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HomeMy WebLinkAbout2004-04 Council Term Limits Article III, Section 3-2, Hawaii County Charter -,.f'4 OF"may Lincoln S.T. Ashida Har ry Kim �- • �I� Corporation Counsel Mayor Gerald Takase Assistant Corporation ''E o�'N► Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 + Hilo, Hawaii 96720-4262 • (808)961-8251 • Fax(808)961-8622 July 29, 2004 Corporation Counsel Opinion 2004-04 Honorable Bob Jacobson Hawaii County Council County of Hawaii 25 Aupuni St. Hilo, HI 96720 Dear Councilman Jacobson: RE: Article III, Section 3-2, Hawaii County Charter WRK NO. 03-3641 This communication is intended to address the apparent discrepancy between Corporation Counsel Opinion 2004-03, and a letter dated April 16, 1998, from former Assistant Corporation Counsel Ted H. S. Hong, to former Councilman John Ray, concerning the Hawaii County Charter's "term limits law." For ease of reference, both Mr. Hong's letter(hereinafter"1998 letter") and the communication from former Councilman John Ray and its attachments are appended hereto for reference purposes. I first became aware of the 1998 letter after our Opinion 2004-03 had been completed and routed to you. In hindsight, this was a good thing, since my research was truly independent, and devoid of any influence from my predecessors in office. With all due respect to Mr. Hong, we disagree with his conclusion as to the "effective date" of the charter amendment. The 1998 letter accurately points out, as we have in our Opinion 2004-03, that Ordinance No. 95-20 fails to properly identify a start date for purposes of calculating term limits. The ordinance also lacks significant legislative history in order to properly glean the intent of the County Council. The 1998 letter cites the following language from the Hawaii County Charter, relating to charter amendments: If the majority of the voters voting upon a charter amendment votes in favor of it or a new charter, if a new charter is proposed, the amendment or new charter shall become effective at the time fixed in the amendment or charter. Amended, 1990 Gen. Elec.) (Emphasis added) Hawaii County is an Equal Opportunity Employer and Provider Honorable Bob Jacobson July 29, 2004 Page 2 Article XV, Section 15-3, Hawai'i County Charter(1991). The 1998 letter then cites to McQuillin Municipal Corporations, a general treatise on government law: Unless otherwise provided by law, amendments of constitutional charters take effect from the date of their approval by the people. (Footnote omitted) (Emphasis added) McQuillin Municipal Corporations, Sec. 9.27, at 267 (Td Ed.) (1996). The 1998 letter finally cites a 1996 Hawaii case (State of Hawai'i Organization of Police Officers(SHOPO]v. Society of Professional Journalists-University of Hawaii Chapter, 83 Hawaii 378, 389-90, 927 P.2d 386, 397 [1996]) for the general proposition that"absent clear and express statutory language to the contrary, a law becomes operative upon the effective date of passage or adoption." An "effective date" for the 1996 charter amendment does not appear on the ballot, in the legislative history, nor anywhere else pertinent for purposes of this inquiry. Further, what constitutes the "effective date" is not adequately defined in the 1998 letter and the authorities cited therein. The more specific, germane question (which is the subject of the present debate), is whether council members already in office, or elected contemporaneously with the 'term limits law"are subject to this new law, and what terms are included or excluded from this calculation. Thus, although there is no question candidates not already in office as of November 5, 1996, would be forthwith limited to eight consecutive years of service (i.e., the "term limit law" would first apply in the 1998 election), the charter amendment fails to properly address the next question, which is "what about candidates already in office, or elected in 1996, and what terms are counted?" The 1998 letter did not have the benefit of the most compelling case cited in Opinion 2004-03, Woo v. Superior Court, 83 Cal.App.4'h 967, 100 Cal.Rptr.2d 156 (2000), which was decided two years after the 1998 letter was authored. The Woo case, along with the other cases cited in Opinion 2004-03, do address the specific and germane question of whether to include candidates already serving in office or elected contemporaneously with term limit laws, and what years of service are counted towards such limits. Although Woo, supra, a California case, is not legally binding on Hawaii courts, it nonetheless contains sound legal reasoning which we believe most compelling. For this reason, we believe Hawaii courts would adopt this position from a sister jurisdiction in the Ninth Circuit. Of course, there is a possibility Hawaii courts may reject this position, in favor of a different legal conclusion. Honorable Bob Jacobson July 29, 