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HomeMy WebLinkAbout2004-03 Council Member Term Limits Article III, Section 3-2, Hawaii County Charter x +<r of„ Lincoln S.T.Ashida Harry Kim Corporation Counsel Mayor +s '• Gerald Takase .+f,.• +�;�; Assistant Corporation 'r.•„•;,'+ 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 May 26, 2004 Corporation Counsel Opinion 2004-03 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 You have asked the Office of the Corporation Counsel to opine on the legal effect of the 1996 Hawaii County Charter (hereinafter"Charter”) amendment pertaining to Council member term limits. Specifically, you ask whether the present Charter language providing for term limits for Council members of four consecutive two-year terms applies to members who were elected in 1996, contemporaneous with the 1996 Charter amendment. Our analysis of this issue began in 2001, when we first examined nationwide case law concerning legal challenges made to term limit legislation. Our preliminary research indicated there was a significant body of case law in other jurisdictions which supported a finding that our term limit law would not apply to those members of the Council who were elected contemporaneously with the 1996 Charter amendment. Pursuant to Section 11-2, Hawaii Revised Statutes, as amended (hereinafter"HRS"), and Article III, Section 3-6 of the Charter, County Clerk Al Konishi is charged with the responsibility of overseeing elections in our County. Two important statutory functions of his office are the responsibility for "maximization of registration of eligible electors throughout the State," and "public education with respect to voter registration and information." (HRS Sections 11- 2(b) and (c), respectively). Mr. Konishi is also charged with the responsibility of determining the suitability of those seeking elective office. To this end, in February of 2003, Mr. Konishi authored a document entitled "Findings: Review of Hawaii County Charter Provision on Council Term Limits." Hawai'i County is an Equal Opportunity Employer and Provider Honorable Bob Jacobson May 26, 2004 Page 2 This document was forwarded to State of Hawaii Chief Election Officer Dwayne D. Yoshina, and has been a public record since its issuance in 2003. This document was published well in advance of the filing deadline for the 2004 election. For reference purposes, a copy of Mr. Konishi's written findings is attached hereto as Attachment 1. Recent media attention surrounding this issue reports a division in the interpretation of this Council term limit provision. Specifically, notwithstanding Mr. Konishi's conclusions, there is reported ambiguity whether a Council member who was elected contemporaneously with the passage of the 1996 Charter amendment is "covered" by the term limit law. Earlier this year, in an effort to have this matter judicially examined, our office explored the possibility of filing a petition for declaratory relief with the Third Circuit Court. However, HRS Section 632-1 requires an "actual controversy" as a condition precedent to the filing of a request for declaratory judgment. Thus, we were unable to proceed without an adversarial party. Although the media had reported a difference of opinion surrounding this issue, no taxpayer, organization, potential candidate, or other person or entity with standing affirmatively stepped forward to challenge the County Clerk's written conclusions. As reported above, the County Clerk had determined as early as 2003 that he would accept the filing of a candidate for Council office, notwithstanding the fact the candidate had been elected contemporaneously with the 1996 Charter amendment. Equally as significant, it was reported Council Chairman James Arakaki declared his intention to run for reelection in 2004, as he believed he was not precluded from reelection by this new term limit law. The Corporation Counsel is charged by Charter with the following responsibility (reproduced in pertinent part): The corporation counsel shall be the chief legal advisor and legal representative of all county agencies, the council and all officers and employees in matters related to their official powers and duties. The corporation counsel shall represent the county in all civil legal proceedings and shall perform all other services incident to the office as may be required by law. Section 6-2.3, Hawaii County Charter The conclusion concerning term limit applicability reached by the County Clerk was one made pursuant to his official power and duty. Having examined the basis and methodology of his findings, we concluded his position was legally prudent and defensible, in the event of legal attack. Thus, we are obliged by the Honorable Bob Jacobson May 26, 2004 Page 3 aforementioned Charter provision and our Rules of Professional Responsibility to represent this position. The filing of a petition for declaratory relief would require at minimum, in our opinion, a party asserting a position contrary to Mr. Konishi's findings. Although many have spoken out regarding this issue, no one has stepped up to the plate to allow a court to properly examine this issue. The Corporation Counsel concluded the premature filing of a petition for declaratory relief, without an identified adversarial party, would violate the Hawaii Rules of Civil Procedure and constitute a frivolous filing. Clearly, our County's legal representative should not be party nor responsible for such an unwarranted filing, which may result in monetary sanctions levied against our office, which would be borne by our taxpayers. It is our understanding Mr. Arakaki has recently pulled papers for reelection as a Council member. Although not filed, Mr. Konishi has previously publicly represented he would accept such an application. To date, we are unaware of any legal challenges filed against Mr. Konishi based on this assertion. Thus, although the Corporation Counsel stands ready to have this matter heard and decided by a Court, we are unable to get there, since no person or organization has been willing to participate in such litigation. We will now summarize our research and conclusions in finding Mr. Konishi's position legally prudent and defensible. Article lll, Section 3-2, Hawaii County Charter The present Charter provision pertaining to term limits reads in pertinent part as follows: The terms of the council members shall not exceed four consecutive two year terms. Candidates shall be elected in accordance with the election laws of the state, insofar as applicable. As reported in Mr. Konishi's findings, the Charter amendment lacks a stated effective date, lacks transitional provisions, lacks proper notice to our voters, and lacks any significant legislative history. A detailed recitation of these problems would be redundant and not productive here. In contrast, a similar City of Cincinnati Charter amendment placed on their November 1991 ballot read as follows: Shall the proposed amendment to the Charter of the City of Cincinnati to provide that no person shall hold the office of a member of the council for Honorable Bob Jacobson May 26, 2004 Page 4 a period longer than four consecutive two year terms of the council unless a period of at least two consecutive two year terms of the council has intervened without such person serving on the council; that the provisions of this amendment shall apply commencing with the nominations for the election for the council term commencing December 1, 1993, and that consecutive terms of service on the council to which members were elected prior to December 1, 1993 shall be counted in determining eligibility for office under this section; and to give effect to the above provisions by repealing existing Section 2 and 12 of Article IX be approved? State ex rel. Mirlisena v. Hamilton County Board of Elections, 67 Ohio St.3d 597, 622 N.E.2d 329 (1993). Recognizing the opinion of the Corporation Counsel is merely an opinion, the million dollar question, so to speak, is what would a Hawai'i court do, if asked to determine the applicability of the Charter's term limit provision to members of the Council who were elected contemporaneously in 1996 with the Charter amendment. Case law In the above-cited State ex. rel. Mirlisena v. Hamilton County Board of Elections, supra, the voters of the City of Cincinnati passed the above language, which effectively placed term limits on city council members. This language contained the effective date of the amendment, together with a retroactive provision expressly including the terms of council members who were already serving. Complicating matters in the Mirlisena case was a separate charter amendment introduced by the council which provided, inter alia, that there would be no term limits imposed on any council candidate. Not surprisingly, both charter amendments passed, adding further ambiguity to this issue. Mirlisena, a councilman first elected in 1985, and who had been reelected in subsequent elections in 1987, 1989, and 1991, sought reelection in the 1993 election, notwithstanding the fact he had served four consecutive two-year terms, and would be theoretically barred from running again by the charter term limit amendment. The Supreme Court of Ohio found the retroactive provision of the charter amendment unconstitutional. The Ohio high court reasoned as follows: ...the Ohio Constitution provides, in part, that "[t]he general assembly shall have no power to pass retroactive laws * * * ." Since we have indicated that we will apply, absent any direction from the Cincinnati City Charter, 1 r Honorable Bob Jacobson May 26, 2004 Page 5 the general law of statutory interpretation in construing Issues 4 and 5 (the above-described charter amendments), we will likewise apply the Ohio constitutional provision as to retroactive legislation. We are buttressed in doing so by the decision of the United States Supreme Court, Citizens Against Rent Control v. Berkeley(1981), 454 U.S. 290, 295, 102 S.Ct. 434, 437, 70 L.Ed.2d 492, 498. where the court said that "* * * the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation." Issue 