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HomeMy WebLinkAboutCOM 0451.000 1998-2000 Keola Childs 75-5648C Mamalahoa Hwy. Holualoa, HI 96725-9628 Ph. 808-895-2764 • Fax: 808-322-6118 - ~ ~ Email: kchilds@kona.net '99 S"tP 21_ P(~ 4 05 August 11, 1999 CC: HAW NCIL ~~v,~,'•~' John Ray, Chairman Hawaii County Charter Review Commission Office of Information & Complaints 25 Aupuni Street Hilo, HI 96720 Re: Suggested Amendments to Hawaii County Charter Dear Chairman Ray: I would like to submit the following comments and recommendations regarding the review and amendment of the Hawaii County Charter. I advocate amending the Charter to create a stronger, more effective County Council. To effect that, I am suggesting here certain specific amendments, while recognizing that other, supportive amendments may logically be required to adjust other components to fit this primary objective. First, WHY a "stronger, more effective Council" is needed for the decade ahead: 1. We now have a weak, minimally effective Council. Intending no slight to any of the individuals serving now or since the 1992 changes, this weakness has been demonstrated by the higher turnover ir. councilmembers since the two-year, single-member district system was effected; only District 3 has had no turnover; four districts (4,6,7 & 9) have had three new councilmembers in just four elections, while four other districts (1,2,5 & 8) have had two in four elections. High turnover assures lack of knowledge, experience and skill in working within the positions and with other government agencies as well as the Mayor. While this is an unintended result of the two-year term (and possibly the single-member design), it is a serious one that must be corrected. A Council whose members are collectively neophytes, whether as a majority or near-majority, is a weak, unstable Council. Aside from this "absolute" effect, our Charter creates the "relative" effect of a weak Council when paired with the decisively strong Mayor post. Comm. No. / Nile No. C' HA Ref. To: Ref. Date ~ 2 1 1999 Charter Review Commission ~ Page 2 of 10 August 11, 1999 2. Better policy-making decisions. With more resources, experience, knowledge and skill, a majority of councilmembers will likely make better, more informed policy decisions through the thinking, debating and consensus-building processes, whether it be on budgetary, fiscal, land-use (zoning) or otherwise programmatic matters. They will also be more effective in their de facto "ombudsman" roles, i.e., guiding and solving problems for individual constituents stymied by bureaucracies; this is a very big part of a councilmember's job. 3. Higher quality, more constructive public participation. Better-informed councilmembers can better articulate true issues, needs, and the alternate consequences of various actions. They can also more effectively build public support for local project proposals that require broad public support from the respective district constituencies. The obverse is also true: they can more effectively make and present a case to constituencies for opposing mayoral initiatives which are de facto policy decisions via the Mayor's ability to "set up" the situation, time-frame, and resulting debate choices, and which councilmembers find undesirable. E.g., land-fill matters, Hamakua land lease contracts, facility contracts like the J.C. Penney building. 4. Ability to force policy implementation. In addition to knowledge, experience and skills, a strong council should have the tools to effectively force the Mayor to implement policy decisions. Today the Mayor simply fails to instigate program changes specified by the Council, whether by failing to release funds or otherwise authorize implementing actions; lapsed funds are re-applied within a department without practical, effective Council control (the account transfer process is overwhelming in its application today, because of the imbalanced mayor-council resources and the lack of practical power to resist the piece-meal, crisis-oriented approach generally tendered from the executive branch). 5. Mayor's reduced policy-making power will result in more public disclosure and involvement in major issues, via Council agendas, before they are pre-disposed by the executive's "setup "through manipulation of factors, data and time leading up formal decision-making. See examples above. So, it's not just a matter of providing for abetter-informed, more competent Council; it's also a matter of relocating the Mayor's de facto policy powers back to the Council where the benefits of a stronger council can be put to work. Charter Review Commission Page 3 of ] 0 August 11, 1999 KEY ISSUES IN CREATING A STRONGER COUNCIL • Extent of Council power vs. Mayor: election vs. professional hire • Length of council member's terms (I am advocating four-year terms) • Single-member vs. At-large members, or a variation of both • Length of limited term (I advocate an exemption for an elected Council Chair) • Appointment and accountability of Corporation Counsel (as to Council vs. Mayor) • Power to initiate budget amendments (I advocate extending this power to Council) • Appointment of Planning Commission members (Mayor vs. Council) Extent of Council Power vs. Mayor: Should the Mayor be replaced w/appointee? The executive responsibilities for a county this physically large, with disparate economic and urban hubs, and virtually no policy documents (plans) in place to develop or manage urban growth and rural sprawl, are simply too great to be relegated to an appointee. The executive in charge of the county (the Mayor today) must have enough authority to take the initiative in staging and implementing necessary actions and programs, to directly hold the support and confidence of the Corporation Counsel, to dominate the departments directly through the power of appointment, and to resist a certain level of pressure from the Council to take specific actions which the Executive sees as inappropriate. In other words, we need both executive initiative and a dynamic tension between the