2004 Page 3 As I expressed to you during a recent informal discussion, at first blush, it did appear the "effective date" of the Charter's "term limits law"was 1996. However, after considering the cases cited in our Opinion 2004-03, we were compelled to conclude any ambiguity must be resolved in favor of allowing a candidate to seek elective office, as such is a fundamental right that may only be curtailed if expressly provided by law. Woo, supra, 100 Cal.Rptr.2d at 162-164. In the case of Hawaii County's 1996 charter amendment, no such "express language" appeared on the ballot, in the ordinance, nor in the legislative history of the measure. This problem was recognized by Mr. Hong, who recommended in the 1998 letter that Mr. Ray clarify and rewrite an entire section of his proposed ordinance (seeking to provide for two consecutive four-year terms). In Mr. Hong's words, 'The ordinance must be as clear as possible in terms of what years of service will be counted towards the eight (8)year term limit." We hope this communication has assisted you and your fellow Council members in analyzing this controversial issue. We are glad this matter will be litigated in the courts, as that is the proper forum to hopefully provide closure for all parties involved, including our citizens we all serve. As expressed in our Opinion 2004-03, our task was to independently research pertinent caselaw and other documents, in an effort to predict what a Hawaii court would do, if confronted with this issue. Although the issue is controversial, we do appreciate the opportunity to research it, hear and consider different points of view, and present our respective positions to the court in the upcoming litigation. Very truly yours, J?!:=- LINCOLN S. T. ASHIDA Corporation Counsel Encls. cc: Honorable Harry Kim, Mayor (w/encls.) Honorable James Y. Arakaki (w/encls.) Honorable J. Curtis Tyler (w/encls.) Honorable Aaron S. Y. Chung (w/encls.) Honorable Leningrad Elarianoff(w/encls.) Honorable Gary Safarik (w/encls.) Honorable Fred Holschuh (w/encls.) Honorable Honorable Joe Reynolds (w/encls.) Honorable Michael Tulang (w/encls.) S: Departments/Corp Counsel/Opinion 2004-04 7-29-04/LSAmr 1 Stephen K.Yamashiro '. OF Richard Wurdeman Mayor .! Corporation Counsel Wo � >x�. ut of CAU�jaii OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Stree4 Suite 325•Hilo, Hawaii 96720-4262 •(808) 961-8251 •Ea:(808) %1-8621 April 16, 1998 The Honorable John Ray Councilman Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 RE: Your Request for Opinion on Term Limits Dated April 8, 1998. Dear Councilman Ray: This letter is in response to your request for an opinion concerning the"Term Limits"Charter amendment of 1996. First,I would like to thank you for the comprehensive attachments to your April 8, 1998 letter. They were exactly what I needed to review before being able to respond to your request. A Questions Presented: There were two questions posed in your April 8, 1998 letter: (1) Absent a specific date of enactment,when is the effective date of the November 5, 1996 amendment to the Hawaii County Charter (1991), concerning "term limits?"and, (2) Whether the proposed ordinance establishing a maximum of two, four year terms is acceptable? B Summary of Response: (1) The effective date of the November 5, 1996 "Term Limits" Hawaii County Charter amendment is November 5, 1996, because the amendment,the official explanation of the amendment and the intent of the County Council did not state a specific date when it would become effective. The Honorable John Ray Page 2 April 16, 1998 (2) Although acceptable, Section 5 of the proposed ordinance should be changed to be patently clear concerning what years of prior service with the County Council will be considered or counted. C. Response: (1) Effective Date of the 1996 Charter Amendment. In this case,the effective date of the"Term Limits"Charter amendment is November 5, 1996. Ordinance No. 95-20,which became effective on January 25, 1995,placed a proposed amendment concerning"Term Limits"on the ballot for Hawaii County voters. That ordinance did not contain a date which the term of service limitation would begin to apply. The legislative history of that ordinance does not reflect any discussion concerning when the proposed amendment would take effect. Additionally,the official explanation to voters in the November 5, 1996 election failed to mention any date upon which the amendment would take effect. On November 5, 1996, the voters of the County of Hawaii overwhelmingly agreed with the proposal to limit County Council Terms. The Hawaii County Charter(199 1) states that with respect to any amendment: If the majority of the voters voting upon a charter amendment votes in favor of it or a new charter, if a new charter is proposed, the amendment or new charter shall become effective at the time fixed in the amendment or charter. (Amended, 1990 