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HomeMy WebLinkAboutMIN CHC 2009-09-11.tif2009 -2010 HAWAII COUNTY CHARTER COMMISSION 7th Session Friday, September 11, 2009 Sheraton Keauhou Bay Resort and Spa 78 -128 Ehukai Street Kailua -Kona, Hawaii 96740 CALL TO ORDER: CHR. HAITSUKA: Good afternoon. Today is September 11, 2009, and the time is approximately 1:40 p.m. I call this meeting of the Hawaii County Charter Commission to order. We are at the Sheraton Keauhou Bay Resort and Spa in Kailua Kona. ATTENDANCE: Present: Mr. Ed Haitsuka, Chair Mr. David Fuertes, Vice Chair (2:05 p.m) Ms. Daphne Honma, Commissioner Ms. Casey Jarman, Commissioner Mr. Guy Kaulukukui, Commissioner Mr. Joseph Kealoha, Commissioner Ms. Susie Osborne, Commissioner Mr. Todd Shumway, Commissioner Mr. Scott Unger, Commissioner Excused: Ms. Jamae Kawauchi, Commissioner Mr. Alapaki Nahale -a, Commissioner Also Present: Mr. Levi Hookano, Legal Specialist Ms. Karen Eoff, Secretary Ms. Glynis Yamada, Council Services Supervisor Ms. Jeanette Aiello, Committee Services Supervisor Mr. Alfred Robello, Special Assistant to Council Chairman Mr. Drake Okinishi, Council Aide to Council Chairman STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS CHR. HAITSUKA: Next on our agenda we have Statements from the Public. First up we have Ms. Debbie Hecht. Good afternoon, Ms. Hecht. DEBBIE HECHT (At this time Debbie Hecht came forward to address members of the Charter Commission.) MS. HECHT: Good afternoon, Commissioners. Thank you for volunteering to serve on this very important board. It's quite an undertaking, and I congratulate you for doing this for all of us on the island. Thank you for the changes on the area of Recall, I think they have come a long way. My name is Debbie Hecht. I got interested in legislative research and writing when I worked with Casey Jarman when she was the County Clerk. On the area of Recall, I think you have done a great j ob on what you have done so far. But, I think it is very important to note that when you create a vacancy in any of the elected positions on the island, which would be the mayor, the prosecuting attorney, and of course the council. In the case of the mayor, the managing director fills that vacancy. In the case of the prosecuting attorney, the first deputy takes over. In the case of a council vacancy - -and any of these vacancies can be created whether the official is impeached, recalled, dies, or is unable to complete their term in any way - -the council majority would appoint a new council member. The negative thing about that is that these are elected offices, and if any of these people cannot serve, the public has no say in replacing that official. So, I did some research in the different ways theses vacancies are filled in other places. In our Charter, the way to fill the vacancy is under each of the offices. So, in other words, it's under the Mayor, the Council Member, and the Prosecuting Attorney. In terms of re- doing this part of the Charter, you could do it in two ways. You could just re -do that part of it under each of the job descriptions, or, you could create another area that was just for vacancies and make it more general, and then use the procedure I am going to quickly outline for you. You could do it that the person who received the next highest number of votes in the last general election be appointed to serve the remainder of the term. That is the way the people weighed in, so that seems to make sense. If that person is unavailable to serve, and the term is less than six months, then the County Council could appoint the successor by majority vote, and that would be to fill the council seat. If the remainder of the term is greater than six months, there could be a special election by mail within 45 days of the time the vacancy occurred. They are all pretty similar; it's just a little bit different. A vacancy in the office of the mayor shall be filled by the person who received the next highest number of votes in the last general election. If that person is unable to serve, and the term is less than six months, the County Council shall appoint a successor by a majority vote. If the remainder of the term is greater than six months, there shall be a special election by mail within 45 days. The prosecuting attorney would be pretty much the same. So that's just sort of an idea on vacancy. I think it's great that you did the change in the percentage and then it was of the people who voted, and also the time frames. But, in order to really have a say with the people, you need to look at the vacancies. 2 Then, I looked further at the Charter, and over the time that I have been involved in the community, it always interests me when I go to testify in front of a board to see who sits on the board and why they are there. I know the Open Space Commission has a short bio on each of the commissioners, and I think that's very helpful. I think it's also helpful that the community at large knows about what the criteria for selection is, whether that would be suitable for them. I think those things should be posted on the internet. I think that's open and transparent government. That would be a change to Article XIII, Section 13 -4, Boards and Commissions. I'm reading from my Communication 35 now. On Article XII, Chapter 2, Impeachment, I think it is important to be consistent if you decide to adopt my recommendation on vacancies, to also have an election to fill that impeached official. In Honolulu, interestingly enough, they had a Charter Amendment to set aside 1% of property taxes each year and they created the Clean Water and Natural Lands and Affordable Housing Fund. Half of the money that goes into this fund goes into the Affordable Housing Fund, and half goes into the Clean Water Fund. Taking that idea and applying it to Hawaii County, I think that a new Charter Amendment to set aside 2% of property taxes each year that would create the Open Space and Natural Resources Preservation Fund, should be a special fund, and that would be a new Charter Amendment. Sixty -three percent of Big Island voters approved that in 2006. If we put that as a Charter Amendment, we wouldn't have to go through the budget wrangling that happens every year at budget time over that fund. I think it is important to respect voters' wishes on that issue. Right now, in front of the Council, the Legislative Auditor - -during budget wrangling again, the Legislative Auditor's budget was - -well, they tried to gut it and take away her power. Again, the voters voted in 2006 to support an independent Legislative Auditor. You cannot be independent if somebody's got your purse strings in hand, so I think it's important to give her the independence that was approved by voters and make her budget a percentage of the total budget of the County. Lastly - -and I'm sorry to run on and on - -when we looked at doing initiative petition drives on some of these Charter Amendments, the area on Charter Amendment and Revision - -which you probably know and could recite in your sleep at this point in time -- possibly could be changed to implement the same changes that are in the Initiative Petition section of the Charter that was sponsored by the League of Women Voters, and that I worked on with them very hard, and was approved again in the polls in 2006. All these issues are really about open and transparent government, and I think it's time we moved to that in Hawaii County, and certainly if our Charter dictates that we can make a big difference in people's lives. Again, thank you for serving, and thank you for listening. CHR. HAITSUKA: Thank you, Ms. Hecht. Are there any questions for Ms. Hecht? Not at this time, Ms. Hecht, thank you. MS. HECHT: Thank you. CHR. HAITSUKA: Next we have Margaret Wille. 3 MARGARET WILLE (At this time Margaret Wille came forward to address members of the Charter Commission.) MS. WILLE: Good afternoon, my name is Margaret Wille. I'm on the agenda for Communication 30, but I wrote something on a totally different subject, and so I thought I would bring it forward during the Public Statements. Let me just say, I live in Waimea and I first came to Hawaii in 1971. My brothers were living here doing the Aloha Theater and knew Kona long before there was the level of development that is now going on and a lot of the issues. I moved here permanently in 2002. I am an attorney; I do have a small private practice. I do a lot of community work on the side. I was on the South Kohala steering committee for two years and spent a great deal of time working on that. A lot of the ideas that I really brought forth are based on that experience, and concerns that were raised during that process. I am currently on the Waimea Community Association Board of Directors, also Co -Chair of the Waimea Design and Review Committee. I have one quick comment, in terms of the process. I know you have public hearings coming up, and it would be really helpful to the extent that you are able, to put out some kind of summary of what some of the key things that are being discussed, what the current provision is, and what is being suggested, and maybe a little bit of the reason why. I also have a blog and have been trying to get out all of this information to people, but even as a lawyer and being able to go through the minutes and take the time, I'm going okay - - -Now there's one item on changing the council members from two years to four years. I'm trying to encourage public participation to the extent that you could do a little summary to at least get people to know what areas you are discussing. What I want to talk about right now - -and I handed it out, and everything I submitted to you is a rough draft, just to get ideas going - -is to perhaps put in the Charter an actual new chapter on Department of Resilience and Civil Defense. Civil Defense is an agency, but it is not included in the Charter right now. There is the Liquor Control Board, there are different ones, but it's not mentioned in the Charter. Also, we should be trying to bring the concept of civil defense up to the current date. The direction of the thinking is in terms of resilience and how do we prepare, not just as individuals but on a community level, on a county level, and interrelate. Again, what I've written for you, to just think about, is that there shall be a Department of Resilience and Civil Defense consisting of a director and deputy director, and the necessary staff. I also included the current description of civil defense in what I gave you, and I used some of that same language that they use for the description of this agency. I just want to read it quickly, the statement of policy. "It is herby declared to be the purpose of this chapter to establish in the county a system for disaster resilience, including action plans for risk assessment, prevention, mitigation, and surge capacity