branches of government for this vast, unplanned county; the executive's initiative has to be rooted in discretionary power and legal support insulated from the Council, yet must be reigned in from today almost fiat power level. An appointee, e.g., a "city manager," simply will not have the incentive or necessary knowledge and perspectives of local and island-wide issues and concerns; he or she will not be competent in prioritizing projects or program features, yet cannot expect the Council Chair or members to do all of that for him/her. Further, because I believe it unlikely that a credentialed professional city manager will be found on the Big Island, and will unlikely be recruited from Oahu (at least at asub-$90,000 salary level) if even available there, the practical choices are limited to mainland hires; this will result in long learning curves with regard to economic and cultural realities here vs. mainland experiences, and create disastrous results for the county as a whole and, I believe, the Council in particular, who will likely be caught up in a short "hire and fire"cycle. Charter Review Commission Page 4 of 10 August 11, 1999 To provide perspective, I believe a small county the size of Kauai (50,000 people, 550 square miles) could function well with a city manager system. At the other extreme, Oahu seems suitable due to large population in a small area (600 sq. miles), well- developed regional plans, and relatively few major infrastructural issues at any one time (e.g., mass transit, sewer systems). Hawaii island is too spread out, ringing a 4,000 sq. mile mass like the letter "Q" (shown upside down), and is essentially just "feudal turf' for the doling of political preferences in a medieval land use environment. Assigning a paid manager to correcting that big a physical and political problem will bring failure; instead, we need to reduce the executive's feudal powers by transferring some to the Council agendas, and force the executive - an elected mayor - to implement planning initiatives for land use and infrastructure. This can be done while leaving enough discretion and power with the executive to make the elected position worthwhile. Finally, in my opinion no Council, at least of this decade, has demonstrated an ability to hire professional, highly competent County Clerks or Legislative Auditors. Instead, we have seen political "trustees" providing staff-level services. How can this political body reliably hire a professional capable of the vast executive duties of this county, and which necessarily at times will challenge the policy preferences of a council majority? They can't and they won't. Especially with the limited qualified pool residing within the state of Hawaii. And at what salary would a competent Honolulu or mainland professional come here to work in these circumstances? Certainly not for a mere $75,000 a year in Hawaii. We'd have to create a $100,000+/yr post to attract the few candidates who have the ability to work with all our peoples and the Council, too. We must not confuse our County with a mainland county or city, where professional mobility among managers, cost of living, pay scales, and cultural factors are far different. We must keep the Mayor as an elected, power-balanced post. Length of Councilmember terms. Councilmember terms must be restored/ lengthened to four (4) years. As alluded above, two year terms may be satisfying for most voters, but they have destroyed the effectiveness of the Council as a branch of government. "Destroyed" is not too strong a word; the body is, in general, just marginally effective at its principal budgetary, land use, and general legislative duties. I am convinced this is not a matter of chance with respect to the persons who have held these offices; something is wrong with the structure, and the requirement to actively campaign offensively and defensively for six months out of every two years is a big part of it; the loss of approximately three months between the election date and the "breaking in" of new councilmembers and a new Charter Review Commission Page 5 of 10 August 11, 1999 majority (and their new staff members) results in a total of 9 out of 24 months lost from high quality public service. The term "defensive" is also important; generally, councilmembers are very reluctant if not outright unwilling to support unpleasant legislation which they may know to be necessary if it must be passed within a year of their next election; this leaves only nine months out the term to deal with legislation that will be unpalatable to several districts out of nine (such as tax balancing), since the representatives of those few districts may well be part of the ruling council majority. This "fact of life" has played a large part in keeping property tax reform off the table for real action (vs. endless, seasonal posturing). At-Large or Single-Member Council Districts. I advocate a hybrid of these two classic models which, in form, would prevent a majority being elected from any one region (such as could occur from the "three at- large, six single-member" mode]): • Double the size of current nine districts to create four (4) districts; • Elect two councilmembers from each of the four districts (in effect, alocally- limited at-large system); • Elect one councilmember, to be Chairman/Chairwoman, at-large from the entire island (as the mayor is also). Rationale: 1. The single-member concept is basically sound; it provides an opportunity and responsibility for local advocacy and attention. The councilmember's ability to work with other councilmembers and get results remains just as critical and scrutinized as under the total at-large system this county used to have. 2. The current districts, with the exception of Ka'u and Kohala, are too small for the infrastructural and land use policies needed. Kona, Hilo and Puna could and should be doubled to create whole-community districts, and two councilmembers be given the joint responsibility of advocacy and representation. This doubles responsibility for problem-solving yet spreads