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HomeMy WebLinkAboutREP GOEAC 073 2023/08/15 (2022-2024)REPORT OF THE COMMITTEE ON GOVERNMENTAL OPERATIONS AND EXTERNAL AFFAIRS DATE: August 15, 2023 Re: Comm. No. 305.12/Bill No. 49, Draft 2 PLACE: Council Chamber Kailua-Kona, Hawaii TIME: 3:30 p.m. Council Chair and Members Hawaii County Council Hilo, Hawaii 96720 Your Committee on Governmental Operations and External Affairs, to which was referred Bill No. 49, Draft 2, reports as follows: Bill No. 49, Draft 2, introduced by Council Member Cindy Evans via Communication No. 305.12, dated August 2, 2023, initiates an amendment to Article III, Section 3-4 of the Hawaii County Charter (2022 Edition), relating to vacancy in office. This bill proposes reducing the time allotted for the County Council to appoint a successor to a vacant County Council district seat, establishing restrictions on official candidate being appointed to a vacant County Council district seat, and that a person who has been duly elected to serve the upcoming Council term shall automatically fill a vacancy that occurs for that County Council district seat. This bill was previously heard and postponed on June 6, 2023. Governmental Operations and External Affairs Committee Meeting of June 6, 2023 Committee Chair Evans explained how the resignation of the former Council Member for District 9 upon his election to the state legislature and the decision of the Chair at the time to leave the seat vacant, provided the impetus for the bill. Committee Member Holeka G. Inaba expressed his concern that the five-day requirement for notice by the Chair was confusing with regard to agenda deadlines. He asked Assistant Corporation Counsel J Yoshimoto to provide general thoughts on the bill. Mr. Yoshimoto provided comments that the current language of the bill was unclear. Member Inaba further expressed his concerns with a restriction on declared candidates being appointed to vacancies as having the potential to not similarly exclude individuals who have the intention of becoming candidates. Committee Member Matt Kaneali`i-Kleinfelder inquired whether the bill was in accordance with State law. County Clerk Jon Henricks responded that the counties establish vacancy provisions in their respective charters. Member Kdneali`i-Kleinfelder intended to break the bill by imagining himself dropping out of office at the precise time when only one person had become a declared GOEAC Report No. 73 GOEAC-73 Page 2 August 15, 2023 candidate. He expressed his concern for a supermajority vote by the Council to fill any vacancy so as to not create a majority where none had in fact existed. Committee Member Heather L. Kimball concurred with Member Inaba's concerns with the language of the bill regarding the timing element. Clerk Henricks cautioned about the danger of specifying a particular kind of notification to initiate the filling of a vacancy and urged a reliance on the judgement and discretion of people in power under such circumstances. Member Kimball recommended against the use of the term "reasonable" in the bill as ambiguous. She noted the conniving mind of Member Kaneali`i-Kleinfelder, but expressed her concern that the restriction on declared candidates was unduly prescriptive and might prevent the Council from filling a vacancy with the right person. She inquired about the possibility of a special election to fill vacancies on the Council, to which Clerk Henricks indicated that he did not think a special election would be cost prohibitive. Committee Member Jenn Kagiwada noted that the five-day requirement for notice to fill a vacancy did not seem in line with the charters of other counties and wondered if the shortened time frame was due to the specific instance previously highlighted by Chair Evans. Chair Evans clarified that the five-day requirement was applicable to the act of notice by the chair to the remaining members and not applicable to the act of filling the vacancy. Member Kagiwada wondered if the sixty-day requirement to take action to fill the vacancy would be retained. Clerk Henricks explained how the vacancy procedures of the bill would operate logistically. Member Kagiwada expressed her feeling that because the Mayor is elected by the entire county, the Council should consider granting the Mayor the authority to fill a Council vacancy in the event that the Council is unable to do so; and echoed Member Kimball's interest in a special election. Committee Member Ashley L. Kierkiewicz asked Vice Chair Susan L. K. Lee Loy to share what happened in a previous instance of a member of the council vacating a seat upon election to the state legislature. Vice Chair Lee Loy explained that the vacancy lasted for one regular Council meeting and the sine die meeting at the end of the term. Member Kierkiewicz expressed her approval for special elections, mentioned the manner of filling vacancies for state office and