building through coordination with other governmental agencies at the county, state, and federal levels, as well as collaborative partnerships with non - governmental entities and community organizations to ensure prompt and effective action when man -made or natural disaster threatens or occurs anywhere in the County of Hawai`i." And then I just listed some of them. And you know, we're sort of, what else could there be on this island? I know in today's newspaper there was 12 an article sort of like risks associated with Kona; and just sort of bringing to light. What on a community level, if suddenly there was a volcanic eruption or something. What response is there? The person communicated to Quince Mento, head of Civil Defense, and he said, on a community level we have nothing. So, what I am promoting is that people think about this, and you all meet every ten years, so to just try to encourage a little far sighted thinking. I put on the back the recent press release from the Obama administration, which is dated September 4, 2009 Basically, I'm trying to incorporate a lot of the ideas that they're doing, in those terms; they use the word resilience, how do we respond, or a surge capacity, so I put that in there. There has been some State legislation offered last year. It was House Bill 990, and there was Senate Bill 1, but nothing happened. They are going to be looking at it again. One just sort of practical level is that if you have these things written as policies, that's how you can get money. And there is a lot of money that is going to be available, but you need to have something in a platform that is your policy, that could be like a pilot program. I'm really trying to raise awareness. This is a rough draft; I haven't gone to anybody with it. I'm just trying to get us thinking in these terms that I really think that civil defense and resilience should be in the Charter, and people should be more aware in terms of preventing long term. So, I'm going to save the other comments until Communication 30 comes up. Thank you, I don't know if there are any questions. MR. LINGER: First off, I don't know whether this is for you to answer. Is the Department of Civil Defense the only department that is not covered in the Charter? MS. WILLE: It seems to be. I couldn't figure out where it came under, unless it's under the Managing Director. MR. HOOKANO: The Department of Civil Defense is actually kind of a creature of the State. The Hawaii Revised Statute (HRS) contains provisions on how our civil defense director is appointed, their duties. Then, they are also mentioned in our County Code, where the language mirrors the State language. It's a County department, but the director is appointed by the State. It filters down through the State process. That's probably why it is not mentioned in our County Charter. MS. WILLE: So, it is sort of set up by the State, but it is administered by the County. We are in charge if something happens. It's called to the County people, what are you doing about it, and I don't know what that chain of command is. MR. KEALHOA: Who funds it? MR. HOOKANO: I'm not exactly sure offhand who funds it. MS. JARMAN: So, if it's provided for in the HRS, do we have the authority to recreate it in the Charter? MR. HOOKANO: I'd have to look into that, I don't want to make a definitive statement off the top of my head, without having looked at the HRS provisions in quite some time. 5 MS. JARMAN: So, if we wanted to pluck into it, that's what we would have to do, look into the authority. MR. HOOKANO: Yes, look into the authority that is granted to the State. MS. JARMAN: Thank you. MR. LINGER: I just had one other comment too. Even if we did end up including this in the Charter, you mentioned that the current director of Civil Defense didn't have any procedures set up for some volcanic activity. That is something we would not cover in the Charter anyhow. That is going to be policies and procedures that his department is going to have to come up with. So, what we would end up doing would be very general. MS. WILLE: Right, but then there is an awareness, and a county responsibility, and how does one address that. Make it so that we can start getting some money and work in partnerships with communities. As part of the Waimea Community Association, I'm working to set up a program November 5, 2009, looking at what is Waimea's emergency preparedness, either on its own needs, or also as a host community. If there was a tsunami, Puako comes to Waimea. If there were other things, of all the airports, only Waimea would be open if there was six feet of water around the coast. Getting communities to be more aware, our Community Development Plan (CDP) specifically states - -and I think if you look at the Kona CDP - -that this is of importance in these communities and this is an issue wanting to be addressed, not just Statewide, but also on the County level. CHR. HAITSUKA: Are there any further questions for Ms. Wille? Thank you, Ms. Wille. MS. WILLE: Thank you very much. CHR. HAITSUKA: Is there anyone else here to testify? APPROVAL OF MINUTES CHR. HAITSUKA: Thank you. Next on our agenda is Approval of the Minutes for the meeting of August 14, 2009. Do we have a motion to approve the minutes? Ms. Jarman moved to approve the minutes of the August 14, 2009 Hawaii County Charter Commission meeting. Seconded by Ms. Osborne and carried by the following vote: Ayes: Commissioners Honma, Jarman, Kaulukukui, Kealoha, Osborne, Shumway, Unger, and Chair Haitsuka. Noes: None. 0 Absent: Commissioners Fuertes, Kawauchi, and Nahale -a. COMMUNICATIONS CHR. HAITSUKA: Let's move on to Communications. COMM. 26: From Frances Wong, dated August 5, 2009, regarding guidelines governing Council Member attendance at council meetings. CHR. HAITSUKA: Is there any discussion on this communication? MS. JARMAN: Excuse me, Mr. Chair. Do you know if she's expecting a response to her questions from the Commission? Has anyone spoken to her personally? CHR. HAITSUKA: It's couched as questions to us, I don't know if it's appropriate for us to send back some kind of written response. Mr. Hookano, is that something that we can and should do? MR. HOOKANO: Well, the "should" is not my place to answer, whether you should or not. But, if the Commission is going to provide a response, I think it should be a consensus of the majority on what to send. CHR. HAITSUKA: Is there any discussion on whether we should send back a response to Ms. Wong? MR. SHUMWAY: I guess if we are going to respond, I would like to invite her to come to one of our meetings, and we could address her personally. CHR. HAITSUKA: Should we send out an invitation to her? We could always defer this Communication to the next meeting, and invite her to attend. We could ask our Secretary to contact her and perhaps we can answer her questions. Is there any discussion on that? MR. KAULUKUKUI: Mr. Chair, in going back over her memo dated August 5, 2009, there is no specific request. It reads more like a letter to the editor. She has not asked for anything in particular. I would think the most we could do is suggest she come in person to one of our public hearings with a suggestion that a specific action come along with her; a request for action. MS. OSBORNE: I'm just concerned whether this is the appropriate venue for her questions, and I'm wondering if this is the place where these kinds of questions would be answered. I'm not really sure where her concerns would be addressed, but I don't think it is with this body. CHR. HAITSUKA: Is there any further discussion or thoughts? If we don't have any strong feelings one way or another about whether or not we should invite her to the next meeting or defer, we can always move to file. 7 MR. HOOKANO: Mr. Chair, if you file this Communication, then this matter is disposed of, it's finished, it won't come back up before this body. If you wish for her to come to speak, then you could postpone it to the next meeting. MR. UNGER: We loose nothing by inviting her to come speak, and I like Guy's suggestion that she needs to look at the Charter and she needs to come back with specific suggestions that relate to her comments. If she doesn't show up, then - -- MR. KEALHOA: Mr. Chair, she has on the bottom, on the last line, she would appreciate the opportunity to speak to the Commission, so let's invite her. CHR. HAITSUKA: Does somebody want to make a motion to defer? Mr. Kealoha moved to postpone Communication 26 to the October 9, 2009 meeting and invite Ms. Wong to attend the meeting and speak to the Commission. Seconded by Mr. Unger and carried by the following vote: Ayes: Commissioners Honma, Jarman, Kaulukukui, Kealoha, Osborne, Shumway, Unger, and Chair Haitsuka. Noes: None. Absent: Commissioners Fuertes, Kawauchi, and Nahale -a. COMM. 27: From Lono Tyson, Director, Department of Environmental Management, dated August 11, 2009, transmitting recommendations for Charter Amendments pertaining to the Department of Environmental Management. CHR. HAITSUKA: Is there any discussion on this Communication? MS. JARMAN: Mr. Chair, one of his recommendations was to amend Section 6 -5.4 to broaden their functions and give that to the mayor. (Note: Mr. Tyson referred to a former Charter section number. This is actually Section 6 -10.4 of the 2008 revised edition of the Charter.) It says, "... as directed by the Mayor or prescribed by ordinance ". I think the advantage of that is, as issues come up that we cannot anticipate now, it does allow the mayor the opportunity to address them, and to give the department the opportunity to respond to issues that might come up. Particularly with climate change - -and the islands are specifically being targeted to be at risk - -there might be something the mayor could direct the Department of Environmental 0 Management to look at. I would be inclined to grant the Mayor that authority, and I would make a motion for that. Ms. Jarman moved to ask Commission Attorney, Levi Hookano to draft a proposed amendment to Article VI, Section 6 -5.4 (Section 6 -10.4) as recommended by Lono Tyson, Environmental Management Director, in Communication 27. Seconded by Mr. Kealoha and carried by the following vote: Ayes: Commissioners Honma, Jarman, Kaulukukui, Kealoha, Osborne, Shumway, Unger, and Chair Haitsuka. Noes: None. Absent: Commissioners Fuertes, Kawauchi, and Nahale -a. MR. UNGER: What about the balance of his comments? If we don't make a motion does that mean that nothing moves forward as far as his communication? CHR. HAITSUKA: That is open for discussion. We can either act on it, or we can file the communication. One of his suggestions is he's asking that qualifications for the Department of Environmental Management be changed to reflect some type of engineering degree or a degree in a related field. Is there any discussion or comments on that? MR. HOOKANO: Mr. Chair, could