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HomeMy WebLinkAboutCHC 1979-06-26 1 HAWAII COUNTY CHARTER COMMISSION MINUTES 24th Session June 26, 1979 Hilo, Hawaii The twenty-fourth session of the Hawaii County Charter Commission was called to order at 2 : 45 p.m. in the Hawaii County Councilroom, Hawaii County Building, Hilo, Hawaii by Mr. Kimiaki Sakata, Chairman. The roll recorded the following: Present : Mr. Harlan Cadinha Mr. Richard Ishida Mrs. Amy Iwamoto Mrs . Gloria Kobayashi Mr. Akira Omonaka Mr. Kimiaki Sakata Mr. Spencer Kalani Schutte Mr. Herman Sensano Mr. Joseph Trulson Mr. Basilio Yagong Mr. Matsuo Yanaga Also Mr. Stuart Oda, Attorney Present: Ms. Frances Higa, Research Assistant Mrs. Joan Carnett, Secretary APPROVAL The Chair called for approval of minutes dated OF MINUTES: June 12 , 1979. Mrs. Kobayashi made the motion , to approve the minutes as presented. Seconded by Mr. Yagong and unanimously carried. CHAIRMAN SAKATA: Before we go into the business of the day, I would like to call on our legal counsel . Mr. Oda. MR. ODA: Mr. Chairman. You have before you several--two separate packets of drafts that were prepared by myself and my aide. First of all , I would refer you to the first packet that Vas passed out with regard to the organization of the council . Just to give you an overview of what is in the packet, the first one has to do with the hiring of legal counsel for the county council , the new numbers being Section 3-8. The second one should be in the order in which I am reading it. Straight term; residency requirement for at-large seat. Now the third sheet, straight term; no: residency requirement for at-large seat. The fourth page regarding provision for staggered terms to be added at the end of Section 3-2 ; residency requirement for at-large seat. Next sheet again staggered terms without the residency requirement for at-large seats. In addition to that, of course, was the reapportionment thing that was passed out to you last week . You had some numbers and some districts , some figures that were compiled, typewritten and handwritten figures regarding districts 1 , 2, 3 , and 4 with precinct numbers for districts 1 through 4 based on the latest registered voters compilation from the clerk ' s office. The first set, I believe, you will have to look at the date above. One set is for January of this year and the latest figures in another set attached to it is for June of this year, which is just a couple of weeks old. The reason for the district breakdown by precinct is that if this commission is thinking about breaking up the at-large residency requirement and identifying the East and West designations more specifically then you can use the House of Representative District Precinct designation to make it a little closer at least of the registered voters in that particular district. Just as a general matter if you are thinking of districts, say, 1 and 2, combining districts 1 and 2 and having one at-large candidate or two depending on whether you have twoor four the totals. . .in order to equalize itself you would have to move precincts 11 , 12, 13, and 14 from the district 2 which is the Ainako, Kaumana, Puueo and Wainako precincts to combine them with districts 3 and 4. If you do that the registered voter count as of June, 1979 for districts 1 and 2 as compared to 3 and 4 would come out to slightly over 18, 000 per two districts. The 1st and 2nd districts would have something like 18, 284 and the second two districts, districts 3 and 4 would have 18, 387, slightly more. But , for our purposes , sufficiently close to use for division purposes for at-large residency. This is merely for your consideration, I am certainly not suggesting it but because of the deliberation of last week, I have been compiling this information together with Frances Higa to give _you more options if you want them. The other set, of course, has to do with the planning department reorganization . I have attached on page 3 a xeroxed copy of the county ordinance regarding variances which was requested by Commissioner Ishida the other week. The grounds for variances under Section 7.01, so that is also included for your information. Also attached to your stack of handouts should be the district seats which are set at two year terms and the at-large seats set at four' year terms with residency as well as no residency. This should have been with the first stack . There may be other alternatives you may want to consider but basically we merely worked on-, alternatives which have already been discussed. Do you have any questions? -2- MR. TRULSON: Mr. Oda, what.,pollinc places were you going to change and make the districts 1 and 2 comparable to 3 and 4? MR. ODA: That would be precincts 11 , 12 , 13 , and 14 of district 2. Ainako, Kaumana, Puueo, and Wainaku. If you move those four precincts into district 3 , assuming districts 3 and 4 are combined for one at-large candidate, you would come up to. . . MR. TRULSON: Eleven through fourteen? MR. ODA: Eleven through fourteeen, right. As a matter of convenience, we just took off the last four. The numbers would come out just about a hundred difference in terms of registered voters. MR. ISHIDA: Mr. Oda, are you saying that if the commission attempts to place residency requirements on an at- large position , that we must adhere to some type of population based on registered voters? MR. ODA: I am not saying it must but if you want something objective to use, the registered voters list is pretty much the only thing that is available right now that makes any kind of sense. MR. ISHIDA: If we use the registered voters list for this basis, would that be inconsistent with the provision that we._, cannot use the registered voters list for the apportionment portion? MR. ODA: I don ' t think so. The reason being that this is merely a way of objectifying, if you can use that term, a otherwise arbitrary breakup of at-large districts, if a district breakdown is going to be made for at-large candidates. MR. ISHIDA: What about traditional district lines that have been testified to like Hamakua, ; Kona, Hilo. . ? MR. ODA: The problem with that is there is no basis for objectively tying that to any kind of population standard. Now, what I am saying is that if you use registered voters which is the only really figures that we have right now, it at least gives it some objective basis rather than just using geographical districts which are probably very far off in terms of even registered voters and population. I don ' t think it is inconsistent. I don ' t think we have much choice if a district residency requirement for at-large candidates are to be considered because that is the only thing that we have, unfortunately. The other reason why I am suggesting this is that Maui , in breaking up East and West Maui for its councilmen , has used House Representative District precincts to divide East and West Maui under the Maui County Charter. We happened to see that since the last hearing here and I thought it was a pretty good idea if this commission is going to do that. -3- Maui had the same problem breaking up into East and West Maui so they used the precincts of the House Representative Districts to divide who is in East Maui and who is in West Maui . MR. CADINHA: Mr. Chairman. A question, Stuart, just in layman ' s terms what you are saying is that if we entertain redistricting we can assume that the State Represen- tative layout is a sound basis , but yet if we attempt to place a residency on at-large we can ' t make that same assumption? MR. ODA: I 'm sorry, I don ' t fuly .understand `that. MR. CADINHA: I don ' t understand it, that ' s why I 'm asking the =question. MR. ODA: I don ' t understand your question. MR. CADINHA: Richard, rephrase yours. Isn ' t that what you were asking? MR. ISHIDA: No. My, question^. was in our original reapportionment, we were informed that registered voters should not be used as a basis, but now he is telling us that if we entertain at-large positions and we wish to place residency requirements on these at-large positions then he feels it is not inconsistent to use the registered voters as a basis on which to draw lines as far as t'odetermine where the residence lines will occur. MR. ODA: Part of the reason is that I don ' t think it is inconsistent is also because of the fact that you would have everybody voting for that individual anyway. It is merely saying where that person shall run from, where he shall live in order to run from that district. So it substantially waters down the so-called halo of any illegality or misplacement of that particular, or misuse of that particular, registered voters list. Had it been if you used registered voters and that person , only those people from that particular district can vote, I think that would be inconsistent. But if you are talking about at-large candidates over here whom everybody will vote for anyway. . . Under the present setup, the way the present County Charter is drafted, the at-large candidates of course run from anywhere, they can be residents of any district. I don ' t know of any other alternatives if a residency requirement is going to be used for a breakdown of residency requirement made between East and West or whatever. MR. ISHIDA: Stuart, on this thing of registered , voters, you didn ' t make any attempt to determine how the- - --- registered registered voters preferred the present residency district. . . MR. ODA: Per residency district? -4- MR. ISHIDA: In the present council makeup we have six residency requirements. As far as the registered voters within each of those specific districts. . . ? MR. ODA: No, I didn ' t go that far. We just have those figures based on the House Representative Districts. I 'm not sure whether even the clerk ' s office would have that information. I suppose if you look at these areas here, let ' s say, district 1 , break it up between Ka' u and Puna, you can compile some figures based on that. Very unofficial kind of thing because like district 1 comprises South Hilo, Ka' u and Puna. MR. SCHUTTE : Stuart, actually when you get down to the basic numbers within the given districts, this will only come into work if we decided for some reason or the other to, say, mix district 4 with a portion of district 3 or put the two together and -then add on some more in order to separate two districts. MR. ODA: Right. Assuming that you are even considering residency requirements for at-large. MR. SCHUTTE: Other than that, the representative districts stand as being as they are today if we decided on that? MR. ODA: You mean if you don ' t break it down further than that? MR. SCHUTTE: Yes, if we don ' t break it further down .than the representative districts. What we are saying right now mainly is that we are looking at four representative districts. MR. ODA: Right. MR. SCHUTTE : So at least these four represen- tative districts are binding, legally? MR. ODA: I would say so. And assuming, to carry your point one point further if you are saying that to leave the at-large candidates, let ' s say, assume you have two at-large candidates, one from districts 1 and 2, shall be a resident from district 1 and 2, one from 3 and 4, I would still u still le al right? You don ' t have to put think that that is legal , . precincts 11 through 14 into district 3 and 4 if you don ' t want to. All I am suggesting is that if you are going to break it up, if you want to give it at least a greater degree of objectivity, then you can break up the precincts and throw it into the second group of districts 3 and 4. MR. SCHUTTE : That is in this case as you describe of splitting the East and West and making it as evenly as possible it would be better to take these four different precincts and add them to district 3 if you are going to come out even numerically. -5- MR. ODA: Right, if you want to make it about equal . MR. SCHUTTE: Other than that, the existing representative districts are satisfactory? MR. ODA: I would think so, if you want to use that. It doesn ' t have to be an East and West designation. You can use districts 1 and 2, 1 and 3, 2 and 4. Whatever mathematics it might come out to. Actually, Mr. Chairman , it takes a couple of minutes to look at these things and kind of digest it. It is very difficult just to absorb it while you are looking at it and other .people are talking at the same time. Maui broke up its island into three separate districts, East, West, and Central and designated East by representative districts, West by representative districts , and Central by representative districts. MR. SCHUTTE : Mr. Chairman. Has the Chair entertained discussion relative to the legislative branch, composition and terms? CHAIRMAN SAKATA: Right now, what Mr. Oda has presented to us all the different alternatives when we discussed the legislative branch as of last week about the possibility of a 5-2, 5-4 kind of situation, and residency for four at-large and residency for two at-large and non- residency requirements for at-large seats. So with this information before us, probably we can get into the meat of the day. The thing that was deferred last week was the makeup of the legislative branch of the county council, Section 3-2 which we talked about was composition and terms. MR. SCHUTTE : Mr. Chairman, are you going to specifically stick to that particular point or are you opening it up for discussion? CHAIRMAN SAKATA: We will open it up for discussion. I think last week we talked about a 5-2 situation and also on a 5-4 situation. So we can still further discuss this and then maybe we can get to the point where we can get all the information and discussion put away and then finally get to a vote on this. MR. ' SCHUTTE: Mr. Chairman, if that be the case, may I put forth some information for discussion and possible consideration? In regards to the legislative branch of the county council , Section 3-2 , we have discussed the 5-2 concept. We have also discussed the 5-4 concept. I would like to, at this time, discuss a 5-4 concept and I will just read it from notes I have here. . . .There shall be a county council composed of 9 members. Five shall be residents and elected from within -6- the 4 representative districts , respectively. Four shall be elected at-large which shall have respective district resident requirements. Of the 5 district councilmen , one shall be elected from district 1 ; two shall be elected from district 2; one from district 3 ; and one from district 4. Each shall be elected for a term of 2 years. Of the four at-large council- men,, one shall be a resident of district 1 ; one a resident of district 2; and one a resident of district 3 ; and one a resident of district 4. Each shall be elected for a term of four years. Mr. Chairman , my reason for suggesting this proposal is that I believe that we have been able to, by having it, we contain the district representation. We also entertain the two year terms and we entertain a four year term which to some degree will act as a staggered term for the continuity of the county council . My thinking of having the four elected at-large but with district resident requirements is that I believe that gives each representative district councilmen, one elected from within the district and one ."'at-large but with district resident requirements. In this case, here, it also gives, or considers, Hilo and allows Hilo two district candidates and one at-large candidate. But in any case each one of the districts shall be voting for five candidates with the exception of Hilo that would be voting for six. It appears that regardless of how we cut this up, mainly by numbers, I believe Hilo will have one additional candidate. I 'm not looking at it from a standpoint of East and West. You have heard our counsel mention that if you to divide it by East and West, if you are looking at it what West represents today you are looking at district 4 where there are only 8 thousand some odd registered voters. . .if we are to use that as a objective assumption . If we are to divide that up equally into two districts representing the East and two districts to represent the West, we could consolidate district 3 and 4. But as counsel has suggested, to make it as evenly as possible, it would be necessary to include the four precincts' I believe into district 3 out of district 2. I would like some reply to this, I think this particular proposal meets all of the legal requirements and, as I said, earlier, it does give each district two elected officials, although one would have only resident requirement and would be elected . at-large. CHAIRMAN SAKATA: Is there any discussion on this? MR. OMONAKA: Mr. Chairman. I would like to ask Stuart this question. According to Kalani ' s proposal , this would mean that the 2nd House District ,under his concept would be voting for six councilmen, two by virtue of a residency requirement; one by virtue of an at-large candidate; as well as three other at-large candidates. So in district 2 the voters will be voting for six councilmen, whereas the -7- other districts will be voting only for five councilmen out of a 9 man council . Is this legal? MR. ODA: Can you break it down again? MR. OMONAKA: As I .understand Kalani ' s proposal , he is saying that the current five house district,,- have one district councilman and in that present house district, four house district, with a residency requirement from each of those four districts. So that numbers to a total of nine. But Hilo being a multiple district, if there is a residence requirement for the at-large council then the Hilo voters would be voting for .six councilmen and the other voters would be voting for only five councilmen. MR. ODA: Because Hilo has one more from the district. MR. OMONAKA: Because it is a multiple district, that is why they have two, see? MR. ODA: They would have one more. MR. OMONAKA: Is it legal to have the people from the 2nd district voting for six councilmen out of nine and the other district voters voting only for five councilmen on a nine man council? MR. ODA: I would say it would probably be legal because they are already voting for one more representative because of the population in the area in which they live. MR. OMONAKA: But what about the guys in the 1st district, as an example? They would be voting only for five councilmen. MR. ODA: Because in effect, theoretically, they would be represented by only five, :i.sn ' t that right? MR. OMONAKA: But they will be voting for five. MR. ODA: Right, but four at-large plus one district. MR. OMONAKA: But Hilo being a multiple district , they will have two councilmen. So when they vote two councilmen and and four at-large, they will be voting for six councilmen. MR. ODA: I understand that. Numerically, it would be a difference. I can ' t think of any specific reason why, outside of the fact that it is unequal , that it will be illegal. I haven ' t heard of any situation that would make it illegal. As I intellectualize about it a little bit, the mere fact that you have more candidates to vote for, I 'm trying an analogy in present. . . MR. OMONAKA: What about the one-man , one-vote concept? -8- MR. ODA: One-man, one-vote as a phrase, I think , is misleading because it doesn ' t necessarily mean every person ' s vote has to Weigh ': the same amount as every other person. So long as there is no substantial watering of the voting rights of anybody else., You,,know, watering down , so to speak , or depreciation. I just can ' t think of anything that would make it illegal . MR. OMONAKA: So then you are saying that this proposal can meet all legal requirements. MR. ODA: Probably so. Irrespective of the fact that it doesn ' t mean come down to literallY ,a one-man , one-vote kind of thing. When you look at it.'from` the, stand- point of the base on which you are using, which is a house representative district,:' right now. . .I 'm sure you all realize that the population in the various four districts are unequal . Even when we started talking about it , it was unequal so there will be inquality built into it, unfortunately. But that, in and of itself, unless it is of such major importance that you ' re completely depriving a large segment of the population from participating in the_electoral process, I don ' t think it would be held illegal . It can be challenged. Anything can be challenged at any time. MR. TRULSON: He would still be voting for a majority. MR. ODA: Yes. MR. OMONAKA: How can the guy from the 1st district vote only for 5 councilmen? Whereas the guy from the 2nd district be allowed to vote for six? For a nine man council? MR. SCHUTTE : If we are looking at it from that standpoint. . . MR. ODA: Because he is being represented by six people. That is the only logical reason I can answer. I 'm sorry, Mr. Schutte. . . MR. SCHUTTE : In answer to Akira' s question of how can people vote from a district, say for instance; like he said one for just five candidates, and those from district 2 vote for six, well I think the concehsus is the same if you keep it just at a five councilman out of four districts. There is an inequality, as you mentioned , if you take the districts--the representative districts, I am referring to. So you still have Hilo because of the numbers, you still have two more councilmen. . . MR. ODA: I think the point we made, Mr. Omonaka, is that if you have only five councilmen , representing the four districts, two from Hilo, and only those people from the districts can vote for the five councilmen then the people from Hilo voting for two and the people from the 1st, 3rd, and 4th are voting for only one. So, from the inception already, from the beginning, there is a built-in inequality because of the number of candidates representing district 2. -9- MR. SCHUTTE: That ' s right. No matter how we cut it, if we allow the district 2, because of the number, to have this additional candidate, you are going to have one additional individual there anyway in numbers. There is no other way to knock it down. So I am trying to eliminate the most problems by saying five out of four districts, allowing Hilo that additional one. The four with residency requirements I think would take care of the 5-4 concept. That is why I am suggesting. I , like you mentioned before, don ' t see any illegal portion of it if we are using, as I questioned before, the existing districts, representative districts, as a means of establishing some type of groundwork. MR. ODA: I would feel , Mr. Omonaka, that if you had just the opposite, that rather than Hilo having six, it had only five, you probably could make a bigger argument for illegality than if they have six. The reason is population again in district 2. MR. OMONAKA: My concern is that we are using the same district two times. MR. ODA: Right. MR. OMONAKA: For the basic same legislative government body. MR. ODA: One for at-large and one for residency, yes. MR. OMONAKA: If you went by multiple district true you will be using that district just once for that multiple district setup but you are not going to come back and use that again to have another body elected-from the district. MR. ODA: Well , the suggestion, I think , if I understand it, that is one way of tying down the district residency requirement for the at-large candidates that are being suggested. I don ' t think that is the only way you can do it. There are other alternatives for giving residency designation to at-large candidates. MR. OMONAKA: I just wanted to know if it was legal , the 5 and 6. MR. ODA: Offhand , I would say that it would stand-up in court. CHAIRMAN SAKATA: Is there any other discussion on Mr. Schutte ' s proposal? MR. ISHIDA: A point of order. We are on the basis of discussing a motion before this body? We are not continuing a motion from the last time? MR. SCHUTTE : I think what I did, I asked the Chair if they would consider opening up this particular portion for discussion prior to it. -10- MR. ODA: Mr. Schutte, I noticed in your suggestion, there was no staggered term included in it. I may have missed it. Just two years and four years. MR. SCHUTTE : Not built into it because as I said, those that run from within the district would run for two years and those that run at-large with district requirements of residency would run for four years. Assuming that would, to some degree, take care of the continuity, without having to get right down to specifics. MR. OMONAKA: Well , if it is evident there is no more discussion, I would like to call for the question. MR. ISHIDA: That was my point of order whether we were discussing a motion. If not, then if this is just a general proposal thing, then I have nothing to add. If this is ,on the motion then I have an argument. I would like to say something. I just want to make sure where we are. CHAIRMAN SAKATA: . . .we' ll go right back to where we were last week, okay? We' ll pick up on where we left off on last week ' s motion. :Do you have something on this, Mr. Ishida? MR. ISHIDA: Yes , I would like to say something. The motion , as I understand it, ds for 5 district and 2 at-large. I want to see if I can convince you people, anyway, that I think we should go to instead of a 5-2, to some kind of a 5-4 situation. The reason is this, there has been a lot of concern that we should consider district representation and I think all of us are in agreement that this is the way we are