5 provides, in part, "* * * that consecutive terms of service on the council to which members were elected prior to December 1, 1993 shall be counted in determining eligibility for office under this section * * *." (Emphasis added). This is clearly an enactment which is meant to have retroactive effect. Such an enactment is proscribed by Section 28, Article II of the Ohio Constitution. Mirlisena, supra, 622 N.E.2d at 331-332. Other states that have grappled this issue conclude term limit legislation is not retroactive, and should have prospective application only. In U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994), the Supreme Court of Arkansas examined an amendment to the Arkansas Constitution, which established term limits on state constitutional officers, state legislators, and placed other limitations on candidates for United States Senate and United States House of Representatives. The subject amendment, approved by Arkansas voters, provided as follows: ARKANSAS TERM LIMITATION AMENDMENT An amendment to the Constitution of the State of Arkansas limiting the number of terms that may be served by the elected officials of the Executive Department of this state to two (2) four-year terms, this department to consist of a Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, Commissioner of State Lands; limiting the number of terms that may be served by members of the Arkansas House of Representatives to three (3) two-year terms, these members to be chosen every second year; limiting the number of terms that may be served by members of the Arkansas Senate to two (2)four-year terms, these members to be chosen every four years; providing that any person having been elected to three (3) or more terms as a member of the United States House of Representatives from Arkansas shall not be eligible to appear on the ballot for election to the Honorable Bob Jacobson May 26, 2004 Page 6 United States House of Representatives from Arkansas; providing that any person having been elected to two (2) or more terms as a member for the United States Senate from Arkansas shall not be eligible to appear on the ballot for election to the United States Senate from Arkansas; providing for an effective date of January 1, 1993; and making the provisions applicable to all persons thereafter seeking election to the specified offices. U.S. Term Limits, Inc., supra, 872 S.W.2d at 351. Similar to the 1996 Hawai'i County Charter Amendment, the above cited language from the Arkansas Term Limitation Amendment was silent on the issue of whether terms served are counted in determining whether a candidate is eligible for reelection. The Arkansas Supreme Court held the constitutional amendment was prospective; in other words, only terms served after the passage of the amendment were to be counted in the term limit calculation. The Arkansas high court opined as follows: Constitutional amendments operate prospectively unless the language used or the purpose of the provision indicates otherwise. Dennen v. Bennett, 230 Ark. 330, 322 S.W.2d 585 (1959). We have also held that with respect to an amendatory act the legislation will not be construed otherwise. Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979); see also Gannett River States Publishing Co. v. Arkansas Indus. Dev. Comm'n, 303 Ark. 684, 799 S.W.2d 543 (1990). The same rule of construction is equally applicable to a constitutional amendment. The Amendment in this case is vague and ambiguous on the point of when to begin counting terms. As already stated, two proponents of the Amendment, U.S. Term Limits, Inc. and the State of Arkansas represented by the Attorney General's office, interpret it to apply prospectively. Arkansans for Governmental Reform took the same position before the circuit court. Because of the vagueness in the Amendment on this point, we agree. Only periods of service commencing on or after January 1, 1993, will be counted as a term for limitation purposes under Amendment 73. U.S. Term Limits, Inc., supra, 872 S.W.2d at 361. The rationale followed by the Arkansas Supreme Court was the same followed by our County Clerk in interpreting the 1996 Hawai'i County Charter amendment. In Mr. Konishi's written findings, he states at page 5 as follows: This office is empowered to act in accordance with the letter and spirit of the law. However, any law seeking to impose limits on the constitutional Honorable Bob Jacobson May 26, 2004 Page 7 rights of individuals must be clearly written. The letter of such a law must be precise and complete. Even if a more expansive reading of the "spirit" of the 1996 amendment may seem clear to some, without explicit authority, this office should not and will not impose limits on the constitutional rights of individuals. This office can not act merely on the basis of our best guess about the "spirit" or the 1996 amendment, particularly when that "spirit"was not clearly articulated by the drafters who had numerous opportunities to do so in the normal course of Council action. (Footnote omitted). (Emphasis in original). An even more compelling argument in favor of prospective application of the 1996 Hawai'i County Charter amendment is found in Woo v. Superior Court, 83 Cal.App.4t' 967, 100 Cal.Rptr.2d 156 (2000). In Woo, Michael Woo, a Los Angeles City Council member who served two consecutive four-year terms from 1985 to 1993, sought election in the 2001 council race. The city clerk advised Woo he was ineligible for election to the council, based on a 1996 Los Angeles City Charter amendment imposing term limits. In sum, the city clerk concluded that based on Woo's previous service of two full terms, he was ineligible to be elected to the council. In 1993, Los Angeles voters passed the following term limit amendment to the city charter: No person may serve more than two terms of office as Mayor. No person may serve more than two terms of office as City Attorney. No person may serve more than two terms of office as Controller. No person may serve more than two terms of office as member of City Council. These limitations on the number of terms of office shall apply only to terms of office which begin on or after July 1, 1993. These limitations on the number of terms of office shall not apply to any unexpired term to which a person is elected or appointed if the remainder of the term is less than one-half of the full term of office." (Italics added). Woo, supra, 100 Cal.Rptr.2d at 159. In 1996 and 1997, a Charter Reform Commission for the City of Los Angeles drafted a new city charter, which was submitted to the voters in 1999. Los Angeles voters approved the new charter, and the charter became effective on July 1, 2000, repealing the former city charter. The term limit provision in the new charter was identical to the language cited above (the 1993 term limit language), except the italicized language pertaining to terms counted in the term limit calculation was excluded. It was this Honorable Bob Jacobson May 26, 2004 Page 8 omission in language that the city clerk based his denial of Woo's eligibility for seeking election to the council. The City, defending its Clerk's position, argued the new term limit language was unambiguous, and made no exception for terms commenced before July 1993. The City further argued the deletion of the italicized language indicated an intention to effect change. The Court of Appeal, Second District, Division 3, of the State of California rejected the City's arguments and reversed the lower court's decision. In finding Woo was eligible to seek reelection to the council, the California appellate court opined as follows: A city charter is the city's constitution. (City and County of San Francisco v. Patterson [1988] 202 Cal.App.3d 95, 102, 248 Cal.Rptr. 290; see Domar Electric, Inc. v. City of Los Angeles [1994] 9 Cal.App.4t' 161, 170, 36 Cal.Rptr.2d 521, 885 P.2d 934 ["[T]he charter represents the supreme law of the City, subject only to conflicting provisions in the federal and state Constitutions and to preemptive state law. [Citations.]']) Accordingly, we construe a voter-approved amendment to the city charter as we would construe a voter-approved amendment to the state Constitution. (Footnote omitted). We also are guided by the principle that the right to hold public office is a fundamental right of citizenship (Zeilenga v. Nelson [1971] 4 Cal.3d 716, 720, 94 Cal.Rptr. 602, 484 P.2d 578) that can be curtailed only if the law clearly so provides (carter v. Corn. on Qualifications, etc. [1939] 14 Cal.2d 179, 182, 93 P.2d 140; Helena Rubenstein Internat. v. Younger[1977] 71 Cal.App.3d 406, 418, 139 Cal.Rptr. 473). Any ambiguity in a law affecting that right must be resolved in favor of eligibility to hold office. (Carter, at p. 182, 93 P.2d 140; Younger, at p. 418, 139 Cal.Rptr. 473.) Moreover, the ballot pamphlet did not set forth the text of the proposed provision or facilitate a comparison with the existing provision through which a voter could discover the purported change that the description and summary failed to disclose. A voter would have had to turn to a separate booklet containing the complete text of the proposed city charter to discover the apparent inconsistency between the information provided in the ballot pamphlet and the actual text of the term limits provision. We do not suggest that an inconsistency between the ballot pamphlet and the actual text of a measure necessarily must be resolved in favor of the ballot Honorable Bob Jacobson May 26, 2004 Page 9 pamphlet in all circumstances (Citations omitted). However, in these circumstances, where the ballot pamphlet and the recent history of the term limits law reasonably led the voters to believe that the law was unchanged and where the fundamental right to hold public office is at issue, we conclude that the voters did not intend to change the term limits law so as to disqualify persons who had served two terms of office before July 1993. Woo, supra, 100 Cal.Rptr.2d at 162-164. As Woo instructs us, the holding of public office is a fundamental right that may only be curtailed if expressly provided