I ask for some clarification from Ms. Jarman? To be clear, you wanted just that one section drafted into a proposed Charter amendment? MS. JARMAN: Yes, it would add, "...as directed by the Mayor" to Section 6 -5.4. Although I don't think it's called Section 6 -5.4 right now, but whatever the equivalent of that would be. MR. HOOKANO: Okay, thank you. CHR. HAITSUKA: That provision is in Chapter 10. MS. JARMAN: It would be Section 6 -10.4 of the current Charter. MR. HOOKANO: Thank you, Mr. Chair. COMM. 27 Continued: Section 6 -5.3 (Section 6 -10.3) CHR. HAITSUKA: Is there any discussion on Mr. Tyson's request to amend the Charter to reflect that the Director of the Department of Environmental Management would be required to have some type of engineering degree? D MR. LINGER: I know we have had this discussion before about us micro - managing county titles and the requirements for people assuming these positions, but if ever a department screams out for a professional degree, this might very well be it. I don't know what you guys think, but I understand if we address this, we might be opening up a can of worms and have to address qualifications for the other departments as well, but I think this is unique and honestly I'm kind of in favor of it. MR. SHUMWAY: Alapaki has spoken persuasively about not putting all of these details in the Charter, but I agree with Scott on this, that especially because this is coming from the department themselves. They are asking for this, and that speaks loudly for me, and I would support it as well. CHR. HAITSUKA: Ms. Jarman. MS. JARMAN: I'm not convinced it needs to be an Engineering degree, but maybe a degree in a related field. They are basically saying you want the person to be an engineer, but I'm not convinced it needs to be an engineer, but that in a related field would make more sense to me. MR. UNGER: The current language says, "... administrative experience in a related field" So, are you suggesting maybe a degree in a related field as opposed to experience? MS. JARMAN: Experience and a degree, if that's what it is he is trying to get at. I can see somebody with some kind of other environmental background that could equally do a good job, without having to be an engineer. MR. UNGER: Yes, there are all kinds of different degrees out there that could pertain to this type of situation. That makes sense as well. CHR. HAITSUKA: We could say, "... a degree in engineering or a related field ". The related field would have to be related to something, so I think we have to have the word engineering in there, so it doesn't disqualify someone who has an engineering degree. MR. UNGER: So a degree in engineering or a degree in a related field? MS. JARMAN: Related to what? Related to engineering, or related to the environment? That's why I don't see why we would have to say engineering. If we just say a related field, it would include engineering and any other field. MS. OSBORNE: I would concur with that. CHR. HAITSUKA: The related field would be related to what? MS. JARMAN: To the duties of the Department of Environmental Management. MR. UNGER: Are we going to keep the five years minimum experience? 10 MS. OSBORNE: It's probably more important than the degree. MS. JARMAN: It helps to have administrative experience when managing a big department. MR. UNGER: Well, we've got to decide. The five years will stay, and a degree in a related field. MS. JARMAN: I think just add and a degree. MR. UNGER: And add in a related field. CHR. HAITSUKA: Mr. Kaulukukui. MR. KAULUKUKUI: I guess what it is sounding like is we are becoming specific. I have a difficult time saying one department is more important than another department in terms of how specific we get. I also believe the check and balance is in place with regard to qualifications. That should be the Council's oversight in terms of ensuring the person that is appointed by the mayor is qualified for the position before they would approve the appointment. So, I'm reluctant to become any more specific than the Charter currently is with regards to qualifications. CHR. HAITSUKA: Is there any further discussion? I believe that Mr. Tyson couldn't be here today, but I believe he said he would make himself available at the next meeting if we wanted to ask him any questions. MS. JARMAN: Mr. Chair, maybe we could vote to instruct our attorney to draft a sample amendment, so we could then put that on the table and have him discuss that amendment and then we could vote it up or down. Now, all we're doing is inviting him to draft the amendments, particularly since we have a deadline for amendments to be in place. Then we can discuss it with Mr. Tyson. CHR. HAITSUKA: Is there any discussion on Ms. Jarman's proposal? MR. UNGER: I think it's a good idea. CHR. HAITSUKA: Does anyone want to make a motion? Mr. Unger moved to ask Commission Attorney, Levi Hookano to draft a proposed amendment to Article VI, Section 6 -5.3 (Section 6 -10.3) regarding the qualifications for the Director of the Department of Environmental Management. Seconded by Ms. Jarman and carried by the following vote: Ayes: Commissioners Fuertes, Honma, Jarman, 11 Kaulukukui, Kealoha, Osborne, Shumway, Unger, and Chair Haitsuka. Noes: None. Absent: Commissioners Kawauchi, and Nahale -a. CHR. HAITSUKA: There is one more part, I believe, to his recommendations. MS. JARMAN: Mr. Chair, are you referring to Section 2- 203(a)(2) of the Hawaii County Code, on page 3, or what are you referring to? CHR. HAITSUKA: I am referring to his Subsection 3, it is a question, and I am not sure what it is directed at. MS. JARMAN: I think that is directed to my question that I had asked to have the Director tell us whether or not they would be willing to expand the committee. He wanted to take it to the Commission first, before responding. I think this is his response, and he appears to still believe that is not a good idea, so I'm not inclined to make a motion. CHR. HAITSUKA: Is there any further discussion on this Communication? MR. HOOKANO: Mr. Chair, so is this Communication going to be postponed to the next meeting to have Mr. Tyson comment? If so, then I think there should be a motion to postpone this Communication to the next meeting. CHR. HAITSUKA: We moved to establish two proposed amendments and have him respond to the proposed amendments to this Communication. MS. JARMAN: I guess the advantage of keeping the Communication open is that then he can discuss everything that is in the Communication. We would need to make a separate motion for that as well. MR. HOOKANO: Correct. Ms. Jarman moved to postpone Communication 27 to the October 9, 2009 meeting. Seconded by Ms. Honma and carried by the following vote: Ayes: Commissioners Fuertes, Honma, Jarman, Kaulukukui, Kealoha, Osborne, Shumway, Unger, and Chair Haitsuka. Noes: None. Absent: Commissioners Kawauchi, and Nahale -a. COMM. 28: From Jay Kimura, Prosecuting Attorney, dated August 14, 2009, suggesting changes to the Charter relating to the role and function of the Prosecuting 12 Attorney's Office. CHR. HAITSUKA: This Communication relates to the comments made by Mike Kagami when he addressed the Commission relating to the expansion of the role of the Prosecuting Attorney's Office to include crime prevention matters. I would support Mr. Kimura's proposed amendment. MS. JARMAN: It wasn't clear to me exactly what he wanted. I think he wanted us to add the language in the City and County of Honolulu resolution that is underlined. CHR. HAITSUKA: I think he provided that as an example. It's not very clear from our memo, but I think that is what he is proposing. MR. SHUMWAY: Yes, Mr. Chairman, it seems to me that is the case. He also talks in his letter about changing the way Council Members are represented. There are two separate things. I don't see language for either, and it makes it kind of hard for us to tackle. CHR. HAITSUKA: He also included the Chapter on the Corporation Counsel, but I don't see any proposed language that he wants to change. MR. SHUMWAY: Mr. Chairman, is it possible that we can request that he submits some specific language for the proposed changes to make it easier? CHR. HAITSUKA: Do you want to request that the Prosecuting Attorney's Office submit some language for the proposed amendments that they are requesting? MR. SHUMWAY: Yes, I guess I would ask Levi if that makes sense. MR. HOOKANO: I think this is something similar to what Mike Kagami did bring forward a few meetings ago. We could check with their office again, to submit something specific as it would read in our Charter, specific to our County. CHR. HAITSUKA: Do we want to postpone any action on this Communication until our next meeting and make a request to the Prosecuting Attorney's Office to submit language for proposed amendments? Mr. Shumway moved to postpone Communication 28 to the October 9, 2009 meeting. Seconded by Mr. Unger and carried by the following vote: Ayes: Commissioners Fuertes, Honma, Jarman, Kaulukukui, Kealoha, Osborne, Shumway, Unger, and Chair Haitsuka. Noes: None. Absent: Commissioners Kawauchi, and Nahale -a. 13 COMM. 29: From Jan Pakele, Director, Department of Liquor Control, dated August 24, 2009, supporting CA -6, proposed amendments to Article VII, Chapter 3, Section 7 -3.4. CHR. HAITSUKA: Is there any discussion on Communication 29? Ms. Jarman moved to file Communication 29. Seconded by Mr. Shumway and carried by the following vote: Ayes: Commissioners Fuertes, Honma, Jarman, Kaulukukui, Kealoha, Osborne, Shumway, Unger, and Chair Haitsuka. Noes: None. Absent: Commissioners Kawauchi, and Nahale -a. COMM. 30: From Margaret Wille, dated September 3, 2009, submitting proposed amendments to various sections of the Hawaii County Charter as well as proposals for new sections and articles. CHR. HAITSUKA: Ms. Wille, would you like to address the Commission? MARGARET WILLE (At this time Margaret Wille came forward to address members of the Charter Commission.) MS. WILLE: Good afternoon, and thank you for being here. I am Margaret Wille, and I would like to address a number of issues. Let me just say, in terms of, over all, what I am trying to accomplish here is really promoting more transparency and accountability to the public and enabling them to better participate in the decision making process, in the sense of what you all are doing; and allowing the public to better understand what is going on and to be able to respond in an informed way. The second sort of umbrella issue is really addressing a supreme court case. I handed out a copy of it that was decided since the last Commission met. It is the Kelly versus Oceanside. That case made it clear that the County, and not just the State, has a public trust responsibility in terms of the natural resources, the land, and the water for current and future generations. These are issues that are going on, what we do right