going. And also we are in agreement that really the districting is going to come up after our 1980 census. Now, if we accept the 5-2 concept now, we are in fact limiting and restricting what the reapportionment committee will do. And this, I think , is really inconsistent if our feeling is to go into districting as much as possible. I think we should leave it to give the reapportionment commission more flexibility. The reason I also say this is because I think I am safe to assume that the population as far as this county is concerned is going to increase and we are thinking in terms of a ten year document. Now if that is the case, I think we should have sufficient foresight to see that there would be more representation within the governing body as far as this council is concerned. If we reduce the number from nine to seven , I think we are, in fact, defeating that purpose of giving more representation by the citizens within this county in the council . This is why I feel we should still stick to the nine member council . What form of five-four we use now, I am not advocating anything right now but I just say that we should stick to the number of nine and give that authority to the reapportionment to do the redistricting. I don ' t think=-after one week of consideration , I have somewhat modified my View- as to what authority that reapportionment committee should be granted. -11- Because we are talking in terms of as much district representation as possible, I think then , to be consistent, we should give the reapportionment commission full authority to redistrict whatever they see fit as far as the nine members are concerned and not limit them whatsoever. Consequently, I think, if we really want to go along and give this county district representation, we should stick to the nine and just temporarily accept a five-four and then thereafter it is up to the reapportionment commission to do what it wants. If they want 9 single member districts, fine. But I think we should give them the opportunity to do that and we ought not to limit it. I hope I can convince you folks of that. , , MR. OMONAKA: Mr. Chairman. Richard;, then are you saying then', in essence, to allow the reapportionment committee to remake, so to speak , the county council? MR. ISHIDA: Yes , after thinking it over, I think that is the only way we can do it. MR. OMONAKA: And is it your intent to give them absolute powers to do this, despite the fact that we would like to keep a portion at district and a portion at-large? Then , in essence, %whet_ they will be doing is to rewrite the charter. MR. ISHIDA: Just on the reapportionment. MR. OMONAKA: Reapportionment simply means to fix boundaries so that we can have. . . MR. ISHIDA: It will strictly be reapportioning of boundaries but I want to open it up to all nine people. I :h-ave' wrestled with that problem over the week. I had some hesitancy as- far as giving them carte blanche authority to do that but after thinking it over, it seems that is the only way we can do it. The real problem that I was wrestling with was the fact that if we do give this reapportionment commission the full authority as written now in this present draft, there is really no check on them. In other words, when they come up with the decision , of course, they will have public hearings but once the decision is made and filed it becomes effective,, and it is not placed out to the electorate. This is the thing that bothered me and in spite of that I think I have kind of resolved it in my mind that if we are going to have a reapportionment committee, I think that we should give them the carte blanche authority to see the type of districting or representation as far as the number ;;is concerned. They would be limited, I submit, to what this charter says. If we say seven, fine, it would seven. If it,' s nine, fine, it would be nine, but no more. The only authority they will be given is drawing boundary lines and determining whether there will be all district or all at-large. I think that would consistent, would it not, counsel , as to validity? -12- MR. ODA: Consistent with what? MR. ISHIDA: As to validity. MR. ODA: Well , you can give the reapportionment commission any amount of authority that you want. MRS. KOBAYASHI : Mr. Chairman. I cannot :a.gree with Mr. Ishida' s comments because for one thing it seems to me. . .well , this is a personal view, here we are, we have been meeting for what, 23 weeks on the Charter Commission, and now we are going to say, well , we have studied the charter but we don ' t know enough so we are going to give the composition of the council back to the reapportionment committee. It seems like what we have been doing this is for naught. We were together on the subcommittee _ on the reapportionment of the council and, I think we discussed the various concepts and if you give the reapportionment commission the authority to take away the mixed district and at-large that I think this commission is agreed on , that we are going to go 5 from a district and somebody at-large. You are saying that you are willing to give them the power to go completely at-large if they want to, or completely district if they want to. To me that would be defeating what you are doing right now today and I just cannot agree with :you on that. Why are we even a Charter Commission, then? MR. SCHUTTE : Mr. Chairman. I would like to side for a minute with Gloria. Mainly from that standpoint. I would expect that the direction this commission gives the reapportionment committee, or commission, would be very, or to some degree very explicit and not necessarily give them 'carte blanche so that they can do whatever they want to do. But give them a direction by which they may change depending on the residency census of 1980 or '83, or whatever it may be. I don ' t know if Mr. Ishida meant to give that commission or turn over the total responsibility of coming to a decision on this particular portion of the charter by passing it over to the reapportionment committee at a later date. I would like to get his views on that again. Was this your reason for addressing this or was that a misconception? MR. ISHIDA: If I follow your question correctly, Mr. Schutte, my position is this that if we do limit it now to a 5-4 or 5-2 situation and we say that the districting should be limited to five as far as the reapportionment is concerned, I think what we are doing, in fact, is we are tightening the authority of the commission because if we are attempting to go to district representation , I think then they should be given some authority to see whether the districting should be expanded instead of five, maybe seven , maybe nine single members. This is the thing that I have wrestled with the past-. week . If we are going to honor or attempt to go towards redistricting in a more district type of representation, that -13- if we, say, we have a 5-2 type of situation and then they are limited to the five, then I think we are limiting them. Then I think we don ' t need the redistricting. MR. SCHUTTE: Mr. Oda, please correct me if I am wrong. Can ' t the language in the reapportionment that we are talking about--the reapportionment commission--can ' t the language be directed so as to redirect itself to any portion of this charter, of this redistricting, as we so decide? Can ' t we put proper language in there to allow various things to happen? MR. ODA: Well , basically, to answer your question broadly, yes , you can, indeed. But as I understand Mr. Ishida' s question, or response, or whatever that was , to give . the reapportionment - commission the authority assuming that , there is no district residency for at-large candidates , you .want the :reapportionment := commission to be given authority to district those at-large candidates in 1983 if they see fit? MR. ISHIDA: If they see fit. MR. ODA: In other words , if there are seven council seats , the reapportionment commission can realign and make all seven at-large, six districts and one at-large, or whatever combination they want to, that is what you are saying; in effect? Just using the numbers seven or nine or whatever it might be an-d realign it any way they see fit, that is what you are saying, is that right? MR. ISHIDA: Right. MR. ODA: Okay. To answer your question , Mr. Schutte. . . MR. ISHIDA: But is that valid? That can be done? MR. ODA: To give the reapportionment commission? I would think so. That is the purposeof the reapportionment commission. MR. OMONAKA: Stuart, then if that happens. If the reapportionment commission is allowed to do this, then if there is any change ' in the concept or the charter, you have to go to the electorate for vote? MR. ODA: Well , they are not changing numbers as I understand it, right? They cannot change numbers. Numbers of councilmen. MR. OMONAKA: So if the electorate this go around is giving the reapportionment committee a blank check , so to speak . . .So without even actually voting, the electorate is going to be stuck with whatever. the reapportionment committee comes up with? MR. ODA: That ' s right. In effect, that is right. There is no voting on reapportionment commission decisions. -14- You can send it to the electorate if you want. It is not prohibited, you know, but all the reapportion- ment plans that we have seen , the commission ' s decisions are final after publication or without publication. MR. OMONAKA: So then if a person did accept the charter on the basis as the Charter Commission proposed , no matter what it is, then comes 1984 when their work is finished for them, would the reapportionment committee then have power to change say from district to at-large even though the electorate didn ' t have a vote on it yet? MR. ODA: That ' s right, under the proposed proposal. MR. OMONAKA: That is not right. MR. SCHUTTE : Akira, I didn ' t hear you on that. Would you explain that again? MR. OMONAKA: Assuming we adopt a plan to form a council and the electorate on the special election by a majority vote, have adopted that plan with the understanding that the reapportionment commission or committee be allowed to do as Mr. Ishida suggests , then if this commission and the electorate did buy the concept, say, strict districting, then the commission can turn that around to strict at-large. And I am saying that because the electorate did vote on it, it is not right that the reapportionment committee can change anything the electorate voted on. MR. ODA: I . . . . MR. SCHUTTE: Mr. Oda, that is why I kind of directed my question to you, to ask you if language could be written into this. Reapportionment--we are talking about enlarging the district because of x numberof additional voters , am I correct,:' it doesn ' t necessarily have to change the makeup of the district, outside of numbers? MR. ODA: Okay, let me kind of backtrack a little bit. As I hear what is going on over here, going back to Mr. Ishida' s proposal , I have some reservations of the legality of giving a reapportionment commission total blank checks to 1eta:-s_say., put districts where at-large candidates were originally assigned in the charter. Again , this goes back to the original purpose of what a reapportionment commission is. As I understand it, and I may be wrong, but a reapportionment commission' s duties and sole duty is to realign boundaries. It is , of course, and you will all -agree, I am sure, not to add any additional seats. it is`_not to change the basic framework of the makeup of the geographical or other makeup except to say that because district 2 has , perhaps, lost popu- lation and district 4 has gained population , to perhaps realign the boundaries so that the population within the various districts become fairly equal as much as possible under the one-man, one-vote principle. -15- But getting back to Mr. Ishida' s concern, I am not--I am a little hesitant to go as far as to say that the reapportionment commission can be given total authority to do whatever it wants. As I say, I can ' t point to you a law or a case that says that .they- capnot but I can only go on the basis of what the purpose of the reapportionment commission , as I understand it, is. It is not to change the charter in and of itself but to just draw boundaries according to the population statistics that it has available as a result of the federal census. MR. TRULSON: Mr. Chairman. As Mrs. Kobayashi stated we have been meeting for 23 weeks. I feel that we have a duty to perform in this commission. We have requested the people to come to us , the public, department heads , commission heads and give us their ideas and input as to what changes should be made in the County Charter. That they feel would best serve them. I think if we now state well , we are going to give this to some yet to be named committee that can make a decision without this input, arbitrarily, I feel we would be derelict in our job. . .I think we should make a decision. MR. SENSANO: Mr. Chairman. If I recall correctly', the reason why reapportionment was mentioned was the fact that in the testimony by the public the people who spoke were in favor of strict district representation. And realizing that we don ' t have districts right now from which to elect councilmen on a strictly district basis. That is the reason why they mentioned that the island should be redistricted so that each district will appoint their own strictly district councilman. Otherwise, if we have at-large representation there is no need for redistricting and from what I have under- stood from the beginning, all the people who requested strictly district representation also mentioned that if we go on a 100% district representation then we w,i_11_ have to reapportion this island. But I don ' t think there was any mention on any part of the people who spoke that if we have at-large representation we would need representation. There would be no need for it. MR. ODA: Mr. Chairman. Again, an additional thought here. Turning back to what Mr. Ishida said about the fact that the reapportionment commission conclusions or findings do not go to the electorate, I think part of the basic reason , the reason why it doesn ' t go to the electorate is because the reapportionment commission , basically, has a mechanical function and that is to redraw lines. It cannot change the charter, the basic directives in the charter. That is something that the electorate has already made a decision on back when they approved the amendments. So, again , I am shooting from the hip, so to speak , but I am leaning toward the recommendation that this commission because of that so-called hesitancy that I initially stated, I would have some strong reservations about the legality of giving the reappor- tionment commission any more authority than just to redraw boundaries. Because, they would, in effect, without having the electorate vote, be changing the charter completely if you gave them carte blanche authority. I don ' t think that is the function of the reapportionment commission. -16- MR. CADINHA: Mr. Chairman. Who determines the function of the reapportionment committee? I would understand that the committee that was set up to do the districting initially felt that the reapportionment committee would have the wisdom in 1983 of knowing what the census is going to be. We don ' t have that. We have no idea. I think every commissioner here assumes there is going to be a change.And in order to have the value of that wisdom, have that census so ,. , that a more equitable solution can come about. I am assuming that is the reason for even mentioning the reapportionment committee; " If we are going to curtail those activities, throw the whole thing out. Why even have a committee? I don ' t understand it. MR. SENSANO: Mr. Chairman. Again, my under- standing is the people who testified were clamoring for strictly district representation and if this commission should decide on whether it is seven or nine and say, okay, we are recommending strict district representation , but because the districts are not now divided into nine districts then there would be need for a reapportionment committee. Otherwise, if we go on a-- let ' s say if it is a five and two,there would be no need for a reapportionment. But reapportionment would only be necessary if the island went strictly district representation. But the districts , whether it is seven or nine, the island is not divided into seven or nine districts, then we would need a reapportionment committee. Otherwise there would be, no need for reapportionment. MR. SCHUTTE: Mr. Chairman. I believe, if I am correct, what Mr. Sensano is trying to put across is that if we adopted a five-four, .or °:a. nine, man_ council at this time then the reapportionment committee could be directed at a later date to redistrict, draw different lines to reapportion for nine separate districts. Is that what you are speaking of? Because of district representation. In other words, if they had the two in district 1 and you wanted to cut that up into two different districts you wouldn' t _h_ave to change the numbers you already have the numbers, but you just change the boundaries. If you wanted to cut up Hilo into two or three districts, you would just have to change the boundaries. MR. SENSANO: If you remember Mrs. Isbell , she was the one who first mentioned the need for reapportionment. She suggested perhaps maybe going according to the number of voters in each district of the island temporarily until the island can be redistricted. But, she was speaking in connection with that based on the idea of strict district representation. MR. ODA: Getting back to Mr. Cadinha' s question, which I think is related to Mr. Ishida' s . I suppose if this commission decides to give the reapportionment commission the authority which Mr. Ishida has recommended, it could, but, because it would result, in effect, a charter amendment , that I don ' t think it would be legal until it goes to the electorate to be approved as a charter amendment, as a recommendation by the reapportionment committee as a charter amendment. That is the initial concern that I have. You can write it into the -17- duties of the reapportionment commission but it cannot stop by merely filing that with the county clerk. It would be in effect a charter amendment and has to go to the voters for approval. So in that sense you can put whatever you want in there as far as its duties go, to give them the authority to redraw lines and add seats or take away seats, you can go that far, as far as you want , you know, but it would be a charter amendment and has to go for a vote. MR. SCHUTTE: But then again if we look at it from what Mr. Sensano was trying to describe, on a nine man council you would have the numbers and it would just be a matter of redesignating the boundary lines. MR. ODA: That ' s right. So that is why I am saying the traditional concept of a reapportionment commission is a 'mechanical function. All they do is--I don ' t mean to simplify it, but their primary function is to redraw lines. MR. SCHUTTE: Well , as Mr. Sensano also referred to Mrs. Isbell ' s=West Hawaii Women ' s group came up with a proposal. They had it broken down to nine districts and I believe the equivalent of each district, each of the nine, was some 4,000 .-(thousand) and some odd individuals and they held out so many of the -electorate from one district to equal it up but it was contiguous so that it would be no problem in doing something like that. But it is a possibility and it is a matter of relocating boundaries and moving, I think she moved two precincts out of district 1 to district 2 and they had it set up and they moved two others from out of another district and then it just fell in line. So what they were talking about in their Presentation was just moving four different precincts and it came out to an average of 4, 400-4,800 voters in any given district of nine districts that they had suggested. MR. CADINHA: Mr. Oda, can a commission divide the island by seven, does it have to be nine? The reapportion- ment, can we reapportion by seven? MR. ODA: i don ' t believe I understand what you are saying. MR. CADINHA: In other words , is the number of councilmen that we decide on initially, does that determine whether we have the reapportionment commission or not? MR. ODA: It doesn ' t. RECESS : At 4: 00 p.m. the Chair called for a short recess. RECONVENE : At 4: 15 p.m. the meeting was reconvened. -18- CHAIRMAN SAKATA: The motion before the body was a 5-2 council makeup. Does anybody want to amend 'this motion? MR. SCHUTTE : A point of order. I don ' t understand where we are, Mr. Chairman. CHAIRMAN SAKATA: Right now the motion before the body is a 5-2 council makeup. MR. TRULSON: Mr. Chairman. I feel that I would like to withdraw my second on the motion. CHAIRMAN SAKATA: Mr. Trulson seconded last week on the 5-2 motion. MRS. KOBAYASHI : I ' ll second the motion. CHAIRMAN SAKATA: It has been moved and seconded that the council makeup wll ,,be five and two. Is there any discussion? MR. SCHUTTE: Mr. Chairman. I just have to put in a last minute pitch for a 5-4 makeup of the council. To me this is district representation. It satisfies all , I believe, the requisites that have been asked of us. It gives us , I believe, the continuity. It gives us the numbers and I would seriously ask that on voting that each and every member of this commission certainly consider the 5-4 concept to the 5-2. CHAIRMAN SAKATA: Is there any other discussion? If not, are you ready for the question? MR. OMONAKA: Ask t heq uestion . CHAIRMAN SAKATA: It has been moved and seconded that the council makeup will be five and two. We will take a vote. Ayes - Yanaga, Kobayashi , Noes - Cadinha, Trulson , Yagong, Omonaka, Iwamoto, Ishida, Sensano, Sakata - 6 Schutte - 5 The composition of the Legislative Branch, Article III , County Council shall be made up of five and two at-large. MR. OMONAKA: Mr. Chairman. I move that the councilmen running from districts run for a two year term and the councilmen running at-large run for a four year term. MRS. KOBAYASHI : I second the motion. CHAIRMAN SAKATA: It has been moved and seconded that the councilmen running districts will be for a term of two years and at-large councilmen for a term of four years. Is there any discussion on this? -19- MR. SCHUTTE : First of all , these two councilmen at-large, are there any district requirements on that? Are we going to have residential requirements or is that just at-large? MR. OMONAKA: The original motion was no residence re'quirements. CHAIRMAN SAKATA: Are you ready for the question then? MR. ISHIDA: Mr. Chairman. Could we have a short recess? RECESS: At 4: 20 p.m. the Chair called for a short recess. RECONVENE: At 4: 26 p.m. the meeting was reconvened. CHAIRMAN SAKATA: Right now the thing that is before this commission is the term of office and it has been Moved and seconded that the term of office will be two years for councilmen from the district and four years for at-large candidates. MR. ISHIDA: Mr. Chairman._ May I ask, Mr. Omonaka, your rationale for that proposal? MR. OMONAKA: Well the .cost of campaigning this year would be reduced considerably for those who run from the district and so naturally the guys who run at-large should at least have four years for each time that he runs because he has to run island-wide. His expenses would be much, much higher than the councilman running from a district so this is the reason why I proposed two for district and four at-large. MR. ISHIDA: I am in a quandary because I favor four year terms. But then I was figuring on a four year term with staggered terms but I don ' t know what to do with seven. The feasibility of having staggered terms with seven people. That ' s my problem. I like four year terms and I like to see accountability and I see staggered terms a means of account- ability. That is my problem right now. Maybe somebody can help me. MR. ODA: The only way you are going to have a staggered term system really work as a staggered term is to have four year terms. Right now, as Mr. Schutte said, if we have two year terms as suggested, that portion was built-in. MR. ISHIDA: No, this is why I say, I like four year terms but I think if we have sufficient council people, I think , each individually they should be serving a four year term. But I have a problem as to whether a staggered term type of situation would be feasible to the seven member council . That is what my quandary is. -20- MRS. KOBAYASHI : Richard, how did you mean • staggered terms would bring accountability? MR. ISHIDA: The reason I say it brings accountability is because the issues are raised every two years. At -least the members who are in office who are not running during the year of election, at least, they are informed what the principle issues are. MRS. KOBAYASHI : Couldn ' t you use the same argurizent for the four year term for at-large and the two year term for district , then, because you h.ay.e an election every two years anyway? MR. ISHIDA: No. My position is that I believe for efficiency each council member should be in office for four years. If they run every two years , I jus€ feel that just when they are ready to really help the county they are back out on the road again trying to be looking for votes again. I don ' t think they can be very objective that way. That is the only thing as ".I -see it. MR. SCHUTTE : Richard, also the House of Representatives all run for two years. The State House and the U.Sa MR. ISHIDA: But we have a bicameral legislature. I think there is a distinction there. MR. SCHUTTE : Why? MR. ISHIDA: Because we have one body, the legislature, who serve four year terms but in the county level we only have one body. MR. SCHUTTE : . . .what I am trying to get at , => _ on the.arg-umnen•.t of= the basis of just getting in and having to get out, you know, if you look at the State House or the U. S. House, they are in for two years. Dollar-wise it costs them a heck of a lot of money to run just for two years. If you are talking about continuity, that may be something else. I don ' t know really what to say to help you. I understand you have a problem. I 'm trying. MR. TRULSON: Mr. Ishida. Are you trying to say that you would feel better with seven councilmen with four year terms and those four year terms staggered? MR. ISHIDA: To me, it would be better, yet I have a question of feasibility of doing that. You know, having three run one year and four run one year. Maybe that is a minor distinction that I am trying to make. MR. SCHUTTE : The problem I can think that you may run up against, Richard , is that if you were_ .to try to stagger that in that respect, you ;wouId have essentially one district councilman - to run a short term and another district may run a long term. . . . I don ' t think you would have anybody volunteer. . . -21- MR. ISHIDA: I think we could do something on a pro rata formula. . .so that they are aware of it. MR. SCHUTTE: You can ' t go by the numbers if you go by district because you can see the imbalance in the total number of voters within a district. So in a district you cannot say those that have the most votes will get the longest term. . . . MR. ISHIDA: No, it would be a pro rata type of situation. I think that would be the fairest way we could do that. MR. SCHUTTE : If we go the two and the: four where the five districts run for two years and the two at-large run for four years , that wouldn ' t solve the problem that you are addressing right now, would' it? As it stands with the five district councilmen running for two years and the four at-large running for four years , it would not take care of the problem that you are presently addressing. MR. ISHIDA: . . .I don ' t have anything more to say. CHAIRMAN SAKATA: Is thereany, more discussion? Are you ready for the question then? The terms for councilmen will be district councilmen , the term will be for two years and at-large candidates, the term will be four years. Ayes - Kobayashi , Trulson , Noes - ishida, Iwamoto, Yagong, Cadinha - 2 Omonaka, Schutte, Sensano, Yanaga, Sakata - 9 The term for councilmen will be district councilmen will run for two years and at-large candidates will run for four years. MR. ODA: Mr. Chairman. As far as the language to be used, does this body have any preference? MR. OMONAKA: Stuart, you don ' t have them numbered, right? "District seat 2 year term; At-large seat 4 year term, no residence, requirement. " (handouts attached ) MR. CADINHA: I think that is the only one that applies. MR. ODA: There is one already drafted for this, "District seat 2 year term; At-large seat 4 year term, no residence requirement. " Is that the one?. ®There shall be a county council composed of--that will be 7 members. Five councilmen shall be elected by the qualified voters of the respective districts as hereinafter described, and two: -22- The terms shall be four years at-large and the term of districts shall be two years. The specifics of where they come from shall be by House Representative Districts® I think this would fill the bill if the commission wishes to use this. MR. TRULSON : Mr. Oda. Would this fulfill the requirement of a residency requirement for the district representative? MR. OMONAKA: We adopted that earlier. That was Section MR. TRULSON: Evidently we have already adopted it. It was back. . .that the district representative must be a resident. MR. ODA: It says one councilman from. , . MR. TRULSON : . . .the 1st representative district. MR. ODA: Yes. Did we specify who are going to vote for these people? We are stating that they are from each of the representative districts. I don ' t think this proposal specifically states. . . MR. OMONAKA: . . .who are supposed to vote for those people. MR. ODA: I guess we have to put in language in there that says that only. . .oh, yes, "shall be elected by the qualified voters of the respective districts. " Thethird line® (of handout) MR. CADINHA: Mr. Chairman. With regard to that language, Stuart, if we have a councilman per representative district, what happens if the House reapportions downward? MR. ODA: Well , it doesn ' t matter because under this language, until the reapportionment commission, the language in here just above the center, "Until the county reapportionment commission , as created hereunder, acts, the district councilmen shall be elected as follows : Changes to any district lines or boundaries shall be the exclusive province of the county reapportionment commission as provided in this charter, and the said district boundaries shall remain in effect until the county reapportionment commission realigns the said districts where necessary. . . " In other words , regardless of whether the House reapportionment ,commission changes boundaries , this shall stay in effect until the county' s reapportionment commission acts so that we are not piggybacked to the House reapportionment. -23- MR. OMONAKA: And in effect what is going to happen , Mr. Chairman, is that under the way we have adopted the council makeup, we are going to the 1980 election. The district guy will be running until '82 so he will be running two terms, actually. But the at-large guy. . .by ' 80 for everybody should fall under the. . .if there is any reapportion- ment . MR. ODA: Right. MR. CADINHA: Mr. Chairman. I move that this body write in a reapportionment committee, a commission, if you will , in 1983 to reapportion the five district seats as they see fit. MR. SCHUTTE : Mr. Chairman. Are w-e discussing this last sheet here? (handout) So what you are -asking, Stuart, is that whether we adopt this language, is that .,it?,,. .,... IR. ODA: Right. With Mr. Cadinha' s concern, that can be taken up, I think,. shortly. MR. SCHUTTE : That can be taken up later then? MR. ODA: Yes. MR. OMONAKA: Is there a second to this motion? Is your motion to adopt this proposal as was corrected? MR. CADINHA: My motion is specifically to, now, I confess I haven ' t read this thing thoroughly, but does this say the reapportionment committee will reapportion the five district votes or the seven votes? District, right? Yes , that is my motion. Therefore we accept this. I 'm assuming nobody else has read it. . . . MR. ISHIDA: I have one small comment. Mr. Oda on the one thing I talked to you about earlier, this 1983 as opposed to 1981 . We had discussed that probably the census would not be ready in 1981 therefore we put 1983. In the event the census is ready in 1981 , should not we provide that reapportionment be done as soon as possible? MR. ODA: I suppose it can be done. Just by way of analogy, the State 'reapportionment commission--there was a change made, I believe it was the State reapportionment commission, the State Constitution, right , the Constitutional amendment changed the reapportionment for the State House of Representatives from 1981 to 1983. I noted that in the last amendment that went to the electorate last year for the same reasoning, I guess, that we, this commission , had used 1983 as a guideline because of the concern of not having this thing out on time. I don ' t know, it is a matter of whether you want to make it a flexible matter or--my initial concern, Mr. Ishida, is that I don ' t know whether the reapportionment commission will have enough time to act even if they have the available data in 1981 . -24- MR. ISHIDA: Well, no, I just felt that we are saying the appointment should be constituted on the first day of February of the reapportionment year. If the census is not ready by then and I assume that they won ' t be ready, I would think in the event the census is ready by the first of February of 1981 , could that contingency be taken care of? MR. ODA: I suppose so. MR. ISHIDA: Without affecting the validity. . . ? MR. ODA: Anytime after that there is just no way the reapportionment commission wo ld have any facts available to act. That is cutting it really close though. MR. ISHIDA: I don ' t know whether it would be ready or not. Practically speaking, it probably won 't be. MR. ODA: Because of the overall impact of redrawing district lines and all of that, rather than having --I don ' t know, this is just a comment but, I would think the safest way to use this is to use 1983. That way people have time to analyze it even if it is received 6 months or a year before, they have time to study it. If you get it hot off the press , I think you have a tendendy of rushing things. MR. ISHIDA: Let me ask you this, assuming the census report is completed in 1981 , sometime in 1981 , then as far as the reapportionment is concerned, it can be delayed until 1983 without any problems? MR. ODA: Oh , yes. I don ' t see any reason that . . .it would be still very, very valid in terms of the population statistics, based on 1980 if they act in 1983, it will be roughly 22-3 years old. MR. ISHIDA: No, I 'm not saying that point. I 'm saying that failure to act before 1983 , under the circum- stances, would that in any way affect the 1982 election? MR. ODA: I doubt it. MR. OMONAKA: Mr. Chairman. Can we defer this then , Richard , until we can get somebody who would know when the last census came out? If it is earlier, we can change the date earlier. MR. TRULSON : The ' 70 census came out in ' 72. And then they missed half of Kona, right? CHAIRMAN SAKATA: Is there any other discussion on this reapportionment? It has been moved and seconded that we accept. . . MR. OMONAKA: Under point ( g ) (handout ) I think the number 5 should be inserted. -25- MR. SCHUTTE : Point (g) means the commission may apportion the 5 council seats among the districts . Yes , just insert the number five. MR. ODA: Mr. Chairman. According to Frances over, here, as per the comments last week of the commission , she called the library, local library and found out the first census compilation was received by the library. . .was dated April , 1971 . When they received it , she can ' t recall , the librarian. I guess the printing was dated April , 1971 . When it was taken and completed no one seems to be sure. So, if it is April of 1981 that it has been compiled, in terms of distribution it ia.l]. be May or June of 1981. I don ' t think the commission would have--the reapportionment commission would have time to make it , Mr. Ishida. If it is compiled in April of 1981. Because they would have had to have it in February of 1981 . MR. ISHIDA: Mr. Oda,= how come you went from numbering to alphabetical? MR. ODA: To conform it with the charter. MR. ISHIDA: I was having a hard time comparing the two, that is the reason I asked you. CHAIRMAN SAKATA: It has been moved and seconded that we accept this reapportion and reapportionment years. MRS. KOBAYASHI : Mr. Chairman. I assume that this is going to be Section 3-3 , Mr. Oda? MR. ODA: 3-3. Recommended as 3-3. Wasn ' t it last week somebody already made a motion and it was voted on? MR. OMONAKA: Just to renumber. CHAIRMAN SAKATA: So that will be 3-3 and Qualifications will be 3-4. MR. ODA: That is right and all the numbers will be changed accordingly. MR. ISHIDA: Mr. Oda, on paragraph (h) the geographical is underlined. Why is that? (handout ) MR. ODA: That was added in because there may be some confusion as to what district was really intended to mean. Not the five House of Representative Districts. The public hearings are supposed to go out to the geographical districts, Puna, Ka' u, Kona, that kind of thing. It doesn ' t have to be there. If you want to just leave it the word district and put council districts, that is fine. In paragraph (b) above, it refers to geographical areas of the county from whom the 'reapportionment commission members will be appointed. If you read the third sentence. . ® "The commission members , no more than a majority of whom shall belong to the same political -26- prty, shall be representative of the various geographical areas of the county. . . " That is the reason why we used geographical under subcategory (h ) . MR. ISHIDA: Under the present concept that that the commission has adopted, would the geographical areas cause problems? As far as definition? MR. ODA: Are you saying it should be tied to the council district. . . MR. ISHIDA: No, my question is what is geographical areas. I think there was no problem under the present concept but under this new concept? MR. ODA: Right. Well , that was what was intended. The present designation of Puna, South Hilo, Hamakua, North Kohala, and that kind of thing. Kona. . .is there any confusion on that? MR. ISHIDA: I would think there would be some confusion unless it is made more specific, what does it mean by geographical areas. MR. ODA: I put that in there to make it a little more clear but that depends on how you folks. . . MR. SCHUTTE: Question. Richard, are you asking that it be changed from geographical to each council district? MR. ISHIDA: I think that is not enough. . .When you say geographical , does that mean. . .what I can anticipate is that just having geographical , the reapportionment committee just says, okay, it is the present House Districts and we have only four and then someone attacks that inter- pretation and it is then declared, no, you should have gone to more than just the four. Then all your work is for naught. MR. ODA: Unless you want to specify the districts. MR. ISHIDA: I would think probably we should be specific. . . MR. ODA: The geographical areas of Ka'U,' Kona, etc. Okay. If you will look at page 12 of the charter, they have it spelled out Puna, Ka' u, Kona, Kohala, Hamakua, and Hilo. Six. MR. ISHIDA: Maybe if you can just redraft it. MR. ODA: You want to do that? Okay. How about the language above there in subsection (b) then, do you want to include. . .shall be representative of the districts Puna, Ka' u, Kona, Kohala, Hamakua, and Hilo? And the same thing in sub'= `tem (h ) . -27- MR. ISHIDA: Would we have problems in view of our present adopted districting to have members coming from these separate districts so that each represented district may not be equally representative, or proportionately representative? MR. ODA: It is hard for me to say unless I know the population statistics and things like that. The safest way to do it is by tying it to district council boundaries. That is the safest way to do it. House Represent- ative Districts. But then you have only four districts. MR. ISHIDA: With our experience with public hearings , four is enough. MR. ODA: So we can tie it in that way. It ' s up to you folks. MR. ISHIDA: Can we word it as far as public hearings, it not be less than four but give the commission the opportunity to have more than four if they wanted to? MR. ODA: Yes. You have 45 days to play with. Basically, 6 weeks , a little over 6 weeks. MR. ISHIDA: Mr. Chairman. I would like to amend the motion so that in paragraph (b) where it states that "no more than a majority of whom shall belong to the same political party, shall be representative of the various geographical areas of the county. . . " to reflect that the representatives of the various council districts of the county. . .would that be okay? MR. ODA: Council districts. . .we don ' t need the word county. Shall be representatives of the various council districts and shall be selected by the mayor and confirmed by the council . MR. ISHIDA: . . .I so move. MRS. IWAMOTO: I second. CHAIRMAN SAKATA: It has been moved and seconded that Section (b) . . . MR. ODA: What about (h ) ? To change the word geographical to council? CHAIRMAN SAKATA: To council districts , right? MR. ISHIDA: I so move. MRS. IWAMOTO: I second. CHAIRMAN SAKATA: It has been moved and seconded that Section (b) in the Reapportionment and Reapportionment Years the words /geographical areas of the county/be deleted and council districts be inserted. -28- So it shall read now, "The commission members , no more than a majority of whom shall belong to the same political party, shall be representative of the various council districts and shall be selected by the Mayor and confirmed by the council. " Ayes - Yagong, Omonaka, Noes - None Sensano, Schutte, Ishida, Iwamoto, Kobayashi , Cadinha, Yanaga, Trulson, Sakata - 11 Carried MR. TRULSON: Mr. Chairman. Ought we not then also change number (h) ? CHAIRMAN SAKATA: That was incorporated in the motion? The motion is still on the floor to accept this with the amended changes. It has been moved and seconded that we accept this with the amendments as stated. Ayes - Iwamoto, Ishida, Noes - None Schutte, Sensano, Omonaka, Yagong, Trulson , Yanaga, Cadinha, Kobayashi , Sakata - 11 Carried MR. OMONAKA: The continuance of the committee report is the next order of business. Mr. Ishida, would you continue the committee report. MR. ISHIDA: If you will all turn to page 2 of your charter, Article III, Legislative Branch, County Council . Section 3-3 which should now be changed to 3-4, Qualifications. ARTICLE III We went through all of the corrections , did we SECTION 3-4 not? That has been adopted? Where are we on this one then? MR. ODA: Mr. Chairman. For the record , did the commission formally adopt the two-- -/eat term and four year term language? MR. TRULSON: Not this language, because we haven ' t filled in the blanks whether it is going to be East and West, 1st and '2hd , 3rd and 4th. The at-large requirement was not adopted, I don ' t believe. MR. ISHIDA: I think that is correct. I think we forgot. CHAIRMAN SAKATA: Are you talking about the district to be two year terms and at-large for four year terms. MR. SCHUTTE : Didn ' t we have a motion on the floor at the time? I presume the motion was for that. -29- MR. OMONAKA:_ No, the motion passed but what we are going to do is to adopt the language. The motion passed. SECTION 3-2 MR. ODA: But the language has to be rewritten. MR. ISHIDA: Yes. We are now moved that we adopt Section 3-2 as drafted by our legal counsel. MR. SCHUTTE: Second. CHAIRMAN SAKATA: It has been moved and seconded that we adopt Section 3-2, Composition and terms of the council as composed by our legal counsel . Is there any discussion on this? MR. TRULSON: You know, we have many section 3-2 ' s, we 'should clarify which one we are adopting. - MR. ISHIDA: The one that is -paraphrased in brackets on the top ( District seat 2 yr term; At-large seat 4 yr term, NO res req. ) . CHAIRMAN SAKATA: Is there any other discussion now? Are you ready for the question? It has been moved and seconded that we adopt Section 3-2, Composition and Terms which deals with the county council . This would be on district seat 2 year term; at-large seat 4 year term, no residency requirement. Ayes - Sensano, Schutte, Noes - None Ishida, Iwamoto, Kobayashi , Cadinha, Yanaga, Trulson, Yagong, Omonaka, Sakata -11 Carried MR. SCHUTTE : Mr. Chairman. May I ask for a short recess? RECESS : At 5 : 10 p.m. the Chair called for a short recess. RECONVENE : At 5 : 25 p.m. the meeting was reconvened. MR. ISHIDA: Mr. Chairman. Article III, Legis- SECTION 3-1 lative Branch, County Council . It has been brought to my attention that Section 3-1 , Powers and Functions. That provision may have been missed adopting it formally. As far as from the committee ' s standpoint, we recommend that it be adopted as it is without any change and I so move. MR. OMONAKA: Second. -30- CHAIRMAN SAKATA: It has been moved and seconded that we adopt Section 3-1 . Powers and Functions of the council. Is there any discussion on this? Are you ready for the question? It has been moved and seconded that we adopt Section 3-1 . Ayes - Yanaga, Yagong, Noes - None Sensano, Schutte, Ishida, Iwamoto, Kobayashi , Cadinha, Omonaka, Trulson , Sakata - 11 Carried SECTION 3-4 MR. ISHIDA: Then it is my understanding that Section 3-4, the new 3-4, Qualifications has already been adopted, is that correct? SECTIO N 3-5 Then we will go to the new Section 3-5 Compensation ; Salary Commission. The subcommittee recommended that it be adopted without any change. And I so move. MR. OMONAKA: Second. CHAIRMAN SAKATA: It has been moved and seconded that we adopt Section 3-5 , Compensation and Salary Commission as is without any change. Is there any discussion on this? MR. ISHIDA: I have just one question for discussion on this , Mr. Chairman. On subparagraph (b) in view of our concept adopted of the present council district, does it in any way affect the six members who represent the county'. geographical areas? Legal counsel , would we have any problem there? MR. ODA: No. MR. ISHIDA: No problem. Okay. CHAIRMAN SAKATA: Any other discussion? It has been moved and seconded that we adopt Section 3-4. Ayes - Ishida, Yanaga, Noes - None Yagong, Omonaka, Sensano, Cadinha, Kobayashi , Iwamoto, Schutte, Trulson , Sakata - 11 Carried SECTION 3-6 MR. ISHIDA: Going to Section 3-6 Vacancy in Office. The subcommittee recommended this provision be adopted without any change. And I so move. MR. SCHUTTE: Second. -31- CHAIRMAN SAKATA: It has been moved and seconded that we. adopt Section 3-6 Vacancy in Office as is. Is there any discussion on this? It has been moved and seconded that we adopt Section 3-6 Vacancy in Office as is without any change. Ayes - Cadinha, Kobayashi , Noes - None Iwamoto, Ishida, Schutte, Sensano, Omonaka, Yagong, Trulson, Yanaga, Sakata - 11 Carried SECTION 3-7 MR. ISHIDA: Then Section 3-7,.Removal of Councilmen. The last word in that sentence /law7 is to be deleted and replaced by the words, this charter. So the Section 3-7 will then read, "Any councilman may be removed by impeachment proceedings as provided by this charter. I move that the Section 3-7 be adopted as modified. ' MR. SCHUTTE: Second. CHAIRMAN SAKATA: It has been moved and seconded that Section 3-7 Removal of Councilmen with the word /law7 deleted and replaced by the words , this charter, be adopted as amended. Is there any discussion on this . Are you ready for the question? It has been moved and seconded that Section 3-7 as amended to read, ??Any councilman may be . removed by impeachment proceedings as provided by this charter. " be :adopted:`' Ayes - Kobayashi , Iwamoto, Noes - None Schutte, Sensano, Omonaka, Yagong, Ishida, Yanaga, Trulson , Cadinha, Sakata - 11 Carried SECTION 3-8 MR. ISHIDA: Going to Section 3-8 Organization of the Council ; Officers ; Employees. There are no changes to-tlie existing provision except that the subcommittee recommends the adoption of a new paragraph sub (c) which provides for the authorization of the county council to hire its own .legal_ Counsel. The drafted provision is the one that has been provided us by Mr. Oda. Unless there is any question , I would at this time move that Section 3-8 Organization of the Council ; Officers ; Employees be adopted, be approved without any change and in addition to it a new subparagraph (c) as provided us by our legal counsel . MR. YAGONG: Second. CHAIRMAN SAKATA: It has been moved and seconded that we adopt Section 3-8 without any change except for the new addition of subparagraph (c) as provided by our legal counsel. _Is Ther? any discussion on this? -32- MR. TRULSON: Mr. Chairman. First paragraph, second sentence. At the present time the corp counsel represents the councilmen in certain situations•. . - MR. ODA: Not necessarily. It is not determined who is going to represent whom. It is up for grabs. MR. TRULSON : What is the reasoning then for the counsel may represent the entire council but may not represent one person? MR. ODA: The purpose of that provision is that actually the legal counsel hired for the county council will primarily not be for the purpose of litigation. But if there is litigation affecting the entire council then the attorney or his staff can represent the entire council . If any one council member should get involved in litigation , even if connected to his duties, then that council , county council , could hire a special attorney under the separate provisioni;: of Section 5-,2:5 by a majority vote if they wanted to. But, not to involve the county council ' s attorney in the private disputes of any individual councilman or councilwoman. MR. TRULSON: Thank you. CHAIRMAN SAKATA: It has been moved and seconded that we adopt Section 3-8 Organization of the Council ; Officers ; Employees -without change and add subsection (c) as provided by our legal counsel. MR. SCHUTTE : Mr. Chairman. That would be subsection (c) under Section 3-8? CHAIRMAN SAKATA: Yes, subsection (c) Section 3-8. Any further discussion? Ayes - Iwamoto, Ishida, Noes - None Schutte, Omonaka, Yanaga, Cadinha, Kobayashi , Yagong, Sen ano, Trulson , Sakata - 11 Carried SECTION 3-9 MR. ISHIDA: Go to Section 3-9 Meetings ; Rules and Journal ; Voting and Quorum. I need help from my committee men. My notes are not very clear. We didn ' t delete any sentence in here so actually there is no change. The committee recommends no change in Section 3-9. I so move. MR. SCHUTTE : Mr. Chairman. If I may. We discussed something on that section that was brought up by the county clerk , right? MR. ISHIDA: Right and it will be discussed further. -33- MRS. KOBAYASHI : Mr. Chairman. I tried in the subcommittee to get a very worthy amendment added to Section 3-9 . The amendment came from the present County Clerk Mr. Legaspi . The second sentence (old number Section 3-8) reads. . . The council shall determine its rules and order of business and shall provide for keeping a journal of its proceedings , which shall be a public record. . .then it reads. . . Voting. . . I think at the time Mr. Legaspi came and talked to us he said that everything has to be--voting has to be all by roll call. He said it was extremely cumbersome and he suggested that certain procedural motions be made by ayes and noes. So he wanted an amendment deleting the first sentence that starts with /Voting. . .%., It is very difficult to say where the amendment is,-but he wanted the sentence I read to be continued and delete the sentence that starts with /Voting. . ./ So the sentence should read as follows: "The council shall determine its rules and order of business and shall provide for keeping a journal of its proceedings , which shall be a public record in which the ayes and noes shall be entered as required by this charter or at any other time upon the demand of any member. " So this change in Section 3-9 would in effect allow an aye and no vote to be made for procedural matters but if any of the council members wanted a roll call vote, like we are doing for each section , they could ask for it. MR. SCHUTTE: Is it too late to take that into consideration? Doesn ' t he have the whole amendment written down? MRS. KOBAYASHI : He had it written in one of the communations. MR. SCHUTTE : That was one of the first communi- cations. . . MRS. KOBAYASHI : Communication 17, dated January 29 , 1979 that Mr. Legaspi suggested this change to the charter. His rationale as stated , if I may read it, is that "Present procedure on roll call voting on every resolution and bill is time consuming and unnecessary. The revision would be flexible and more efficient by permitting the handling of routine resolutions and bills with a voice vote (viva voce ) and also roll call voting or any other voting method as prescribed in the Council ' s Rules of Procedure only upon request of any one council member. " May I move to amend Mr. Ishida' s motion that the change as suggested by County Clerk be made to Section 3-9. (old number 3-8) MR. SCHUTTE : Gloria, why don ' t you also make note of that particular correspondence, if you have a problem with it. -34- MRS. KOBAYASHI : Okay. As stated in the communication 017 from the county clerk. MR. TRULSON: Second. CHAIRMAN SAKATA: It has been moved and seconded that we approve Section 3-9 as amended. Any furt.hr discussion? MR. YANAGA_ .Would you read that motion again. CHAIRMAN SAKATA: Mr. Ishida made a motion that we adopt Section 3-9 and Mrs. Kobayashi amended the motion ; as requested in communication 417 by the county clerk . Ayes - Yanaga, Omonaka, Noes - None Schutte, Iwamoto, Ishida, Kobayashi , Cadinha, Yagong, Sensano, Trulson, Sakata - 11 Carried MR. ISHIDA: There is the main motion on the floor yet, because she only amended my motion. CHAIRMAN SAKATA: It has been moved and seconded that we approve Section 3-9 as amended. Any discussion? MR. OMONAKA: Question. CHAIRMAN SAKATA: All those in favor? Ayes - Schutte, Sensano, Noes - None Cadinha, Yanaga, Kobayashi , Iwamoto, Ishida, Yagong, Trulson, Omonaka, Sakata - 11 Carried-_ SECTION 3-10 MR. ISHIDA: Section 3-10 Actions of the Council. The committee recommends that this section be adopted without any change. I so move. MR. SCHUTTE: I second. CHAIRMAN SAKATA: It has been moved and seconded that we adopt Section 3-10 without any change. Any discussion? Are you ready for the question? Ayes - Yanaga, Trulson, Noes - None Yagong, Omonaka, Schutte, Cadinha, .',5wamoto, Kobayashi , Ishida, Sensano, Sakata - 11 Carried -35- SECTION 3-11 MR. ISHIDA: On Sections 3-11 , Resolutions ; THROUGH. 3-15 3-12, Ordinances ; 3-13 Emergency Ordinances ; 3-14, Submission of Bills to the Mayor; 3-15 , Adoption of Pay Plan, if it is okay, Mr. Chairman , I would at this time like to move that all of said sections , Sections 3-11 , 12, 13, 14, 15 inclusive, be adopted without change as recommended by the committee. MR. SCHUTTE: You are talking about Section 3-11 all the way through and inclusive of 15 . MR. ISHIDA: Through Adoption of Pay Plan. MR. SCHUTTE: Second. CHAIRMAN SAKATA: It has been moved and seconded that we adopt Sections 3-11 ; 3-12 ; 3-13 ; 3-14; 3-15 as is , without revision. Any further discussion? Are you ready for the question? Ayes - Schutte, Iwamoto, Noes - None Cadinha, Kobayashi , Ishida, Sensano, Omonaka, Yanaga, Yagong, Trulson , Sakata - 11 Carried SECTION 3-15 MR. ISHIDA: Section 3-15 County Code. The committee recommended that it be deleted as being inapplicable at this time. However, after I have had a chance to review it and I have talked with some other people, I believe a provision should be in there. Not as it is written but which mandates that the County Code be continued and be revised as to be determined by the council . I think some kind of provision should remain in there. I don ' t know how you committee people feel now. MR. SCHUTTE : What you are asking is that we continue this section and not necessarily in the language as pertains here but something that will provide the County Code will stay in existence. Is that what you are saying? MR. ISHIDA: Yes. Pursuant to _this provision, a County Code was adopted by ordinance. - So, presently, we do have a County Code and as each ordinance is adopted it just adds to this County Code. Instead of just deleting the entire thing, I thought it might be best that a reference of a County Code be left in there so there-_`will be- authority there by it being continued. MR. TRULSON: Mr. Ishida, is there anything wrong with the present wording as it stands today? MR. ISHIDA: Yes, because it has already been adopted. It has been adopted already. This gives the council the mandate to adopt one and we have already adopted it so it should be. . . legal counsel , do you know what I am trying to say? -36- Eugene (Tao) , what did you tell me? About the County Code? You suggested some wording. I thought it was very good. Just general some reference that the County Code be in effect. Can we just defer this until later? I 'm sure I can come up with something. If there is no objection. MR. SCHUTTE : Move to defer. MR. ISHIDA: Second. CHAIRMAN SAKATA: It has been moved and seconded that Section 3-15 County Code be deferred. Ayes - Yanaga, Cadinha, Noes - None Schutte, Ishida, Iwamoto, Kobayashi , Yagong, Sensano, Trulson , Omonaka, Sakata - 11 Carried SECTION 3-16 MR. ISHIDA: Section 3-16 General Plan. The Trig7-7-77777 section as written the committee recommends no change but it also recommends that at the end of that section, a new subparagraph (c) be added which shall read. . "Amendments to General Plan may be initiated by the council or the planning director. " I so move. MR. TRULSON: Second. CHAIRMAN SAKATA: It has been moved and seconded that we adopt Section 3-16 General Plan as written but with the addition of subsection (c) . MR. CADINHA: Mr. Chairman. Are we on 3-16 or 3-17? CHAIRMAN SAKATA: We did not delete the County Code so we are on Section 3-17. It was deferred. MR. ISHIDA: I 'm sorry. May we number it 3-17? General Plan. - - SECTION 3-17 CHAIRMAN SAKATA: It has been moved and seconded that we adopt Section 3-17 General Plan without change but with the addition of subsection (c) to read. . "Amendments to General Plan may be initiated by the council or the planning director. " Is there any •iscussion? MR. OMONAKA: Discussion. Stuart, I wonder if it would be wise if under the new proposal we provide language to say that an amendment to the General Plan can take place only after council action? This only says that they can initiate. How do you go about amending? MR. ODA: That is covered under a separate provision. Under the planning department. An amendment to the -37- General Plan has to be by ordinance because the General Plan is an ordinance itself and you cannot amend an ordinance without legislative action anyway. So it comes under the planning department. MR. OMONAKA: Thank you. CHAIRMAN SAKATA: Is there any other discussion? MR. SCHUTTE: Question. CHAIRMAN SAKATA: It has been moved and seconded that we adopt Section 3-17 with subsection (c) . ."Amendments to General Plan may be initiated by the council or the planning director. " Ayes - Cadinha, Yagong, Noes - None Trulson , Schutte, Yanaga, Cadinha, Kobayashi , Iwamoto, • Ishida, Sensano, Sakata - 11 Carried RECESS: At 5 : 55 p.m. the Chair called for a dinner recess. RECONVENE: At 7:00 p.m. the meeting was reconvened. SECTION 3-16 CHAIRMAN SAKATA: Mr. Ishida, we have something for Section 3-16 right now? MR. ISHIDA: Yes, Mr. Oda. has language I believe would be acceptable to the commission. MR. ODA: Regarding the County Code, Mr. Chairman , I would recommend that the following language be used in place of the present language: "There shall be a County Code containing all County ordinances, as may be amended from time to time and copies thereof shall be available for public inspection at the office of the county clerk. " The purpose of this is merely to guarantee that the County Code as it- presently exists , shall continue to exist. For those of you who- don ' t know what the County Code is , it is just a compilation of the ordinances of the County into a uniform set of laws. Just like the Hawaii Revised Statutes , you know. Up to now, previously, all we had was separate ordinances floating all over the place. There was no compilation so that is all the County Code is. A compilation of the County ordinances. One uniform set of laws. Therefore, if we delete Section 3-16 and not put anything in the charter, somebody can always say, hey, what are you doing with the County Code, there is nothing in the charter saying that it should even exist. So the suggestion is that this brief sentence be inserted so that there will be no misunderstanding as to its existence. -38- MR. SCHUTTE : I move to adopt the language as set forth by counsel regarding the County Code, Section 3-16. MR. ISHIDA: I second it. CHAIRMAN SAKATA: It has been moved and seconded that we adopt the County Code as written by legal counsel . Any discussion on this? , MR. OMONAKA: Question. CHAIRMAN SAKATA: It has been moved and seconded that we adopt the County Code, Section 3-16 , as has been written by our legal counsel . Ayes - Ishida, Iwamoto, Noes - None Kobayashi , Cadinha, Yanaga, Trulson, Yagong, Sensano, Schutte, Omonaka, Sakata - 11 Carried CHAIRMAN SAKATA: If we have no more discussion on this, we will move into Article IV. Executive Branch. ARTICLE IV MRS. KOBAYASHI : Mr. Chairman , didn ' t we adopt ARTICLE V this already? And V, too. CHAIRMAN SAKATA: Did we officially adopt these sections? We adopted Article IV, right? Article V? MR. CADINHA: All except the last section. SECTION CHAIRMAN SAKATA: The last one, right? Section 5-1. 7 5-1 . 7. MR. ODA: The qualifications under Section 5-1 .2 was changed to one year. CHAIRMAN SAKATA: Yes, we deleted the three and changed it it one year. MR. OMONAKA: Mr. Chairman. Under 5-1 . 7, I move that we scratch the words /by law7 and substitute this charter. MR. TRULSON: By this charter. CHAIRMAN SAKATA: Section 5-1. 7 deals with the impeachment section, right? MR. SCHUTTE : Yes. MRS. IWAMOTO: I. think we did MR. SCHUTTE : We already worked on that. That is Article XIII, Section 13-28. Impeachment of Elected Officers. -39- And I think we have already worked on this change, Akira, that you have just proposed. MR. OMONAKA: It would then be similar to Section 3-7? MR. SCHUTTE : Right. And there is one more, MR. TRULSON : I can recall making that motion and having been accepted before. On all three of them. MR. SCHUTTE : I have a note here that says we changed 3-6 ; 5-1 . 7, and 9-7 to add as provided by charter. MR. TRULSON : I believe that when we adopted thatneta impeachment portion, we, at the same time, changed those three sections. CHAIRMAN SAKATA: Did we discuss anything on Section 5-1 .5 , Vacancy in Office where the managing director ' s office is vacant and we have no such mention about a deputy managing director filling in for him? Did we talk about that? MR. TRULSON : I believe we adopted 5-1 .5 . CHAIRMAN SAKATA: We adopted 5-1 .5? We added that deputy managing director? MR. OMONAKA: No. MR. CADINHA: We adopted it as is. CHAIRMAN SAKATA: As it is. Okay. Did we clear this on this impeachment business about provided by this charter? That has all been taken care of. MR. SCHUTTE: Yes. CHAIRMAN SAKATA: All taken care of and adopted. CHAPTER 2 MRS. KOBAYASHI : Mr. Chairman. Chapter 2 , I believe, we tabled on June 5 , until we worked out the council seats on the legislative branch. . . CHAIRMAN SAKATA: Chapter 1 is all taken care of. Chapter 2 on the Corporation Counsel . MR. CADINHA: Mr. Chairman. I move that we accept Chapter 2 as is with the exception of one word, which is "approval" since we put in the Finance Director ' s language, I think we used the word "confirmation. " Other than using confirmation for approval , I move that we accept Chapter 2, as is. MR. ISHIDA: Second. -40- I MR. SCHUTTE: What was the motion? MR. CADINHA: It says in here, . . .shall be appointed by the mayor with the approval of the council . . . we would just use the term confirmation which Stuart felt was a little stronger. MR. ODA: Yes. Mr. Ishida, perhaps this is the time to clarify that provision, 5-2. 3 regarding the. . . you might make a point on that. MR. IHIDA: Yes , but let ' s clear that 5-2. 2 because we will have to delete that "with the approval of the council" in the center and maybe remove "by the mayor" period. MR. CADINHA: Yes, thank you. MR. SCHUTTE: May I say something in regards to that? I believe that the intent of this particular---this and the planning director' s position, the reason for that appointment where it says , "it shall be appointed by the mayor with the approval of the council and may be removed by the mayor with the approval of the council . " As you will notice, there are only two departments that have that. One is the department of the Corporation Counsel and the other is the Planning Department. The reason for that is because those two departments are closely related with the council , itself, and it is supposed to be, for me, that if the county council requested information from either of these two agencies , they would be able to deliver it without having to worry about the mayor, although they were appointed by the mayor, about any recourse on the mayor' s part about whatever information they may divulge. And that is why they have that other portion in there for those two agencies, only, because they work so closely with the council that it gives them that opportunity to speak freely to the council without having to worry about the mayor and the same thing, vice versa. That is the reason. You will notice those are the only two sections , Corporation Counsel and the Planning Department that have that. Just because those are the two departments that work that close. . . MR. CADINHA: So you are saying that we should retain the removal aspect with approval by the council? MR. SCHUTTE : Yes, I think we should retain it as it says, right here, mainly because of that intent. MR. . OMONAKA: Mr. Chairman . With regard to the Planning Department, we have already taken action and we have agreed that we should delete the words, "with the approval of the council for removal. " MR. SCHUTTE: We can always amend that. I 'm only giving you the information that was given me to the intent of that particular portion . The reason why it has that there and yet it doesn ' t mention that in any of the other departments. -41- MR. ISHIDA: Mr. Chairman. I believe all the department heads ' first loyalty is to the mayor. I think if we make removal a condition upon 'removed- by the mayor with the approval of council , I think we are, in fact, attempting to undermine the mayor' s control of his department heads. I don ' t believe it is good practice where the mayor is placed in a position where he is responsible for all executive and administrative duties, to place this type of control by the county council upon him. I think the control of the council should be the appointment. Once the council approves , or confirms , the mayor' s appointment then I believe everything 'should be left up to the mayor as 'to whether he wants to retain that individual or not. Consequently, I feel for efficiency purposes, that any appointment by the mayor, should the event arise that he wants that appointment to be removed, that that should be purely at his -discretion , and not of any other body. MR. SCHUTTE : Mr. Chairman. That may very well be true, Richard, but like I mentioned before", the Corporation Counsel : and the Planning Department are the only two departments that work directly with the mayor and also with the council . The other departments work under the mayor, they don ' t have to answer to the council. The council does not have to request legal representation from the Corporation Counsel. In this case here, rather, like they do make a request for legal representation. The Corporation Counsel is appointed by the mayor with approval of the council. Now, when they ask for an opinion, etc. , supposedly from the Corporation Counsel ' s office this is where you have the inter-workings of the council and mayor' s office. So the reason for this is so that if the opinion was in favor of the council , then the mayor could have reciprocal action by dismissing the individual. Whereas, it says here that this protects that particular individual from that action. And the same thing with the Planning Department. That is the only other, the Planning Department, that also works together with the mayor and also with the council . All other departments don ' t come in contact with the council . MR. ISHIDA: Basically, I think this is one of the problems that we are faced with as far as the Corporation Counsel is concerned. . This is why the council requested that they be directed the authority to have their 'own legal counsel because there is this problem of with whom does the Corporation Counsel place its loyalty. This is why we have provided that the county council be authorized to hire its own counsel for its own purposes . As far as any interaction between the adminis- tration and the council by the Planning Department, I do not see where, at all , that the Planning Department or the Planning Director directly is responsible to the council. The Planning Department ' s duties are strictly administrative and I submit for policy purposes it would be strictly under the mayor and I think the mayor should have full control over his Planning Director. Otherwise, I don ' t see how the administration of the county can be exercised most efficiently. -42- It works both ways, I think , Kalani_. If we leave the Corporation Counsel ' s removal as requiring approval of both the mayor and the council , then Corporation Counsel can play one against the other. If he' s got the support of the council , he ' ll say, to heck with you, Mr. Mayor. If he ' s got the support of the mayor, he can say, to heck with you, council , since he needs two people to require his removal and I think that doesn ' t really contribute to efficient government. CHAIRMAN SAKATA: Any other discussion? MR. SCHUTTE: I still feel that chapter under . the Corporation Counsel , Section 5-2. 2 should remain as it is merely for the intent that I mentioned. MR. ISHIDA: What is the motion now? MR. CADINHA: May I _clarify my motion? It is to accept Chapter 2 as is, With the exception of changing the word /approval/ of the council to confirmation. Richard pointed out after I completed my motion that the intent was to delete the council from any say insofar as removal and I agree with that. So my motion would include changing /approval/ to confirmation and deleting /with the approval of the council! at the end of that sentence in Section 5-2. 2. I am saying the mayor should hire them with confirmation and fire them alone. SECTION MR. OMONAKA: What about the next subsection? 2.3 MR. ISHIDA: I think it has to be modified. Section 5-2. 3 , right? It reads. . . "The corpora- tion counsel shall be the chief legal advisor and legal representative of all agencies the council and all officers" and so forth. If the council is going to have its own legal counsel then I don ' t know if deleting the phrase "the council" would rectify it, though. Regardless , as far as the County is concerned, the Corporation Counsel should be considered its legal advisor. Mr. Oda, how would you clarify that point? MR. ODA: How about saying that--deleting the words, /The council7. . .representative of all agencies and all officers and employees in matters relating to their official powers and duties except as otherwise stated in this charter. MR. TRULSON: Mr. Oda, if you change that wording, what happens to the power between the council ' s counsel and the Corporation .Counsel? The Corporation Counsel is still the chief legal advisor for the county and also for the council. . . MR. ODA: No, no. . . "except as stated in this charter" meaning except as stated in Section 3-8 (c) . The new Section 3-8 (c) . -43- MR. CADINHA: In that case, then , Stuart, if you had a difference of a legal opinion , insofar as a council initiated action, okay, who ' s decision would be final? MR. ODA: With regard to what? MR. CADINHA: County Council ' s lawyer says, yes. Corporation Counsel says, no, With_ reg,ard- to some binding action initiated by the county council . MR. ODA: If it is a matter that is exclusively within the province of the county council , I think the legal advisor of the county council would probably have exclusive jurisdiction under the language we previously discussed. In other words , what we shouldn ' t have here is shopping for which office shall have the most favorable opinion. In other words, if you think that the Corporation Counsel ' s office might have a more favorable opinion than the legal advisor of the council , itself, you go walking down the hallway and ask for an opinion , if you were Mr. X on the county council . Our intent is to prevent that kind of shopping for legal advice favorable to your position, your posture. I think that this section probably has to be worked on a little bit. My suggestion is just preliminary here. Mr. Bess had expressed some concern about who shall have over- riding. . .who' s opinion shall be overriding in case of a conflict and I think the minutes of this meeting should be reflective of some intent anyway for future reference if nothing else is done. MR. SCHUTTE : Mr. Chairman. You know, I think this particular section relative to us allowing, or giving, the county council legal counsel , it could become, indeed, a great problem as Harlan has mentioned, mainly by who is the chief legal advisor; who' s decision is overriding? . . . if you can just picture this county council would be tied up in litigation consistently if they are going to have a difference of opinions. Mainly because of the legal counsel representing the county council is going to have an opinion and naturally, it would be in favor of the county council . Secondly, you are going to have the Corporation Counsel which deals with the entire county function and their opinions are going to be related to the county funcions, so, undoubtedly, an interpre- tation, or an opinion , would tend to be in that direction also. As you say, I think , maybe this particular section should be redone again or some considerations taken with regards to language that would guarantee or that would allow the Corporation Counsel ' s office to remain the legal advisor, or legal representative, for the agencies. It is unfortunate, at the present time, that the situation doesn ' t lend itself to the present council makeup. That is an unfortunate situation and it is not necessarily so that this shall continue. But I think the interpretation here is that this Corporation Counsel ' s office be the legal represent- ative for matters pertaining to the county problems or ordinances, or what have you. -44- MR. CADINHA: Mr. Chairman. Let ' s go back and look at intent. Why would the county council want its own counsel? My understanding of_ the problem that has come about has to do with time allotment. I think the county council needs a legal staff to do a lot of research and say, hey, go and look at this point of_view and go research it and see what you come up with,, and= to do a lot of that basic ground- work. The intent of my motion , here, is just what ' Mr. Schutte said, and if it goes along with the thinking of the rest of the commission, I see no reason why we can ' t keep it this way. . .is that the Corporation Counsel still has to be the overriding legal authority to bind the county and the council , the law making part of that body, is part of the county. I would view the attorney for the county counsel as really a researcher,' a runner, and somebody to give preliminary readings and opinions so that they have the human resource which sometimes is not available at the Corporation Counsel level . Now, if that intent is different than what the commissioners feel , I think we had better look at what we've got with the legal counsel for the council . MR. OMONAKA: Mr. Chairman. I kind of agree with Harlan and if we can go back to Section 3-8, which we adopted. What if we change language there. . .under (c) just say council may hire legal counsel and necessary staff to advise-- and take out the word, represent,-to advise it exclusively in any and all matters,-and take out the word, reasonably,-- connected to its duties. Then if you leave 5-2.3 , it should suffice. MR. CADINHA: Does that makes sense, Stuart? MR. ODA: The second sentence, you have to deal with the second sentence, also. MR. OMONAKA: Delete the second sentence, also. MR. ODA: Who is going to represent the county council in court? MR. OMONAKA: The Corporation Counsel . As I understand it , the reason for the attorney for the council is , as Harlan has stated, is for strength. This is my understanding of why they wanted it in the charter. So their legal repre- sentatives in court would be from the Corporation Counsel ' s office. The attorney for the council would be there merely to advise and give resource. . . MR. ODA: If you do that then you are going to have to remove the words, legal advisor to the council , from the charter, 5-2. 3 , right? Because the council ' s legal advisor will be advising the council . -45- • • MR. CADINHA: Mr. Chairman. I withdraw my motion. I think it is important that we agree as a commission as to what the intent is behind these two legal bodies within the county and once we agree in principle, I move that we enlist Stuart to do the writing, in accordance with how we want it done. What do we want the council ' s attorney to be responsible for and what do we want the Corporation Counsel ' to be responsible for? MR. SCHUTTE : Mr. Chairman . In regards to what Harlan is talking about, like I mentioned before, it is unfortunate that you have this_situation between- the county council and the Corporation Counsel ' s office. It is my understanding that they keep requesting for legel counsel mainly because of legal opinions that they are requesting. They seem to be of the opinion that the legal opinions offered , because it comes from the Corporation Counsel ' s office, regardless of whether it is right or otherwise, if it does not lean in their favor, then they anticipate that as being in favor of the mayor. It is unfortunate that the law in written in such language that the interpretation is based on an intent of which I am quite sure the Corporation Counsel ' s office gives quite aconsiderable amount of time in finding this intent. But it just appears to me that in the past if it is in favor of the council , then they are wi_lli_ng. to accept that legal opinion and if it is not in favor of the council , then they elect to point it out as being one-sided in favor of the mayor. It is an unfortunate situation that this has to happen, but it is happening. MR. CADINHA: May I interject, Mr. Schutte, I think if you will go back and look at some council minutes, you will find situations where our county council has requested some legal research on specific matters and a representative from the Corporation Counsel ' s office has said , read it yourself. Okay, now that is pure research, pure legwork , something to that effect, very clearly. You know, that is not even getting an opinion, that is not getting any help. MR. SCHUTTE : That is very true, Harlan, that may exist from time to time. But don ' t you also agree that the easiest way out of a situation is to ask for a legal opinion? Because you undoubtedly pass the buck to the next guy. And in . many cases , this has happened. To me, if I wanted to find out something and I was put on the spot and didn ' t want to give an answer, and it was a questi_on__of a legal opinion , the easiest way out for me is 'to request a legal opinion. . .Stuart , give me a legal opinion on this particular circumstance. . . all of a sudden, now, I don ' t have to answer it on my own, I refer to his opinion. So all I do is pass the buck to somebody else which I think is the case as has 'happened in the past. All i am saying is that if we are going to have these two legal, counsels, two legal individuals, one the Corporation Counsel that represents the county and we have a legal counsel that is supposed to represent the county council , you know, if anything goes in the future as it has in the past they are not going to be meeting here they will be across in court every day, merely "on litigation on interpretation. • -46- So I go along with what you say, we have to decide what was the intent of legal counsel for the county council . For research? That is my understanding. Research. If that is research, fine. But who represents? Who keeps that entity together? Is it the legal counsel representing the council? Or the Corporation Counsel representing the county? MR. ODA: A matter of clarification, Mr. Schutte. When you say, research, are you referring to just book research or advising the county council on procedural matters that might be coming up? An expression of legality as to anything that the council might be considering such as, let ' s say, the Hilo Women ' s Club, they want $10, 000 from the county to open a thrift shop at the Kaiko' o Mall. There is a question of legality. Counsel , is it legal for us to appropriate $10 ,000 to Catholic Youth Organization , Hilo Women ' s Club, YBA, or whatever. That is the kind of. . .I assume that that counsel for the county council is empowered to render an opinion to the body as to legality of that and not have the Corporation Counsel step in. I don ' t know, I 'm just asking so that I know which direction I am supposed to go. MR. SCHUTTE : I understand. My understanding is that the complaint from the councilhas been that they don ' t get legal opinions. When they want research done, they can ' t. . there is not enough. .Harlan said there is not enough people to do the job, or they cannot get legal opinions written. When they do have legal opinions, if it doesn ' t go in their favor then they '_ultimately feel that it is one-sided. So what we are talking about is. . .what Harlan is talking about also, I believe, is that it is the legal opinions , the research, the legal advice, I think it is the same thing Akira is talking about. . .but, above all , it would be the Corporation Counsel to represent the entity of the county. That is my opinion. How it can be adopted, I don ' t know. MR. ODA: I think I understand what you are saying, but just so that I can clarify it in my mind if I am going to writeanything is you are not saying that the Corporation Counsel ' s office will be used for overriding the legal opinion of the county council in case somebody doesn ' t like it and say, ah , I 'm going to the. . . if, for example, Hilo High School Band comes here and says they need $10, 000 for a trip to Portland ; Oregon this summer, or next summer. This counsel over `here says it is illegal . So this guy has a son, or a cousin , or a nephew in the band and he wants to have a free trip on the county to Portland, so he says, I am going to have the Corporation Counsel render an opinion to see whether their opinion is better than yours and in my favor. Is that what you are intending? MR. SCHUTTE : What I should say, then, Stuart, is this. . .my intent is that as it states here the chief legal advisor, the representative of all agencies of the county should be the Corporation Counsel . I don ' t know how to word it in giving the council , itself, legal counsel so that it doesn ' t conflict with this. -47- My only thing is how are we going to keep these two guys from being at one another ' s neck all the time. MR. ODA: So their duties to be distinct and separate. MR. SCHUTTE: They would have to be, I would imagine. MR. ODA: Okay. They will not be, as I said , looking for favorable opinions. I understand. MR. CADINHA: Mr. Chairman. I move that we act on Section 5 . . .Chapter 2, Sections 5-2. 1 and 2. 2 and let Stuart redraft Section 5-2. 3. . .according to the wishes of this commission. I 'm not sure what those wishes are, right now. As it stands , right now, Stuart, what would be the problem with the way it reads? MR. ODA: 5-2. 3? MR. CADINHA: Yes, along with the adoption that we have already made of the council ' s counsel . Where would the hangup be? MR. ODA: Well , as I say, the counsel , he shall represent the county in all legal proceedings. The present wording of the proposed Section 3-8 (c) has a conflict, right there because the council ' s counsel is supposed to represent the council as a body in court. That , of course, can be changed whichever way you want. So there is a conflict in there. Who is going to be representing the council in all legal proceedings? So there are the problems , right now. And we have to make it clear, as Mr. Schutte says , there will be no shopping for favorable _legal opinions. The duties should be distinctly spelled out. With regard to advising the county council , only the counsel for the council should have exclusive jurisdiction on all advisory opinions. That is the intent, I presume. MR. CADINHA: I leave Section 5-2.3 out of my motion, then. MR. SCHUTTE : Your motion is for 5-2. 1 and 5-2. 2? 5-2.4 and 5-2.5? I second that. MR. ISHIDA: That ' s the second time. MR. SCHUTTE : Then I remove my second. But shall we make that more specific because I would be inclined to go with 5-2.4 and 5-2.5 . If you want to second out 5-2. 2 so I can vote against it. MR. ISHIDA: Mr. Cadinha, how about covering 5-2. 1 , 5-2.4, and 5-2.5? MR. CADINHA: That ' s good. My motion is to accept 5-2. 1 , 5-2.4, and 5-2.5 as is. -48- SECTION 5-2. 1 MR. ISHIDA: I second it. 3=7.77-7:777- CHAIRMAN -2.4, 5-2. CHAIRMAN SAKATA: It has been moved and seconded that we adopt Section 5-2. 1 , 5-2.4, and 5-2.5 as is. Any discussion? Are you ready for the question. It has been moved and seconded that we adopt Section 5-2. 1 , 5-2.4, and 5-2.5 as is. Ayes - Yanaga, Trulson, Noes - None' Yagong, Sensano, Schutte, Ishida, Iwamoto, Kobayashi , Cadinha, Omonaka, Sakata - 11 Carried SECTION 5-2.2 MR. CADINHA: Mr. Chairman. I would like to move that we adopt Section 5-2. 2 according to this reading : Appointment and Removal. . . .The corporation counsel shall be appointed by the mayor with the confirmation of the council and may be removed by mayor. He shall be an attorney licensed to practice and in good standing before the Supreme Court of the State of Hawaii. MRS. IWAMOTO: I second. CHAIRMAN SAKATA: It has been moved and seconded that we adopt Section 5-2. 2 by deleting the word /approval7and inserting the word confirmation of the council and deleting the words /with the approval of the councill.so it should read. . . The corporation counsel shall be appointed by the mayor .with the confirmation of the council and may be removed by the mayor. He shall be an attorney licensed to practice and in good standing before the Supreme Court of the State of Hawaii. Is there any discussion? MR. SCHUTTE : Only one, that I would like to restate my position that I believe it should remain as it is. MR. TRULSON : Mr. Chairman. I feel the mayor should be able to remove a department head without the confirmation of the council . If they have been approved by the council and he appointed them, he should be able to fire them without approval by the council . CHAIRMAN SAKATA: Any more discussion? Are you ready for the question? It has been moved and seconded that we adopt Section 5-2. 2, Appointment and Removal by deleting the word /approval.7 and inserting the word confirmation of the council. And deleting the words /with the approval of the council7. .so it should read. . .The coFpor.ation counsel shall be appointed by the mayor with the confirmation of the council and may be removed by the mayor. He shall be an attorney licensed to practice and in good standing before the Supreme Court of the State of Hawaii . -49- Ayes - Cadinha, Kobayashi , Noes - Schutte - 1 Iwamoto, Ishida, Sensano, Omonaka, Yagong, Trulson, Yanaga, Sakata - 10 Carried MR. CADINHA: Can we somehow poll_ the commission insofar as the understanding of this _counsel ' for the -council? Whether we are all onboard insofar as intent. Akira, do you know what I am saying? MR. OMONAKA: Yes. I think the intent should be that the attorney for the council should merely advise. And to go to court--the legal action of the council if it requires legal representation should be done by the Corporation Counsel , In terms of writing up ordinances , advising the council , do research , this is the intent of having the attorney for the county council . MR. CADINHA: If there is a court action against the council from somebody outside the county? MR. OMONAKA: The legal office of the county, will represent,tha•t would be the Corporation Counsel . MR. ISHIDA: I don ' t know about that. I 'question that. If the county, as a body, is being involved. I don ' t think there is any question that the Corporation Counsel should be the legal advisor there. However, if the county council , as a body, as a separate body, is involved in an action , I don ' t see any reason why the legal counsel for that county council can ' t represent that body in court. I don ' t see any conflict in that. MR. OMONAKA: What if we get into a situation where the county is being sued and it involves the county council and the county council ' s attorney says , hey, we shouldn ' t settle, let ' s take them to court. And yet the Corporation Counsel says , hey, you know, settle out. MR. ISHIDA: Yes, but you see then. . . MR. OMONAKA: The legal representative of the council is what I am trying to get at. Who should be that body? Otherwise you are always going to have as many lawyers as you have different opinions. Am I right? MR. ISHIDA: I won ' t argue that point. MR. TRULSON: Mr. Chairman. Shouldn ' t the council ' s counsel be their chief advisor and the Corporation Counsel be their legal representative in the county? MR. CADINHA: I think when it pertains to the public. Anytime it leaves these walls , I feel it should be the Corporation Counsel. -50- MR. TRULSON: The way I see it, the council ' s counsel is strictly in an advisory capacity. MR. ODA: If I understand what is being discussed, correctly, maybe by analogy is this commission, what some of you are saying is that it is like a big _ corporation. You have a house counsel to do inhouse legal_ work but you don ' t go to court. You advise the president, the vice-president, the employees as to all legal matters taking place day-to-day within the corporation. Then , anytime the corporation is sued , or brought to court, you hire--you have another legal.; body, such as the insurance carrier for the company, or who:ever represents the corporation in litigation. And the guy who :;is _ inn-house counsel ;just_ does his own in-house` legal work as far as advising, you knov✓,- .drafting contracts or for the county council , it ' s resolutions and whatever opinions. . . MR. SCHUTTE: I would be inclined to accept that concept. MR. ODA: That is what I am gathering. • MR. SCHUTTE : If that is the intent, I would be inclined to accept that. MR. OMONAKA: Can I put you on the spot? MR. ODA: Yes, sir. MR. OMONAKA: In that capacity, would do you think should be done? MR. ODA: In terms of dividing the responsibility? MR. OMONAKA: Yes. . . MR. ODA: The only reservation I have about having the council ' s legal advisor be the representative in court is that he doesn' t have the backup that he may need for research purposes, that kind of thing. It is very difficult to be a one-man law office and do a decent job. If you have litigation involving the county council , that man is going to need an awful lot of help. He cannot be attending county council • meetings and be in court at the same time. He needs to spend time in the library to research the issues and write memorandums of law. It will take him hours and hours and days to prepare a response to the litigation if there is any. It is not something he can ,do on a part-time basis by sitting in cou;ncilc=chambers and advising the county council and worrying about' going to court that afternoon. He won ' t do it. He can but he won ' t do a decent job. MR. TRULSON: Haven ' t we provided for a counsel - and staff? -51- MR. ODA: Yes, but, again , you know, it depends on how many people you have at any given moment. You•Can have one attorney and a legislative analyst or a researcher but the question is whether that is going to be -adequate. I don ' t know. That is the kind of problem I would see if I were the advisor to the county council and there was litigation involved. I would feel awfully stretched out to thin , I think , in terms of workload. MR. TRULSON: Do you feel that the counsel to the council is a full-time job? MR. ODA: It may not be but it certainly can be. I don ' t see how you can divide yourself to be a litigation lawyer and a house counsel at the same time. It is very difficult. If you look around in any big company, you don ' t have house counsel going to court. The reason is. .there are several reasons for it, one of them is that many of them are not suited to go to court. By nature, they are not litigation oriented and secondly, they prefer that kind of work as being just counsel outside of court , to give legal advice, informally, for whom they are working. You know, in the insurance business it is very common. So, that is my feeling, for whatever it is worth. MR. CADINHA: Mr. Chairman. Can we somehow reach a consensus so that Stuart knows--I don ' t know how you would poll this but can we reach a consensus opinion insofar as whether we want a housemouse kind of counsel , or whether we want a strict , dedicated counsel all the way for the county council so that he can draft accordingly. MR. TRULSON: Should it also be drafted so that there is no question as to who has the overriding authority between the counsel and the corp counsel? MR. SENSANO: Mr. Chairman. Since .there seems to be quite a difficult problem, the council , itself, has expressed that they would like to have a counsel. Why don ' t we ask them what they want him for? What their duties are? We are only guessing. MR. TRULSON: We have had testimony from the mayor and the public. It seems to be uniform that everybody is in favor of a counsel for the council. MR. ODA: How about, Mr. Trulson, a situation where the county council is involved. . .the corporation counsel shall assist the coun'cil ' s counsel . . .or they shall cooperate or assist each other in representing the council so that there is at least some backup. Staffing backup. You have a staff of at least five attorneys over there and , I 'm telling you, you need the bodies when it comes to litigation because it is an immediate need. You cannot be sitting in this councilroom giving advice and listening to all the debate going on because your mind is all out there, hey, what am I going to do on this. It is not too easy to handle a situation like that. -52- If the intent is merely to advise and not actually be a legal representative in court, that is fine. Then that individual doesn ' t have to get involved in litigation at all , leave it all up to the Corporation Counsel. MR. TRULSON: Isn ' t that what the council wanted? They wanted a counsel to give them advise without having to go to the Corporation Counsel because they figured that the Corporation Counsel was serving two masters. MR. CADINHA: And they want a counsel that is specifically loyal to them insofar as their time allotment. I think that is the main concern. MR. TRULSON: That is my understanding of what they want. MR. ODA: As I understand it, they wanted somebody full-time? To be sitting in? Sometimes the office has difficulty assigning people over there. MR. ISHIDA: I think it is the consensus that the legal counsel for the county council is to be strictly in=house?. MR. ODA: That is my understanding. MR. SCHUTTE : Right. MR. CADINHA: Does anybody feel otherwise? MR. ODA: As long as there is a clear distinction, right? MR. SCHUTTE : There would have to be, otherwise we are going to have problems. MR. ODA: So he doesn ' t get involved in litigation. MR. CADINHA: The Section 3-8 (c) that we approved may have to be somewhat amended again , right? MR. ODA: Right. MR. CADINHA: Do we need a motion to open it up again , or what? MR. TRULSON: It says, such counsel may represent the entire council in court. MR. ODA: Well , as Akira was suggesting, maybe if that sentence, the first sentence. . .The council may hire legal counsel and any necessary staff to advise and represent it exclusively on any and all matters connected to its duties. Cros's out the next two sentences entirely and just leave the second paragraph as it is. -53- MR. SCHUTTE: Starting with what? Starting with such counsel? MR. ODA: Such counsel . . .that sentence would be deleted and.>: ®,Special counsel . . .that sentence would be deleted. MR. ISHIDA: Can we limit the first sentence of the second paragraph so that when it reads. . .The council shall fix the duties and salaries of the staff by ordinance. . . that it cannot be interpreted that when you say. . .fix the duties. . . it cannot be granted beyond what is already granted above. MR. ODA: I could. . . MR. ISHIDA: Clarify that point. MR. ODA: Yes. Either that or make it more specific in the 5-2. 3. MR. ISHIDA: I think maybe you should clarify it in there. When you say the council shall fix the duties , I think it appears you can argue that you are giving it' 'broad powers. . .This will be a charter provision. MR. ODA: Why don ' t I work on both sections then. CHAIRMAN SAKATA: You will be working on Section . MR. SCHUTTE: And 3.8. (c) . We've already voted on this . SECTION 3-8 MR. ODA: Make a motion to amend and defer to me. MR. SCHUTTE : I so move that Section 3-8 (c) be amended. This is an amendment to that motion because we have - already moved on this. I am making an amendment to that motion and defer it to legal counsel for proper language. CHAIRMAN SAKATA: We are now talking about Section 3-8 (c) . MR. CADINHA: The motion is 3-8 (c) , right? MR. SCHUTTE: - Right. MRS. KOBAYASHI : What about 5-2.3? MR. SCHUTTE: He has to reword it but because we already worked on this it is necessary to amend this motion and defer it for proper language. CHAIRMAN SAKATA: It has been moved and seconded that we amend Section 3-8 (c) and defer it back to legal counsel for proper language. Ayes - Kobayashi , Cadinha, Noes - None Yanacia, Tru son Sensano, Scriu- et, , Yagong, Ishida, Iwamoto, Ombhaka, Sakata - 11 Carried -54- MR. TRULSON: Mr. Chairman. Could we have a five minute recess? RECESS : At 8: 05 P.M. the -Chair called for a short recess. RECONVENE: At 8: 20 P.M. the meeting was reconvened. SECTION CHAIRMAN SAKATA: Section 5-2. 3 has been covered. 5-x.3 Chapter 3, Department of Finance. Covered , right? Chapter 4, Planning Department. . . MR. ODA: Mr. Chairman. It has been pointed out by my aide, over there, that there is a slight difference in the language we are using for the confirmation by the council. According to my notes under Chapter 3 , Section 5-3© 2 , Appointment and Removal , Finance Director. . .The director of finance shall be appointed by the mayor, confirmed by the council and may be removed by the mayor. SECTION You will notice in the Corporation Counsel 5-2. 2- 5-3. 2 we stated P1with" the confirmation of the council. To conform the language, perhaps we should make it one way in all cases. CHAIRMAN SAKATA: Can we do it the same way in _ the Corporation Counsel. . .shall be appointed by the mayor . . . MR. ODA: Comma, confirmed by the council . If that will be okay. CHAIRMAN SAKATA: We approve. MR. ODA: May I be given authority, Mr. Chairman , to make such grammatical and other conforming language? MR. TRULSON : I believe the meeting when Chapter 3 was approved, I don ' t believe I was here that night. Could you read Section 5-3. 2 the way it has been amended? v , MR. ODA: The director of finance shall be appointed by the mayor, confirmed by the council and may be removed by the mayor. CHAIRMAN SAKATA: So Section 5-2.2 will read the same language? MRS. IWAMOTO: Another one that should probably be brought up is the next sentence. . .He shall be an attorney licensed to practice and in good standing before the Supreme Court in the State of Hawaii. It could also be the same in Section 3-8 (c) . The difference is. . .a licensed attorney in the State of Hawaii. -55- MR. ODA: I 'm sure if he. wasn ' t in good standing he wouldn ' t last very long,t MRS. IWAMOTO: Well ,whatever you feel would make it consistent. MR. SCHUTTE: What section are you talking about, Amy? MRS. IWAMOTO: Section 5-2. 2. MR. TRULSON: Which section are we talking about? MRS. IWAMOTO: About the lawyer. . .an attorney licensed to practice. MR. ODA: In the Corporation Counsel Section 5-2. 2. . .in good standing before the Supreme Court of the State of Hawaii . The other one, Section 3-8 (c) merely says licensed attorney in the State of Hawaii ., The suggestion was made to conform one way or the other. MRS. IWAMOTO: Also, I guess for Section 5-2.4 in the last sentence. MRS. KOBAYASHI : Is there a motion on the floor? CHAIRMAN SAKATA: No motion. .. MR. CADINHA: Mr. Chairman. You know, in going down the road on this thing, if somehow we can leave the semantics to our good attorney, I think that we can save time. So that he can come up with things that are consistent and we can review it in the draft. I think that is what you are asking, right, Stuart? That is the motion. We didn ' t vote on it. MR. TRULSON: Are you just now making the motion or was it made before? MR. CADINHA: I 'm just clarifying it. MR. TRULSON: Why don ' t you make that motion? MR. CADINHA: I do. MR. TRULSON : I seond. ,_M S_KOBAYASH:I : It ' s the same. `':MR®_ ISHIDA=_Ca`l'l for the quests on. rC iJAIrRMAN SAKATA: Leave the semantics to legal counsel , right? _ . -56- MR. OMONAKA: Wherever necessary to conform with other sections, if one section says this way and this will save time and everything else. Question. CHAIRMAN SAKATA: It has been moved and seconded that we leave all the semantics up to legal counsel. Ayes - Yanaga, Schutte, Noes - None Yagong, Omonaka, Sensano, Ishida; Iwamoto, Kobayashi , Cadinha, Trulson, Sakata - 11 Carried CHAPTEP. IV MR. ODA: The draft was submitted last week , lookingat PLANNING I believe. The draft that you are , DEPARTMENT should have Sections (g) and (h) with underlines. The original one just had one Section (g) . MR. TRULSON : Wherever you have underlined like I am looking at the first one in Section (a) planning commission. That is an addition,. MR. ODA: Anything underlined is an addition to- the original , the present charter. Anything in brackets 'is proposed to be deleted. This draft is in conformance with the subcommittee. Wasn ' t this in the subcommittee? It wasn ' t. There was some discussion on it anyway. MR. SHUTTE : Mr. Chairman. This Section (h ) , u and then we dropped it. I think we just started to talk about it pp About allowing the Planning Director, or giving him the right to approve variances. We started to discuss this and it was a matter of where we could draw the line. I think we just dropped that particular section. MR. ISHIDA: I don ' t think we dropped it. This is why we asked legal counsel to come back with the ordinance. What standards we could use for granting legal variances. The ordinance provisions are attached to the back. I think the question was what kind of standards should be used and it was my personal feeling that the authority to grant variances should be granted to the Planning Director. I think the question was raised, how do we control the authority. I think the control is based upon the standard upon which he can grant variances. Under the present ground for variances inthe ordinance section 7-01 , whatever that ordinance is , zoning ordinance which does have five provisions there which I believe is specific enough to set a reasonable standard upon which the Planning Director can act. Should there be a denial , then, of course, the applicant can then appeal to the Planning Commission. MR. - SCHUTTE : I think the question that I brought up was not necessarily that there be a denial , but that the Planning Director may take it upon himself to grant exceptions to the rules relative to variances in regards to heights , etc. -57- What binds him to those two feet off of the required 10 feet or 15 feet when ,ybu are speaking about a particular request. How does it govern him on allowing a height variance as you would allow when you have a 15 ft. setback on a particular building and because of CCO _ordinances or building sites that they have to conform to they feel they have to make the building instead of a 15 ft. setback , maybe only 8 ft. , l0 ft. It is not necessarily the denial of the variance that ' we are looking at, . we are giving him a carte blanche deal to take care of all variances. Sure, that may take_ care of the problems that exist in getting a variance 'today by having him; -grant it. . . MR. TRULSON : You are talking about Section (h) ? MR. SCHUTTE : Right. MR. TRULSON: Be charged with the approval of variances as provided by law. . .by law, he means the ordinances? MR. SCHUTTE : But if you read the variance section here, it is contrary to what the law says, and the only way they grant it. . .you know, you can stretch your imagination considerably. . .unusual circumstances. . .what is an unusual circumstance? MR. TRULSON: In the charter we have to use broad language. How can we start determining. . . MR. SCHUTTE : No, all I am speaking about is giving him--what we are saying here is we; are moving away from how variances are normally done. We are giving the Planning Director the authority to grant variances, all right? Of course, it ' s. . . MR. TRULSON : It was previously done by the Planning Commission. MR. SCHUTTE : Right, previously, but we are giving it to that one man to decide what variances: should be granted, okay, but we are putting in here that any applicant has a right to appeal the variance denial . What I am speaking about is not necessarily of the denial , we know he has a right to appeal to the commission but I 'm talking about those that he grants . What I am saying is that we are giving him an open check to grant any variances that he may deem, or he may feel is necessary or he may want to grant. We 'say by law, well read it. You know, unusual circumstances. How far can you stretch that. You go Section B, unusual circumstances again. . . .interferes with the best use or manner of development of the subject property. MR. TRULSON: What are you suggesting? . . . . MR. SCHUTTE : I am suggesting that we not give him a carte blanche. There are other ways , possibly, of expediting a variance request. I don ' t think it is by giving in. -58- MR. TRULSON : I thought the testimony that we had though was that most of them were for minor type things that the Planning Commission wanted the Planning Director more to do it to get it away from them. MR. OMONAKA: Are you talking about variances or rezoning? I would be opposed to allowing the Planning Director rezoning. . . MR. TRULSON: No, . I 'm talking-about variances. MR. ISHIDA: Mr. Chairman. The matter of the definition of what a variance is , a variance means something other than what is a slight deviation. You cannot say what deviation, there has to be some discretion given to the body who will grant such variances , who would be authorized to grant variances. But, I submit that whether it be the Planning Qommi_ssion or the Planning Director, these bodies are governed by the zoning laws, as to what the requirements are. Now, if the requirements do not meet the zoning laws then , of course, it is not acceptable, except that in certain cases , variances may be granted. And I submit that the standard established here in the present ordinance is sufficient guidelines to restrict or limit the power granted to the individual who has the authority to grant the variances. The ordinance, there is no question about it, has to be amended. The ordinance, right now, does not grant the Planning Director any authority. It is only the Planning Commission. The provision as written now states that the Planning Director can do that according to law. I think that in this kind of situation , we have to help expedite these kinds of matters as far as the citizens of this county is concerned. Right now, any time you go for a variance you have to go to two hearings. . .they have a 3 month backlog as a minimum. I think in many instances we should grant this authority to the Planning Director and I think the standards here are sufficient to it. - If there is any quandary in his decision, I think he will- deny any application and then the applicant will have to appeal to the Planning Commission .:to overturn that decision. MR. ,SCHUTTE: But that is a denial. MR. TRULSON: Mr. Ishida, no, I think it has been said many times before this commission before, you can legislate, you can charter, you can do many things, except you can ' t legislate and charter the man who is in the office. There is no way we can ever do it. You have to assume that the man who is going to be there is going to go with the intent of what the law is. If he doesn ' t, then you get him out, you know, whatever. I don ' t know how we can charter a position and make sure the man who is there is not'',going to go above his authority or abuse it or what have you. -59- MR. SCHUTTE: I would go along with this particular section if there was some language within Section 5-4. 3 that allowed the Planning Commission to go over these items without having to bring it to public hearings. MR. TRULSON: You mean to have the Planning Director to grant the variance than to have to go to the commission? MR. SCHUTTE: No, no, what I am saying is this , what this Section (h) is asking is that we just go ahead and give the Planning Director an open check and say, you grant any variances that you want to grant and deny any variances tOat you want to deny. The only ones we are going to see are the ones_ that are being denied because they are the ones who will- find it necessary,-=to ply for_ an appeal. MR. TRULSON: Well , you feel then that the Planning Director can abuse his powers. MR. SCHUTTE: That' s -right I 'm saying he. can abuse his powers. What checks him now is the-Planning- Commission. I can see expediting this thing if they-e _Js some language that gives them the opportunity to step in if they find that he is abusing this privilege. Right now it doesn ' t. There is nothing here that gives them that opportunity. All it says is go ahead and do it. It is wide open. We are not worrying about the denials, the denials we will hear about. But you can talk about extremes , are those you are not going to hear about , the ones that are granted. MR. TRULSON: Do we have to _charter that or can that be made an ordinance where. . .it would have to be a complaint made by a neighbor or something that a variance was allowed and shouldn ' t have been. How are you going to know? MR. SCHUTTE : I think we can take care of it right here within the charter. MR. TRULSON : By putting another sentence or what have you amongst the Planning Commission. MR. SCHUTTE : I would imagine that if. . . Stuart , is there some kind of language that could be added to Section 5-4. .3 on the Planning Commission? They are a reviewing body and yet they are also a decision making body. If you take away the variances , you are taking one part of their decision • making away. Now, the structure within the commission itself as to how they are regulated or what their rules and regs are. MR. TRULSON: Excuse me, Section (g) under Section 5-4.3 . Might that cover? _ MR. SCHUTTE : There are__ Certain_ times when some :Of Tto- the n The ,;thes.e .requests don ' t even get Planning Commissio They - stop before they even get there. But we are asking that. . . -60- (g ) is all right. . . Receive, process, and recommend to the planning commission appropriate action regarding rezoning applications , special exception. . . .I would add in, in addition to that. . .general plan amendments and other similar requests. But right now I think what we are talking about is (h) do we allow that, to give the Planning Director full say in making variances. Just imagine your own self where you are situated , of a variance- if you have a setback for a particular size of a building. MR. TRULSON : But here it says, Mr. Schutte, in subsection (g) under 5-4.3 . . .a literal enforcement of the provisions of the ordinances will result in unnecessary hardship and the granting of the variances or other exceptions will not be contrary to the public interest. MR. SCHUTTE : Yes , but what you are saying is . . .see, this is , if you go to the variances and we grant this Section (h) as it says here, we are bypassing the commission , entirely, right? MR. TRULSON: Well , if somebody is going to complain , who are they going to complain to? Say I get a variance for my home and I am next door to you, so you can ' t go and appeal and I 'm not going to appeal because I got it. So, who would you go to complain to about me getting this variance to put this overhang over your lot? Wouldn ' t that come under this section, too? MR. CADINHA: . . .planning commission, right? MR. ODA: Normally, the concern is just opposite. Where the direct denial is the concern of the homeowner or the applicant and as I gather from your statement your ,concern is .-" ,-about the director ' s approval of variances with- out the commission being involved? MR. SCHUTTE : That ' s right. In other words , giving him _the sole authority to make decisions without any other. .'-you know, how far can you stretch the legal wording of a variance? ' To what degree? Like I referred, specifically, the setbacks , 15,: ft. setbacks because of height. Now, put yourself in the place of an individual that has a four or five, or eight story building going up right next door to him and the required setback is 15 ft. But, because of a variance for one reason or another they are requesting only 10 ft. setback. It makes a lot of difference when you are right next door acid that ' s the situation. Now, he may grant something like this. . . MR. T_SHIDA: He would still have to be governed by standards. That is something that would have a very definite standard. MR. SCHUTTE : Yes, but what is the standard? That is what we are saying, what is the standard, Richard. . . -61- • MR. TRULSON : Mr. Oda, wouldn ' t Section (g) cover just that type of situation? MR. ODA: Which Section (g) ? MR. TRULSON: Section (g) under Section 5-4.3 page 2. . . (g) Hear and determine appeals requesting variances or other exceptions. . .and on, through it. That wouldn ' t cover that type of situation? MR. ODA: The appeals would be only from denials, you know, that is the only time you would be having appeals. I think , Mr. Schutte, the question of what is a variance and when it should be granted , whether, you know, the guidelines spelled out in Section 7.01 would apply to the Planning Director as well as to the Planning Commission , you still get down to interpretation of whether the tests of five different standards outlined in Section 7.01 could apply to the situation. So whether one man makes a decision or nine people on the commission, you know. MR. SCHUTTE: True, but I would personally rather have nine people looking at a request than have one man that could be swayed one way or the other. I 'm not speaking =specifically of any individual, of any specific Planning Director, I am talking about ANY Planning Director being put in that position. MR. ISHIDA: The difference is the policy between the two positions. The only thing I can say is, trying to be realistic about it, the Planning Commission practically accepts whatever recommendation they receive from the Planning Director anyway. MR. OMONAKA: Not always. MR. ISHIDA: Not always. There are a few exceptions but generally it always happens that way. MR. SCHUTTE: Well , maybe it is time they changed that. MR. ISHIDA: Where are you going to change it? MR. SCHUTTE : Change that in the commission. MR. CADINHA: Mr. Chairman. A question for Mr. Ishida. Where is the backlog of 3 months, or whatever it is, really at fault? Where does it happen? MR. ISHIDA: It ' s in the ordinance. MR. CADINHA: All it says is you go to the Planning Commission now, right? MR. ISHIDA: No, this is not the complete ordinance. The procedure is left out. The schedule is for a preliminary hearing and ,then scheduled for public hearings, but the portions that are attached here are not complete. • -62- MR. SCHUTTE : . . . for the procedure, then, and what is the intent of the procedure, to give the necessary and the most individuals as possible notice of what is going to happen, so that they may make comment or whatever about it. Isn ' t that the procedure, isn ' t that the intent of the ordinance? Or wouldn ' t you assume that to be the intent? MR. ISHIDA: Of what? MR. SCHUTTE : Of the ordinance. In going through all these procedures for a variance, isn ' t the intent to give the most number of people concerned the opportunity to accept it or rebut it or some say about it? MR. ISHIDAe That is what it is trying to do, yes. MR. SCHUTTE : Then don ' t you think that if we take and we give the Planning Director the approval to go ahead and grant these outright, that these same people that this ordinance is trying to protect, you are defeating the purpose.:? • MR. ISHIDA: I don ' t think so because by definition , in my opinion , that a variance is something very specific, a special set of circumstances in which the individual is authorized to grant other than what is the standard that has been established by the zoning ordinances. And because of its narrowness , and I think the standards here as stated in the five provisions. . .is very restrictive. MR. TRULSON : There is still going to be a public hearing even if the director. . .doesn ' t Section (g) hold a public hearing? Oh, this is only about appeals. ISHIDAe The problem is that the charter can grant the authority yet .it has to be implemented by ordinance. Until it is implemented by ordinance, the Planning Director won 't have the. . . . . MR. SCHUTTE: What do you mean? MR. ISHIDA: You see, the variances , right now, the ordinance grants the authority to the Planning Commission, okay? MR. SCHUTTE : Right. MR. ISHIDA: We are saying that the charter' provision, if accepted as is , grants the authority to the Planning Director to grant variances as provided by law. The procedure and the standards upon which the variances can be granted by the Planning Director still has to be determined by ordinance. MR. SCHUTTE : Yeas , but I read it that if we include that in here, then they will concede that, am _I not right? Whatever is in this document here stands above-. -63- MR. ODA: So far as the approval , yes , the ordinance cannot change that. What Mr. Ishida is saying, I think , is the how and under whit circumstances the Planning Director can approve. Those details can be spelled out in the ordinance. They have to be spelled out . MR. TRULSON: I think that should this be approved, the ordinance.J _ is : going to have to be changed and I think the minutes of this meeting are going to clearly show the intent of what we feel here. MR. ODA: Yes , the ordinance will have to be changed. MR. TRULSON : Therefore, the ordinance should comply with the spirit of what Mr. Schutte is talking about, about control on the director. With that in mind, I would like to make a motion that we accept Chapter 4 as submitted by Mr. Oda. MRS, KOBAYASHI : I second the motion. CHAIRMAN SAKATA: It has been moved and seconded that we adopt as written , complete, Chapter 4, Planning Department, as submitted by our legal counsel , Mr. Oda. Is there any discussion on this? MR. ISHIDA: ,±Mr. ".Chairmane : As I understand it, then Section 5-4.4 Board of Appeals ;-__as_ written , _is going tobe ' deleted in its entirety and that provision is to be taken care of by a new section? 'MR. ODA: That has already been approved as Section 5-6. 3 , page 14. MR. ISHIDA: That has already been effected. . . MR. SCHUTTE : Discussion . I respectfully submit that Section (h) be deleted and amend the motion. CHAIRMAN SAKATA: The motion is now that you want to amend Section (h) , right? MR. SCHUTTE : Right. CHAIRMAN SAKATA: You want to delete Section (h ) . Do we have a second to this? MR. OMONAKA: I will second for the purpose of some more discussion. CHAIRMAN SAKATA: It has been moved and seconded. Is there any other discussion? MR. OMONAKA: If this is not adopted, then the current ordinance will continue. -64- MR. SCHUTTE : Mr. Chairman . Stuart, isn ' t there any language that we can put, you know, what I am looking at is the Planning Commission , itself, authorizing, and I believe they are allowed to authorize the Planning Director. . .to do certain specific things. If we are only looking at trying to eliminate a lot of problems in getting a variance taken care of with all the different public. hearings and so forth, and so on, I can accept that. But what I am saying is , is there any way that we can have the Planning Commission. . . . .without going through all of that. In other words , they can direct him and allow him to do these things and make these variances , or grant these variances, but be in a position to review them? MR. ODA: Well , You can change the language of subsection (h) if I can just kind of without thinking too much about it just. . .be charged with the approval of variances subject to a review by the Planning Commission, , whatever, something like that. . . .if the applicant , or any objection is made. . .some language will have to be worked out so that the commission maybe can be involved. MR. SCHUTTE : What I am looking for is the guy, the poor guy that doesn ' t have the depth, that maybe faces this situation. . MR. ODA: You are talking about maybe a neighbor who might oppose that. MR. SCHUTTE : Right, or maybe a number of neighbors who may have opposed the particular variance. Maybe it imposes on their property, right, to some degree. What recourse do they have outside of again going through long process if we allow subsection (h) to go through where the director is allowed to grant these things. What about the small guy that may be faced. . . MR. ODA: Right now there is nothing. MR. SCHUTTE : There is no provision for him. MR. ODA: Under the proposal . MR. SCHUTTE: But under the existing one where they have to go through it, he can be heard. MR. ODA: Right. MR. SCHUTTE: As it stands here he cannot be heard. MR. ODA: As it is proposed, right. MR. SCHUTTE : Right , that is what I am talking about. That particular situation that may exist. The denial we know will be heard but what about the average guy who wants to talk about, hey, I don ' t want this here. . .or this should not be done. He can ' t be heard as it is right now. -65- Can we put some language in 5-4. 3 under the Planning Commission that gives them the directing authority to the Planning Director to grant these variances but they cango..-over�` t _i you won' t have to go through all the other processes? MR. ODA: But some specific language has to be included under what circumstances the Planning Commission would be overseeing that so-called decision. You know what I mean? MR. SCHUTTE : I will assume that they could have the opportunity to overlook every Llecision that he makes. He is granted the decision but at least they are giving them the opportunity. MR. ODA: , The thing is dthLis, it has to be based on certain guidelines bcause you cannot make the Planning Commission, Mr. Schutte, an administrative director. The Planning Commission is a quasi judicial agency and it cannot be an executive of the Planning Department just like the Planning Director. Just like the hiring and firing is not left up to the Planning Commission, you know. MR. SCHUTTE: Stuart,_ there is an advisory portion where they_adviseas_a There llso a-,decision making, where they make decisions. MR. ODA: Right. MR. SCHUTTE : What is the difference? MR. ODA: What I am saying is , as I was suggesting, maybe not this specific language abut some way in case to comply with your concerns , that only if the Planning Director is going to be given the right to approve or deny variances, only upon the happening of, let ' s say, a filing of an objection by any citizen, then it autFamatically goes to the commis%ion for a review. That will provide a safety valve. Okay? That ' s what you mean. MR. SCHUTTE : Fine, that ' s right. MR. TRULSON : Mr. Chairman. I would amend my motion to put that wording in as long as subsection (h) was left in. MR. SCHUTTE: That ' s fine. MR. ODA: Otherwise, if there is no objections, the Planning Director' s decisions stands so far as approval . MR. SCHUTTE: That ' s right. And if there is any objection it shall be referred to the Planning Commission. Then it gives the small guy the opportunity to voice his opinion. As it stands now, it does not. -66- MR. OMONAKA: Then the present ordinance must be amended including how to apply for variances and. stuff like that. MR. ODA: How to app.ly. . .well , I suppose there may be some necessity of changing procedures but that can easily be worked out. MR. TRULSON: Mr. Chairman. Mr. Oda,. is it possible for me to withdraw my original motion?' MR. OMONAKA: There is an amendment on it. MR. TRULSON: An amendment on that and we have to vote on that amendment. MR. OMONAKA: If Kalani is willing to withdraw his version of that amendment. MR. TRULSON: If you withdraw yours , I will withdraw mine. MR. SCHUTTE : Okay, I will withdraw my amendment. . MR. OMONAKA: Mr. Trulson , what were you trying to say? MR. TRULSON: What I am trying to say is to get something done, I was going to move that we approve Chapter 4, as submitted, with the exception of subsection (h) until it has been rewbrded. Get the rest of it done and then all we have -to do is. . . MR. SCHUTTE : You came up with a rewording, right now, you mentioned it, right now. MR. TRULSON: Let ' s get it done with. . . let ' s get it out. MR. ' SENSANO: Mr. Chairman. Kalani , what you are concerned with is that somebody will be looking over the shoulders of the Planning Director. MR SCHUTTE: What I was thinking of was -to, keep Planning_Director,,honestbecause as it stands right now, the small guy does" not have the opportunity to say an ;thing on a variance decision, okay? In other words, if the Planning Director says he grants this particular variance and if it happens that your property is involved with this variance, you have nothing to say. The director ' s word is law. What I am saying is that let ' s give them a safety valve and say is give the small guy an opportunity to voice his opinion. We ' ll leave that section in and let them expedite matters by having him grant these but have a provision set in there that if you happen to not like this particular variance that is being granted, 'S_f_YOU. say something about it, then it automatically has to go to the Planning Commission. Other than that, all other variances will go through the Planning Director. -67- MR. SENSANO: The Planning Commission is selected by districts, right? MR. SCHUTTE : The commission is , right. MR. SENSANO: How would this be? Would there be any merit to a statement like. . .approval of variances will be brought before the commission for their review. . All , before approval will be made. MR. SCHUTTE : Well , that is where it stands right now. What they are trying to say is , get away from all of this problem of having it go through the whole process and allow the Planning Director to grant these. I 'm saying, that is fine, to expedite variances, but, have a clause in there that in case anybody wishes to petition against it, they may- do so and as a result, then it goes back to the Planning Commission. In other words , give the Planning Director the authority to do it but you are going to. keep him honest with a provision that allows anybody in disagreement to voice their opinion and as a result it will override the Planning Director' s decision and go back to the Planning Commission. If, after the Planning Commission, they find that it should be granted , then you know you have gone through the due process and you can go to the Board of Appeals, then. MR. SENSANO: Then--9would you be satisfied if all actions of the Planning Director were to come before the Planning Commission? MR. OMONAKA: It cannot go that way. As it is now, the Planning Commission is charged with that responsibility so Richard ' s intent is to shift this responsibility to the Planning Director and in certain cases he should be able to come in and just grant. I think this is the intent. . . . MR. SENSANO: But what I mean is , okay, let him grant these variances but then the commission would reserve the right of reviewing. . . . MR. SCHUTTE : Stuart, do you have it now. . . MR. ODA: The rewording that I have based on the request is that under (h) . . .Be charged With the approval of • variances as provided by law, but if any objections are made in writing to the director, the director ' s action shall be subject to review by the Planning Commission. If the said request is denied by the director the applicant may appeal such denial with the Planning Commission. In other words , if it is approved and any objection is made in writing to the director, it shall be subject to a review by the Planning Commission. If it is denied , the applicant has a right to appeal it directly to the Planning Commission. -68- MR. TRULSON: Mr. Chairman. I think my motion was already - on the floor before to wait until subsection (h) is reworded, ? it appears that is is reworded to the satisfaction. of Mr. Schutte. I move now that we accept this Chapter 44%, Planning Department, revised, as part of the charter. CHAIRMAN SAKATA: It has been moved and seconded that we adopt,,Chapter 4, Planning Department, and especially on subsection-" (h ) as has been reworded by legal counsel. Is there any other discussion on this? MR. ISHIDA: Mr. Chairman. On that proposal as written, I am kind of concerned as to the specifics here because ;;a notation of that delegation of authority should probably be covered in this ordinance. How about if something is added to the present (h ) . . .what .I ' am trying to say is that in the event there is such an approval that any person can have that decision appealed to the Planning Commission as provided by law, something, like that. Because no matter what it has to be covered by ordinance to be specific as to how manly days the person has, whether they are going to require the decisions of the director to be pubj:ished so that people will have notice. I think if you are going toallow them to have the right to dispute the Planing Director' s decision , then by inference, it is just mandatory that some sort of change should be made. MR. ODA: The appeal cannot be made by the homeowner becau=se it will be approved and he has nothing to_ complain about so if you are talking about an appeal"tby;"a_th_ i.rd party, non-applicant. MR.. ISHIDA: Specifically, the adjoining property owner. I think this is where Kalani ' s concern is, isn' t it? MR. SCHUTTE: Right. Read that section you had already reworded, again. MR. ODA: '. . .but if any objections are made in writing to the director, the director' s action shall be subject to rev4iew by the Planning Commission. MR. ISHIDA: Should not some provision be added to that, pursuant to law, something like that? , rd n MR. ODA: �Acco g i to law. MR. ISHIDA: Yes , because otherwise it ' s. . .it has to be still implemented by ordinance. MR. ODA: Shall be subject tot review by the Planning Commission. It will not be a formal appeal ._ Becaue, as I say, there will be no person appealing it:--Ther_e -will :be an objection filed. -69- MR. ISHIDA: z think the concern is that if an objection is filed, it. automatically takes the authority away from the director.. MR. ODA: Right. So it automatically 'shah! ) be subject to review by the Planning Commission according to the standards of appeal as dictated by offense. . . MR. OMONAKA: Mr. Chairman. I believe that variances should not be taken lightly. I really don ' t think that one person should be given any blanket authority. The present systemhas been working fine, and I propose we leave status quo. MR. TRULSON: The public doesn ' t agree that the present system is working fine. ' That is acknowledgeable from the input that we have had that it is a slow process. Another idea, it ' s not my idea, I was just looking back on Mr. Fuke' s statement. states. . .this is from the 8th meeting, page 18, Mr. Fuke' s reply to Mr-. ishida. . .he says perhaps the language should be changed. Mr. Ishida says, "Then you believe that the Planning Commission should just be given the general authority to delegate some of the functions to the Planning Director just restricted to variances. " Mr. .Fuke says, "Yes, perhaps the language may be just like the Planning Commission may delegate. Not necessarily_' shall delegate. But whetYer in fact the delegation occurs, whether it is all or just a few, it would be up to the Planning Commission and however the ordinance is finally structured. " It looks like what, he says is Cvlet the Planning Commission delegates to him certain functions , but then you could get back to the same thing, there would be no restriction on him• once the Planning Commission delegated that. . . MR. ODA: You were saying you wanted a phrase, according to law, added after the Planning Commission , the words Planning Commission? MR. ISHIDA: In the draft. . MR. ODA: Yeso"; .but if any objections are made in writing to the director, ±he director' s ?agtions shall be subject to review by the Planning Commission according to law. , MR. ISHIDA: I think that is good enough. The ordinance will still have to be implemented, no matter what. MR. ODA: So it would have to implement this provision. The specifics will be spelled out. MR. SCHUTTE: Just so long as it takes the total authority away from fromjDn6 individual. MR. ODA: Right. It will be a checks and balance sort of thing. MR. SCHUTTE: That ' s right. J -70- MR. CADINI-IA: Mr. Chairman. Is there a motion on the floor? What is it? CHAIRMAN SAKATA: The motion was to accept. . .. MR. TRULSON : The motion was to accept the proposal with the new wording that counsel has regarding the subsection (h) in its entirety. MR. CADINHA: Discussion. I agree with Akira' s thesis about variances. It is a very unusual circumstance that brings about a variance and it should. notbea process of approval that is easy. It should be a difficult one. Now whether that is 4_oing toibe ih 'yout :wording or not, I don ' t know. _ - --MR. TRULSON: I don ' t think the intent is to make it easier, i think it is time consuming, what you have got to go through to get a variance. I think we have protected any innocent :neighbor "by :the new wording of section (h.) .. MR. SCHUTTE: Harlan, what I have asked is--I objected to the whole thing, myself, but what,I have asked is that the counsel come up with the check and balance. . . ® V MR. TRULSON: There is no way in the worlclf we can cover everything. . . MR. SCHUTTE : . . .and as a result he has come up with this wording that if there is any objection to a variance then it reverts right back to the Planning Commission. MR'. CADINHA: My concern which may be very well yours, is not so much the small person who is hurt by a variance change, it is that you are placing a (c,h ck of a lot of responsibility on one person , the Planning Director. Now, whether we want to do that or not. MR. SCHUTTE : No, I don ' t want to 40 that. MR. CADINHA: Well , neiiher '-do I. So, your motion, clar _fry it, please. It still does leave the variance decision " bas4idally up to the Planning Director, is that correct? And only if there is an objection, can it be aired. If nobody squ0:144s for an appeal , for a turndown, but if nobody squawks, basiclly, it flies and the Planning Director still has the authority to go ahead with variances. Is that correct? Thank you. CHAIRMAN, SAKATA: Any more questions? Okay, it has been moved and seconded that we accept Chapter 4, Planning Department, " subsection (h) reworded by legal counsel. . . MR. SCHUTTE : ,Nle®; Chairman. I originally asked that subsection (h) be discarded entirely, . completely deleted but I was willing to compromise if there was a way of preventing total domination by one individual.. I have seconded the motion already in regards to that because I feel that it is sufficiently taken care of by the rewording. . .may Rhear that rewording again, , please? -71- MR. ODA: Under subsection C`(h ) . .Be charged with the approval of variances as provided by law, but if any objections are made in writing to the director, the director' s actions shall be ' subject to review by the Planning Commission according to law. If the said request is denied by the Planning Director, the applicant may appeal such denial to the Planning Commission. MR. SCHUTTE: So "according to law"means that this is automatically taken out of the director ' s jurisdiction and brought right back to the original ;Planning Commission procedure as we have now. MR. ODA: It will be subject to the review of the Planning Commission to override if they feel it is necessary, subject to any ordinance to implement this, decision. MR. SCHUTTE: But the Planning Commission would then have the opportunity to override that variance decision. I . call for the question. MR. OMONAKA: A point of information. If I do vote on the motion. . .this would mean that I would have to accept the proposal in its entirety as amended? CHAIRMAN SAKATA: Yes. We ' ll take the vote. Ayes - Kobayashi , Schutte, Noes - Cadinha, Ishida, Trulson, Iwamoto, Yanaga, Yagong, Omonaka, Sakata - 7 Sensano - 4 Carried MR. TRULSON: Mr. Chairman. According to our calendar,next _week is an open week, but we will be meeting, right? = = • CHAIRMAN SAKATA: Right, we will be meeting at 2 o ' clock. Before we go any further, on May 22, 1979 , Communication #59 , Chairwoman Ginny Aste on the Status of Women sent+ us her list of recommendations. And she did call me again and wanted to appear before this commission today but I told her that unless she is on the agenda she cannot present her views. I told her that I would have to ask the commis- sioners their opinions on this. They want to present their views and I think what they want to do is, if you people read Communication #59 , you will notice they have presented their views and they want to have some sort of a say where they have some acknowledgement or some status in the charter. And if you read the Communication 459 they have spelled it out how they are going to organize and all that. Now, what is your feelings on all this? MR. CADINHA: Mr. Chairman. I am worried about our timetable and quite,. frankly, about tonight, I think since we are all here if we can grYiant through another hour or so. -72- Lord knows we all hurt enough, okay, but I think another hour or an hour and a half and we can get a lot more done. And also testimony from outside should be cut already. They have ;had adequate time. CHAIRMAN SAKATA: And I think if we do go on this kind of a situation where we have a funded program and to incorporate it into the charter we would have a terrible mess here. i think we should leave this committee alone. MR. SCHUTTE: You know if we open this up and grant this , then we have got all the other "state functions, fundings that h%ave to be taken care of. MR. CADINHA: And they have had adequate time. They have had hearings. • MR. ISHIDA: To be realistic here, I am kind of 'concerned about the time problem, too, you know. We are supposed to have this by August 10 and I think we have only completed about half, right,. I 'm just only guessing. Realisticly, do you think we can finish. I had anticipated we would have moved faster today,. but, you know, seeing the speed we went through, I don ' t know, I am in a quandary, now. MR. CADINHA: It ' s a practical matter of all of us being here, too. You know., vacations, summertime and what not, we may not get this kind of representation so I think the more' ground we cover tonight, the better it is. MR. SCHUTTE : I think that once we get past these commission sections, I think it will go relatively fast. MR. OMONAKA: If you poll everybody and if they stay, we' ll stay, otherwise we ' ll go. MR. CADINHA: See who wants to stay. MR. OMONAKA: What are talking, Harlan, one hour? MR. CADINHA: Well , yes, 10 : 30, 11 : 30. Name some sort of curfew and go. Make the curfew at 11 : 00' maximum. RECESS: At 9 : 28gp_.m. the -Chair -called for a short recess. RECONVENE: At 9 : 40p.m. the meeting Was reconvened. CHAPTER 5: MR. ISHIDA: I move that Chapter 5 be adopted in total , except that Section 5-5 .2 the appointment of the director be consistent with the other • provisions of the department heads whereby they are appointed by the mayor, confirmed by council. -73- • • MIR.° CADINHA: Second. CHAIRMAN SAKATA: It has been moved and seconded that we acceptChapter :5 , f;`as is+with the exception that Section 5-5 .2 on the: app—intment ofthe' director be consistent with the • • other provisions :Of ktli department heads. _: MR. YANAGA: Mr. Chairman. Wasn 't there some discussion on. merging the Department. ,of , Research:,'and Development 'with the Planning Department. . . .We had a motion. . . MR. SCHUTTE : ;Mr. Chairman. I think what Commissioner Yanaga is talking about is that we had originally, • or there had been some original discussion of merging the Department of Research and Development with ) the Planning Department but right now, there is a motion on the floor that • Chapter 5 ,be maintained with the- amendments to 5-5 .2. MR. YANAGA: Who made that amendment? MR. CADINHA:. We had a motion and I seconded yours , originally. Your-, motion was just deferred. Now Richard just made a motion to accept as is. MR. YANAGA: Is my motion dead? • MR. ISHIDA: Before my motion, was there another motion?. • MR. SCHUTTE: It was deferred. MR. ISHIDA: Then my motion is out of order.{' r»_ J MR. OMONAKA: It was def4erred until we got more • testimony. • MR. ODA: So technically there is a motion. My notes indicate that there was a motion to defer on June 5 , 1979 which was made and approved. MR. OMONAKA: Pending further testimonies . MR. CADINHA: .Mr. Chairman. I withdraw my • second after consideration of the last couple of weeks to the original motion. MR. .OMONAKA: I second Fishs motion. The . intent of the motion, as I recall , was to shift t-hi"s responsibility ,;:t"o;=5 the Planning Department. Shifting the responsibility of the Department of Research;,.+and Development to the Planning Department. • MR. ISHIDA: That was the motion, right? MR. SCHUTTE : Discussion . • MR. ISHIDA: I think based upon what' Mr. Garcia and Sidney Puke stated, I don ' t think those two' departments should be merged. I don ' t think there' has been anything definite to show the necessity of having. them merged. • • -74- MR. SCHUTTE: If their--2respective functions are such as indicated then I am inclined to agree that the Department of Research and Developrtient should stand as it is without being merged with the Planning Department. And that is based on testimony from the Planning Director and also testimony from the Director4r.Of the Department of Research and Development and I believe thecMayor did indicate the same separation. Iptuestion. CHAIRMAN SAKATA• ,We-will vote on the intent of t`IZe, motion now. Ayes - Yanaga, Yagong, Noes - Trulson, Schutte, Omonaka, Sensano Ishida, Iwamoto, - 4 ' • Kobayashi,Cadinha, SECTION Sakata 5-5 . 2 - 7 MR. CADINHA: Mr. Chairman. I would like to make the motion Mr. Ishida made a few minutes ago. -_C AIRMAN SAKATA: The motion has been made to approve Chapter 5 , Department of Research and Development, as is , with the exception of Section 5-5 . 2 , Director to be consistent with the other provisions of the department heads .!.shall be appointed by the mayor, confirmed by the council. MR. TRULSON : Excuse me, and may be removed by the mayor? MR. SCHUTTE : Is there a second on that? :MR1 ISHIDA: I seconded it. MR. SCHUTTE: Question. CHAIRMAN SAKATA: It has been moved and seconded that we approve Chapter 5 in its eni , 'rety with the !exception of Section 5-5 . 2 'vJith the language change to conform with the other provisions.. .shall be appointed by the mayor, confirmed by the council and may be removed by the mayor. Ayes - Iwamoto, Schutte, Noes - IOmon`aka - 1 Ishida, Sensano, - Yagong, Trulson, Yanaga, Cadinha, Kobayashi , - 10 Carried ARTICLE VI CHAIRMAN SAKATA: Article VI® MR. CADINHA: Mr, Chairman. I assume we don ' t need confirmation for the Clerical Pool. I move that we accept . . .we did already? And ,'Safety 'Coordinator? MR. OMONAKA: The Board of Appeals as Mr. Stuart . Oda proposed would be incorporated into Planning. MR. SCHUTTE: It was to go to the Miscellaneous. MR. ODA: Administrative. To the Planning Department. -'75- • • MR. ISHIDA: That was all approved. MR. OMONAKA: That would be Section 5-6. 3. ARTICLE VI MR. SCHUTTE: Are we going to make a provision CHAPTER 1 for the deputy managing director? MR. CADINHA: No, but go ahead Kalani. MR. SCHUTTE: I am just asking. It was asked if that would be considered because it is provided now by ordinance. Ir3think the mayor came up with his line and staff appointments and as a result of that he lined upthedeputy managing director and asked that this be considered in our deliberations of adding that to Article VI , Chapter 1 , under the managing director, that there be a deputy managing director. I just thought I. would bring that up. He shows, I believe, -in his form of line agencies that the deputy managing director takes care of and also the staff agencies that the managing director takes care of. MR. TRULSON: Mr. Chairman. I move that we accept Chap-ter :!'` 1 of Article VI in its entirety. MRS. KOBAYASHI : I second the motion. CHAIRMAN SAKATA: It has been moved and seconded that we accept Article VI , Chapter 1 , in its entirely. Every,'=; body knows the intent of the motion, right? Ayes - Yagong, Omonaka, Noes - None Sensano, Schutte, Ishida, Kobayashi , Iwamoto, Trulson , Yanaga, Cadinha, Sakata - 11 Carried CHAPTER 2 Public Works. MR. SCHUTTE: rMr. Chairman. ..i havO a little note here that the chief engineer wanted-his-title to be changed to director. MRS. IWAMOTO: Public Works Director. MR. ,SCHUTTE : Mr. Chairman. I move that Chapter 2, Department of Public Works be accepted as it is. Excuse me, with the exception that he must be confirmed. That under 6-2.2 he must be confirmed by the council. Are we assuming that that be a standard procedure on these? MR. ODA: While we are on that, Mr. Chairman , I would recommend that the portion of the last section, over there, be deleted ( 6-2.3) . . .provided, that the powers , duties and functions of the department, etc. I don ' t think that section is necessary. -76- MR. SCHUTTE : That was put in there prior to this charter. MR. ODA: Transitional provision. MR. ISHIDA: There are no provisions , whatsoever , . . .the only problem I see with that is sometimes. . . .they just don ' t do anything. . .I just don ' t know. . . MR. SCHUTTE : Akira, would you know of the intent of that being in there. In other words , is there some backlog of situations that may exist. . . MR. OMONAKA: I don ' t believe so. I guess in terms of setting up what the responsibilities were to make sure somebody didn ' t overlap and do that. MR. SCHUTTE : But then we don ' t know if anything that they were already doing has been changed by ordinance yet in this transition. MR. ODA: Well there is an ordinance, a very detailed ordinance regarding the department. MR. SCHUTTE : So you feel this is not necessary. MR. ODA: I donj't think so. MR. ISHIDA: In my copy on Section 6-6. 2 I have the word professional scratched out. Ed Harada 'suggested that word was not necessary. MR. OMONAKA : I think the mayor and the ,.chamber- people, they would prefer to have an administrator rather than a professional. MR. ISHIDA: The thing is , I 've got registered engineer but I 've got the word professional crossed out. Is professional an unnecessary word. MR. SCHUTTE : We have a motion, do you want to make an amendment to that. MRS.. IWAMOTO: He liked the word registered professional engineer. MR. ODA: I think the designation is different, you know._ A registered engineer and a registered professional engineer:` The licensing, I think , is different. MRa ._ SCHUTTE : Yes, one can sign documents and the other one can ' t. MR. TRULSON: Did your motion include changing in Section 6-2. 1 his title to director from chief engineer? -77, • MR. SCHUTTE: No, I didn ' t give him that benefit. I just went the whole route and said we accept Chapter 2, as it stated here with the exception .of 6-2.2 where it designates the • appointment be confirmed by the council. • MR. TRULSON : You- know, besides that, there was also some. input on the Department' of Public Works regarding havi.hg the Sewer Department or possibly be merged with the Water - Department. But especially there was concern about the Sewer Department being under Public Works, or Water. I have the notes here, I can ' t recall what it was. MR. SCHUTTE: No, they have 'been talking about the Sewer Department being, the collections , etc. , being merged with .the Water Department because it works hand in hand, you see. MR— CADINHA: Was 'there a second to that motion? • MR. SCHUTTE: What counsel is asking for is an amendment which would delete. . . MR. CADINHA: I second the motion. SCHUTTE : Do you want me to change that? I can change it now- LffLead of 'going through all the other rigamarole. • Okay, we move as amended and the amendment is that in - Section 6-2. 3 in_ the middle where it says. ./provided , that' the powers; duties and ,'functions of the department—existing at the effective date of this_ charter shall continue and be exercised and performed by the rdepartment until changed or modified by ordinance. This portion starting ifram!!provi ded"sha11 be - ' deleted. — MR. ISHIDA: I second. CHAIRMAN SAKATA: ' It has been moved and seconded that we accept Chapter 2, as is with the exception of Section 6-2. 2 which shall read to conform with the other provisions. . .The Chief • Engineer shall be appointed by the mayor, confirmed by the council and ' may be removed by the mayor. And also Section 6-2.3 d4eting the following: /provided, that the powers, duties and_ tfunctions of the department existing at the effective date tof1_ his charter shall continue and be exercised and performed by the department until changed or modified by ordinance.? - ,Does everybody •know the intent . o.f: this motion now? • 4MR. OMONAKA: Question. CHAIRMAN SAKATA Roll call • • Ayes - S,chutte, Sensano, Noes - None Yagong, !Cadinha.,. • - • Trulson , Yanaga, . Ishida, Kobayashi, Iwamoto, Omonaka, ' Sakata - 11 Carried -78 • - CHAPTER 3 MR. SCHUTTE : Mr. Chairman . ,Section 6-3. 2 Again we have the appointed by the mayor. It should be amended to read appointed by the mayor, confirmed by the council and may be removed by the mayor. MR. CADINHA: Second. Are you going to leave the band there, Mr. Schutte? MR. SCHUTTEe Let me go a little further there. Section 6-_ .3 again , the bottom portion starting from the word provided and ending with the word ordinance. The entire bottom section be deleted. MR. ISHIDA: I second the motion. MR. OMONAKA: Question. CHAT_RMAN SAKATA: It has been moved and seconded that we accept Chapter 3 , as amended in Section 6-3 . 2 to read , .The parks and recreation director shall be appointed by the mayor, confirmed by the council and may be removed by the mayor. And delete the bottom portion of 6-3. 3 starting with /provided, that the powers, duties and functions of the department existing at: the effective date of this charter shall continue and be exercised and performed by the department until changed or modified by ordinance./Is there any further discussion on this? MR. TRULSON : I was just reviewing Mr. Hakoda' s anster to Mr. Schutte in our 5th meeting with regards to the bandmaster. Mr. Hak,bda was stating that the mayor appoints the bandmaster, he comes under the direct supervision of the managing director. . .maybe somebody can clarify this. . . MR. OMONAKA: Mr. Chairman . Just by chance, I happened to run into the bandmaster at lunch, one,-day, and I talked to him about how his band is set up. He explained to me that administratively they are keeping time, making the payroll and these kinds of things. ;Parks and Recreation Department handle all of this and he does answer directly to the mayor. However, requests do come into the Parks and Recreation ° head_' about their participating in different events. So he said this arrangement, right now, is fine for him. MR. SCHUTTE : Mr. Trulson , I think-what I was referring to as far as the band was concerned was. . .The band- masters shall be appointed by the mayor and may be removed by the mayor. The members of the bands and other employees connected therewith shall be appointed by the bandmasters and may be removed by the bandmasters with the approval of the managing director. . ..that, . I: -think-,` is- what I was._:ques;tioning. You know, he is appointed by the. . .where does the managing d"i"rector get involved with this ' MR. YANAGA: Mr. Chairman. I recall Mr. Hakoda said he has no problems with the band under the Parks and Recreation. -79- MR. TRULSON: Mr. Schutte said would it be beneficial to change this procedure and Mr. Hakoda says, it would make it a simpler kind of organization. MR. SCHUTTE : Right now the bandmaster is appointed by the mayor and may be removed by the mayor and then you have in here the managing director that comes in. . MR. ISHIDA: Mr. Chairman. I don ' t think we better try to elevate the county band or bandmaster up to department status. We are going to have to place them somewhere and I think they could be in any department. Since they are with the Parks and Recreation , why don ' t we just leave them there. I think we would only be creating problems if we make a change at this time. MR. YANAGA: I ' ll agree with Richard on that. I think we should leave them status quo. MR. SCHUTTE : I believe we should leave them with the Department of Parks and Recreation but maybe we could help him along by getting the managing director out of there on the bottom and leave it with the mayor. I 'm for keeping him right there where he is at, you know, under the Parks and Recreation . But the individual , himself, is appointed by the mayor and may be removed by the mayor and then it goes to the members of the band and other employees connected therewith shall be appointed by the bandmasters and may be removed by the bandmasters with the approval of the managing director, you know, maybe that portion can be removed . MR. OMONAKA: The managing director doesn ' t have any appointed authority, the mayor should be the one who appoints. For administrative purposes now, if there is anybody hdon ' t the band that gets out of line, they don t have civil service procedures to go through , so before the bandmaster can discharge. . . . MR. ISHI_DA: I think that was placed there for the protection for the members. . . MR. SCHUTTE : It was probably put there ,mainly' _ „ ; ' because that is one of the departments under the managing director. MR. OMONAKA: Question. CHAIRMAN SAKATA: It has been moved and seconded that we accept Chapter 3, Fs amended in Section 6-3. 2 to read. . .The parks and recreation director shall be appointed by the mayor, confirmed by the council and may be removed by the mayor. And also delete the bottom portion of Section 6-3. 3 starting with /provided, that the powers, duties and functions of the department existing at the effective date of this charter shall continue and be exercised and performed by the department until changed or modified by ordinance./ -80- Ayes - Yanaga, Schutte, Noes - None Kobayashi , Iwamoto,' Ishida, Yagong, Cadinha, Trulson , Sensano, Omonaka, Sakata - 11 Carried , MR. OMONAKA: Mr. Chairman. May I ask Stuart a question. Can we conduct our motion with a just aye and no and show of hands instead of a roll call as we are doing it? Do we need to go through a rules change. MR. ODA: I think we should be consistent. CHAPTER 4 MR. ISHIDA: Mr. Chairman. I move that Chapter 4, under Article NI, be adopted as is with the following modifications: Section 6-4. 2. . .The ,dire chief shall be appointed by the mayor, confirmed by the Council and may be removed by the mayor. Section 6-423,. . .the last phrase of said sentence starting with the word.'.provided to the end of the sentence-be deleted. MRS. IWAMOTO: I second. CHAIRMAN SAKATA: It has been moved and seconded that we adopt Chapter 4, under Article VI , with the following modifications : Section 6-4. 2. . .The fire chief shall be appointed by the mayor, confirmed by the council and may be removed by the mayor. Section 6-4.3. . .the last phrase of said sentence starting with the word provided;, to the end of the sentence, be deleted. Any further discussion on this? MR. OMONAKA: Question. CHAIRMAN SAKATA: Does everyone understand the motion? Ayes - Kobayashi , Yagong, Noes - None Yanaga, Schutte, Sensano, Ishida, Trulson, Omonaka, Iwamoto, Yagong, Sakata - 11 Carried RECESS : At 10: 13 p.m. the Chair called for a short recess. RECONVENE : At 10 : 35 p.m. the meeting was reconvened . WATER MR. CADINHA: ' Mr. Chairman. I would like to DEPARTMENT read very quickly (the' way> Maui has worded their department of water -supply. -81- There shall be a Department of Water Supply consisting of a Board of [plater Supply, a Director of the Department of Water Supply and the necessary staff. The function of the department. All water and sanitary sewer systems of the county including water rights , water sources , together with all. materials ; supplies and equipment and all real and personal property used or useful in connection with such water and sanitary sewer systems shall be under the control of the department. Board of Water Supply. The Board; of Water Supply shall consist of 7 members appointed by the 'mayor with approval of the council for terms of 5 years. The Planning Director and Director of Public Works shall be non-voting, ex officio members of the Board of Water Supply. That board shall _ ( 1 )_ adopt rules and regs relating to the management , • Codtrol', operation , preservation and protection of the water works and sanitary sewage systems of the county, to be approved by the mayor. ( 2) prepare and submit to the mayor a request for an annLtal operating and capital improvement budget® The water board CIP project shall be consistent with the county ' s, general plan and shall be processed through the county' s planning department. I think this is where our present system runs amiss , if I may comment. ( 3 ) recommend to the county council , water and sanitary sewage rates. The -Director of the Department of Water Supply. The Director;'';of the Department of Water Supply shall be appointed and ' may be removed by the mayor. The director shall have a minimum of 5 years training and experience in a responsive ,a.dmini_strative capacity, either in public service, private business, ,or both. The Director of the Department of Water Supply shall ( l')• be the administrative head of the Department of Water Supply ( 2 ) recommend regulations to the board ( 3 ) have such powers and duties as may be provided by law or as may be assigned by the mayor. And then there is a small section on revenues Which states that the revenues derived by the Department of Water Supply shall be kept in a separate fund and shall be such as to make the department self-supporting. The nearest that I can tell from all the testimony that we have had , the Maui setup is almost ideal to what I , personally, would like to see here in the county. The problems that were alluded to but not really nailed down relate to no integration with the planning function of the county. The Planning Director and the administration can go off and say we are going to develop this property and East, we _ West , South -Haaii_, whaterer it may be, in actual practice they need water to do these things and" if the semi-autonomous Water Department says , no, now, there is no assurance that adminis- trative follow-through is going to happen at all , or that that plan can even be implemented. -82- So, I move that we adopt the Board of water Supply as Maui County has , under the mayor, and the Director of Water Supply should be appointed and confirmed by the council , which would be the only e ception to Maui ' s plan, and can be removed by the mayor. MRS. KOBAYASHI : I second the motion. CHAIRMAN SAKATA: It has been moved and seconded that we adopt the :Board of Water Supply as is found in the Maui County Charter, under the mayor, with one exception that the Director of Water Supply shall be appointed by the mayor, confirmed by trie .county counciland maybe removed by the mayor. MR. CADINHA: Presently Our water commission is 9 members , Maui has' seven. I don ' t seewh,y,y`7 is not functional since we have approved a 7 man council. CHAIRMAN SAKATA: Is there any discussion? ,! MR. OMONAKA: Mr. Chairman. I speak against the motion. The Water Department, as it has served our - community under its present concept has been working fine and.: the members that serve on the water board, water commission . . .former commissioners who I have talked to have said this concept is fine, it is serving the needs of the people, there should be no change in this area of the charter. I kind of look at the water system like a kind of public utility and to keep it moved away from politics as a semi-autonomous body and can operate. It may be cumbersome at times, but I think that because I feel it is like a public utility4nd of a thing, that it should be left as it is, under the semi-autonomous status. MR. TRULSON: I would like to speak in favor „_ of this motion. For ( l'). it does take it away_ from :be-Vg semi autonomous \( ), 1t brin,gs_in_the sewer ,de parErnent which has been one concern. I `believe almost, I would'' say'95% of the testimony we have had from organizations and departments, except for the water board, has been in this area, they have said take it away from the semi-autonomous board. In some instances to combine with other departments. . . MR. CADINHA: Mr. Chairman. There is one other argument that I failed to bring up and that is the realm of financial planning done by the mayor. As it stands now if the county wants to implement a new water system or an exter*on of an existing system or anything else, they have to fund, or pay forthat if the water supply, the Department of Water Supply is not in agreement the county has to fund that out of the general debt, general obligation bonds , that is really the alternative that they have, or an assessment bond. If you. put the Board of Water Supply under the administration you give the mayor the financial leeway whereas he does have to tap the general credit of the county. He can go and tap the revenue -8 `-- bond source which now he cannot do because it is a separate autonomous body. That financing capability rests with the head of the Department of Water Supply now and I don ' t think that is really where it belongs. The financial plan of this county needs to be tied together and this, I feel , would do it. MR. SCHUTTE: Discussion. I have not been able to do anything except to just take excerpts of what you read out of the Maui Department of Water Supply, Harlan . If you are talking about voting on a semi-autonomous department of removing the semi-autonomous portion of it, that may be one thing but may be the rest of the commissioners are only grasping portions of what you are reading out of the Maui Charter and are not too familiar with adopting that as such. They are looking at here, Water Commission and , you know, what it amounts to is deleting this entire portion and somehow getting to read the Maui section in order to come to some decision. i would not be able to make a derision like that because I am not aware of everything that is in the Maui Charter. MR. CADINHA: Basically, the difference that I am calling for in the motion is ( 1 ) cutting down the size of the Water Commission from nine to seven, ( 2) making the appointment of theri5,irector of Water Supply a mayoral appointment rather than a commission appointment with confirmation by the council , ( 3) incorporating the sewage function ghich is now Public Works in the Department of Water Supply, ' so purchasing, billing can all be consolidated for greater efficiency in government, and ( 4) the revenues that come in from sewage and water have to kept in a separate fund and cannot be commingled with the- 'other funds of the county. Those are the differences of the motion. MR. ISHIDA: Harlan, did you also incorporate into your motion that the revenues be kept in separate funds. MR. CADINHA: Yes. MR. SCHUTTE: • Another question, Harlan, what makes this particular setup here inoperable? MR. CADINHA: What setup? MR. SCHUTTE: As it stands right now? Besides just changing it. . .evidently, this has worked so far. Why is it that it cannot continue. MR. CADINHA: Well , I venture this question. We don ' t know where it has not worked. Perhaps, and I don ' t know, but perhaps with administrative control over the water function we may be in an economic state two years on the road from where we are today. We don ' t know whe °e it hasn ' t worked. I do know of specific cases in Kona where the planning function of the county has said, hey, this is the zoning, go ahead and the water says , hey, we don ' t have water for you guys and we aren ' t going to provide it, you can ' t get three acres. Now is that the kind of authority you want to invest in the water function? -84- These are the kinds of bugaboos I know that are taking place. MR. SCHUTTE : What are the reasons. . .m.aybe (tthey don ' t have the water. MR. CADINHA: That is precisely the problem. If the planning function of the county says we are ready for it they should be in control of the water function to 'say we can facilitate this. It makes no sense to have the planning function of the county say we are going to do this only to be vetoed by, hey, no more water. Why have a planning function? I 'm expanding a small point but these are the small bugaboos that I take it that are happening. MR. SCHUTTE : Administratively. MR. CADINHA: I don ' t know that I am getting my pont across to (-you. MR. SCHUTTE: No, the reason I am trying to rationalize this is because, take, for e.xample, _ the Kohala extension, okay, they found one well in `� Laiam .i . • •and go further on down. . .and actually it is hard for them to pick up anything except ,'aunoff water like they are trying to do right now for Kaua. Eventually, that section up there from runoff, surface runoff, will eventually service the Kawaihae section and Puako, and so forth, and so on. But that is the situation where it is, I don ' t know whether it is under their control to be able to provide that. Now if you are telLLng-me,;if _you are saying that your whole point is based shat- the _financial` portion would be better moved , or better handled- by "putting it :fu'nder the- mayor—that_that he would have access to more dollars to make sure this fund ng is available, or make sure the -money is available, hen maybe-£h-at i something else. MRS. IWAMOTO: I think that the mayor has made it avaii4ole, you know, to have money for that water. MR. SCHUTTE: So actually it could be done either way then. As it is. . .what are you referring to, Amy? MRS. IWAMOTO: . .,. . . MR. CADINHA: The type of debt. MR. SCHUTTE: Thef ype. of debt he is talking about. . .revenue vs the. . . . MR. CADINHA: That ' s right. The latitude just is not there under the current setup so no financial imagination can be used. The mayor has to tap the general credit of the county- if he wants, or the council wants, water at point x. They could have ten Rockefellers lined up, ready to put up hotels , hire people inthe county, and the water board could say, we don ' t have the funding, we arenot going to go borrow the. money, so there is no water. And under the proposed setup that I am recommending, the county could just go ahead and do it. There would be latitude both financially and administratively. -85- Water is . such a big part of planning. I don ' t see how you can plan without knowing whether that water guy is going to bring the pipes with you or not. MR. TRULSON : Is it possible that could be one of the reasons why Maui has moved so far in development because of water? , MR. SCHUTTE : I think what has happened in the Maui development is that the mayor has insisted that . . .has put a moratorium on development and insisted that the developers provide these services if they want to develop. And as a result, their whole Kapahulu section , roadways , etc. , have been financed, not by Maui County but by the actual developers, because the mayor has made it such. MRS. KOBAYASHI : Mr. Chairman. Concept4a1ly, ' z I would support the motion for the Maui plan because it-would' seem from testimony that has been presented to us, if we are accepting the strong mayor concept, I suppose, where the department heads come under the mayor, and the council is the legislative branch, when I first read about this semi-auto- nomous department it stuck out like a sore thumb. How can it be a deparinent , if it is not under the mayor nor is it legislative, it is somewhere out in left field. I would think bringing the water department under the mayor would fall in line to the whole strong mayor, legislative branch feeling. Also, it would seem from testimony presented that this would perhaps be some economic savings in that some duplication, purchasing, for instance, other kinds of functions of the department could be saved because it would be done centrally. Based on the water board commission minutes the two meetings minutes., plus their testimony, it does seem that the water commission was not unanimous in their support of remaining as is. I was very surprised to see that it was a mixed, quite a close vote on retaining their status. It was 5-4 then? I was very surprised to see this. Considering that this was the board that does the commission work , you would expect them to be unanimous in their support of the present status. That would ,have been my reaction. I am just adding support to this motion. CHAIRMAN SAKATA: I think the UPW came out in support of this, too MR. OMONAKA`: Mr. Chairman. Just to answer Gloria' s concern, r Article VII , we have under the old Charter Commission we have set up this department, have it set up that the commissions ' appoint the department head;,'!,.,,. like the police commission appoints the police chief. . .the liquor. . .the personnel services including the water. The theory was that to get away as much as possible from politics and lidt so-called lay people appoint these people. So that is the concept. There is, under the old setup, a strong mayor type of setup in the charter but this is to take politics away as the reason why. You can ' t have the mayor appoint the police chief, you know, so that is the reason, the commission appoints him. So that is the rationale behind it to keep politics away -86- from these so-called commissioners. Water is critical to the community, the police, the liquor and the civil service with the personnel department, so that is the reason. MR. CADINHA: Mr. Chairman. In talking with other department heads, specifically, corporation counsel about this matter, he brings out a very good point. One of the concerns , and we have heard it in testimony, one of the real concerns with people in our county and people in the state and country, for that matter, is the non-responsive- ness of government. Steve Bess has said he has seen situations where the semi-autonomous allows a great deal of buck passing. If I am the mayor and my const tuents come to me and say, gee, whiz, what is happening?' I thought you said you were going to develop this area for this sort of thing and there is no progress . I fean easily lay it off on the Water Department. Same thing with the Water Department, they scan say, gee, we are ready to go ahead and fund it but therpl'ann'ing, the mayor. If you put it under one roof, one adminis`€native roof, I think there has to be responsiveness. And if there is none there is nobody to pass the buck to, the buck stops right at the mayor ' s desk. And right now he cannot be held 100% accountable for following a plan , especially where water is involved. I would like to make the mayor accountable. MR. SHIDAa •My concern, i ._think , is probably the development as far the county is concerned. If we are to support some planned development within this county, it is very difficult on my part to_ see how a department in charge of water differs and the departrtaent in charge of planning, or maybe similarly to public works, why water should be any different than those other two departments. Basically, we are for one goal , you know, to see that there is planned development in this county that it seems that it is necessary that there be one administrative head. If the way that it is setup now, • the mayor can go one way and the department can go the other, it just doesn ' t seem to be sensible for the development, for progress development. As I look at this setup in the present charter, whereby we have the executive branch and the agencies under commissions. .personnel , police, liquor control and water, I somehow cannot see any similarity, or what is the similarity between water and the other departments in commissions. It just doesn ' t seem that logically it should be there. My only feeling is that, of course, the Department of Water has always been , apparently, a semi-autonomous type of department in the past and has continued as that type of department when this present charter was adopted. If we are to see that the departments can be cohesive and can be forced to work together, I think to be consistent we have to see that they all come under one administrative head. Basically, in spite of the fact that there is testimony saying the fact, that the present water department is working fine, working smoothly, everything seems to be very. good. .what kind of concerns me also is what Harlan did bring out. .what we don ' t know, or could have done, had it been together, had the department been under the mayor, mainly 87- .. , • • • • • because of our infant. stage of development as far as the county is concerned. Because of that, I' think , I will have to support that motion. • MR. TRULSON: Mr. Chairman. Call for the question. MR. SCHUTTE: Mr. Chairman. One more point . of discussion. It was brought to our attention this evening, also, and also in reading the minutes of the water board that the commission, the water commission by a very narrow margin passed that semi-autonomous portion,, l's Mrs. Kobayashi stated ] being the water commission they should, if :this were working as they felt it should work, then there should have been a unanimous, consensus of the commission that the semi- autonomous state continue for the Department of Water Supply. But they found that it was not so as a result it was a very close vote that they maintain this and as a result I h! ye the same feelings, as Mr. Cadinha' s has in relation to the Department of Water Supply. I would have to lean in that favor also. CHAIRMAN SAKATA: It has been moved and seconded • that we adopt the Board of Water Supply as. is found in the the Maui County Charter-4a, under the mayor, with one exception that ' the Director of Water Supply shall be appointed by the mayor, - confirmed by the county council and may be removed by the mayor. Do you understand the intent of the motion? EMR.: ,.QMONAKA: Have you looked into the Oahu County Water Supply system? MR. CADINHA: No, because I don ' t think our economic development is akin to Oahu. • MR. OMONAKA: In terms of their ; so-called managering' ch= ef engineer. MR. CADINHA: But it is under the mayor? MR. OMONAKA: No, well , appoint and remove the: managing.. chief engineer of the department of the board of water supply... :_;e'notp the mayor, . I 'm .sure they .must have had :a good reason 'fto do: t.hat. . 'MR. ISHIDA: You' know, on thA,t Honolulu one, I 'm not too sure but I don ' t think that is the latest one, it seems to me they .changed it.'....I don ' t know what stage it is in now. . .I` don ' t -think it went back..-.it didn ' t go back. . .I know • they tried it and. I know there was some controversy. I think ' - the provision is. .not. quite accurate. • CHAIRMAN SAKATA: Does, everybody know the intent • of the motion, now? • . Ayes - Cadinha, Kobayashi , • Noes - Omonaka, Iwamoto, Ishida, yagong, Schutte, Trulson , Yana0,), Sakata • - 7 Sensano - 4 • • Carried • • • - -88- ANNOUNCEMENTS: Next meeting date - Tuesday, July 3 , 1979 , 2 :00 p.m. , Hawaii County Counci roorn. ADJOURNMENT: At 11 : 10 p.m. the meeting was adjourned.. cai; s Joan Carnett RECORDING SECRETARY