the
answers. I'm not speaking, however, in favor of separate Planning Commissions and
I'd like to also say that the rule that the Eagle Hardware would be approved on one side
and disapproved on the other would be a Restrictive Business Practice Rule and I
would not be in favor of the Planning Commission doing that. Go ahead.
IRVINE: I was going to say concerning General Plan vs. the kinds of things
that the Planning Commission does by way of permits and SMAs and things when they
actually have power to do something, under our Charter it says they review the General
Plan and make recommendations and this other permitting processes could be done on
either side and when it's time for a whole General Plan, we'd have to see, maybe, how
Maui does it or whether another Commission is brought together or whether they would
work together on that.
RAY: I think everybody would work together on it and everybody would
be part of that process. I don't see that as -
BALOG: Could I ask one question, though? We kind of got on this just to
see if it would make sense but if we're looking at the Charter, to me, how to make it
more serviceable to the general public, my million dollar question for even going and
inviting somebody from Maui to explore why orhow it works and what makes it tick, is
35
• how much will the public benefit if we go on this route and we see if it makes sense to
split a Commission. So what we're paying for now one, we pay for two times by two
Commissions because right now the staff that's doing the work, if you look at it in
general, the bulk of the work for the whole island is being done by the same staff and if
you're going to start going down a road where you're going to be saying here is one for
this region and here's one for that region, I guarantee you, you're going to have to
increase staff. You're going to have more Commissioners and to me, having served on
the Planning Commission, personally I think it's too burdensome to two parties. One is
anybody that wants to come and testify for or against it. That's to me what I call a
party. And the second is the applicant. So if you look at what people have to go
through to be part of a planning process, to me it's too much. It's just my personal
feeling. I just don't see how we're going to benefit the public by having two
Commissions.
ALONZO: Spend more.
BALOG: Just to say that, oh, we're going to have nine people from this
regional area, or it could be seven people from this regional area, to make that decision
for that regional area so we're further going to try and split up Council Districts or
whatever it is, to say here's your membership. Now you guys have an odd number of
people and this is what you need and this is the rules you're going to follow and here's
• your staff and that's what you're going to do. I really disagree. I think it'd be, in my
honest opinion, a waste of our time.
SANTANGELO: Just a quick comment. If you have two Commissions, I don't see
how that generates any more applications. You're dealing with the same amount of
work. You've separated that over two different bodies that might have, and that's the
only reason for bringing this up - I haven't served on the Planning Commission, I have
no prejudice one way or the other but may have a better expertise in that area and
maybe a little more accountable within that region, again bringing into account the
social/economic similarities that they have, but the same amount of work. I mean, as
far as the Planning Department goes, they're going to have to deal with it one way or
the other. You just send it one direction or the other. And that's not to be meant as an
argument pro or con. It's just meant as information. Thank you.
RAY: Marni.
HERKES: As far as asking for a change in structure in permitting, would that
effect any of the work of the Planning Commission or the Planning Department?
RAY: I don't believe so.
HERKES: Not in any way?
36
YUEN: Not the proposal that they were making. Those were all permits
that are issued by us on a staff level, not on a Commission level.
RAY: Steve.
BESS: This whole idea of two Commissions. Is this because of the
unresponsiveness of, or the inability of, the current Planning Commission to handle
their workload? Are the decisions too slow?
SANTANGELO: No. I've seen personally, with the stuff that they send to the
Council, I'm really glad they're there because there's only so much work you can do
and approving certain things, it was good to know the work that they did and to go over
and look at the recommendations.
BESS:
things at all?
SANTANGELO: I think it makes it more efficient that the stuff coming to the Council,
and they are making decisions that are law, which I struggle with myself, but they're
making decisions that have the effect of law and so you want some accountability. You
want to know the work's being done. There's a tremendous amount of work SO there is
• something to do with splitting it. Mostly, Steve, it has to do with being closer to the
people and making decisions that impact the lifestyles in those areas and having a little
more autonomy over that because there is such a huge difference.
BESS: So the real thing here is that socio -economically, there's such
differences that the Kona people feel that the East side is not sensitive to their regional
needs?
