HomeMy WebLinkAboutCOM 0212.028 1996-1998 d,L''•' er
Stephen K. Yamsshiro Riclurd Wurdettutt
Mayor Coryomtbn Ce~nul
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OFFICE OF THE CORPORATION COUNSEL //~~[~]CICL~!`L!i
101 Aupuni Street, Suite 325 • Hilo, Harni'I 96720.4262 • (808) %I-0251 • Fes (BOtfyfr•Ltlce~tY lUi- FiAV'JAII
6 May 1997
TO: HONORABLE AARON CHUNG
Chair and Members, Finance Committee
Hawaii County Council
FROM: RICHARD D. WURDEMA~!°`~~~
Corporation Counsel
SUBJECT: BILL 62, Comments of Lanny Sinkin
This is a response to your request of May 5 for comment on the
criticism of one Lanny Sinkin to the manner in which the Finance
Committee hearing on Bill 62, relative to a Post Harvest
Treatment Facility, was conducted. I will respond item by item
in the order these points of criticism were presented.
1. The bill does not include the estimated cost of the facility.
Section 10-6(a) (2) of the Charter requires that items on
the Capital Budget include the estimated cost of the
improvement and the estimated operating cost. Draft 2,
since it does not include the estimated operating cost for
the facility is incomplete, and to this extent the criticism
is valid.
2. Bill 62 violates the one subject Rule.
Section 3-10(b) of the Charter requires that every ordinance
embrace but one subject,t which subject shall be expressed
in its title. The Title of Bill 62 indicates that it is
"relating to public improvements and financing thereof..."
This office has already found the title of Bill 62 to be
adequate. Letter of Frederick Gianinni to Aaron S. Y.
Chung, April 16, 1997. In ruling on the parallel
requirement in the State Constitution, the Supreme Court has
said that such requirements be literally construed, and
violations would only occur when the infraction was clear,
manifest and unmistakenable. Schwab v. Arivoshi, 58 Haw 25
(1977).
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. ) --~Y.,___7, ,1997
Honorable Aaron Chung, Chair
6 May 1997
Page 2
This title, while general, neither misleads the public, nor
the Council members as to its purpose, Faulbaker v. Township
Committee 643 A.2d.52 (ND super. L. 1994), and is not the
kind, of "hodgepodge" or "logrolling" legislation which the
court have found violative of these type of provisions.
Schwab v. Arivoshi, supra.
3. The Order of Business was improper.
The letter objects to the separation by the Committee of
public testimony into two parts. Allegedly, isomedia, the
hopeful developer of this facility was allowed to make a
presentation, separate from that of other members of the
public.
The order of presentation of testimony is not addressed in
the Rules of the Council, and we believe such order is
clearly within the discretion of the presiding officer.
4. The "Three Minute" Rule was not enforced.
Rule 17(a) of the County Council clearly makes the
enforcement of this rule discretionary with the presiding
officer.
The Chair was clearly within his discretion in this instance.
5. Improperly registered people were not declared out of order.
I do not fully understand the factual scenario complained of
here. It seems that witnesses were allowed to testify, who
had not complied with the disclosure requirements of Rule
17, relating to addresses and organizational affiliation.
Under a strict reading of the rules, this failure should
have called for a ruling that these individuals were out of
order.
The end result, however, was the allowance of more
testimony, and more comprehensive discussion, favored by the
law HRS §92-1., and any error, if error these were, is
harmless.
6. Proponents were allegedly given to proponents by allowing
them to speak first.
Mr. Sinkin argues that preference was showed by allowing
proponents to speak before opponents of the measure.
Honorable Aaron Chung, Chair
6 May 1997
Page 3
It is indeed arguable that early speakers in such a
protracted hearing as this was, have the advantage over
later speakers. Many debaters strive to get in the "last
word".
In any event, the calling and grouping of speakers is a
matter of the chair's discretion, and no particular order is
mandated by the rules.
7. The instances of a lack of Quorum.
As admitted by Mr. Sinkin, the rules only require a quorum
where actions are being taken. Council Rule 3.1.
The taking of public testimony is not an "action"
Legislative "action" may be by ordinance, bylaw or
resolution. McQuillen, Municipal Corporations 3rd Ed.
(rev), §13.43.
As there is no evidence that any "actions" were taken
without quorum, no violation of the Rules occurred.
8. Consideration of Written Testimony.
Mr. Sinkin alleges that numerous submissions of written
testimony were made during the meeting and that the members
did not read and consider this testimony prior to voting.
No evidence is presented to support such an assertion, nor
is it claimed that this testimony was relevant or
non-repetitive. In the absence of such evidence, there are
no grounds to question the integrity of the members in th
carrying out of their duties.
To summarize, Mr. Sinkin's comments are valid in respect to the
failure of the Bill to include an estimate of operating
expense. His other arguments are either not supported by the
evidence; or are personal disagreements with the authority of
the Chair in the conduct of the meeting.
i see no reasons that the action requested, a recommittal of the
matter to the Finance Committee need occur.
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