by law. Where there is ambiguity, as in the 1996 Hawaii County Charter amendment, any ambiguity must be resolved in favor of allowing a potential candidate to run for elective office. State ex. rel. Voss v. Davis, 418 S.W.2d 163 (Missouri 1967), an old case found in our original research of this issue, and perhaps the only case which mildly supports the position that the 1996 Hawaii County Charter amendment has retroactive effect, is patently and easily distinguishable on its facts. In Davis, the Supreme Court of Missouri held, inter alia, that the constitutional authority and power to amend the Kansas City Charter carried with it the right of the people to determine the length of term of their elected officials, even though that incidentally would involve shortening the terms of incumbents. However, in Davis, and unlike the present situation involving the Hawaii County Charter, the Kansas City Charter amendments included the following language (recited in pertinent part): Sec. 489. Terms of office to be two years. The terms of office of all elective officials, including the mayor, the councilmen and the judges of the municipal court, shall be two years, and until their successors are elected and have qualified. The terms of office of officials elected at each biennial election after such 1965 election shall continue until ten o'clock in the forenoon of April 10th, two years after the date when they were elected and until their successors are elected and have qualified. This Section shall take effect immediately upon adoption. Sec. 490. Elections held every two years . . . (I)n the year 1967, and in f each second year thereafter, a regular municipal election for the choice of all such municipal officers to be elected by the people shall be held on the last Tuesday in March. A primary election shall be held in the city, in each election precinct thereof on the fourth Tuesday preceding each regular municipal election. All candidates for office shall be nominated and all Honorable Bob Jacobson May 26, 2004 Page 10 elections herein provided for shall be held in accordance with the provisions of Article XVI of this Charter, and the other election laws of this state applicable to elections held in this city not in conflict with this Section. This Section shall take effect immediately upon its adoption. Davis, supra, 418 S.W.2d at 165-166. Thus, Davis, an old case with distinguishable facts and negligible precedent (shepardizing this case revealed one citation where it was distinguished), is of limited import to our analysis and conclusion that the 1996 Hawai'i County Charter amendment has prospective application only. This is because Davis was a case where transactional provisions were clearly stated in the law. In addressing your specific questions in your original communication to our office of March 6, 2003, you ask for citations to "United States Constitutional and Hawaii case law pertinent to his (Mr. Konishi's) findings and conclusions." Our research revealed no reported United States Supreme Court cases on this issue. Presumably, as Mr. Konishi points out at page 2 of his written findings, the congressional promulgation of the 22nd Amendment to the United States Constitution contained language, unlike the 1996 Hawaii County Charter amendment, which adequately provided fair notice of the amendment's effect to both the person holding office at the time the amendment was passed, as well as the person holding office when the amendment became law. Thus, no litigation ensued. There are no reported Hawai'i appellate court cases on this issue. You ask for the relevance of"Fasi v. Cayetano, 60 Hawai'i 282, 588 P.2d 915 (1978)." The correct title of this case is Hustace v. Doi, found at the same citation. I believe Mr. Konishi cited this case for the proposition that a sufficient justiciable case and/or controversy exists in the present Hawaii County Charter matter, sufficient to warrant the filing of a request for declaratory relief. As stated above, we do not conclude, based upon a reading of our Rules of Civil Procedure and Rules of Professional Conduct, and absent an adversarial party, that it would be permissible to bring this case before the Circuit Court. Hustace involved a nonpartisan candidate for mayor of Maui County suing Hawai'i's chief election officer to determine the validity of Hawai'i's election laws with respect to the criteria for inclusion of nonpartisan candidates on the ballot for the general election. Honorable Bob Jacobson May 26, 2004 Page 11 Unlike Hustace, there appears to be no one willing to challenge Mr. Konishi's findings. As I expressed to you in my email communication of May 15, 2003, an adversarial party, in our opinion, would be necessary. This is because our court rules require an actual case or controversy. Your final question is, "Please advise what corrective action the Council could take if there (sic) have been omissions or failures in the due process of passing the term limits bill other than the County Clerk's conclusion that four Council members elected in 1996 are still eligible candidates in 2004." Your question presupposes it was the intent of the Council and the voters to specifically include prior and/or contemporary elective terms of service into the "term limit" calculation, when the Charter amendment passed in 1996. As stated in our opinion, ante, the record is barren of any such conclusive determination, given the limited legislative history, lack of stated intent on the public notice, and lack of stated effective date and term calculation in the body of the law. Thus, we cannot make the same assumption you do, as such would be inappropriate in properly performing our function in independently reviewing the record and law, and formulating an informed opinion. Further, our opinion does not pass on the wisdom of such term limit legislation, but is limited to researching and opining what a Hawaii court would conclude, given the present record, constitutional considerations, and prevailing national case law. I thoroughly agree with both you and Mr. Konishi that a judicial determination would be most conclusive. However, our research, conducted independent of Mr. Konishi's conclusions, reveal it highly unlikely a Hawaii court would disagree with Mr. Konishi's findings. A final note worth repeating. As we expressed at the beginning of our opinion, it is the responsibility of the County Clerk pursuant to law to determine the eligibility of candidates for elective office in our County. The County Clerk and not the Corporation Counsel, makes this determination. To the extent our independent research arrives at the same conclusion and opinion as the County Clerk, and is relevant for whatever purpose you seek it, we conclude there is neither a conflict of interest nor breach of our ethical responsibilities. Consequently, we render this opinion. Since our opinion is intended for publication, any person having a different opinion should not solely rely on our analysis and conclusions, and is herein advised to contact an attorney licensed to practice law in the State of Hawaii if he so chooses. The Corporation Counsel's opinion is intended to assist County officers, and is not intended to be binding on the public at large. Honorable Bob Jacobson May 26, 2004 Page 12 Conclusion We cannot say County Clerk Al Konishi's written findings concluding that those members of the council elected contemporaneously with the Charter amendment in the 1996 election must count their"1996 term" towards the term limit calculation, are erroneous. In fact, the County Clerk's conclusions appear to be consistent with the vast majority of national case law and precedent, and consistent with our belief of what a Hawaii court would so hold. Based on the foregoing reasons and authorities, the Hawaii County Corporation Counsel concludes the 1996 Hawaii County Charter amendment providing that council members shall be limited to four consecutive two-year terms, has prospective application only, and does not prohibit council members elected (or reelected) in that year (1996) from running for council office in the 2004 election. Very truly yours, LINCOLN S. T. ASHIDA Corporation Counsel Attachment cc: Honorable Harry Kim, Mayor (w/ attachment) Honorable James Y. Arakaki (w/attachment) Honorable J. Curtis Tyler, III (w/attachment) Honorable Aaron S. Y. Chung (w/attachment) Honorable Leningrad Elarianoff(w/attachment) Honorable Gary Safarik (w/attachment) Honorable Fred Holschuh (w/ attachment) Honorable Joe Reynolds (w/ attachment) Honorable Michael Tulang (w/ attachment) S: Departments/Corp CounseVOpinion 2004-03 5-26-04/LSAmr a AL KONISHI 4 �<v "•'•. 4 JAY M.MENDE County Clerk �' .f Deputy County Clerk 'r'••: CONSTANCE R KHUU 1 J Legislative Auditor OFFICE OF THE COUNTY CL�Rk County of Hawaii Hawaii County Building 25 Aupuni Street Hilo,Hawaii 96710 Telephone: 961-8255 Facsimile: 961-8912 February 7,2003 Dwayne D. Yoshina Chief Election Officer, State of Hawaii 802 Lehua Avenue Pearl City, Hawaii 96782 Dear Mr. Yoshina: The purpose of this letter is to transmit to you the attached findings resulting from my review of Section 3-2,Hawaii County Charter,relating to County Council term limits. This letter and the findings are intended to be similar in substance to the communication which was found by the Hawaii Supreme Court to be the basis for a justiciable case in Fasi vs. Cayetano, 60 Haw. 282, 588 P.2nd 915 (1978). It is intended that by taking a position at this time on the issues raised and reviewed in the attached findings, all interested parties will have adequate opportunity to obtain judicial guidance. If you have a contrary view or if you have questions,please contact me as soon as possible. I emphasize that time is of the essence. Thank you for your assistance. in s cc: Aaron Hiroshi Schulaner, Esq. Deputy Attorney General, State of Hawaii Lincoln S. T. Ashida, Esq. Corporation Counsel,County of Hawaii Michael J. Matsukawa, Esq. Legal Counsel, Citizens for Equitable and Responsive Government ATTACHMENT 1 Findings: Review of Hawaii County Charter Provision on Council Term Limits I. Timing -- Need to Act Now This Office has conducted a review of the Hawaii County Charter term limit provision relating to County Council. There are questions relating to the application of the term limit . The questions have arisen because: 1) two important provisions were omitted from the 1996 amendment which established the limit; 2) there was no explanatory information provided to the voters relating to effective date and application; and 3) because there is no relevant legislative history relating to the Council bill which proposed the limit. Although this office is not legally required to take any action at this time, this office believes that a timely resolution of this issue should be facilitated. The worst case scenario would be for this office to remain silent until the July 20, 2004 candidate filing deadline. At that time, if candidates, intended candidates .or the public disagreed with the decision of this office, the 2004 elections could be disrupted or held under a cloud of litigation. By acting now, approximately one year prior to the first day candidates may obtain nomination papers on February 1, 2004 and approximately 18 months prior to the 2004 candidate filing deadline, all potential parties will have adequate time to carefully study the evidence and law and, if necessary, seek guidance from the courts. 