Gen. Elec.) (Emphasis added) Article XV, Section 15-3, Hawaii County Charter(1991). Courts have generally recognized that: Unless otherwise provided by law, amendments of constitutional charters take effect from the date of their approval by the people. (Footnote omitted) (Emphasis added) McQuillan Municipal Corporations, Sec. 9.27, at 267 (3rd Ed.) (1996). In Hawaii, absent clear and express statutory language to the contrary, a law becomes operative upon the effective date of passage or adoption. See. Sec. 1-3, Hawaii Revised Statutes (hereinafter referred to as "HRS"); State of Hawai'i Organization of Police Officers (SHOPO) v. Society of Professional Journalists-University ofHawai'i Chapter, 83 Hawai'i 378, 389-90, 927 P.2d 386, 397 (1996). In this case, the"effective date"of the charter amendment was November 5, 1996. I have carefully reviewed the Committee report and Council minutes concerning the passage of the The Honorable John Ray Page 3 April 16, 1998 underlying ordinance which placed the amendment on the ballot. There is no reference or discussion concerning any date upon which the amendment would take effect. Accordingly, the case law indicates that in these circumstances,the amendment becomes effective on the date the voters approved it. (2)� The groposed ordinance establishing a maximum of two four year terms is acceptable. The proposed ordinance is acceptable. However,I recommend that Section 5 be clarified and rewritten. The ordinance must be as clear as possible in terms of what years of service will be counted towards the eight(8)year term limit. I understand that you may be interested in rewriting this section in light of my response to the first question. In that event, I would be happy to review any proposed language in an effort to avoid any future legal entanglements. Thank you for the opportunity to comment on this important matter. Please feel free to contact me if you have any questions or concerns. Respectfully yours, . Hon Assistant Corporation Counsel OJ�tV OF H,k1 JOHN RAY v s--_ V ;' Hilo Phone:(808)%1-8265 Councilman *; ;} Fax:(808)%9-3291 Waimea Phone:(808)885-5875 �7TF OFrN��' Fax:(808)885-7184 COUNTY COUNCIL County of Hawaii Hawaii County Building 25 Aupuni Street Hilo,Hawaii 96720 April 8, 1998 Mr.Richard Wurdeman,Corporation Counsel Office of the Corporation Counsel,County of Hawaii Hilo Lagoon Centre 101 Aupuni Street, Suite 325 Hilo,Hawaii 96720 Dear Mr. Wurdeman: I am writing to request that your office provide an opinion regarding the effective date of the 1996 amendment to the Hawaii County Charter which established term limits of four consecutive two-year terms for council members. That amendment was approved by an overwhelming 3-1 margin of Hawaii County voters in the 1996 general election. Upon review of enabling legislation and documentation which placed this measure on the ballot in 1996,there appears to be no apparent designation of an effective date when the eight years of consecutive council services commences. Attached please find copies of(1)Ordinance No. 95-20 effective January 25, 1995; (2)Finance Committee Report 258 dated May 14, 1996; (3)Resolution No. 298-96 dated June 3, 1996;(4)a facsimile of the proposed amendment as it appeared on the general election ballot of November 5, 1996; (5)the"Certification of Results" by the Office of the County Clerk indicating that the measure was duly adopted by a majority of the votes cast on November 5, 1996; (5)copies of council minutes of December 21, 1994 {I st reading),January 4, 1995 {2nd reading), and January 20, 1995 (final reading and passage of Ordinance to amend Section 3-2,Article III of the Hawaii County Charter). All of these documents are silent on the question of the effective starting date for council member term limits. Chief Elections Officer Dwayne Yoshina, contacted by telephone yesterday,offered a preliminary opinion that, in the absence of a declared effective date,a county charter would observe state statutes,which he believed to become effective immediately upon adoption by the voters and certification of election results. Mr.Richard Wurdeman April 8, 1998 Page 2 A clear reading of this question is required at the earliest possible date. It is my intention to introduce an ordinance to initiate a charter amendment to institute two four-year terms of office, rather than the present four two-year terms. At the same time, it is not my intent to alter the will of the voters to cap consecutive terms in office at eight years. Accordingly,I have drafted a proposed ordinance(copy attached)that would amend the charter to allow for four-year terms of office without in any way compromising the desire of the electorate to limit terms to 8 years in a row. In the absence of definitive language indicating intended deferral of implementation of term limits until the 1998 election year, it seems reasonable to conclude that the effective date is 1996, when this measure was officially adopted as a charter amendment. Your prompt attention to this inquiry will be greatly appreciated. Please advise me of the effective date of the 1996 charter amendment and the suitability of the draft ordinance for upcoming consideration by the Council. In order to meet the deadline for submission of the attached draft ordinance,I will need a written reply to this inquiry not later than April 22, 1998. Sincerely, John Ray Hawaii County Council cc: Legislative Auditor COUNTY OF HAWAII STATE OF HAWAII It BILL NO. 5 ORDINANCE NO. 95 20 AN ORDINANCE TO INITIATE A CHARTER AMENDMENT.,TO SECTION 3-2, ARTICLE III OF THE HAWAII COUNTY CHARTER RELATING TO COMPOSITION AND TERMS OF THE HAWAII COUNTY COUNCIL. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Purpose. The purpose of this ordinance is to propose an amendment to the Hawaii County Charter to provide term limits for county council members. SECTION 2. Section 3-2, Article III of the Hawaii County Charter relating to composition and terms of the county council is hereby amended to read: 'Section 3-2. Composition and Terms. There shall be a county council composed of nine members. One member shall be elected from each of nine districts. The terms of the council members shall be two years and shall begin at twelve o'clock meridian on the first Monday of December after their election. The terms of the council members shall not exceed four consecutive two year terms. Candidates shall be nominated and elected in accordance with the election laws of the state. " SECTION 3 . Material to be repealed is bracketed. New material is underscored. _ SECTION 4. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other portions of this ordinance. SECTION 5. Upon adoption of. this ordinance, this council, by appropriate resolution shall provide that this amendment be submitted to the electorate of the county for approval at the neat general election. IfM7RODU 0 I COUNTY OF HAWAII Hilo, Hawaii Date of Introduction: December 21, 1994 Date of 1st Reading: December 21, 1994 Date of 2nd Reading: January 4 , 1995 Date of 3rd Reading: January 20 , 1995 Effective Date: .Tanuary 25 , 1995 qs-a, OFFICE OF THE COUNTY CLERK County of Hawaii Hi 1 o Hawaii RbLL CALL VOTE_ AYES NOES ' ABS EX Introduced By: Arakaki Date Introduced: Fist Reading . Bonk Abraatsoa Published: Childs De Liao REMARKS: - Osorio Rath - - Ray Smith -Third ROLL CALL VOTE 3MWM Reading ,Ta nua ry 2n , 1 q 9 5 AYES NOES ABS EX To Mayor. January 20 1995 Returned: January 25 , 1995 Arakaki X Effective: January 25 , 1995 Bonk-Abramson X Pul,';shed February 1, 1995 Childs X De Lima REMARKS: Domingo X Osorio X Rath X Ray X Smith X 8 1 0 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as ir, above. APPROVED as t FOR and LE TY COLINC -�IRMAIJ r COFPORATION COUNSEL COUNTY ./OF HAWAII .9q ash O cl.l�x - day Of 19 4Lf Z, COLIN7Y OYHAWAII Bill No.: 5 Reference: C-36 Ord No.: -JFFICE OF THE COUNTY CLER_ County of Hawaii H i 1 o Hawaii ROIr L CART , VOTE Introduced Bw Jim Rath AYFS NOES ABS I ?V Date Introduced: Dec ember 2 1 , 19 9 4 First Reading: December 2 1, 1994 B0HX-AZPJLMSoX X Published: N/A =T ns X D8 L33M x REMARKS: D0 0 x 030R20 X RATE X RAY X SITS X 9 0 0 Second Reading: January 4 , 1995 ROLL CALL VOTE To Mayor. AYffi I NOES ABS Ex Returned: AXA23= X Effective: BONX-ABBAMON X Published: C3=s x DE LIlOI X RML4RXS. D00cm0 X 030X20 x VATS X RAX X $M= X 2 0—_ I 0 HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated COUNCIL COUNTY Approved/Disapproved this day of - 019 'OR. COUNTY OF HAWAII Hill No.: 5 Reference: C- 36 Ord. No.: ti REPORT OF TBE CONU IITTEE ON FINANCE DATE: May 14, 1996 RE: Comm.10791 PLACE: Councilroom TIME: 1:40 p.m. Chairman and Members Hawaii County Council Hilo, Hawaii 96720 Your Committee on Finance, to which was referred Resolution No. 298-96, reports as follows: Resolution No. 298-96, transmitted by Council Chairwoman Keiko Bonk-Abramson on March 19, 1996, places the contents of adopted Ordinance No. 95-20 on the 1996 election ballot. The Hawaii County Council adopted Ordinance No. 95-20 after three readings on three separate days by the affirmative vote of no less than two-thirds of its entire membership with an effective date of January 25, 1995. Ordinance No. 95-20 amends Section No. 3-2 of the Hawaii County Charter(199 1)by adding that the terms of council members not exceed four consecutive terms. Pursuant to Section 15-2 of the Hawaii County Charter,upon adoption of an ordinance proposing amendments or revisions to the charter, the council shall provide by resolution that the full text of the proposed amendments or revisions be published in at least two daily newspapers of general circulation in the county at least forty-five days prior to submission to the electors of the county. Pursuant to Section 11-119(b) of the Hawaii Revised Statutes, whenever the chief election officer is responsible