hiring the County Auditor as potential models for the Council to consider, and preferred that the power to fill vacancies failing Council action should rest within the legislative branch and not be transferred to the Mayor. Committee Member Michelle M. Galimba appreciated the desire to shorten the time frame for filling vacancies, but expressed concerns that an overly -short time frame might prevent the Council from appointing the right person. She also expressed her enthusiasm for special elections. Members Inaba and Kaneali`i-Kleinfelder approved for the provisions of the bill providing that a person who has been duly elected to serve the upcoming Council term shall automatically fill a vacancy that occurs for that County Council district seat, but disapproved of the other provisions. Mr. Yoshimoto floated the possibility of amending the Charter to provide that the terms of Council Members commence and expire at the same time as those of members of the state legislature. GOEAC Report No. 73 GOEAC-73 Page 3 August 15, 2023 Vice Chair Lee Loy mentioned previous historical precedents on the Council to illustrate the points of some of the members. Chair Evans moved to postpone Bill No. 49 to the Governmental Operations and External Affairs Committee meeting of June 20, 2023. The committee passed the motion unanimously. Governmental Operations and External Affairs Committee Meeting of June 20, 2023 Chair Evans moved to amend Bill No. 49 with the contents of Communication No. 305.5 and explained the provisions contained in the amendment, specifically concerning a special election to fill a vacancy on the Council. Clerk Henricks rescinded his previous statement that a special election would be cost prohibitive and referenced Communication No. 305.3, an itemized estimation for conducting a special election, which he characterized as conservative. Member Kimball inquired as to whether a special election could be conducted in a time period shorter than the 120-day requirement provided by the amendment. Clerk Henricks noted that it could be possible, but preferred the 120-day requirement over a shorter one, given everything that goes into running an election. Elections Program Administrator Cori Saiki concurred with Clerk Henricks and added that the County would have to handle all of the costs of a special election. Deputy County Clerk Aaron Brown followed up with further details regarding procurement procedures that the County would likely have to abide by in conducting a special election. Member Kimball asked if any discussions with the Finance Director had taken place with regard to budgeting for a special election, to which Chair Evans responded in the negative. Member Kimball expressed her support for the amendment. Member Kagiwada inquired about what would become of funds budgeted for a special election if unused. Clerk Henricks stated that the funds would revert into the County budget's fund balance and added that it would be irresponsible to fail to budget for a special election in anticipation that a vacancy would not occur. Member Lee Loy asked if there would be a period for certification and challenge of the results of a hypothetical special election. Clerk Henricks confirmed that there would be. Member Lee Loy expressed concerns that some of the mechanics of the amendment might not satisfy the requirements for election certification and challenges. Chair Evans asked Corporation Counsel Elizabeth Strance to clarify if the holding of a special election as provided by subsection (b) of the amendment includes certification of the result. Corporation Counsel Strance cautioned against writing any proposed charter amendments in an overly -detailed manner that might raise the possibility of running afoul of State law. Member Kierkiewicz supported the idea of a special election to fill a vacancy on the Council, but inquired whether the rules and procedures of such an election could be placed in the County Code or the Council Rules. Corporation Counsel Strance stated that an amendment to the Charter is necessary. GOEAC Report No. 73 GOEAC-73 Page 4 August 15, 2023 Committee Member Rebecca Villegas expressed hesitation with the Chair being able to appoint a temporary successor to fill a vacancy pending a special election. Chair Evans withdrew her motion to amend and moved to postpone Bill No. 49 to the Governmental Operations and External Affairs Committee meeting of July 5, 2023. The committee passed the motion unanimously. Governmental Operations and External Affairs Committee Meeting of July 5, 2023 Chair Evans moved to amend Bill No. 49 with the contents of Communication No. 305.7 and explained the provisions contained in the amendment. She stated her intention to move to postpone the matter given Clerk Henricks' absence from the meeting. Member Kagiwada made several comments on the amendment given that she was expected to miss the upcoming committee meeting. Member Inaba