1 More importantly, by raising these issues at this time, the courts would not be compelled to act within a compressed time frame, as it was with certain aspects of reapportionment. 2 This document is intended to be similar in substance and effect as the letter which was found to be the basis for a justiciable case or controversy in Fasi v. Cayetano, 60 Haw: 282, 588 P.2nd 915 (1978) II. Issue The basic issue is how to treat County Council terms to which persons were elected in 1996 simultaneously with the approval of the County Charter amendment.3 So far, no one has taken the position that the term limit should be applied retroactively to count terms served by Council members rp for to the 1996 General Election, although the amendment and related documents are silent on the issue. Also, no one has taken a 1�- position against counting terms to which persons were elected following the 1996 General Election. There is a legitimate question relating to terms to which persons were elected to in 1996 because of the combination of three unusual omissions by the 1994-1996 Council: 1 . Lack of a stated effective date; 2 . Lack of explicit and complete transitional provisions relating to persons elected in 1996 (as stated below, Congress and the State Constitutional Convention both included such provisions when they proposed term limits for the President, Governor and Lieutenant Governor) ; and 3 . Lack of any relevant legislative history. Although none of these omissions, either individually or collectively, would appear to jeopardize the validity of the term limit, they do create doubt relating to the amendment' s applicability prior to the 1998 General Election. III . Sources of Problem A. Deviation from Federal and State Constitutional Models. Congress, when it drafted what became the 22nd Amendment to the United States Constitution in 1951, which prohibits anyone from being elected President more than twice5, included language relating to the person holding office when the amendment was proposed and to the person holding office when it eventually became law. By doing so, Congress anticipated and eliminated implementation problems and it provided the electorate and candidates with fair notice of the amendment' s effect. 6 The Hawaii Constitutional Convention of 1978, when it drafted a proposed amendment to Article V of the Hawaii Constitution limiting the number of terms to which a person may be elected Governor or Lieutenant Governor, ' followed .the concept of the 22nd amendment (limit on being elected.) . It also followed the example of Congress by including in the State Constitution a clear provision (Section 4, Article XVIII) 8 on how the amendment would affect persons elected simultaneously with the approval of the amendment. It did so, presumably, for the same reasons Congress included a transitional provision in the constitutional amendment relating to the President. R 2 - In contrast, the Hawaii County Council in 1996, when it drafted a proposed amendment to the Hawaii County Charter, (our island' s "constitution") to limit the consecutive terms County Council members could serve, it not only failed to follow the concept of the term limits for President, Governor and Lieutenant Governor,9 it also failed to include an effective date and transitional provisions relating to: A. Did terms (or partial terms) served prior to the effective date of the amendment count towards the eight year term limit; B. Would a term to which a person could have been elected to in the Primary Election of 1996 count towards that person' s eight year term limit; and C. Did a term, to which a person was elected to simultaneously with the approval of the amendment count towards that person' s eight year term limit. The lack of a stated effective date10 coupled with the lack of transitional provisions probably does not render the Council term limit ineffective, however, , it does create due process and other constitutional issues relating to persons elected to the Council in 1996. Other potential issues, created by the failure to follow the federal and state constitutional models, could be the basis of additional questions, but they were not considered in this review. " B. No relevant legislative history. A source which might normally provide guidance, does not exist in this case. As discussed below, the 1994-1996 Council did not produce any committee reports (it chose to waive a committee referral -- see attached Exhibits referred to below) or engage in relevant floor discussion to provide legislative history or insights into the intent of the amendment as it relates to these issues. Again, this would not normally be fatal to a measure, but coupled with the above discussed omissions, it eliminates an unimpeachable, unaltered and disinterested source relating intent or purpose of the measure. C. Lack of clear explanatory information to the voters. . The 1994-1996 County Council missed a second opportunity prior to the 1996 election to provide clear and complete guidance on these issues. In June 1996, pursuant to the provisions of the County Charter, 12 the County Council adopted a resolution 13 requiring that public notices be run in the two R 3 newspapers of general circulation in the County (the Hawaii Tribune Herald and the West Hawaii Today. ) The resolution and the resulting notice (see attached Exhibits referred to below) did not provide any information to prospective voters relating to the issues which are the subject of this review. D. No Hawaii case law on point. Another source of potential guidance does not exists . As of the 2002 elections, no Hawaii courts have ruled on term limit issues. IV. Previous County Council Recognition of Problem Somewhat telling evidence that the 1996 amendment is deficient, is the 1996-1998 County Council' s attempt to clarify the effective date issue in 1998 . 19 The attempt reveals that the problem with the 1996 amendment was apparent almost immediately after it was approved. As a follow-up to the only discussion the 1994-1996 Council had on the term limit issue, an amendment was proposed by the 1996-1998 Council to lengthen the term of members from two to four years. The amendment was rejected. ls The attempted amendment did three things . First it recognized the omission of key provisions in the 1996 amendment; second, it tried to retroactively fill that void; and third, it included in the proposed 1998 amendment a complete and very thorough explanation of the effective date and how terms should be computed. The recognition of the problem is stated, not in words, but by omission. SECTION 3 of Ordinance 98-78 (see attached Exhibit "L") , which contains a detailed explanation of the effect of the proposed amendment, begins with the sentence: To honor the spirit and intent of the 1996 term limitation Charter amendment... (underlining added) The 1996-1998 Council apparently could not also honor the letter of the Charter provision, which was quite evidently, missing. The best evidence of this is the great length that the Council took in drafting SECTION 3. 16 SECTION 1 of the bill, entitled , "Purpose" is also revealing, especially when it is read together with SECTION 7 of the Ordinance. SECTION 1 stated: R 4 The effective date of the 1996 Hawaii County Charter amendment establishing term limitations not to exceed eight consecutive years in county council office is twelve o' clock meridian on the first Monday of December, 1996. Although, as discussed above, there is probably authority to deem a ballot measure effective upon approval if no effective date is stated in the proposal, the Council took additional liberty by asserting the December effective date. Probably without intending to do, the 1996-1998 County Council pointed out the most glaring deficiency of the 1996 amendment by including SECTION 7 in the 1998 Ordinance: Upon approval of the Charter amendment proposed in this ordinance by a majority of voters voting thereon, as duly certified, the provisions of Section 3 of this ordinance shall take effect at twelve o'clock meridian on the first Monday of December after the 1998 election. The contrast between the 1996 amendment and the 1998 -proposed amendment is very stark. A side by side examinaton of both provides conclusive evidence that the 1996 amendment was drafted in an incomplete manner. V. Limitation of Individual Constitutional Rights; Available Remedies This office is empowered to act in accordance with the letter and spirit of the law. However, any law seeking to impose limits on the constitutional rights of individuals must be clearly written. The letter of such a law must be precise and complete. Even if a more expansive reading of the "spirit" of the 1996 amendment may seem clear to some, without explicit authority, this office should not and will not impose Limits on the constitutional rights of individuals. This office can not act merely on the basis of our best guess about the "spirit" of the 1996 amendment, _particularly when that "spirit" was not clearly articulated by the drafters who had numerous opportunities to do so in the normal course of Council action. l' At this time, more than eight years after the term limit provision was drafted, questions relating to the spirit of the law are more appropriately within the province of the courts and the .consciences and intelligence of the candidates and voters. This is especially true when considering the remedies available to all parties. If a person is erroneously kept off the ballot, she or he may not have an adequate remedy once the S �. Y ballots are printed. On other hand, if a person is considered to be on the ballot inappropriately, the electorate can affirm its intent by refusing to elect that person. VI. Exclusion vs. Inclusion This particular issue has implications beyond the constitutional rights of politicians. This office has consistently taken the positions that: 1) doubts relating to election laws should be resolved in favor of protecting the constitutional rights of individuals; and 2) ambiguities in the law should be resolved by placing issues and candidates on the ballot and having the voters decide what is properly before them. The present policy of construing doubts in favor of ballot access is consistent with principles dating back to the original drafting of the United States Constitution. The drafters of the United States Constitution considered and rejected term limits because of their belief that excluding persons from holding office is not conducive to democracy. The United States Supreme Court in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) , referred to the drafters' discomfort with exclusionary , provisions. The Court included in their decision James Madison's comments from the 1787 Federal Constitutional Convention: A republic may be converted into an aristocracy or oligarchy as well as by limiting the number capable of being elected, as the number authorised to elect. The subject issue presents the opportunity for this office to retain its present philosophy or to adopt new, more restrictive policies relating to ballot access. Such a change would not seem consistent with fundamental constitutional principles and recent trends favoring inclusion over exclusion. Findings: 1. On December 12, 1994, Councilman James Rath introduced Bill No. 5, which proposed an amendment to Section 3-2, Article III, of the Hawaii County Charter, entitled, "Terms and Composition, " to add the words: The terms of the council members shall not exceed four consecutive two year terms. 6 2. The bill did not propose inserting into the Charter any provisions relating to: i) effective date; ii) whether to count terms served by Council members prior to the effective date of the proposed amendment; iii) whether to count terms won in the 1996 Primary Election (45 days before the proposed amendment was to have appeared on the 1996 General Election ballot) ; and iv) whether to count terms won simultaneously with the approval of the proposed amendment. 3. There were no such provisions in the rest of the bill. 4 . SECTION 5 of the bill stated: Upon adoption of the ordinance, this Council, by appropriate resolution shall provide that this amendment be submitted to the electorate of the County for approval at the next general election. 5. On December 12, 1994, Council Chair Elroy T. L. Osorio approved the request of the Chair of the Finance Committee (Rath) , to waive committee referral. (A copy of the letter requesting and approving the waiver is attached as Exhibit "A". ) As a result, the bill was not considered by a committee and there was no committee report produced to express the intent and purpose of the bill. 6. Pursuant to Section 15-1 (a) , Article XV, Hawaii County Charter, the bill passed three readings. 7. The bill was first considered on December 21, 1994 . It passed first reading by a 9-0 vote. Although there was limited discussion on the bill, there was no discussion of the issues of effective date and computation of term limits. 8. The bill was considered again on January 4, 1996 and it was passed on second reading by a vote of 7 yes and 2 absent. Again, although there was discussion, it was limited to whether council terms should be extended from two to four years. 9. The bill passed final reading on January 20, 1996 by a vote of 8 yes and 1 no. There was no discussion of the bill. 7 �. 10. The bill became Ordinance 95-20 on January 25, 1995. (A copy of the Ordinance and excerpts from the minutes of the three meetings are attached hereto as Exhibits "B-E". ) 11. Pursuant to Section 12-2. 5, Hawaii Revised Statutes, nomination papers were made available to 1996 County Council candidates beginning February 1, 1996. 12 . Pursuant to SECTION 5 of Ordinance 95-20, on June 3, 1996, Council member Keiko Bonk-Abramson introduced Resolution No. 298-96. (A copy of the resolution is attached as Exhibit ..F". ) 13. Resolution No. 298-96 was considered by the County Council' s Committee on Finance on May 14, 1996. There was no discussion of the issues which are the subject of this review. (A copy of the relevant excerpts from the meeting are attached hereto as Exhibit "G". ) 14 . The Committee produced Finance Committee Report No. 258. (A copy of the committee report is attached as Exhibit "H". ) 15. Resolution No. 298-96 was considered by the full Council on July 3, 1996 and passed by a vote of 9-0. There was no discussion of the resolution. (A copy of the relevant excerpts of the meeting are attached as Exhibit "I". ) 16. The candidate filing deadline for the 1996 council elections was July 23, 1996. 17. Pursuant to Ordinance 95-20 and Resolution 298-96, a "PUBLIC NOTICE OF PROPOSED AMENDMENTS TO THE HAWAII COUNTY CHARTER", was published in the West Hawaii Today and the Hawaii Tribune Herald in September, 1996. (A copy of the notice, which appeared in the September 15, 1996 edition of the West Hawaii Today, is attached as Exhibit "J". ) The notice did not contain any information on effective date and whether terms to which persons could be elected to in the 1996 General Election would be counted towards the term limit. 18 . The primary election was held on September 21, 1996. No candidate was elected in the primary pursuant to Section 12-41., Hawaii Revised Statutes. 8 19. The proposed amendment was placed on the 1996 general election ballot on card B, side 2 as Proposal 1. (A copy of the ballot card is attached as Exhibit "K". ) 20. Proposal 1 contained an explanation of the present provisions and the effect of the proposal. It did not contain any reference to effective date, treatment of prior terms, persons elected in the Primary Election and persons elected concurrently with the approval of the amendment. 21 . The general election was held on November 5, 1996 . Proposal 1 was approved by a vote of 33, 542 yes to 10, 428 no. 22 . Nine persons were elected to the County Council at the 1996 General Election. of the nine, four are still presently in office. 23. The right to run for political office, though not a fundamental right, is constitutionally protected by the United States Constitution and the Hawaii State Constitution, including but not limited to provisions relating to due process, political rights and equal protection. 24 . Any restrictions on such constitutionally protected rights should be as explicit as possible and not vaguely worded so as to require substantial administrative speculation and interpretation for implementation. 25. Doubts created by vagueness and incomplete drafting should be construed against restrictions on the constitutionally protected rights of individuals. 26. The Hawaii County Charter, as amended by the subject amendment, does not contain a clear and unambiguous provision relating to persons who were elected to council terms prior to and simultaneously with the effective date of the amendment. 27 . There is no relevant legislative history relating to subject issues raised by the amendment. 28. The drafting of the amendment appears incomplete. The amendment did not follow the clear models contained in the United States Constitution or the Hawaii State Constitution. 29. The amendment as presented to the voters in the legal notice to the electorate or on the ballot, did not contain any �- 9 . explanatory or other information relating to effective date or computation of terms. 30. An amendment of the Charter which would retroactively insert language relating to term limit computation, as proposed in 1998, would not be respective of the due process rights of the affected individuals. (A copy of Ordinance 98-78 is attached as Exhibit "L". ) Based on the above findings, I conclude that: 1. The term limit contained in Section 3-2, Article III, Hawaii County Charter, should be construed to begin counting terms to which persons were elected beginning with the 1998 Primary and General Elections. Persons elected to the County Council at the 1996 General Election simultaneously with the approval of Proposal 1 and still presently serving, are eligible to become candidates for the 2004 County Council election. 2. Nomination papers will be issued by this office to such persons if requested and accepted by this office if submitted. 3. Names of said persons shall be placed on the 2004 ballot for election pursuant to the Hawaii County Charter. DATED at Hilo, Hawaii, this day of February, 2003. Al Konishi, County Clerk 10 Notes 1 Recent litigation seeking the invalidation of the 2002 County Council Reapportionment plan illustrates how time consuming it will be to obtain a judicial resolution of the issues relating to the term limit. Two lawsuits were filed on March 4, 2002, 4 . 5 months prior to the July 23, 2002 candidate filling deadline and 6. 