for the printing of the ballots, the exact wording to appear thereon, including, but not limited to, questions and issues shall be submitted to the chief election officer of the state no later than 4:30 p.m. on the sixtieth calendar day prior to the applicable election. Your Committee on Finance concurs with the intent and purpose of Resolution No. 298-96and recommends its adoption. BH AYES NOES A&E EX Respectfully submitted A,RAKAKI X CO E O E DE LIMA X DOMINGO X SNUT 4 X BRI LIMA, ACTING CHAIRMAN OSORIO X RAY X FINANCE REPORT NO. 258 BONK-ABRAMSON L O.M X ADOPTED: "i1m tl 1 1996 � COU ' OF HAWAII STATE OF All RESOLUTION W: WHEREAS, pursuant to Section 15-1(a)of the Hawaii County Charter(1991),the Council of the County of Hawaii adopted Ordinance No. 95-20 after three readings on separate days,by the affirmative vote of no less than two-thirds of its entire membership,and with an effective date of January 25, 1995; and WHEREAS,Ordinance No. 95-20 proposes to amend Section 3-2 of the Hawaii County Charter(1991)by adding that the terms of council members not exceed four consecutive terms;and WHEREAS,pursuant to Section 15-2 of the Hawaii County Charter(1991),upon adoption of an ordinance proposing amendments or revisions-to the charter,the council shall provide by resolution that the full text of the proposed amendments or revisions be published in at least two daily newspapers of general circulation in the county at least forty-five days prior to submission to the electors of the county; and WHEREAS,pursuant to Section 11-119(b)of the Hawaii Revised Statutes,whenever the chief election officer is responsible for the printing of the ballots,the exact wording to appear thereon,including,but not limited to,questions and issues shall be submitted to the chief election officer of the state no later than 4:30 p.m. on the sixtieth calendar day prior to the applicable election. NOW,THEREFORE,BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that it hereby directs the Clerk of the County of Hawaii to take the necessary steps provided for in Section 15-2 of the Hawaii County Charter(1991),and to submit the amendments proposed by Hawaii County Ordinance No. 95-20 to the electors of the county at the next general election. BE IT FURTHER RESOLVED that copies of this resolution be sent to Dwayne D. Yoshina,Chief Election Officer of the State of Hawaii and the Clerk of the County of Hawaii. Dated at Hilo, Hawaii,this 3rd day of June . 1996. INTRO UCED BY: COUNCIL MEMBER,COUNTY OF HAWAII cxx • ROLL CALL VOTE ' COUNTY COUNCIL AYES NOES ABS EX County of Hawaii Hilo,Hawaii Arakaki X Bonk-Abramson X I hereby certify that the foregoing RESOLUTION was by the Childs X vote indicated to the right hereof adopted by the COUNCIL of De Lima X the County of Hawaii on June 3, 1996 Doa"I'go X Osorio X Rath X ATTEST: Ray X _ �zj 1 1 Smith X 9 0 0 1 0 Reference C-1079 FC-258 pvct CLERK CHAIRMAN&PRESIDING OFFICER RESOLUTION NO. 298 96 Ef 'LISH FACSIMILE BAL. )T 001: D/P 01: 1-2 SIDE 1 SIDE 2 � TOP B COUNTY OF HAWAII STATE OF HAWAII STATE OF HAWAII OFFICIAL BALLOT OFFICIAL BALLOT GENERAL ELECTION GENERAL ELECTION BOARD OF EDUCATION TUESDAY, NOVEMBER 5, 1996 SECOND SCHOOL BOARD DISTRICT COUNTIES OF HAWAII, MAUI d KAUAI PROPOSED AMENDMENTS (COUNTIES ) TO THE HAWAII COUNTY CHARTER TUESDAY, NOVEMBER 5, 1996 VOTE BOTH SIDES (OVER) VOTE BOTH SIDES (OVER) This stub shall be removed by the Election Official only. 1st Departmental PROPOSAL 1. council terms. Should p the term of council members be limited School District MTh � _ so that their terms mI n Geed four Vote For Not Mor eawaii (1) $, consecutive two yeaer ? FOX, Robert A. + PRESENT PROVISIO Presen Se tion WATANABE, Herbert + 3-2 of the Hawaii Cou Charter pro Ides that council members are elec w year terms with no limit on the numb terms that a council membe PROPOSED AMEN ENT:If,appro ed,the County Charter would ded to provide that the term of a o em will be limited to four con utive two ye terms or t a total of eight years .This a endment does not prevent a member fro ing more than four terms as Ong s are not consecutive. .A IF YOU AGREE PROPOSAL 1, V E 'YE YES > + �3 IF YOU DISAGRE PROPOSAL 1, V 'NO. NO > + 2 PROPOSAL Vacanc in office. Should we eal ovision that creates a ac y w n an elected R Y _ official run fo nother lective office, during thei own m f office, and replace it wi r visi n that creates a vacancy ter he office sought overlaps he t rm f t office held? PRESENT PR ON: Presently Section 13-1 (f) (9 of the Haw ii County Charter provides that offic s declared vacant if the office holder iles to run for another elecohercted PROAMEND NT: If approved, the Q Cou �ul be amended to provide that would a declared vacant if the electe ran for another elected office and n before the end of the term fic hell .An elected official could run f er cted office, and retain the offic term b gan after the en d of the term . e h d. IF YOU AGREE WITH PROPOSAL 2, VOTE 'YES.' YES > ET IF YOU DISAGREE WITH PROPOSAL 2, VOTE 'NO.' NO > + 601 VOTE BOTH SIDES (OVER) B 602 VOTE BOTH SIDES (OVER) y SB82 I St ' JMr or N�r `.