expressed concern about the potential for a Chair to withhold or delay introduced resolutions to fill a vacancy. Member Kimball concurred with that sentiment, but noted that she, as Council Chair, would never do that. Chair Evans withdrew her motion to amend, and moved to postpone Bill No. 49 to the Governmental Operations and External Affairs Committee meeting of July 18, 2023. The committee passed the motion unanimously. The scheduled Governmental Operations and External Affairs Committee meeting of July 18, 2023 was subsequently rescheduled to July 25, 2023 Governmental Operations and External Affairs Committee Meeting of July 25, 2023 Member Kimball moved to postpone Bill No. 49 to the Governmental Operations and External Affairs Committee meeting of August 1, 2023. Member Kierkiewicz spoke in favor of the postponement. The committee passed the motion with all members present voting in favor, and Chair Evans, Vice Chair Lee Loy, and members Galimba and Kagiwada being absent. Governmental Operations and External Affairs Committee Meeting of August 1, 2023 Chair Evans moved to amend Bill No. 49 with the contents of Communication No. 305.9 and explained that the amendment was technical and non -substantive. The committee passed the motion with all members present voting in favor, and members Kierkiewicz and Kdneali`i- Kleinfelder being absent. Chair Evans moved to amend Bill No. 49 with the contents of Communication No. 305.11, and explained the provisions contained in the amendment. GOEAC Report No. 73 GOEAC-73 Page 5 August 15, 2023 Member Inaba stated that he could not support the current amendment due to the provision for a temporary appointment of a successor to fill the vacancy pending a special election. Member Kimball concurred. The committee rejected the motion, with all members present voting in opposition, and Member Kdneali`i-Kleinfelder being absent. Chair Evans moved to amend Bill No. 49, as amended, with the contents of Communication No. 305.10, and explained the provisions contained in the amendment. Member Kierkiewicz reiterated her support for a transparent process by which the Council would fill vacancies and cited the hiring of the County Auditor as an example. Member Inaba inquired about what might happen if the Council initiated action to fill a vacancy but did not appoint a successor prior to a person being duly elected to the vacant seat. Corporation Counsel Strance recommended that such procedures might be suspended within a certain period of time of the election. Member Kimball inquired if an amendment to the Charter was necessary or if the provisions proposed by Bill No. 49, as amended could be placed in the Council Rules. Clerk Henricks responded that it would depend on the specific nature of the provisions to be considered. Corporation Counsel Strance elaborated that any changes to the Council rules could not violate or contradict the Charter. Chair Evans moved to postpone Bill No. 49, as amended to Draft 2, to the Governmental Operations and External Affairs Committee meeting of August 15, 2023. Member Kierkiewicz preferred a withdrawal of the bill over a postponement. Deputy Clerk Brown informed the Council that the bill cannot be withdrawn because it has been amended. The committee passed the motion with Chair Evans, Vice Chair Lee Loy, and members Kagiwada, Inaba, and Galimba voting in favor, members Kierkiewicz and Kimball voting in opposition, and members Villegas and Kaneali`i-Kleinfelder being absent. Governmental Operations and External Affairs Committee Meeting of August 15, 2023 Chair Evans moved to.amend Bill No. 49, Draft 2, with the contents of Communication No. 305.17 and explained the amendments contained in the amendment. Member Kimball felt that notice by the Chair concerning a vacancy was a necessary provision and objected to its removal by the amendment. Member Inaba concurred with that sentiment. The committee passed the motion unanimously. Member Kdneali`i-Kleinfelder wondered how the two subsections of the bill might interplay with each other and felt that it needed to be addressed. He further wondered if a supermajority of the remaining members should make the appointment. Member Kagiwada expressed her concern that a requirement for a supermajority would be far more likely to result in the Chair making the appointment. Member Inaba preferred a majority, rather than a supermajority, of the remaining members. GOEAC Report No. 73 GOEAC-73 Page 6 August 15, 2023 Your Committee on Governmental Operations and External Affairs is in accord with the purpose and intent of Bill No. 49, Draft 2, as amended to Draft 3, and recommends its passage on first reading. W. AYES NOES ABS EX EVANS X GALIMBA X INABA X KAGIWADA X KANEALI`I-KLEINFELDER X KIERKIEWICZ X KIMBALL X LEE LOY X VILLEGAS X Respectfully submitted, COMMITTEE ON GOVERNMENTAL OPERATIONS AND EXT AL AFFAIRS c_ CINDY EVANVHAIR GOEAC REPORT NO.: 73 ADOPTED: SEP 2 0�23