5 months prior to the September 21, 2002 Primary Election. Both are still pending. The case which has moved the "fastest", Citizens for Equitable and Responsible Government ("'CERG") , et al. vs. County of Hawaii, et al . , Civil No. 02-1-0092 (Hilo) , is now at the first step of the appeals process (a Notice of Appeal was filed on January 31, 2003 . ) The second case, Boyd, et al . vs . Van De Car, et al. , Civil No. 02-1-0091 (Hilo) is still in its early stages (Plaintiff' s Motion for Summary Judgment is scheduled for February 14, 2003. ) 2 A motion for partial summary judgment in the CERG case was heard on June 28, 2002, just a few weeks prior to the candidate filing deadline on July 23, 2002 . The Court' s Order denying the motion was filed on July 19, 2002, a few days prior to the candidate filing deadline. If the court had granted the plaintiffs' motion, the 2002 County Council elections would have, at the very least, been delayed. This fact may not have been lost on the court. 3 As discussed infra, it is assumed by this office for the purposes of this review that the lack of a stated effective date means that the amendment took effect upon approval by the voters at the 1996 General Election. However, this office does not assume that a court would take that position on this issue which may be crucial in litigation relating to the specific issue at hand. If this issue is litigated, this office will not advocate a position on the issue but will rather defer to the court. 4 The 22nd amendment reads: "No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of the President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of the President, during the term within which this Article becomes operative from holding the 11 �. office of the President or acting as President during the remainder of such term. " (underlining added) 5 It should be noted that the presidential restriction is on election, not on service. As discussed below, this is another way that the 1996 Council deviated from the Federal and State models and which has already resulted in questions which are noted here but not addressed in this review. 6 Because of the ratification process, Congress could not know when the amendment would become effective, if ever. The restriction relating to the Governor is contained in Section 1, Article V, and the restriction relating to the Lieutenant Governor is contained in Section 2, Article V. 8 "The amendments to Sections 1 and 2 of Article V shall limit the term of any person elected to the office of governor or lieutenant governor in the 1978 general election to two consecutive full terms commencing from noon on the first Monday in December, 1978. " This provision demonstrates that it is not impermissible to apply a term limit to persons elected simultaneously with approval of the limit if said limit is imposed in a manner which respects the due process, equal protection and other constitutionally protected rights of candidates. 9 Prior to the expiration of the term of Mayor Stephen Yamashiro in 2000, he publicly questioned whether he could be elected to a third consecutive term and serve, if he resigned shortly before serving "two full consecutive" terms. Since the County Charter term limit provisions relating to Mayor and the Council are worded to prohibit the serving of terms (as opposed to being elected to a number of terms) the vague wording could provide -a popular officeholder and a sympathetic court the opportunity to arrive at such a result although it would not seem to be consistent with the clear intent of the Charter. If the drafters of the subject County Charter amendment had followed the model of the 22nd Amendment, the present questions and Mayor Yamashiro' s hypothetical question would have been avoided. The drafters of the Council term limit also created another source of speculation because rather than place the service limit in Section 3-3, Article III, 'entitled, "Qualifications, " (as it is in the case of the Mayor) the new language was inserted into the section entitled, "Composition and Terms. " It seems like an inconsequential difference but it could be another potential issue if the provision is challenged. R- 12 10 There is case law supporting the proposition that if a proposed amendment lacks an effective date, it should be deemed to have taken effect upon approval. However, if the proposed amendment had contained either an effective date or transitional provisions, its intent would be easier to ascertain. It could be argued that there are no transitional provisions because it was clear that the amendment was not intended to affect persons elected in 1996. 11 Typically, term limits have been enacted to prevent near permanent incumbency. However, the 1996 provision did not address issues relating to districts in which there are no incumbents, for example, because of redistricting or the retirement of the incumbent. If an incumbent Council member moves to a district with no incumbent and is elected, are terms served in both districts combined in computing the applicable term limit? This question is not examined here but is one which could arise in the future. 12 Section 15-2, Article XV, Hawaii County Charter 13 Resolution 298-96 14 Proposition 3, General Election 1998, Ordinance 98-78, Bill 229, Draft 2 15 Even if the amendment had been approved in 1998, it is not certain that the proposed retroactive expression of intent would be deemed relevant by a court considering due process aspects of the 1996 amendment. 16 SECTION 3 read: "Four-year terms of office for council members shall commence in the year 2000. To honor the spirit and intent of the 1996 term limitation Charter Amendment, this ordinance establishing conversion to four-year terms of office beginning in the year 2000 determines that any council members elected in 1996 and re- elected to office in the 1998 and 2000 general elections shall be eligible to serve consecutive terms of office until 2004 . This ordinance finds that incumbent council members elected in 1996 may serve two (2) year terms until the year 2000, and one (1) four-year term until the year 2004 . R- 13 �' Any candidate (s) newly elected to the County Council in the 1998 general election, upon serving one (1) two-year term until the year 2000, shall be eligible to serve two additional four-year terms of office until the year 2008. This will allow council members first elected in 1998 to serve three consecutive terms of office, thereby achieving parity with any incumbent council members elected in 1996 and who are thereby eligible to serve a total of three consecutive terms until the year 2004 . " 17 As discussed above, the drafter of the bill which resulted in the 1996 amendment intentionally and knowingly eliminated one key step of the process, committee consideration. Had the bill not been "expedited" in this manner, a committee report would have been produced, providing the Council another opportunity to state the intent and purpose of the amendment. It should be noted that the subject bill was one of the first measures introduced and considered by the 1994-1996 Council. This measure was not "expedited" in order to meet deadlines for placement on the ballot. There are no Council records shedding light on the reason why the drafter (who was also the subject matter committee chair) felt compelled to employ the procedural shortcut. R 14 ' m Rath J,tY OF h�4 -ce-Chairman *TE OfrM '-- - COUNTY COUNCIL u M c, County of Hawaii C0V.n11, Hawaii County Building 25 Aupuni Street Hilo,Hawaii 96720 December 12, 1994 Council Chairman Elroy T.L. Osorio Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 RE: Attached Bill Pursuant to Section 1(d) of Rule 4 of the Rules of Procedure of the Council of the County of Hawaii, this written approval is submitted in regards to Bill No. 5 ' which relates to 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, waiving said referral from .the Committee on Finance in order that appropriate action can be taken by the Council. In reviewing the contents of the referral, it is deemed advisable that such waiver be granted. J X:7 ath, airman Committee on Finance Approved: Elroy T. L. Osorio, Chairman Hawaii County Council COUNTY OF HAWAII� -'�"' TATE OF HAWAII BILL NO. s 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 thix 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 next general election. I RODUCE "It MEMBE 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: January 25, 1995 y OFFICE OF THE COUNTY CLERK County of Hawaii Hilo . Hawaii JS j, It&L CALL VOTE AYES NOES Am EX Introduced By: Arakaki Date Introduced: Bonk-Abramson Fast Reading: Childs Published: De Lima REMARKS: min Osorio Rath Ray Smith ROLL CALL VOTE hirt Tanuwr ading: y 20 , -1995 AYES NOES ABS E?' To Mayor. January 20, 1995 Ar � Returned: January 25, 1995 X "fective: January 25, 1995 Abramson X AbUshed February 11 1995 Childs X De Lima REMARKS: Domingo X Osorio x Rath X Ray X Smith X 8 1 1 0 0 1 DO HEREBY CER77FY that the foregoing BILL was adopted by the County Council and published as it,dicatgd above, APPROVED as t Q` FOR and LE TY COUN CORPORATION COUNSEL COUNTY OF HAWAII O CLERK Ad QSc:!1 day I9 4 4 MAY&,COUNTY OFHAWAII Bill NO_ 5 R Reference: C-36 Ord.No.: OFFICE OF THE COUNTY CLERK County of Hawaii Hilo—,Hawaii ':i5 Ji„1. Z5 1' 53 r • - ROLL car. -i o-TE _. A= ... ES Introduced By: Jim Rath ARA10►1CZ ABS Date Iiit�duced: December 1, 1994 First Reading: December 21, 1994 130SK-AHR MON X Published: N/A C�LD8 X DE L33LA X JtEMARJM 003cam X OSC=O x RATS X RAY X 87aTN X 0 ROLL CALL VOTE Second Reading: January 4,_1995 DES ABS I To Mayor. ARM= X Returned: HO=-A8RA=CDt X Effective: C 93=w X F `+fished: DS L2701 X ltE L4RJM* DSO X OSORZO X RATS X RAY X ON= X 2 0 1 C HEREBY CER77FY that the foregoing BILL was adopted by the County Council and published a tndicated COUNCIL CHAIRMAN COUN77 ApprovedJDisapproved this day of . 19 :. MAYOR. COUN'T'Y OF HAWAII BiI1 No.: 5 Reference: �`^A R E G U L A R - M E- E T I N G SECOND SESSION Hilo, Hawaii Wednesday, December 21, 1994 The Regular meeting of the County Council was called to order by Chairman and Presiding Officer Elroy T.L. Osorio at 9 :04 a.m. in the Councilroom, Hawaii County Building. ROLL CALL: Present: Councilmember James Y. Arakaki Councilmember Keiko Bonk-Abramson (Arrived at 9 :05 a.m. ) Councilmember Keola Childs (Arrived at 9 :05 a.m. ) Councilmember Brian J. De Lima Councilmember Takashi Domingo Councilmember Jim Rath Councilmember John Ray Councilmember Al Smith Council Chairman Elroy Osorio Also present were: Stephen K. Yamashiro, Mayor Richard Wurdeman, Corporation Counsel Harry Takahashi, Finance Director Virginia Goldstein, Planning Director Steve Christensen, Deputy Corporation Counsel Patricia G. Engelhard, County Clerk Kaipo Kincaid, Deputy County Clerk Daniel Lee, Legislative Auditor Cheryl Sumida, Legislative Auditor Assistant II Ed Andrade, Legislative Auditor Assistant II Keith Eck, Legislative Auditor Assistant II Lehua Cortez, Legislative Assistant Ken Hupp, Executive Assistant to the Council Chairman Hansrenda K.M. Dutro, Council Services Reporter Jeanette Aiello, Senior Clerk Stenographer ' 29 Hawaii County Council December 21, 1994 ORDINANCE: A Bill for an Ordinance numbered 5, initiates a BILL 5: 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. y. 148 Hawaii County Council December 21, 1994 Perhaps in the future, I may introduce--ac..-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 R E G U L A R M E E T I N G THIRD SESSION Hilo, Hawaii Wednesday, January 4, 1995 The Regular meeting of the County Council was called to order by Chairman and Presiding Officer Elroy T.L. Osorio at 9:03 a.m. in the Councilroom, Hawaii County Building. ROLL CALL: Present: Councilmember James Y. Arakaki Councilmember Keiko Bonk-Abramson Councilmember Keola Childs Councilmember Brian J. De Lima Councilmember Takashi Domingo Councilmember Jim Rath Councilmember John Ray Councilmember Al Smith Council Chairman Elroy T.L. Osorio Also present were: Harry Takahashi, Finance Director Richard Wurdeman, Corporation Counsel Virginia Goldstein, Planning Director Riley Smith, Deputy Chief Engineer Ted S.H. Hong, Assistant Corporation Counsel Steve Christensen, Deputy Corporation Counsel Frederick Giannini, Deputy Corporation Counsel Joseph Kamelamela, Deputy Corporation Counsel Patricia G. Engelhard, County Clerk Daniel Lee, Legislative Auditor Cheryl Sumida, Legislative Auditor Assistant II Ed Andrade, Legislative Auditor Assistant II Keith Eck, Legislative Auditor Assistant II Billie Baclig, Legislative Assistant Merle Lam, Legislative Assistant Lehua Cortez, Legislative Assistant Ken Hupp, Executive Assistant to the Council Chairman Hansrenda K.M. Dutro, Council Services Reporter Jeanette Aiello, Senior Clerk Stenographer 175 Hawaii County Council January 4, 1995 _ORDINANCE A Bill for an Ordinance numbered 5, initiates a LL : Charter amendment to Section 3-2, Article III of the (C-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 next 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, OSORIOi 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 -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. ) y. 215 R E G U L A R M E E T I N G FOURTH SESSION Hilo, Hawaii Wednesday, January 20, 1995 The Regular meeting of the County Council was called to order by Chairman and Presiding Officer Elroy T.L. Osorio at 9:07 a.m. in the Councilroom, Hawaii County Building. ROLL CALL: Present: Councilmember James. Y. Arakaki Councilmember Keiko Bonk-Abramson Councilmember Keola Childs Councilmember Brian J. De Lima Councilmember Takashi Domingo Councilmember Jim Rath Councilmember John Ray Councilmember Al Smith Council Chairman Elroy T.L. Osorio Also present were: Richard Wurdeman, Corporation Counsel Ted H.S. Hong, Assistant Corporation Counsel Rudy Legaspi, Mayor's Executive Assistant Jay Kimura, Prosecuting Attorney Patricia G. Engelhard, County Clerk Daniel Lee, Legislative Auditor Cheryl Sumida, Legislative Auditor Assistant II Ed Andrade, Legislative Auditor Assistant II Keith Eck, Legislative Auditor Assistant II Alapaki Nahale' a, Legislative Auditor Assistant Ken Hupp, Executive Assistant to the Council Chairman Hansrenda K.M. Dutro, Council Services Reporter Jeanette Aiello, Senior Clerk Stenographer 252 Hawaii County Council January 20, 1995 ORDINANCE A Bill for an Ordinance numbered 3, amends ILL 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 revbnues 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 COU OF HAWAII STATE OF F All RESOLUTION 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: 1, sue. -•--___-- COUNCIL MEMBER,COUNTY OF HAWAII CRK • ROLL CALL VOTE COUNTY COUNT' 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 Domingo X Osorio X ATrFST: Rath X Ray X dj 1 Smith X 9 0 0 0 Reference C-1079/FC-258 COUNTY CLERK CHAIRMAN&PRESIDING OFFICER RESOLUTION NO. 2.0j,8 Finance Committee-35 May 14, 1996 from seeking that, maybe it has its own merits. However, the trade off of having a six-month lame duck come in, or five-month lame duck versus someone who' s busy campaigning is maybe a little bit of a trade off but in either case the voters maybe not getting as much service as he would like but I think you've raised some good points. I 'm gonna stew on it but I appreciate the chance to comment on it, I may support this. ACTING CHR, DE LIMA: All those in favor of the motion---Mr. Osorio. MR. OSORIO: I kind of agree, too. That makes sense to me, too. ACTING CHR, DE LIMA: Okay, all those in favor? The motion was carried by the following vote: In Favor: Committee Member Osorio, Domingo, Ray, Ex-Officio Member Bonk-Abramson, and Acting Chair Arakaki Opposed: None Absent & Excused: Committee Member Smith and Chairman Arakaki ACTING CHR. DE LIMA: Motion is carried. UNFINISHED The Acting Chair directed the Committee to take up BUSINESS: the next order of business, Unfinished Business : Comm. 1079 : RESOLUTION FOR A CHARTER AMENDMENT RELATING TO (Res . 298) TERMS OF COUNCIL MEMBERS From Council Chair Keiko Bonk-Abramson, dated March 19, 1996, transmitting a resolution directing 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 Ordinance 95-20 to the electors of the County at the next general election. The ordinance states that the terms of the Council members shall not exceed four consecutive two-year terms . ACTING CHR, DE LIMA: The Chair recommends that we adopt the resolution to place the term limits on the ballot. _ Page 19 Finance Committee-35 May 14, 1996 MR. DOMINGO: So moved. ACTING CHR. DE LIMA: Is there a second? MR. RAY:. Second. ACTING CHR, DE LIMA: Any discussion? Mr. Ray. MR, RAY: What do we have before us already? Didn't we already vote? ACTING CHR, DE LIMA: Basically, all this does is initiates and codifies the process of actually putting something that we already passed on the ballot. It's housekeeping. SIR. RAY: Suppose we wanted to change this? For instance, we've had a couple of discussions since that and I 'd be much happier if we could, ideally, and I think I mentioned this before, if we had, say, three items on the ballot, two-year terms, yes or no; four-year terms, yes or no; eight-year term limits, yes or no. I think that would be a lot clearer for the voters in not hinging these things together. This is the question, if we wanted to pursue that, is there any way we could not---I mean if that was the will of the Council, is there a way we could undo this or--- ACTING CHR. DE LIMA: Quite frankly, time is fleeting. If you undertook the process now you would need three readings, so probably if we started, we waived it, it would take us to the end of June and then we have to pass a resolution and I think July is the deadline to getting these matters codified and that doesn' t even address the issue whether we got six votes to do any of that. So, my suggestion is let' s put on the ballot what we've already passed and if anybody is motivated to try to get something else on the ballot, get going. MR. DOMINGO: Like right after this meeting, yeah? ACTING CHR, DE LIMA: Ms. Bonk-Abramson. MS. BONK-ABRAMSON: This is the same one we tried to approve a while ago right? It' s just the formality at this point? Page 20 Finance Committee-35 May 14, 1996 ACTING CHR, DE LIMA: It 's just the formality of notifying the Lieutenant, now the elections division, to place this matter on the ballot. Any other discussion? The motion was carried by the following vote: In Favor: Committee Members Osorio, Domingo, Ray, Ex-Officio Member Bonk-Abramson, and Acting Chair De Lima Opposed: None Absent & Excused: Committee Member Smith and Chairman Arakaki ACTING CHR. DE LIMA: Motion is carried. STATEMENT BY ACTING CHR, DE LIMA: There is, we had already KATHARINE filed the real property tax board of review report CANNON-EGER but we have Katharine Eger here. She drafted the REGARDING report for our review and we understand that the COMM. 162.01: Real Property Tax Division is undertaking a tax review and they' re gonna be making recommendations soon but Kathy, why don't you come and speak to the matter. Today our agenda moved more quickly than usual, KT, so--- MS. EGER: So, I see, Mr. Chairman. Thank you very much for this opportunity. I 'm at a loss to explain the delay in the transmittal to the Mayor and to the Council of the report. In the past, the Board has been also at a loss, to explain the failure of anyone to notify the Board of the hearing of its report and so we requested notification of the hearing date in order to be able to answer any questions that you might have regarding either administrative or legislative matters that are mentioned herein. I 'd like to remark only on the matters in the report, not on anything that may still be coming before you from the task force that' s been working so many months on a comprehensive review of Chapter 19 . Page 21 W-11 PORT OF THE CONIN-111 1'(-TI ON I7INANCE DATE: May 14, 1996 RC: Comm.10791 PLACE: Councilrooni 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 anieudments 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. lNirsuant 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 lintited to, questions aad issues sliall be submitted to the chief election officer of lire 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 rccommends its adoption. I ll1I AYES NOES A&E EX Respectfully submitted AI AKAKI X DE LIMA X CO EEO -IN E DOMINGO X SMI111 X osoluo X BRIAP-PIDII LIMA, ACTING CHAIUMAN RAY X X BONK-ABRAMSON EO.A1 FINANCE REPORT NO. y' 258 ADOPTED: "it IN n `i IN5 Hawaii County Council June 3, 1996 CHR, BONK-ABRAMSON: Now we' re speaking to Resolution 280-96, Draft 3 . Any comments or questions? (There were none. ) The roll call vote on Resolution 280-96, Draft 3 , was as follows : AYES: Councilmembers Arakaki, Childs, De Lima, Domingo, Osorio, Rath, Ray, Smith and Chairwoman Bonk-Abramson - 9 . NOES: None. (Note: See additional submitted written testimony, Communication No. 1013 .04) CHR, BONK-ABRAMSON: Thank you, Madam Clerk. This resolution passes. Resolution 298-96, Madam Clerk. RESOLUTION A Resolution numbered 298-96, directs the Clerk NO. 298-96: of the County of Hawaii to take the necessary (FC-258) steps provided for in Section 15-2 of the Hawaii (C-1079) County Charter (1991) ; to submit the amendments proposed by Hawaii County Ordinance 95-20 to the electors of the County at the next general election, Council terms, introduced by Ms . Bonk-Abramson. Mr. De Lima moved for the passage of Resolution 298-96 and to adopt Finance Committee Report 258 . Seconded by Mr. Rath and carried by the following roll call vote: AYES: Councilmembers Arakaki, Childs, De Lima, Domingo, Osorio, Rath, Ray, Smith and Chairwoman Bonk-Abramson - 9 . NOES: None. CHR. BONK-ABRAMSON: Thank you. Resolution 298-96 is approved. Resolution 305-96, Madam Clerk. 