�•:' 1L ; CONSTANCE R. KIRIU DONALD IKEDA Legislative Auditor Cowuy Clerk •• • OFFICE OF THE COUNTY CLERK County of Houaii Hawaii County Building 25 Ampuni Strttt Hilo, Hawaii 96720 CERTIFICATE OF RESULTS CHARTER AMENDMENTS COUNTY OF HAWAII I, Donald Ikeda, County Clerk of the County of Hawaii, do hereby certify that the following questions proposing amendments to the Hawaii County Charter (1991) were on the 5th day of November, 1996, duly adopted by a majority of the votes cast: 1. COUNCIL TERMS: Should the term of council members be limited so that their terms may not exceed four consecutive two year terms? YES 33,542 NO 10, 428 2. VACANCY IN OFFICE: Should we repeal the provision that creates a vacancy when an elected official runs for another elective office, during their own term of office, and replace it with a provision that creates a vacancy if the term of the office sought overlaps the term of the office held? YES 23,758 NO 18,333 In Witness Whereof, I have hereunto set my hand and caused the Seal of the County of Hawaii, State of Hawaii, to be affixed this 10th day of February, 1997. DONALD IKEDA COUNTY CLERK COUNTY OF HAWAII Hawaii County Council December 21, 1994 ORDINANCE: A Bill for an Ordinance numbered 5, initiates a ILL Charter amendment to Section 3-2, Article III, of the (WAIVED/FC) Hawaii County Charter relating to Composition and (C-36) Terms of the Hawaii County Council--introduced by Mr. Rath. CHR, OSORIO: Mr. Rath. Mr. Rath moved. for the passage of Bill 5 on first reading. Seconded by Mr. De Lima. CHR. OSORIO: Any discussion? Mrs. Bonk-Abramson, followed by Mr. Arakaki. MRS, BONK-ABRAMSON: I have a question for the maker of this bill. I know we discussed this in our previous format of the Council make up, and was the wording the same? The terms of the Council shall not exceed four consecutive two-year terms? Does that mean that you can have consecutive terms of eight years and then take a break, come back for another eight years or so if you get elected? MR. RATH: Right. And that's--- MRS. BONK-ABRAMSON: So you just can't do more than a consecutive amount of terms? MR. RATH: Yeah, you gotta take a break. MRS. BONK-ABRAMSON: Okay, thank you. CHR. OSORIO: Okay, Mr. Arakaki. MR, ARAKAKI : Thank you, Mr. Chairman. Mr. Chairman, I' ll be voting for this bill today although I don't agree with all the items in the bill. I've voted against something like this in the previous Council but I do believe that the people do want term limits, therefore I' ll be voting for it. What I don't agree on is the two-year terms . I really feel that we should have two four-year terms and no more than eight years of service, but I don't think I have the votes today to pass something like that. So I ' ll vote for it and let the voters decide that' s the way they want to do it. 148 Hawaii County Council December 21, 1994 Perhaps in the future, I may introduce a bill for consideration by this Council to let the voters decide whether they would want a two-year or four-year Council term. Thank you, Mr. Chairman. CHR, OSORIO: Thank you, Mr. Arakaki. Mr. Domingo. MR. DOMINGO: Thank you, Mr. Chairman. I think Mr. Evans, this morning, brought up some good points in considering this matter this morning; and he indicated that there is a system and we keep in check and evaluate the performance of a politician every two years now, and I seem to go along with the same idea in feeling that the people should be the ones to alternately decide, and they do, as to who will be serving them in a County Council or any lawmaking body. I feel that to impose such limits upon this whole issue is also limiting the people and their right to decide an individual' s ability to serve in government. People, by voting at the polls, have said that right, and what we will be doing is, in some ways, curtailing that right that is before them. But as often mentioned in this Council, if we would put this before the public and have them decide whether they really want it, I have no problem on this particular issue. One point to consider is, it' s not, this comment is not made for any personal gain or anything because as you all obviously know, it probably won't affect me. CHR. OSORIO: At all, that's for sure. Any other comments? (There were none. ) If not, Madam Clerk, would you call the roll? The roll call vote on Bill 5 was as follows : AYES: Councilmembers Arakaki, Bonk-Abramson, Childs, De Lima, Domingo, Rath, Ray, Smith and Chairman Osorio - 9 . NOES: None. CHR, OSORIO: That ' s really good. Bill 5 is adopted on first reading. I hope you all feel the same way when it comes up again. 