So you don't see that by splitting these two it's going to speed up
SANTANGELO: I don't think that's it at all.
BESS: No?
HERKES: I don't think you can say that.
SANTANGELO: No.
BESS: I'm missing something then. Where's the problem?
RAY: Okay, I feel -
BALOG: Let's take a straw vote. I've got to go and I don't want to leave in
the middle of a discussion.
37
• RAY: Well, we're not going to decide anything tonight.
BALOG: Well, good. Can I go then?
RAY: Sure.
BALOG: Thank you:
BESS: I just don't understand -
RAY: I think it's very much a home rule issue. It's very much an East vs.
West Hawaii issue because I hear this all the time in West Hawaii so that's the main
input I get is that it would be a decision made more closer to home and more reflective
of desires and the situation in West Hawaii that I hear more from than East Hawaii but
Chris and I were talking about this a couple of days ago and he brought up interesting
points which I hadn't really thought about and kind of pros and cons and if you think
about it, say resort development in West Hawaii where a substantial amount of the
employment may come from East Hawaii so then you've got West Hawaii deciding
presumably for West Hawaii but are they really when maybe the employment base is in
East Hawaii. So that's kind of an interesting point that he brought up which would be
an argument against separate Planning Commissions. In other words, deciding some
things supposedly for West Hawaii that could have a significant impact on East Hawaii.
That's just part of it. But to answer Steve's question, yes, I think the main input I hear
has to do with more of a home rule issue. Kevin.
BESS: Is it a home rule with Kevin mentioning that the votes coming down
in the Planning Commission don't appear to be by district?
RAY: Well, that's his read on the thing. I don't necessarily agree or
disagree but I definitely know that that's not the perception with a lot of people in West
Hawaii.
HERKES: It's more perception.
IRVINE:
West Hawaii.
Perceptions are very important and I think that's what I hear from
RAY: And part of my interest in this is trying to heal the ill will and conflict
between East and West Hawaii. I think this is something that interests me because it
might be a way to address this issue in a lot of people's minds.
I thought you'd gone.
38
BALOG:
RAY:
I wanted to say something before I left.
Okay.
BALOG: I know everyone goes to this perception and I always hear
everybody tells me this and everyone tells me that. I sat in the hot seat for three years,
more than any other person, so I can tell you for a fact, I had people like Marni Herkes,
who I never knew before, "oh, this is a good project, Kevin".
HERKES: On what?
BALOG: The school.
HERKES: Hualalai?
BALOG: Whatever it was. I don't even remember them because I don't want
to remember them. There was too many of them.
HERKES: I don't remember that either.
BALOG: But I remember you walking up to me. 1 honestly believe this. This
• perception that people think that oh, you're going to do this big favor if you have two
Planning Commissions. You know what's going to be the next thing? On you know
what, the guys in Puna, out there in Pahala, they need one too because they're
different from the guys in East Hawaii. Gee, those guys in Waimea that everyone
perceives are a bunch of S -N -O -B -S. Well you know what, they need one too because
they all think they're better than the guys in Hamakua and the guys in Kona. So I'm just
saying we're sitting here saying that there's this perception that ill will and mending
feelings and stuff - I don't believe that. There's been certain decisions I can honestly
say, that in general, there's been people in the public who've been pissed but you know
when any Board, and I'm sure Chris can tell you this, they do something, I would say,
90 to 95% of every Board's decisions goes unnoticed. People agree with the decision,
eh, no one ever wants to print in the paper "good job" but when there's ten loud mouths
in a community that want to grumble that they didn't like that decision, then all of a
sudden there's - here's comes the word - there's this perception that people aren't
looking at the feelings of the people in that area. I'II tell you personally, I was pissed at
Chris as a Board Member when he voted against OJI. I was there as a member of the
community supporting timber. I went. I read my deal. He voted against it but I thought
why couldn't he listen me so I felt the shoe on the other foot and I was thinking, you
know what, I must not be seeing the whole picture. 1 know what my interest was but
obviously, there was interest of other people so it made me respect, in that sense, how
people felt in different ways and I just don't see this big thing that there's this big fence
to mend. I mean, we've done stuff that people have gotten upset in Waimea and
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• people always will get upset at some decisions but 95% of the time, or 90%, let me tell
you, it goes unnoticed and they agree with every decision that Board or Commission
makes, whether it's Planning or any other Board or Commission. But it's the few
decisions that people think make or break their life and they want to appeal it to the
Supreme Court, and they have that right, but it doesn't mean that that body is
insensitive to those people's feelings in that area. It just means that, to me, the system
works because everybody on any decision has that right, but some decisions people
feel are more serious or more sensitive than others and I felt honored when someone
appealed one of our decisions because it tested that we, as a body, came to a decision
the right way and when it was appealed, if it was overturned, we could look at it and
see what we did wrong. And if it wasn't overturned, right on, we did our job. But I don't
see 5,000 voters on West Hawaii asking for a West Hawaii Commission because
they're upset at the insensitivity that the Commission has portrayed over this period of
time, but that's just my opinion.
RAY: I think people do feel very disenfranchised from government and in
fact, this whole issue of home rule and whether it's a separate West Hawaii County or
whether it's townships or whether it's neighborhood boards, you know Hawaii is unique
in the United States in that we have no government below the County level. There's
nowhere else in the United States, Kevin, where whether it's Puna or whether it's
Waimea or whether it's Hamakua, everywhere else in the United States, they do make
their own decisions. That's the way it works everywhere else. Hawaii's the only place
• that we have this level of State control and this level of County control so it's a very real
issue with a lot of people and whether this is the answer or whether this is something to
move in that direction, I don't know but I think that's where it's coming from.
HERKES: I'd like to throw out that we could probably replace the Planning
Commission, both of them, with neighborhood boards and or townships so that's
another facet that we could talk about, whether we have a Planning Commission at
all.
BALOG: Actually, just to let you know, I think you'd have to get a reading
from your attorney because you would have to go back and look how many times
Planning Commission or whatever is in the State law that delegates those specific
power to the Boards. Because it was discussed too. We had brought that up too,
Marni.
YUEN: I did write you a letter on sub -governments and I said that I wasn't
going to talk about whether you could organize Commissions specifically because it
would be different for each Commission. There is a significant legal issue about
whether you could have two Planning Commissions that have actual power. This is
going to sound a little bit similar to my discussion of the Managing Director, the
County/Manager form of government, except that I have more hesitation in saying that
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•
•
the County has the freedom to organize itself with two Planning Commissions than I
do about saying that you can go to City Manager form of government. First of all, you
have to separate it out. The Planning Commission has advisory powers and it has
some actual permit granting powers. The advisory powers are on things like rezonings
and general plan amendments. Those go first to the Planning Commission but whether
the Planning Commission votes up or down, they still go on to the County Council for
final action. The Planning Commission, though, does have the power to grant the SMA
permits, special permits which are unusual uses in agricultural districts like if somebody
wants to build a church in an agricultural district, certain use permits like golf courses,
amusement parks, that need a use permit in some zones. The legal question comes
about because State law that gives the County zoning and permitting power says that
the County shall have a Planning Commission. Now is this just another accident of the
fact that they weren't thinking that you might want to have more than one Planning
Commission or do they mean a Planning Commission, one Planning Commission. I say
this as a significant question and I'm aware that Maui County's organized itself now so
they have three Planning Commissions. That has never been actually challenged in
court. Nobody who's been denied a permit by the Molokai Planning Commission has
ever gone to court and said, no, no, you can't have a Planning Commission that's just
set up for part of the County. This is something that can be argued either way and I
think that again, partially because of my bias that the County, if the voters of the County
so choose, that they ought to be able to organize themselves how they want. I would
say that the County should be able to have two Planning Commissions but I do have a
great deal more hesitation in saying that, and I say that with a great deal less certainty
than I feel about the City Manager. The way this would come up, and just to give you a
scenario that you can hang your hat on, would be that suppose there was a major
project that was proposed in, let's just say it was proposed in Waikaloa that needed
SMA permit and say that it was such a major project that it had impacts that carried
over to other parts of the island, as it very easily could. It might be projected that a
good deal of the employment would come from East Hawaii, that it would effect traffic in
Hamakua on the Belt Highway. It would have effects outside of the West Hawaii
District, but let's say that it just went to the West Hawaii Planning Commission and let's
just, for the sake of this example, say that it passed but that there was a strong
opposition to it that took it to court and said that you cannot make a decision like this
with a Planning Commission that represents only part of the island because they are
not considering the effect that this may have on the other part of the island, the people
who are not represented, and ultimately it would come down to this question of whether
the State Legislature was serious and meant one Planning Commission when it said a
Planning Commission and you can say they just worded it that way but you could also
say that there was a conscious decision that you ought to make planning decisions on
an island -wide basis. I hesitate to predict how this would come out if it were in a court
case. The difficulty, again, similar to what we talked about with the City Manager but
perhaps more severe, is that it does create a degree of uncertainty in the planning
process, like for this applicant. It would leave the side that was a losing side a
41
legitimate legal issue that could be raised against the decision by either of the Planning
Commissions on either side. I'm giving you this somewhat off the -cuff and I haven't
researched it in any great detail but I do want to mention that this is a real question. I
talked to Corp Counsel on Maui about this when I was working on the request that I
look at sub -governments because I thought I would get into this Planning Commission
question but it was a little more complicated and I wanted to finish that letter that 1 was
doing on having multiple County governments. They hadn't really thought about it that
way, as being a big question and nobody had challenged it in the County of Maui and I
think for obvious reasons, a decision on Lanai is not going to effect people who live on
the island of Maui that much, by in large. They're not people who commute back and
forth whereas on this island, of course, even though you live in a particiilar district and
a permit may be granted in one district, the people who work there may come from
another district. People may drive through there and be effected and it very easily
could effect your life even though it does occur in another district.
RAY: Other comments?
HERKES: That's the end of that. Thank you, Chris.
RAY: Well, this is not anything we're going to decide tonight and we
haven't even heard anything from the Planning Commission.
BALOG: I did tell the current Chairman, Tanaka, and I have talked to the
Director, to please make sure they get our comments to us by the next meeting so they
do have a meeting, I believe it's this coming Friday and they were going to have some
discussions and try and get a letter to the Charter Commission.
RAY:
BALOG:
Okay. Good.
So I did make some contact for you.
IRVINE: Should we tell them we're looking at the possibility of two Planning
Commissions so they could address that?
RAY: Yes, I'II correspond with them. Okay.
BALOG: Can I be excused, Mr. Chairman?
RAY: Yes.
BALOG: Thank you.
RAY: Let's have a brief recess, just a couple of minutes. What's
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everybody's pleasure? You want to keep going?
RECESSED: The Chairman called a brief recess at 7:40 p.m.
RECONVENED: The meeting reconvened at 7:44 p.m.
RAY: Let's reconvene the meeting. We're going to stop with the review,
CHAPTER 4, and when we go back into the Charter, we'll start at CHAPTER 5, and left
on the agenda, Announcements.
The next meeting is going to be two weeks from tonight, a Special Meeting the 25th
and I'd like to start the meeting at 3:00 p.m.
HERKES: 3:00 p.m.?
RAY: Yes, at 3:00 p.m. that day and I'll go over with Sharron, the agenda
and we will put some other items on the agenda in the Charter Review Section so
whatever time we have that we want to spend, we can get as much done as possible so
since we have embarked on this Council/Manager-Managing Director discussion, it
might be fun to look at the Managing Director section and discuss that under ARTICLE
6 and then Public Works, if we can schedule to get them here. We've already gotten
quite a bit of input from them so that's another good discussion we can start working on
and follow through and then maybe take up Parks and Recs, as well. Okay? Move to
adjourn?
SANTANGELO: Move to adjourn.
ALONZO: Second.
RAY: Okay, all adjourned. Thank you.
The discussion ended at 7:45 p.m.
Respectfully submitted,
Sharron Henry
Secretary -Administrative Assistant