accountability within a small, manageable area. Ka'u would logically be split at South Point to be merged with Puna and Kona respectively; Kohala could be split at Waikoloa, for example, depending on the county re-apportionment requirements several years hence. Charter Review Commission Page 6 of 10 August 11, 1999 3. A county-wide election of Chairperson, for a four year term, settles many organizational issues, strengthens the chair position within the Council as well as vis-a-vis the Mayor. With its increased stature and power (albeit modest) it also creates an alternate outlet for political desire to hold higher office or a county- wide post without having to resign from the Council To get elected, the candidate must be known to all voters and trusted by most. Assuming most of the Chair candidates will rise from the Council district offices, this also ensures the development and practice of an islandwide perspective by aspiring councilmembers -and there always are at least a few! 4. An At-Large Council Chairperson will intrinsically find political power available from those constituencies which are under-served by whomever is then Mayor. In some cases, it could be regionally neglected peoples; in other cases, it could be in philosophical approach to governance or growth management. In all cases, it promotes public presentation ofunder-represented views. Amended Term Limits. Limiting councilmembers to two terms (of four years each) is viable, but to create a strong council (vs. an elected mayor), the Chair's position (under the at-large, island- wide election suggested above) should be excepted, to allow a maximum of two (additional) terms as Chair. This means it would be possible to serve for eight years as a district councilmember and then, instead of running for mayor with an eight year limit, serve as Council Chair for eight years if re-elected. Nonetheless, no one could hold any one office for more than the eight years allowed today. Rationale: 1. Maintaining the eight year limit of today for the Chair's position would result in too many one-term councilmembers resigning to run for the Chair's position. This would produce mayhem from not only unnecessary turnover at election time, but also appointing and integrating appointee replacements, as the council did for two seats in 1996. The third-term exception for the chair position only would encourage retention of seats at the district level and indirectly promote experience if those councilmembers were able to keep their district seats at their second election attempt. It would also produce a higher quality of chair candidates for voter consideration, as they could be assured of choosing from experienced, island-oriented candidates. 2. With the likelihood that the Chairperson will have successful council experience and the de facto mandate to lead the legislative branch, it will be more difficult for the Mayor to work contrary to - or undermine -Council wishes as is done in Charter Review Commission Page 7 of 10 August 11, 1999 the present system (my views are based on twenty years of observation, not particularly the current executive and legislative officeholders). Appointment and Accountability of the Corporation Counsel. Using the game of Chess as a metaphor, the Corporation Counsel is the "Queen," having broad powers to defend the otherwise weak King. Without the power to select and personally rely on the county's attorney, the Mayor can expect to be on the defensive on virtually all legally sensitive or controversial matters, which could be anything in these times. Conversely, if the power of appointment is relocated to the legislative branch, the Mayor could find him/herself hounded, if not harassed or left alone to "swing in the wind" when critical support to implement a controversial (yet Council-approved) program is needed. Yet, the Council today is seriously bereft of legal representation of its policy-making needs. The Corporation Counsel (or his/her deputies) are made available to the Chair, individual members or the whole body almost by whim, if not only by Machiavellian calculation from the Mayor. When available, the opinions offered are regularly biased to the interests, if any, of the Mayor in the Council's outcome: information is parceled out on a "twenty questions" or "need to know" basis, with conflicting opinions emanating from deputies on an ongoing basis, disavowed whenever necessary (and possible) by the Mayor's appointee. Finally, the Corporation Counsel virtually never provides a sitting counselor (deputy) for the benefit and protection of the Council during its proceedings, although a deputy is always delivered and present for the proceedings of Mayor's appointed Planning Commission, a body of lesser importance and impact generally. We cannot have two Corporation Counsels, who would be constantly going to court or the state Attorney General to arbit turf battles. We cannot transfer the Mayor's power to the Legislative branch due the complete emasculation of the Mayor's elective office, i.e., without its having the "Queen" post of attorney defender and advocate. We should balance the power by amending the Charter to (i) spell out specific Council duties and service responsibilities that the Corporation Counsel appointee will hold, and (ii) shorten the appointed term of this dual-agency position to two (2) years. By requiring re-appointment after two years, i.e., mid-term for the Mayor and Council positions, the Council is given major "fire power" to force replacement if the dual- agency responsibility is not being met by the appointee. The combined direct and indirect power of a mid-term re-appointment or replacement of Corporation Counsel is huge. Charter Review Commission Page 8 of 10 August I1, 1999 Power to initiate Budget Amendments. Today, only the Mayor can initiate budget amendments once the annual budget is passed. Although the Council can amend the Mayor's proposed amendment once introduced, either the proposed amendments are usually too narrow and small to be meaningful opportunities for policy implementation or else are subject to a "stalemate" result from Mayoral veto if he/she won't accept the end result. Giving the power to initiate mid-year budget amendments to the Council is significant because it allows the Council to disrupt undesirable implementation practices and to reiterate or amplify its budget message and instructions to the Mayor. The possibility or threat of these actions can, at times (not always) be sufficient to either bring the executive branch into compliance or to bring the Mayor to a bargaining table, where strong positions can be negotiated into resolution of a compromise. Appointment of Planning Commission members. The planning commission has significant policy-making power in this county. The prevalence of Agriculture-district lands gives this body free reign to spot-zone "unusual and reasonable" land uses island-wide, with little apparent regard for zoning policies of the Council due to the state-level zoning powers exception they hold. The body also creates its own policy for permitting in the Special Management Area around this island, again via state statutory exemption. There are only two solutions outside of changing the state law (which is improbable): change the Charter to make the Planning Commission "advisory only" as the City & County of Oahu has done (which means the Council makes all final decisions), or shift appointive and legal bias over to the Council, while leaving decision-making with the Commission. Making the Commission advisory would be a mistake: it would overload the Council with mostly minor permitting issues which can reasonably be handled by an appointive body until such time as the people of this county will support regional authorities (townships or cities). The control over the nasty special permit problem is not worth the attendant overload of minor permitting work that must come with it; state laws allows this re-capture of power only if the Commission has no permitting authority at all. Instead, I advocate giving the power to appoint the nine planning commission members to the nine councilmembers, for four year terms which would co-incide with theirs, but with athree-month staggered start and termination date from the elected official's inauguration date to allow an orderly, reasoned appointment and confirmation process. The at-large Council Chair would appoint the Commission Chair. (Clearly this appointive model requires that a councilmember's term be four years, and not two years Charter Review Commission Page 9 of 10 August 11, 1999 as it is today; otherwise the Commission appointment's would be reduced to two years as well; that would make a lay, appointed person's job and responsibility too difficult to get broken into and perform reasonably). SUMMARY • The "City Manager" model is prone to failure in a jurisdiction of this size, disparate make-up, and circumstance. The knowledge, pay, sensitivity and other job qualification requirements, coupled with the lack of authority in the face of controversy, militates toward inaction and chronic hiring and firing cycles. • The County needs a stronger, more effective Council to develop and implement better policy decisions and to better lead the public in the decision-making process. • The Council must be based on four-year terms to deliver that strength and effectiveness. • The Chair should become an elected position on an islandwide, at-large basis in order to strengthen the Council vis-a-vis the Mayor, improve political succession alternatives and retain experienced members, and provide island-oriented incentives among district representatives. • While not essential for reform or effectiveness, a doubling (actually a 111% increase) in district sizes is proposed, with two at-large councilmembers per district. This identifies basically four logical, whole-community regions of the island, which also makes sense for regional budgetary analysis and formation. This doubles attention to the region's voters, with minimal dilution in accountability; as it is, voter inter-relationships within a community usually span two or more council districts and this way would be almost fully integrated. • For an elected at-large Chair position to work, it must not be subject to the eight- year, two term service limit which would apply to district councilmembers. This at- large post would have its own two-term limit. Otherwise too many high-quality district seats will be abandoned before the initial four year term is over (resign to run law). • The Corporation Counsel must be given explicit, specific responsibilities to serve the Council, along with consequences for failure: a two-year appointment period is proposed, giving the Council the option to refuse appointment to counsel who will not serve fairly. Charter Review Commission Page 10 of ] 0 August 11, 1999 • The Council must be given the power to initiate budget amendments. This is a pro- active and a restraining power, and very important in the balance of power. • The Planning Commission is a political policy arm of the Mayor which must be brought under Council control. The commission members should be appointed by the Councilmembers. These recommendations offer aphilosophy - a stronger, more effective council -and key Charter changes needed to accomplish this without reducing the responsibilities of the Executive position. Instead, an island-wide election of the Executive will continue for good reason, and greater opportunity and responsibility is given to the Council and its Chair. Further, the at-large chair approach promotes longevity of legislative-branch service through greater responsibility. Better legal support for the Council and early public discussion of executive initiatives (e.g., Hamakua, landfill, County buildings & leases, etc.) is assured. All in all, the legislative branch is greatly strengthened, while leaving a healthy political balance (and tension) with the executive branch, and creating two island-wide, at-large leadership posts having complementary -not conflicting -responsibilities. Sincerely, /~,s~'~" Keola Childs