now doesn't just impact us and the coastal waters and the land at the moment, but affects it for all the future. In that case, which was decided in 2006 -4 gave you the key section on public trust- -the county argued that this was just up to the state and wasn't really a county issue. The court said, no, the statute says, "... or subdivisions" and you must, as a County, also be taking - -I'm paraphrasing- -that into account in making decisions that affect our natural resources, water and land. This is basically what the provision in the Hawaii Constitution is based on. I'll run through the statute, but these are the themes that run through all of what I have in my proposals. The Hawaii Constitution says, 14 "For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, including land, water, air, minerals and energy resources and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self - sufficiency of the State. All public natural resources are held in trust by the State for the benefit of the people." This overall doctrine is called the Public Trust Doctrine, and basically it's saying we are all accountable, not just to ourselves, but for the world that comes after us, and how we impact it. So, that Court case happened since the last Commission, that's why I felt it was important to bring this up in terms of what is the County's responsibility. As the Court describes it, it is an umbrella responsibility in terms of decision making. The other major theme is really just transparency, accountability and trust. I just want to quote from the State statute, under the Sunshine Law, and what are the policies involved. It is again, linking the people to government decision making, in a meaningful and informed way. I'm quoting from Hawaii Revised Statutes (HRS) §92F -2. "In a democracy, the people are vested with the ultimate decision - making power. Government agencies exist to aid the people in the formation and conduct of public policy. Opening up the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest." So, again, especially in this County, where it is so big we don't have like in Waimea a little town where you can go sit and listen to what is going on. Given the current technologies, we can get more information out to people and how do we provide that. I'm just running through the specifics of what I put in my suggestions, and I would like you all to think about these things. I'm offering this as sort of a rough draft, and if you have thoughts, I'll try to come back next time. I've gotten a lot of suggestions of people saying, maybe you could do it this way in wording, so I think in the future I will come back. If there is something here that one of you is interested in, I'm grateful. I'm just trying to get some of these ideas moving forward in whatever way I can. The first one is to do with Ethics. It adds a new section to Article XIV under Ethics, and that would require disclosure by the members of their personal or business interests that could conflict with their ability to put the public's interest above a special or self interest. I took this language pretty much from the Ethics board, and what they ask of their members. Again, this is a rough reading, and it could be done in other ways. I think Ms. Hecht brought up that it would be good to have a little bit more understanding of who everybody is who serves on a board and what their interests are. So, transparency, accountability, avoiding conflicts of interest, and just letting people know who everyone is, and what their interests are. The second proposal that I made would be to add a new article to the Charter which would be Article XVII, and I titled it Transparency and Open Government. That is really incorporating the technology that we have now, that we didn't have before to promote; like requiring that notices of public meetings be placed on the County web site within the required notice period. I believe Honolulu now says that it is required to be put on the internet on their calendar if there is a public meeting. In a recent statement made by the Chair of the County Council, or maybe it was the Clerk, they said that really putting these notices up on the internet is just done as a courtesy, it is not required. If any board has a notice, they have to file it with the Clerk, and if possible, to put it at the site. So, putting it here would be your only required notice. 15 Certainly, this is all in terms of Sunshine Law; it's how, for us the public, how do we get the information. It's fine with me if you put something in there that says, if there's a problem, it doesn't happen. I'm just trying to get how do we actually get information out, especially on an island this size with the costs of driving. I also put, if possible, to do live broadcasts. I have Zion here just to see how it goes, at his own expense and mine. I'm just trying to improve communication. However one would want to write it. I put that it would be available within 48 hours, unless there is a problem. Some people have raised issues about handicapped accessibility. I know other counties and locations have addressed that and said there isn't a conflict, but that's one question that was raised. Again, transparency and accountability and allowing for our public involvement in this whole decision - making process. As you can see, it's really just Debbie and I, even though these issues impact people tremendously, what you're doing. Without knowledge and understanding, they can't speak to you. The third one is adding a new article, Article XVIII, and I put the Public Trust. This is basically incorporating the Public Trust Doctrine into the Charter. It requires the government decision - making affecting our natural resources to be based on the Precautionary Principal, which is how public trust is implemented. In other words, when there is doubt, err on the side of conservation of the resource. It goes on to say, and be accountable, if you read this whole opinion. At least that this issue, the impact on the future, be addressed and looked at in terms of the precautionary principal; look at the science, and if you are really unsure, then you should be erring on the side of conservation instead of it being - -as I think the Planning Commission has said - -how do we know where do we tip the balance? This Court case said, "I'll tell you how to tip the balance, you err on the side of safety for all of us and the land." The fourth one adds a new Section to Article III, Legislative Branch County Council, subsection 3 -16; I titled it Community Development Plan and Community Plan Action Committees. If you look at the current Charter under Section 3 -15, it's the General Plan, and the Charter says basically that you have to have consistency with the General Plan and the Code has to be consistent. The words General Plan legally incorporate Community Development Plans, so if you were to open the General Plan right now and turn to the last chapter, it says Implementation, Community Development Plans. We have finally done that and I wrote up some suggestions to finally acknowledge that. I spent most of two years working on the South Kohala Plan, and all communities really did. I think Nancy Pisicchio and Roy Takemoto talked about the need for regional planning, and these provide an opportunity, not and obstacle, and how can we utilize that. Community Development Plans are in fact a part of the General Plan; this recognizes that, and recognizes what many of us around the county have spent a significant amount of time working on. I'm not going to go through all the details of what I wrote. It obviously incorporates that if there isn't a plan - - -It does address one thing, it requires the Community Development Action Committee to be appointed within one year of completion of the Community Development Plan. After that date, there shouldn't be any development applications considered unless the Action Committee first has the opportunity to consider that application. A couple of months ago there was an application that was voted on by the Leeward Planning Commission and one of the Council Members said, "I wish you would come in to say hello to me, your are in my district and I didn't even know you were coming before us. The response was, "Well, we 16 really have to get this Commission in order and get up to grade, and this is so urgent, I didn't have time to come to you." Well, I would like that same sense of urgency. These committees, like the South Kohala Action Committee, should be looking at some of these plans. To tell you the truth, I think that some of the big proposals that are coming before the Planning Department and the Planning Commission are coming in now like, "We really don't want to talk to the community, if we can get this done before this is in place ". I really feel that to the extent we can change the concept and that we are all part of the community, and have them realize that this is in their enlightened self interest. That's what this has to do with, and it's trying to think of people here as an asset. On our committee, the Waimea Design and Review Committee, we are dealing with a plan right now. We don't make any decisions; we just provide our comments and questions to the Planning Department to decide, we are just giving our best information. The next one (E) is amending Article VI, the Executive Branch, Section 6.7 -6, which is the Planning Director. This requires that the Planning Director render decisions relating to development approvals only after consulting with, and considering community input. Currently, for example, with subdivisions or planned unit developments, which have massive impact, it's totally discretionary; decisions are made by the Planning Director. This isn't saying that the Community Development Plan has some kind of decision - making capacity; it only says allow or provide for public input. In our South Kohala Community Development Plan, we specifically put in a provision that the Planning Director provide for opportunities. If you look at the current Charter, it gets very specific about the capacity of the Planning Director and what his role is. This has come up over the years, with the Council saying, maybe all of these developments should come to us. It just makes it so political that there is one person who has total discretion about a subdivision. In terms of the literature on land use planning, it is at the level of subdivision when there is a determination as to how to develop the land, that's when you need the input; it's not rezoning. Rezoning is simply, taking this category from say agriculture over to commercial, and thinking about using it in some way. But, once you've moved it, as long as they stay within that other category, they're okay. It's a paper work change, not committing to a development. It's really when they commit to an action of what they're going to do, that