149 Hawaii County Council January 4, 1995 ORDINANCE A Bill for an Ordinance numbered 5, initiates a BILL 5: Charter amendment .to Section 3-2, Article III of the SC-36) Hawaii County Charter relating to Composition and Terms of the Hawaii County Council, introduced by Mr. Rath on December 21, 1994 for first reading; was presented for the second of three required readings. Mr. Rath moved for the adoption of Bill 5 on second reading. Seconded by Mr. Childs. CHR, OSORIO: Mr. Ray. MR. RAY: Mr. Chairman, I support this bill and I also hope we support an eight year term limit with two four-year terms to go on the ballot and that we support an aggressive public education process prior to the neat election to address the voter's needs to really understand the issues involved. I strongly believe that two-year terms are a huge waste of time and money in many ways and that from an efficiency standpoint, the public would be much better served by four-year terms. Thank you. CHR. OSORIO: Mr. Arakaki. MR, ARAKAKI: I concur with Mr. Ray's remarks. I always felt that two four-year terms would be the way we should be going and I supported the eight year limit on two year terms because I believe in term limits. But I think what Mr. Ray suggested is more reasonable and I think that this Council should consider that and, put that on the ballot and let the people decide which way they want. Thank you. CHR. OSORIO: Mrs . Bonk-Abramson. MRS, BONK-ABRAMSON: Well, I can see the pro' s and con' s of having four years rather than two years for personal reasons because you have to run for office every two years but the voter ' s did vote on it twice already and I think we've heard their idea about supporting two year terms . 213 Hawaii County Council January 4, 1995 In fact, this new body is elected because we had two year terms and it got changed around quite radically. I think that ' s what the voter' s wanted so we can keep putting it back on that ballot but they wanted two-year terms, Mr. Ray and Mr. Arakaki. Like it or not, that' s what they want. Thank you. CHR. OSORIO: Mr. De Lima. MR. DE LIMA: Well actually, that's not totally correct. The two-year term has always been tied to another issue. When it first was adopted by the voter's, it was tied to single member districts. It did not ever stand alone. The second time it was put on the ballot, it was tied to a term limit bill and that measure was not published in a time frame for it to appear legally on the ballot and as such, that was challenged. So I think there' s a lot of room for indicating that there has never been a two to four year term placed on the ballot in a way that it was not surrounded with any legal challenge to allow the voters to decide that issue. Now I, for one, understand the value of a four year term and as Mrs . Bonk-Abramson indicated, there's pro' s and con' s . I think from a point of view of an elected official, four year terms serve a lot of benefits in not having to run. The cost of elections are extremely expensive. On the other hand, I think two-year terms are very effective by allowing the voters to be able to replace someone that they feel hasn't been responsive or doing the job and I can see both sides of the issue. I'm satisfied with the two year terms and I will be satisfied with four consecutive two-year terms, but I have no objection for the matter as Mr. Ray suggested be placed on the ballot. Thank you. 214 Hawaii County Council January 4, 1995 CHR, OSORIO: Any further discussion? (There was none. ) Madam Clerk, call the roll. The roll call vote on Bill 5 was as follows: AYES: Councilmembers Bonk-Abramson, Childs, De Lima, Rath, Ray, Smith and Chairman Osorio - 7. NOES: Councilmembers Arakaki and Domingo - 2. CHR, OSORIO: Bill 5 is adopted on second reading. ORDINANCE A Bill for an Ordinance numbered 14, temporarily BILL 14 : suspends the issuance of any building permit for a (WAIVED/ dwelling on a lot within the State Agricultural Land HSPWC) Use District by amending Chapter 5 (Building Code) of (C-82) the Hawaii County Code 1983, introduced by Mr. Rath. Mr. Rath moved for the adoption of Bill 14 on first reading. Seconded by Mrs. Bonk-Abramson. AMENDMENT: Mr. Rath moved to amend Bill 14 to Bill 14, Draft 2., as circulated. Seconded by Mr. Childs. CHR. OSORIO: Mr. Rath, would you explain Draft 2 as being different from the original? MR. RATH: Sure. The original measure was put on for a suspension of building permits . This clarifies that. It's the second dwellings, be it either ohana or farm dwellings. This, of course, is a temporary measure for a period of 60 days to be extended however by the Planning Director, that ' s the difference. CHR. OSORIO: Mr. Childs . MR. CHILDS: Thank you, Mr. Chairman. I wanted to ask the Planning Director, if she might be able to come forth for a question. (At this time, Planning Director Virginia Goldstein came forward to address the members of the Council. ) 215 Hawaii County Council January 20, 1995 ORDINANCE A Bill for an Ordinance numbered 3, amends BILL 3 : Ordinance 94-71, as amended, the Operating Budget for (C-25) the County of Hawaii for the Fiscal Year ending June 30, 1995, by increasing revenues in the Federal Grants - Fed Transit Admin account by $361,000; and appropriates same to the Mass Transit - Motor Vehicle account; introduced by Mr. Rath on January 4, 1995, was presented for second and final reading. Mr. Rath moved for the passage of Bill 3 on second and final reading. Seconded by Mr. De Lima and carried by the following roll call votes: AYES: Councilmembers Arakaki, Bonk-Abramson, Childs, De Lima, Domingo, Rath, Ray, Smith and Chairman Osorio - 9. NOES: None. CHR, OSORIO: Bill 3 passes second and final reading. ORDINANCE A Bill for an Ordinance numbered 5, initiates a Charter ILL amendment to Section 3-2, Article III of the Hawaii (C-36) County Charter relating to Composition and Terms of the Hawaii County Council; introduced by Mr. Rath on December 21, 1994 for first reading and January 4, 1995 for second reading, was presented for third and final reading. Mr. Rath moved for the passage of Bill 5 on second and final reading. Seconded by Mr. De Lima and carried by the following roll call votes: AYES: Councilmembers Bonk-Abramson, Childs, De Lima, Domingo, Rath, Ray, Smith and Chairman Osorio - 8 . NOES: Councilmember Arakaki - 1. CHR. OSORIO: Bill 5 passes third and final reading. 293 AN ORDINANCE TO INITIATE A CHARTER AMENDMENT TO SECTION 3-2, ARTICLE III OF THE HAWAII COUNTY CHARTER RELATING TO COMPOSITION AND TERMS OF THE HAWAII COUNTY COUNCIL BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Purpose. Section 3-1, Article III of the Hawaii County Charter states, the legislative powers of the county shall be vested in the county council. Its primary function shall be legislation and public policy formulation. These responsibilities include dedicated research,continual public input, institutional knowledge of county government and its budget,and careful policy determination; as a result, the decision-making process or legislative oversight for certain measures may take months and, sometimes, years. During election years, measures may be neglected or deferred and only subsequently resurface among newly elected council members. To ensure continuity and stability in the legislative branch,terms of council members should be longer. Therefore,the Hawaii County Council fords it necessary to change the current limit of four consecutive two year terms to two consecutive four year terms. SECTION 2. Section 3-2,Article III of the Hawaii County Charter relating to the composition and terms of the County Council is hereby amended to read as follows: "Section 3-2. Composition and Terms. There shall be a county council composed of nine members. One member shall be elected from each of nine districts. The terms of the council members shall be [two]fm years and shall begin at twelve o'clock meridian on the first Monday of December after the election. The terms of the council members shall not exceed [four] two consecutive [two] four year terms. Candidates shall be nominated and elected in accordance with the election laws of the State." SECTION 3. Material to be repealed is bracketed. New material is underscored. SECTION 4. If any portion of this ordinance, or the application thereof to any person or circumstance, is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the provision of the application, and to this end, the provisions of this ordinance are declared to be severable. SECTION 5. The Council acknowledges the term limits charter amendment approved by the voters in the 1996 general election and finds that the effective date of this provision shall be twelve o'clock meridian on the first Monday of December, 1996. Adoption of this ordinance and conversion to four year terms of office beginning in the year 2000, if approved by the voters in the 1998 general election, will uphold the spirit and intent of existing term limitations not to exceed eight consecutive years in office. Upon adoption of this ordinance,this council, by appropriate resolution, shall provide that this amendment be submitted to the electorate of the county for approval at the next 1998 general election. The ballot proposal shall specify that the term limitations not to exceed eight consecutive years for the Hawaii County Council adopted by the voters in 1996 commence on the first Monday of December, 1996 and that any council member(s) re- elected thereafter may serve consecutive terms only until 2004. SECTION 6. Upon approval of the Charter amendment proposed in this ordinance by a majority of voters voting thereon, as duly certified,the Charter amendment shall take effect at twelve o'clock meridian on the first Monday of December after the 2000 election. INTRODUCED BY: COUNCILMEMBER, COUNTY OF HAWAII JR/rf Hilo,Hawaii Date of Introduction: Date of 1 st Reading: Date of 2nd Reading: Date of 3rd Reading: Effective Date: