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HomeMy WebLinkAboutCOM 0020.024 2000-2002 CHRISTOPHER J. YUEN AILO LAGOON CENTRE, SUITE 108 101 AUPUNI STREET ATTORNEY AT LAW H[LO, HAWAII %710 TEL. (808)935-4429 FAX (80835-1844 e-mail: chrityuenz8hotmaiLcom December 18, 2000 - 0 7 ~ Councilman James Y. Arakaki " ~ r Hawazt County Council T 25 Aupum Street = ~ Hilo, Hawaii 96720 _ _a co Dear Councilman Arakaki and members of the County Council: - _ ~ " o It was a great honor to have been appointed planning director by Mayor Harry Kim. I am looking forward to my confirmation hearing on Dec 19~' to respond to your questions about me, my background, and my perspectives on this important job. I am writing rn advance to discuss an issue that has been razsed about my qualifications under the County Charter. I wanted to put my thoughts about this in writing, not because I hunk it is a problem in the final analysis, but because it has received some publicity, and I can answer rt more completely rn written form. The Charter now states: The planning director shall have had a minimum of five years' training and expenence in a responsible planning position, or a degree in planning, engineering, azchitecture, geography, or another planning-related field and three years' expenence in a responsible planning position. No less than three years' experience shall have been in an administrative capacity The 1999-2000 Charter Commission added the last sentence about administrative experience. I was the attorney for the Charter Commission. The amendment originated in a memo from the chairperson, John Ray, and I put it in final form using his words almost exactly. There was almost no discussion by the Charter Commission about the meaning of "administrative capacity " The basic legal Wile for interpreting a charter or any other law is that words aze to be construed according to their ordinary meanings unless that would lead to an absurd result The public can only vote on the words presented to them, and the public can only assume that words in a document like the charter have their ordinary meanings Webster's Collegiate Dictionary defines administrative as "of or relating to administration, or of an administration," which is not very helpful, but the synonym is "executive " Comm. No. . iZ File No. Prk~nted~ Ref. To: Ref. Date__ 1`9 20()0 Councilman James Y Arakaki December 18, 2000 Page 2 Webster's defines "administration" as: 1. The act or process of administering; 2. Performance of executive duties: Management; 3 The execution of public affairs as distinguished from policy making; 4 a) A body of persons who admimster; b) Cap: a group constituting the political executive in a presidential govemment, c) A govemmental agency or boazd, 5. The term of office of an administrative officer or body. The Random House Dictionary defines "admimster" as "to manage(affairs, a govemment, etc.); have executive charge of." Thus, the most commonly accepted definition of "administrative," and the related words "administration" and "administer," is "executive." For my administrative qualifications, Irely primarily on my eight years as the Hawazi Island member of the Boazd of Land and Natural Resources, which, by law, is an "executive board" which manages the Department of Land and Natural Resources. There may be some misconceptions about the BLNR because it is so different from most other state and county boazds and commissions. The BLNR has direct managenal and executive responsibility over the Department of Land and Natural Resources. To make a comparison, although the County Planning Commission, like the BLNR, has important permit-granting functions, it does not have executive responsibilities over the Planning Department. According to the State Constitution, art. XI, sec. 2, the BLNR is the "executive board" responsible for the administration of the natural resources of the state, including state land. H.R.S. §26-15, defines the BLNR as the "executive board" which heads the Department of Land and Natural Resources, which must "manage and administer" the public lands of the state and all water and coastal lands of the state. H.R.S § 171-3 has almost identical provisions. You will note that all of the vanous laws that define the functions of the BLNR use the teen "executive," which is synonymous with "admuiistrative," and use the term "administer" with respect to the duties of the BLNR To give another example, our County General Plan says that "in the Conservation distnct, land uses are administered by the Boazd of Land and Natural Resources " Support Document at 79. The BLNR is ultimately responsible for the planning for the use of most state lands See H.R.S. §171-32, 33, 34, which set out some of the BLNR's planning Councilman James Y Arakakr December 18, 2000 Page 3 functions. It rs also responsible for administering almost all land uses rn the conservation district, which consists of almost half the land area of the state, Chap. 183C, H.R.S., plus uses on the seabed and rn the ocean The BLNR cannot be equated with a boazd that meets a few times a year and approves decisions made by management. Anyone who observes BLNR meetings would recognize that the boazd made independent decisions after considerable analysis. While I was on the boazd, the BLNR approved everything from the location of the UH West Oahu campus to easements for telephone pole anchors. In the conservation distnct, the BLNR reviewed more than 600 permit applications, including several telescopes on Mauna Kea, the restoration of the Waikiki Natatorium, Ewa Marina, and the Ke-ahole power plant. The boazd approved all departmental rules, including a complete revision of the rules for the conservation district. The boazd members went through many of the rules on a word-by-word basis. The boazd approved all CIP contracts for the DLNR and chose consultants who were hired on a contractual basis. I undertook special assignments at the request of the various chairpersons. Among other things, I personally: --negotiated a land exchange rn Kona involving property worth more than $50 million; --attended downs of community meetings, besides the regulaz board meetings; --met with lessees concerning their individual probletns; --signed contracts (along with the chairperson), ranging from hundreds to millions of dollazs, --reviewed and approved hundreds of real property appraisals; --received and reviewed most of the correspondence of the Hawaii District Land Office; --met with legislators concerning the DLNR's budget; --drafted proposed legrslauon on the Conservation district. In short, I was involved rn high-level administrative work for eight years. The DLNR has twenty times as many employees as the County Planning Department. While this was not full-time, rt was, in actual hours, the equivalent of three years full-time. I should mention that I have been working as planning director for two weeks, and many of the tasks I do are like my duties on the BLNR. Basically, I review and evaluate work done by staff that relates to land use, and set that in the context of overall policy. As for my educational background, I have a master of science degree rn environmental science, which rs, I think, a "planning-related field." I took graduate courses rn environmental impact assessment, natural resources management, ecology, and Councilman James Y Arakaki December 18, 2000 Page 4 environmental law In law school, I took courses in administrative law and land use law Some people use the word "administrative" to mean something much narrower than the dictionary definitions For example, some use it to mean "the details of an organization," as in the sentence "the planning director handles administrative matters for the planning commission " Let me suggest that this kind of administrative expertise is not the most important skill to look for in a planning director. Others may use the term "administrative" to mean something like "day-to-day supervision of employees " While this is one way to show administrative experience, it is not the only way (I should mention that I have supernsed employees on a daily basis in my law business for thirteen years, on my farm for the last six years, and as a National Pazk Service interpretive naturalist ) If the Charter is construed to require three years of day-to-day supervision of employees in a planning position, there will be only a handful of "qualified" individuals on the island, primarily the former planning directors and their deputies. It would be much too restrictive to limit the eligibility in this way. I don't think that the Charter Commission or the voters thought that they were limiting the job of planning director to just ttis handful of people when the Charter was amended in 2000. This question has come up before in the State. The Charter of the City and County of Honolulu has a very sirriilar administrative experience requirement for the director of the Department of Land Utiliwtion (which is much lazger than the Hawaii County Planning Department) The qualifications of Jan Sullivan were questioned when she was appointed a few years ago. The Honolulu Corporation Counsel determined that she was qualified based upon her years as a ]and use attorney, and her service on the Hawaii Community Development Authority, a state boazd. She had not supervised planners on a day-to-day basis. This has been a long letter, probably much longer than necessary, but I wanted to make sure that the members of the Council had the same level of comfort on this question that Mayor Harry Kun had when he appointed me to this Job. I also wanted to give the Council a basis for interpreting this charter provision in the future. Agazn, I look forward to my confirmation hearing with you Tuesday, where I will be happy to address this and any other questions you may have Yours T ly, ~ ~ ~ Christopher J. en ~ CJY/tip PE0.SKOUNCIL