getting the input from the community is important. It's not just that we're planning to make this into student housing, but two months later it's not viable and we're dong something else. Again, none of these things say the community has any decision - making power, it just says provide opportunities, such as through the Community Development Plans. Then (F) amends Article VI of the Executive Branch, Section 6 -10.2, Department of Environmental Management. What I was getting at here is some of what is being addressed in Communication 27, in terms of what is in the statement of the kuleana, the area of responsibility for the Department of Environmental Management. Right now, it just says to protect the environment based on management of waste. There is no entity in this County that is looking at anything beyond that. Repeatedly, the Council has asked the Department of Environmental Management, what do you think about X? And they have said, does is have to do with waste? And if the answer is no, then they don't do it. Research and Development has said they are moving towards more of an economic development focus. Maybe they have a green team, but those issues do not come before the council. They are critical issues, and I 17 would say that not having something in there is like saying the County is not responsible for overseeing the environment. I am going to look at what he wrote, and I think the way he approached it was that it is regarding waste, or as proposed by a County ordinance, or as directed by the mayor. That would be another way of doing it. I put in something also trying to include the concept of sustainability. In part, I am really into that we should be looking into grants in aide, and if you have these words in there, like sustainability, that allows for a great deal more funding. I suggest that while some of that terminology may not seem important, in terms of our financial position, it gives you a platform in all of these grants; it is your stated position in the County in support of this. Lastly, (G) amends Article IX, Prosecuting Attorney, Section 9.3, Powers, Duties and Functions. One of the things that has come up is the whole idea of the Sunshine Law, and who enforces these laws, and how are they done. Let me start with (H); these are parallel provisions that amend Article VI, the Executive Branch, Section 5 -6.1, the Corporation Counsel. A lot of this is getting into conflict of interest and the trust of the people that the Sunshine Laws are really important, they are taken seriously, and they will be enforced. So, for the last one, (H), Corporation Counsel, I propose that there also be an associate Corporation Counsel, like the second in command. It allows that both of those positions be appointed, and that the associate would have primary responsibility for what goes on with the County Council. I think it's Maui that has a somewhat similar approach. When the Corporation Counsel spoke, which was quite a few months ago, I think it was Commissioner Jarman that brought up some of these conflicts, and the response of the Corporation Counsel was that he really didn't feel conflicted. I would hope that he is modifying that position. I'm going to give you one quick example. With the impact fee legislation the Council brought forth, which is development fees, not just the current tax payers should pay for that, but also that there should be some portion of the impact of off site facilities and infrastructure that should be carried by the developer. For instance, when Costco went in, we needed to do a new intersection at Queen Kaahumanu Highway. That cost $5.5 million dollars and Costco paid nothing because we didn't have any kind of impact fees in place. And it doesn't say the whole thing; it just says to allow for some portion to be placed on them. At the same time, the Corporation Counsel is representing our County in the Hokulia case, and if I was your Corporation Counsel on that, it gets into issues of the impact fees and the legitimacy of those, so I really felt there was a conflict there. It tends to come out that the Administration's position rules, and that hurts us, the public. I'm not going to spend more time, but I'd like you to look at these. They both encourage us to take the Sunshine Law seriously and we really want to encourage more trust. Right now there is not trust. These are some structural ways that it could be addressed. One of the things the Corporation Counsel said was that they really felt that there should be a new name for the second in command. I think they put deputy, but I thought associate, in order to separate those two; in order to have more sense of one being responsible for the policy group and the other for the rest. Those are my suggestions. If you want to just think about them, I'm offering them as ideas. You only meet every ten years, so I just want you to realize not to put things off, because it will be 10 to 15 years when it will come up next. Thank you very much. IN CHR. HAITSUKA: Ms. Jarman, do you have a question? MS. JARMAN: Thank you very much. That was very interesting, I enjoyed reading your amendments. In terms of the Public Trust Doctrine, I have a little bit different understanding of it than you do, and I'm very much a proponent of the Public Trust Doctrine. If you read that constitutional provision - -and my understanding of the Public Trust Doctrine - -it really only applies to public natural resources. So, that would be any natural resources owned by the County or the State; or because we do own the resources of the ocean, it really only applies to those resources. I have, say 50 acres of farm land, and I have a lot of koa trees or whatever, the Public Trust Doctrine doesn't apply to my property. Is that your understanding? MS. WILLE: I would say you are taking the two ends of the continuum, and it's something in the middle. If you read the Waiahole case on water - -and I'm talking off the top of my head, I haven't read the case lately - -the Court said, no, we also have to take into consideration that if you are diverting, it was a sugar company, that we also have to take into that framework of analysis, that if you have this private right to water, what is the impact to future generations. It's not saying what your decision is, it's just saying you have to take into account how decisions in terms of development approvals are made. It doesn't go into your land, but I would say it allows for, or requires, consideration for how that impacts us as a whole. If you cut down all the windbreaks and all the trees - -as in Waimea, it's getting cut more - -we're getting more and more drought. All that farmland, it's all moving up. Should that be taken into consideration, that cumulative impact, and what we do now affects the future. I think I'm a step ahead, but not as far as, okay, we can come in and stop you on your koa trees. But, if you come in and you are wanting a permit, and you are developing, should we - -the whole area above Kona, we're all sort of running on horizontal lines, and we're cutting this all up - -what is that impact, what is the cumulative impact? MS. JARMAN: That is very different from the Public Trust Doctrine. Even in the Waiahole case, they were talking about water, which the court has said is a public natural resource. But, the State law allows people to actually take water for their private use, if you get permits. The Public Trust Doctrine really only applies to public natural resources, so in a sense it doesn't solve the problem that you are talking about in your Article XVIII. It seems to me that if the Public Trust Doctrine has been incorporated into our Constitution and the Supreme Court has said that it applies to Counties as well as to the State, then we don't really need to have it, except that it is nice to put it in there to reiterate it, so people don't have to go both to the Constitution and to our Charter to see it. But, that first statement in XI, or is it Article XII in the State Constitution, will you please re -read it. MS. WILLE: "For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and the furtherance of the self - sufficiency of the State." MS. JARMAN: It seems to me, that statement is the statement you want to get at in terms of your Article XVIII, the Public Trust Doctrine. To me, that is the clear statement of what you 19 are trying to do. I don't think the Public Trust Doctrine, or the even the Precautionary Principal, because the Precautionary Principal is really designed for when you do not have enough information about a natural resource to make a decision about it. This is my understanding of the Precautionary Principal. So, I would think that statement, which also recognizes the need for development at some level, is a better statement to put into our Charter. Even though it's in the Constitution, the advantage of putting it in the Charter is a lot of people don't read the Constitution, and they would be reading the Charter. You could go to the Charter to see that. We all didn't know necessarily that the Civil Defense Department, we all know we have one, but we didn't know it came out of the State. So, again if it were repeated somewhere in the Charter, everybody would be aware of that. Do you have any comment on that? MS. WILLE: I appreciate what you say, and I think I would probably agree. I'm going to go back and read those cases. On the point of, is it duplicative and is it a good idea, there have been comments that this does not self - implement. That was really my concern, how does one implement this. One way to implement it is to put it in the Charter. MS. JARMAN: That's correct; the Supreme Court has said that it's not self - implementing. MS. WILLE: Yes. MS. JARMAN: Thank you. CHR. HAITSUKA: Are there any other questions for Ms. Wille? MR. UNGER: I've got a couple. First, regarding your Code of Ethics, it's pretty apparent that there is no code of ethics governing the Commissions. It all has to do with County employees. Is that true? What I'm reading is that's the case. I know we did fill out a financial disclosure form. I don't know who dictated that, or where it came from. It's probably not a bad idea to have this apply to the Commissions as well. MR. HOOKANO: Mr. Chair, if I may comment to that. It does apply to Boards and Commissions, because commission members and members of boards are considered officers of the County, and the Code of Ethics specifically says it is applicable to officers and employees of the County. MR. UNGER: Okay, there you have it. I just have one other question. I have never fully understood the role, and how they get formed, the committees like the one you belong to up in Waimea. What is the name of your committee up in Waimea? MS. WILLE: The Community Development Plan Steering Committee. MR. UNGER: How did that get formed? MS. WILLE: My understanding is all of the Community Development Plans were the result of a lawsuit that was filed quite a long time ago saying that only major land owners were being 20 considered in terms of what infrastructure was going in, in the County. The community folks had no voice in terms of public facilities and infrastructure. With that background, the Community Development Plans were implemented. In South Kohala, Mayor Kim had a community group that assisted. Everybody could submit their name, and write up why they wanted to do it and what their interests were. Then, Mayor Kim made the final decision who was in it. It does say, a broad base, so the Planning Department came up with those names, interviewed people, and went on that basis. I know in Puna there have been a lot of questions going on currently. I know how it worked in North and South Kohala. In Puna there were 31 people, and the Mayor was concerned that it wasn't fully representative. I can really only speak for South Kohala. MR. LINGER: So, the Mayor initiated it. MS.WILLE: Roy Takemoto and Nancy and all of them initiated the process, and based on what you read in the General Plan. This General Plan is implemented by setting up Community Development Plans to provide input. How do we deal with getting from the individuals to the County? By having these groups, it would enable them to see what is going on, to have a more educated say, so you don't have a room that is totally absent here. The people that can speak on these issues are the people that would be - - -I mean I would like to see if these were formed, if the South Kohala one were formed, I would say we would come and testify to you. MS. JARMAN: Can I add something to that? CHR. HAITSUKA: Go ahead, Ms. Hecht. MS. HECHT: The issue - -and the reason that I started thinking about this too - -is that the Boards and Commissions are selected or nominated by the Mayor, and then approved by Council. The Puna Community Development Plan (CDP) was formed during this administration and the Kona CDP and the Kohala CDP were both formed during the Kim administration. For Puna, 31 people applied, and just a few people were selected. Some people that were not selected were highly qualified, and the community got really upset about it. It came to the point where the Friends of Puna, under the Freedom of Information Act, asked for what the criteria was, who had applied, and how were they being chosen. At that point, the Mayor stopped the proceedings for the criteria, went back to start all over, because they were worried, they had a legal worry. That got me to thinking, and that's why I came before you about the boards and commissions. What are the criteria by which people are selected? Maybe, since island wide is usually district specific, meaning most of the commissions are island wide commissions. Most of them are from each district, and most of the time council members know who is around, who is active, who is knowledgeable. So, to me it makes more sense that on island wide commissions, the council members would nominate, and then the mayor approves and does background checks. Obviously, you do not want a criminal on some board, or someone with a serious conflict of interest. That is probably best done by the Mayor's office. What Margaret is saying is true, and that is why I came up with the criteria being posted on the internet and also the bio of the 21 people, so when you address a group you know your audience. I just wanted to add that information. MS.WILLE: I think this goes to trust. We finished the CDP and it was passed in December, and the names had to all be in for South Kohala by February, and nothing has happened. I keep following what is going on with the Kona CDP, because I feel if it is not recognized - - -Let me just say, a developer on one of the large developments recently called me, in fact I was in Thailand, and he trailed me until he reached me. He said, what are you pushing Margaret, what do you want? I said, "I live in Waimea and I had written something on my blog about it. I want to know that you will go to the Kona CDP. I want you to talk to that community and be part of that community." He said, what we get is that this is just sort of a guidance thing, and not really important. I take that very seriously, because how the Kona CDP is treated will impact on how the South Kohala one is. Again, I keep trying to go, let's not be exclusive on these committees in South Kohala. We wanted it to be a board and all these focus groups, and let's get as many people as possible; not how do we get - -like on the Puna one, there were only four people chosen out of 31. We want to get everyone's voice, everyone that is interested. Looking at it again as inclusive, the reason why I put that one year in there is because it just keeps going on. I don't know when South Kohala is ever going to come up. Meanwhile, there are developments coming up. We are in an economic doldrums supposedly, but you have got massive developments and rezonings going on in this County that will impact us for many years. CHR. HAITSUKA: Are there any additional questions for Ms. Wille? MR. FUERTES: Being on the CDP, and knowing how much involvement it had with the community, in your opinion, how do we get it to have some teeth? MS.WILLE: In our little sub committee in Waimea, since we don't have a CDP Committee, there is a Waimea Design Plan. One of the provisions in that says, consistency with the General Plan. So, when we reviewed Parker School plan coming before us right now - -as a community group, we're not a decision - making group - -what I did was I went through the South Kohala CDP. There are five Waimea policies and five district wide policies that would be affected. What I asked was to address those ten. I'm saying I, but I really shouldn't be saying Margaret, I should be saying our community. I don't want it to be like Margaret is acting like she has a lot more authority than she does. The CDP is an ordinance, it's a law. What we put in ours is if it says, "shall," something is prohibited or "shall do it," we tried to put in more "should be" like a standard. Then, if it said, "should," what our CDP said is where it applies. For instance, promote solar use of alternative energy sources, that isn't required, but if you don't do that, you state why. It is sort of like more self - monitoring, and more self - examination. Actually, when we spoke to the Parker School board, they said, yes, we should be thinking like that. In our plan it says, water conservation; did you think about that? It's really promoting things like pedestrians and bikes to be part of any safety issue, not just how you deal with cars. It says, safe streets, or shall include complete streets. That was probably one of the biggest changes in terms of the policy. 22 Maybe I'm not giving you a clear enough answer, but I think there are certain things in the CDP where it says, you shall do this; and those should be followed; those are required. Let's say for a subdivision, it's required to be consistent with the General Plan. Therefore, a subdivision is required to be consistent with the CDP for that area. Then we ask for accountability. How are you consistent with the policies in here? Some of them are more specific and a lot of them are more general. If I gave you our check list, you could sort of see how we are doing it, and asking people to be accountable to us as a community; to speak on those issues that we said were important policies for our area. CHR. HAITSUKA: Ms. Jarman, do you have a question? MS. JARMAN: I understand that our film maker over here is - - -You hired the film maker? MS.WILLE: Well, I paid for his tapes, because he didn't have any money to buy the tapes, but he's doing it on his own otherwise. MS. JARMAN: But, you said to demonstrate something. What is it that he's demonstrating? MS.WILLE: In other words, he is going to put this on his web site, AMARAKA.ty. You will be able - -when he gets this posted - -to go there. You could be watching it right now. If you had your computer in front of you, you could be watching this proceeding. MS. JARMAN: So, he is live streaming right now. MS.WILLE: He is live, right now. You will be able to tomorrow, if you forgot what you said, or what questions, you would be able to go on demand. I think what the County law or the State law says is - -I know we checked with the County - -it was permissible. They said yes, you are, unless you are disrupting the proceedings in some way. MS. JARMAN: If you weren't just paying for his tapes, about how much would it cost the Charter Commission to be filming all of our meetings and then putting them up on the website? MS.WILLE: I would have to wait and go ask Zion, because Margaret just dragged him here. So, I can't answer that, I don't know what it would cost. I think it would be wonderful if you could particularly do the public hearings. People now have three jobs, not one. There is very little time and energy, or money for gas, for people to go to things that affect them. MS. JARMAN: Well, we explored that when I was the County Clerk, to have the Council meetings live streamed. We were going to go out for a Request for Proposals (RFP), but then I left as County Clerk. My understanding is that they have abandoned that, because of the cost at this point in time. That's why, if you could let us know what the cost might be, it might be more helpful in thinking about if we should make that a requirement. I think it's a great idea, but I think we do have to think about costs. MS.WILLE: Okay, let's see what it would cost. Thank you very much. 23 CHR. HAITSUKA: Are there any further questions for Ms. Wille? Thank you Ms. Wille. Is there any further discussion on Communication 30? Ms. Jarman moved to file Communication 30. Seconded by Ms. Honma and carried by the following vote: Ayes: Commissioners Fuertes, Honma, Jarman, Kaulukukui, Kealoha, Osborne, Shumway, Unger, and Chair Haitsuka. Noes: None. Absent: Commissioners Kawauchi, and Nahale -a. UNFINISHED BUSINESS CHR. HAITSUKA: Next on our agenda is Unfinished Business, and we don't have any. Let's take a 15 minute break. RECESS: At 3:08 p.m., the Chair called for a 15- minute recess. RECONVENE: The meeting was reconvened at 3:26 p.m. NEW BUSINESS CHR. HAITSUKA: Let's get started again. Next on our agenda is New Business. Today we have the discussion of Articles XIV, XV and XVI of the Charter. We will start with Article XIV, the Code of Ethics. ARTICLE XIV CODE OF ETHICS CHR. HAITSUKA: Is there any discussion on Section 14 -1? Is there any discussion on Section 14 -2? Is there any discussion on Section 14 -3? This is the section that Ms. Wille had a proposal to amend. It would be to add a new Subsection (b). Are there any thoughts or discussion on that? I have a question for Mr. Hookano. In Section 14 -3(a), the last sentence, it discusses the requirement that a member of the Council needs to disclose any personal interest in any action proposed or pending. But, all it says is that the member just has to disclose the interest before taking any action or vote on that matter. There is no requirement to abstain from any matter. 24 MR. HOOKANO: There may be some requirements, but it might be in the County Code. The County Code kind of expands on the requirements here in the County Charter. CHR. HAITSUKA: So, there might be requirements in the County Code that are not stated here. MR. HOOKANO: Yes, because the Code of Ethics in the Charter, basically it also says that they should enact a Code of Ethics by ordinance. So, there is a section in the County Code that kind of expands on all of these things. I'm sorry, I don't have a copy of the County Code with me right now. CHR. HAITSUKA: I think you gave us a copy in the beginning. Or, maybe just me, I didn't read it. Mr. Hookano, do you know, in the Code of Ethics, is there any requirement where a member of a board or a commission has to abstain from participating in any discussion or vote on any matter in which they may have a conflict? MR. HOOKANO: I can't think of any specific requirement off the top of my head. I know they have to disclose it, especially if it will affect their impartiality on a matter. But, as for abstaining, I can't say off the top of my head, yes or no, with a definitive statement. MS. JARMAN: Mr. Chair, I don't think so. If I recall, wasn't that an issue when they were passing their rules, to decide whether or not they would have to recuse themselves from voting and or discussing a matter? MR. HOOKANO: Within the County Council rules, it says they are not to participate in the debate or vote on the matter. But, that's in the Council's rules, not in the Code. MS. JARMAN: I don't think it is in the Code. CHR. HAITSUKA: I think it's a good idea, but I don't know if it is more appropriate in the Code or in the Charter. Is there any further discussion on this particular section? Is there any discussion on Section 14 -4? Is there any discussion on Section 14 -5? Is there any discussion on Section 14 -6? Let's move on to Article XV. ARTICLE XV CHARTER AMENDMENT OR REVISION CHR. HAITSUKA: Is there any discussion on Section 15 -1? MR. UNGER: I have a question. How often, like in the last year, does anyone know how often either (a) or (b) has taken place? CHR. HAITSUKA: Mr. Hookano? MR. HOOKANO: Actually, some of the back pages of the Charter includes the revision history. So during the last election cycle, there were four Charter amendments. All of them 25 came through the county council method. In 2006, there were five amendments that were proposed, all came through the county council. Prior to that, it was 2000, the year of the Charter Commission. MR. LINGER: How many were proposed? MR. HOOKANO: Those were the Charter Amendments that were proposed. With the initiative petition, it goes through the Council, and the Council will approve it through an ordinance. So, it would come through that way. But, other than the Charter Commission route, the initiative petitions do go to the Council for final approval. MS. JARMAN: But, the initiatives don't amend the Charter; they amend the County Code. MR. HOOKANO: Right, it's not really an initiative in the same sense as an initiative petition. MS. JARMAN: If the public wants to amend the County Code, they use the initiative process, if they want to amend the Charter, they use this process. I went over this provision with Pat Nakamoto, the Elections Administrator. When we were talking, particularly for the amendments that occur by petition, that if we could make that procedure the same as we made for recall, and the same as we made for initiative and referendum. It's really unrealistic. This basically says they would have to examine 20% of the signatures of 20% of the people who are registered to vote. Then, it gives them 20 days of work to do that. But, they really can't look at signatures. Signatures are on micro - fiche, because that's what they do with our registrations forms. So, if we could make this more consistent, she said she would be willing to work with our counsel. I would be happy to help too, to try to make that language consistent with what we are proposing for the others, if the Commission is amenable to that; just so we are consistent and they know what to do and everyone knows what to do consistently across the board. I think that is also what Ms. Hecht was suggesting. I think the only question might be - -and then we could bring that up at the time - -is what percentage of voters do we want. There may be a different percentage you would want for a recall, versus a charter amendment versus an initiative, in terms of making it harder or easier for the public to get something on the ballot. But, I think we could do that in a discussion. We can keep it at just 20% and again, make the procedure the same. MR. SHUMWAY: I would say that's a good idea. What do we need to do in regards to that? CHR. HAITSUKA: Do we have a motion? MS. JARMAN: I guess we would make a motion to have our counsel - -and I'd be willing to do it, if no one else wanted to, we don't really need an ad hoc committee - -and have Pat Nakamoto draft some language that we could bring forth at the next meeting, would be my suggestion. So, I'll make that as a motion. 26 Ms. Jarman moved to ask Commission Attorney Levi Hookano to draft language to amend Section 15 -1(b) of the Charter to be consistent with the requirements for Recall and Initiative and Referendum. Seconded by Mr. Shumway and carried by the following vote: Ayes: Commissioners Fuertes, Honma, Jarman, Kaulukukui, Kealoha, Osborne, Shumway, Unger, and Chair Haitsuka. Noes: None. Absent: Commissioners Kawauchi, and Nahale -a. CHR. HAITSUKA: Is there any further discussion on Section 15 -1? Is there any discussion on Section 15 -2? MS. JARMAN: Maybe I could make the same motion that compares Section 15 -2, also to make sure it's consistent. That's the provision on calling the election. Just to make sure again, that it's consistent with recall and everything else. Ms. Jarman moved to ask Commission Attorney Levi Hookano to draft language to amend Section 15 -2 of the Charter to be consistent with the requirements for Recall and Initiative and Referendum. Seconded by Mr. Unger and carried by the following vote: Ayes: Commissioners Fuertes, Honma, Jarman, Kaulukukui, Kealoha, Osborne, Shumway, Unger, and Chair Haitsuka. Noes: None. Absent: Commissioners Kawauchi, and Nahale -a. CHR. HAITSUKA: Is there any discussion on Section 15 -3? Ms. Jarman. MS. JARMAN: This is my first time ever on the Charter Commission. I feel like we didn't get started until March, so in a sense we are rushed because of the time frame. I'm wondering if we might want to think about having - -and I don't know what all of the ramifications are of it, because I haven't thought it totally through- -the Charter Commission appointed a little bit earlier so there is enough time to actually get organized, have more ad hoc committees, and do more in terms of public hearings if we want to. I feel rushed for something that is extremely important. I feel like this body is made up of people who really are concerned and care, and want to work hard and do a good job. I feel like I don't have enough time. Maybe you all don't feel the same way. 27 MR. LINGER: I agree wholeheartedly, that's been my primary complaint to my family and anyone else who wants to listen to me. I feel like we haven't had enough time. It's taken me, personally, at least two or three months just to figure out the whole procedural process. Quite honestly, I'm still not totally clear on that. I don't know what time frame; I know this year has gone by so fast, I do think we need to extend the amount of time we spend in this committee. CHR. HAITSUKA: I think the comments we got from the administration at the beginning was that they felt the January 15th deadline was -- -They didn't have enough time. I guess because the Mayor took office in December, and within 45 days he had to have everybody nominated, I guess we would have to balance that. I don't know if that always happens. We might fall outside of an election year, where they appoint the Charter Commission. I don't know if it was only because of the timing in this case. MS. JARMAN: It seems to me, it shouldn't matter who the Mayor is in terms of appointing the Charter Commission. I think what we do is pretty well circumscribed in the Charter, so if it happens to come where an outgoing term is up, I wouldn't mind having been appointed by Mayor Kim, or having Mayor Kim make the appointment versus Mayor Kenoi. I'm not sure why that should make a big difference. To me, the time is more important than who is appointing the body. CHR. HAITSUKA: I think in order to address the time concern, we would have to be appointed sooner. It's a matter of when, and how much more time do we think the Commission should have; six months more? MS. JARMAN: I would throw out six months. MR. SHUMWAY: Yes, I would think it would have to be at least six months, otherwise you would be running into elections, and it would be really difficult. Six months would put it before an election. CHR. HAITSUKA: It took about three months just to get us appointed. So, we are talking about moving the deadline from January 15th of the year of the Charter review, to somewhere around the summer of the year before. MS. JARMAN: Maybe June 1st of the year before the Charter review, or July 1st of the year before. CHR. HAITSUKA: Mr. Hookano, do we have any requirements where we have to perform our duties within a certain period of time, or can we extend it? MR. HOOKANO: There are some statutory provisions for the State law and the deadlines, for example. The State law requires that after one year of appointment, that's when you submit your report to the County Council. So, there are some statutory deadlines, but that's for appointments. For when that takes place, I think that's only dictated by our Charter. W MS. JARMAN: And also by when things have to get to the Elections Office in order to get on the ballot. I think that is really our problem. We have a time by which we have to finish everything, and be able to do our public education, and get everything on the ballot. I think that is where the crunch comes. CHR. HAITSUKA: What is the suggestion again on the time frame? MS. JARMAN: I don't actually have any strong feelings, I just thought June 1st or July 1st Potentially, you are not going to have a new mayor, so it might not take so long for a sitting mayor to pick as it would for a new mayor to pick; so maybe July 1st which would give us six extra months to do our work. MS. HONMA: I have a question, and this is for Levi actually because he said something about when we start, there is a State law that says you've go to end in a year. So would that mean our end date move up as well? MR. HOOKANO: Correct, I was just about to say that. The State law says a year from appointment, so even if you were appointed July 1, 2008, that would mean your report would be due July 1, 2009. MS. HONMA: So, you don't get that extra six months to actually do something. MR. HOOKANO: I believe that would be correct. MS. JARMAN: But, that's a report. MR. HOOKANO: Right, and then there is the time for education and all of that. MS. JARMAN: Because there are boards and commissions that last longer than the time that we do. I don't know what that provision says. Does it just say that you have to give a report within a year from the time that you are - -- MR. HOOKANO: Well, the report is to contain the proposed amendments of the Commission that are to go to the ballot. MS. JARMAN: For the Charter Commission. MR. HOOKANO: For the Charter Commission. It's kind of the final report of the Charter Commission that is going to the County Council, so it has to be pretty definitive. MR. UNGER: Why is this date dictating how we are established and how we go about doing our business? You said it's a State - -- MR. HOOKANO: The Counties are creatures of the State. The only reason the Counties exist, is because the State created them. So, really the State has the authority on how the Counties are run. But, they have to do it through general laws. They can't just say, Hawaii 29 County, your deadline is going to be this day, Kauai County your deadline is going to be this day, because that becomes a special law, and is not permitted. But, if it applies to all counties generally, it tells us what our deadline and structure is. MR. UNGER: Is there any way you can look into ways of circumventing that? I mean a way to accomplish what we hope to accomplish, if you could find out if there are any other alternatives that we could pursue, not necessarily circumvent. MR. HOOKANO: I think alternatives is a better choice of words, not circumvent. MR. UNGER: Yes, provide us with some alternatives. Because then we are back to where we started from and haven't really accomplished anything. MR. SHUMWAY: Even if it still remains a year, I think there are still reasons to push it up, because there are additional duties, like education, and making sure people are aware of what the amendments are going to be. That in and of itself takes time, and the more time we have for that, the better prepared the public will be. So, regardless, I would suggest moving forward, but if there are other alternatives to giving us more time to work, I would support that too. CHR. HAITSUKA: Is there any further discussion? MS. JARMAN: In order to have our Counsel draft something, do we have to make a motion at this meeting, to have him draft something? MR. UNGER: Changing the date? MR. HOOKANO: I don't think - -do you want me to draft a specific amendment? MS. JARMAN: Yes, changing the date to July 1st of the year before. MR. HOOKANO: We can do it here, you can make the motion now. Or, it can wait until the next meeting. This section of the Charter is up for discussion at this time, so it would be appropriate at this time, if you want me to do that work. MS. JARMAN: So, we need to make a motion to have you do it. MR. HOOKANO: Sure. Mr. Shumway moved to ask Commission Attorney Levi Hookano to draft language to amend Section 15 -3 of the Charter to change the date of appointments of members to the Charter Commission to July 1st of the year prior to the Charter review year. Seconded by Mr. Unger and carried by the following vote: 30 Ayes: Commissioners Fuertes, Honma, Jarman, Kaulukukui, Kealoha, Osborne, Shumway, Unger, and Chair Haitsuka. Noes: None. Absent: Commissioners Kawauchi, and Nahale -a. CHR. HAITSUKA: Is there any more discussion on Section 15 -3? MR. UNGER: But, you are still going to pursue some other alternatives to give us more time to work on these issues. MR. HOOKANO: I'll look into what the implications of that amendment would be. I'm sorry, was that July 1st or June 1"9 MR. SHUMWAY: July. MS. JARMAN: This does say that we hold office until the amendments, or Charter, is ratified or rejected. CHR. HAITSUKA: Is there any further discussion on Section 15 -3? Let's move on to Article XVI. ARTICLE XVI TRANSITIONAL PROVISIONS CHR. HAITSUKA: Section 16 -1, Schedule, is there any discussion? Is there any discussion on Section 16 -2? Section 16 -3? Is there any discussion on Section 164? Is there any discussion on Section 16 -5? Is there any discussion on Section 16 -6? Is there any discussion on Section 16 -7? Is there any discussion on Section 16 -8? Any discussion on Section 16 -9? Is there any discussion on Section 16 -10? MR. SHUMWAY: Why do we continue to leave that in there if it's been abolished? MS. JARMAN: Mr. Chair, I thought of that too, because most of it is irrelevant. But, in a sense, it's nice to have so that in the future if there is a whole new Charter- -let's say a Commission were to propose a whole new Charter- -they would kind of know what kind of language they have to put in to preserve things. In a sense, it is sort of a history, it doesn't do any harm to have it, and it might be valuable sometime in the future. I don't actually have any strong feelings either way, but I don't think that it hurts to keep it in. I don't think it hurts to take it out. CHR. HAITSUKA: Is there any discussion on Section 16 -11? Is there any discussion on Section 16 -12? That's it for Article VXI of the Charter. REPORTS 31 CHR. HAITSUKA: Next on our agenda are Reports. We have three reports, and speaking to our Counsel today, I was told that we can introduce them, but we cannot discuss them at this meeting. We can discuss them at the next meeting. Is that correct Mr. Hookano? MR. HOOKANO: That's right, Mr. Chair. For ad -hoc committee reports - -I think I've mentioned this before - -ad -hoc committees are a three meeting process. The formation, then the presentation, then the decision - making. So, this would be the second of the three meetings, where the ad -hoc committee members will present what they found, their research findings, their recommendations, and that is all it is. It is just a presentation by those members on what they did. At the next meeting is when this Commission can take action on those findings and recommendations. MR. SHUMWAY: Can we ask questions? MR. HOOKANO: No, because then that gets into the deliberation part of the discussion. COMM. 31: Report of Ad -Hoc Committee on Article I, Section 1 -2, Geographical Limits. CHR. HAITSUKA: Ms. Kawauchi is not here today, and neither is Mr. Nahale -a, so, I guess I'm it. The recommendation of our committee was that no action be taken on any amendment to Section 1 -2. MR. HOOKANO: At this point, the matter would be postponed until next meeting for action. Mr. Kealoha moved to postpone further discussion on Communication 31 to the October 9, 2009 meeting. Seconded by Ms. Jarman and carried by the following vote: Ayes: Commissioners Fuertes, Honma, Jarman, Kaulukukui, Kealoha, Osborne, Shumway, Unger, and Chair Haitsuka. Noes: None. Absent: Commissioners Kawauchi, and Nahale -a. COMM. 32: Report of Ad -Hoc Committee on Article III, Section 3 -17, Reapportionment Commission. CHR. HAITSUKA: The Chairperson is Mr. Unger. MR. UNGER: The committee discussed and considered, among other things, changing the title and scope of Section 3 -17, County Reapportionment Committee. The Committee determined to see, to do, the following. It is pretty self explanatory. I don't know if I need to 32 sit here and read it, maybe we can just take some time and we can all review it, and then at the next meeting discuss it. CHR. HAITSUKA: Do I have a motion to postpone? Mr. Shumway moved to postpone further discussion on Communication 32 to the October 9, 2009 meeting. Seconded by Mr. Unger and carried by the following vote: Ayes: Commissioners Fuertes, Honma, Jarman, Kaulukukui, Kealoha, Osborne, Shumway, Unger, and Chair Haitsuka. Noes: None. Absent: Commissioners Kawauchi, and Nahale -a. COMM. 33: Report of Ad -Hoc Committee on Article III, Section 3 -2, Composition and Terms. CHR. HAITSUKA: Mr. Nahale -a is not here. MR. SHUMWAY: He asked me to present it. CHR. HAITSUKA: Mr. Shumway, go ahead. MR. SHUMWAY: In this report, we discuss the term lengths for County Council members, and we propose changing them from two years to four years. One of the issues we discussed was whether the terms would be staggered, so you would have half the Council elected every two years, but we realized there is a potential problem. When you get to a redistricting year, you could have basically two members representing the same area, if the districts were changed, because of not everybody being elected. So, we decided to propose having everybody elected simultaneously, and not to stagger the terms. Also, to keep the districts the way they are, individually represented districts. CHR. HAITSUKA: Do I have a motion to postpone? Ms. Jarman moved to postpone further discussion on Communication 33 to the October 9, 2009 meeting. Seconded by Mr. Kealoha and carried by the following vote: Ayes: Commissioners Fuertes, Honma, Jarman, Kaulukukui, Kealoha, Osborne, Shumway, Unger, and Chair Haitsuka. Noes: None. Absent: Commissioners Kawauchi, and Nahale -a. 33 REFERRALS FOR EXECUTIVE SESSION CHR. HAITSUKA: Next on our agenda is Referrals for Executive Session. We do not have any Executive Session items. ANNOUNCEMENTS CHR. HAITSUKA: Next on our agenda is Announcements. MR. HOOKANO: Mr. Chair, at this time, you may want to announce the rest of the Public Hearing Schedule. That might be beneficial. CHR. HAITSUKA: As a reminder, we have a public hearing tonight, scheduled right here starting at 6:00 p.m. We have public hearings scheduled on Saturday, September 19, 2009, first in Waimea at 9:00 a.m., then in Honoka`a at 1:00 p.m. We have public hearings scheduled for Saturday, September 26, 2009 in Pahala at 9:00 a.m., followed by a meeting in Kea`au at 2:00 p.m. I would like to ask the Commission Secretary if she would send out directions to some of these locations to the Commission members. Our next regular meeting is scheduled for Friday, October 9, 2009 at 1:30 p.m. in Hilo at the Ben Franklin Building. Following that meeting will be a public hearing starting at 6:00 p.m. ADJOURNMENT CHR. HAITSUKA: Last on our agenda is Adjournment. Do I have a motion to adjourn? There being no further business, at 4:01 p.m., Mr. Kealoha moved to adjourn the meeting. Seconded by Ms. Honma and carried by the following vote: Ayes: Commissioners Fuertes, Honma, Jarman, Kaulukukui, Kealoha, Osborne, Shumway, Unger, and Chair Haitsuka. Noes: None. Absent: Commissioners Kawauchi, and Nahale -a. CHR. HAITSUKA: The meeting is adjourned. Thank you. 34 Respectfully Submitted, Karen Eoff, Secretary Approved: Mr. Ed Haitsuka, Chair Hawaii County Charter Commission 35