3513 PUULIC NOTICE OF P110PUaC-D AMENDMENTS county or any agency Ihe.eof but Ilia term shall not include an inde- TO THE i IAWAII COUNTY Ci IAnTEr' pondenl callredor. (d)-Ofliccr^k+slu-tes tlhr fall:noing: Tire Hawaii Cuutdy Garton is Ilia dkr.+xnrnt wid•:h sets .ill lows (1)Mayor aw menibors of tM conh of local gwotnmoM in the Cormly of I l:wm!i.Theo emerhrinenls have (2)Any pNsoo elected or appointed as administrative head been proposes!lu Vie Cormty Clhatter by Ilia I lowaii County Coula. o1 any agency of vie county or appointed as a member of any board Two amotMdnhents,called proposals &'2',will be placed on a bal- of Commission provided for in this charter. b1 before On electorate in lite General Election on November 5,1996. .(3)Any person appointed by a board or commission as the Pursuant to Section 15.2 of the Hawall County Charter,the full text administrative head of any agency of the county. M to two amen dnvenls is putlislled below Mt ordinance form.Material (4) Deputy, assistant or division chief appointed by the to be repealed is bracketed.New material is underscored.Also pro- administrative head of any agency of the county. vided is a digest of each proposal followed by lite ballot question as It (5) Assistant or deputies of the corporation counsel and will appear on lire ballot in Ilre General Election. prosecuting attorney. BULL TEXT OF CIIAnTEn AMENDMENT (e)*State'means die State of Iiawaii. PnOPOCAL 1 (f)'Vacancy"shall have the followkhg meaning: Ordinnnce 95-20 Any elective office shall become vacant on(lie happening of any one SECTION t.Purpore.The pi rpc::e of lids ardinanre is to pr^pose of 11+e following events before expiration of the term: an amendrnont to ti+e 1lanaii County Chador to provide term hinila for (1)Death. county council members. - (2)Resignation. SECTION 2.Section 3 2,Article 111 rf the Hawaii County Chnrler (3)Upon Ilia determination by One county dark that the offi- rel.iling to compxisition and loans of Ilia courtly council is hereby cer was not a duly qualified elector of de county,and,if required,not amended b mad: 'Secllei 3-2.Conghosition and Terms.There shalt a duly qualified elector of the district of which the officer was elected be a county council composed of nine members.One member shah he Immediately preceding the election or appointment. elected from each Wilkie dishicts.The terms of the council monrbers (d)Ceasing to bo a resident voter of the county as deter- shall be two)ears and shall begin at hvelve riduck meridian on Ilia mined by Ilia County clerk and In the case of an officer elected to a first Monday of December after their election. seat requiring residency In a district,ceasing to be a resident voter of 1t19ml�el�_tiilil)Ll1VL A1SGHesUl2uL0o1J9CS3l111f911No veer terms. Uzi district as de(ermined by the county clerk. Candidates shed be nominated and elected In accordance with the (5)Absentee from the aunty,unless on county authorized election laws of Ilia SOW business, for a period of three consecutive months, without good DIGEST OF PROPOSAL 1 cause. This proposal vxhutd limit the term o(cokmcil members so that no (6)Removal by recall as provided by this charter. council member may be elecled for more than hour consecutive two (7)Removal by Impeachment proceedings for malfeasance, year terms.It Ode proposal Is passed,a council member may otly be misfeasance,nonfeasance,or maladministration In office as provided elected for bur straight toms,thus serving a total d etghl years in a by this charter. row.A council mender may be elccled for more than four terms as (8) Upon the determination by three Impartial, licensed (. I"as Ilia lenns are rat coruecrdive. physicians selected by the council that the officer Is mentally or phys- BALLOT QUESTION 1 Ically infirm or disabled and will be unable to discharge the officers Council terms.Should Ile Icrm of council members be limited so that duties for die remainder of the term.Such action shall be initiated by a their terms may col erseed bur consecutive two year terms? majority vole of the entire council. PRESENT PROVISION: (9)Upon filing nomination papers for another elective office Presently Section 3-2 u1 11+e I lawaii County Charter provides that idurkhg Iho officers own term of office.)U.(erm of the office sough council member are elected for two year terns with no limit on the �pyins betore�end a!pIM vgng1 ill oUice(vA cumber of Trms that a council member may serve. (10)Upon the conviction of any totally Ill any jurisdiction. PnOPOSEO AR7ENDWiEHT: It ally of Ile above entils occurs after the electiork but prior to the It approved,Ilia County Chillier would be amended to provide that commencenmit of die term,office Is vacant at Ilia time the term c:om- the term of a cnun�fl nminber will W,limited to four consevulive two menses.. year terms or n total of eight years in a row.TI its amendment duos not DIGEST OF PROPOSAL 2 provent a member from serving mall than bur terms as long as the This proposal provides.that N an elected official files nomination terms are not consecutive. papers for another eloctr«office the office currently held world be 1('Q[)I�f1QPS?S1��1_W_•CE.:Y q7_. declared vacant only If die term of office to offi ial Is seeking begins IF YOU Qllq r �F,.Yl(I(1_EflQ'(?SAL I VOTE"HO" bsiore Ilia and of the lernn of office currently held. FULL TV XT OF CIIAmEn AMENDMENT BALLOT QUESTION 2 PROPOSAL 2 Vacancy In Office.Sliould we repeal Ilia provision that creates a Ordinance 96-06 vacancy when an elected official runs for another elective office,dur- SECTION 1.Intent and Purpose.Tile change reflecled ki this oidi. Ing their own term of office,and replace N rdlh a provision that creates nance is viewed by tie Council as a silicate effort to bring die County a vacancy N the term oldie office sought overlaps Ilia perm of the office Charter kdu harmony with Ilia Constitution of rho State of Hawaii and held? Ile Hawatl Revised Slahrtes. PRESENT PROVISION: As long as an elected Counly official fulfills his/tor duties to the Ptesmity Section 13-1(1)(9)of the Hawaii Counly Charter provides office, there is no reason to force the olodod olk!al to vacate Iflat that an office is declared vacant N the office holder files to run for office simply because papers are filed to run for another office wild+ another elective office. begins alter that respective term ends.A County elected off dal who PROPOSED AMENDMENT: wishes to run for an elected office that begins after his/her term should If,approved,Una Calmly Charter would be amended to provide that be treated equally without regard to the office being sought. an office would be declared vacant N the elected official ran for anoth- However,N a County elected official wishes to run for an office,the er elected office and[that tome began before the crud of Ilia term of to I term of which begins before the and d his/her current electeA office, office held.Art elected official could run Hx another elected office,and that seat should be considered vacant at lite time one's nominaton retain Ida office,N the form began after the end of to term of 01e office papers are filed to run for election to a non-copermikhous office. held. SECTION 2.Section 13-1 of the Hawaii Counly Charter(1991),as IF YOU Ag E€WIT 11 PROPOSAL 2,VOTE"YES". amerhderJ,relating to General Provisions is thereby amended to real IF YOU U1SL1rAnEE WITH PROPOSAL 2.VOTE"NO". as folloyrs: Copies of Ile lull text(Ordinance Nos.95-20,9G-0G)and the respec- "ARTICLE X111" live digest and ballot question of Proposals'1"and 12",are on pile at GENEnAL PnOVIS10NS On County Clerk's Office in Hilo and the Office of the Mayor In Kallua- Sectlon 13-1.Definitions.As used M this charter: Kona.For further Information,please call 961-8255. (a)'Agency'means any office,department,board,commission or other governmental unit of the county. DONALD IKEDA (b)`Executive Agency'means any agency or deparUnord al die County Clerk executive brand of tie county government. (No.6870-West Hawaii Today:September 15,1996) _(c)'Employee"means any person,except an officer,employed by the SIDE 1 t r ALISI'I 11-M.,01 YIILL OF J 1 - - SIDE 2 _ I lUP 13 cOUNIY OF HAWAP SIAIE Or I4AWAN frAIE OF HAWAII OFFICIAL BALLOT OFFICIAL BALLOT GENERAL ELECTION GENERAL ELECTION DOMID OF EDUCATION TUESDf Y, NOVEMBERS, 1996 SECOND SCIIOOL BOAR11 DISTRICT Pn(-POSED AMENDMENTS (COUNTIES OF I IAWAII, MAUI and KAUAI) TO TILE IIAWAII COUNTY CIIARTER TUESDAY, NOVEMBER 5, 1996 VOTE DOTII SIDES (OVER) VOTE BOTH SIDES (OVER) This stub shall be removed by lite Election Olhcial only. let Dc artmenlal PROPOSAL 1. Council terms. Should p the term of council members be limited School District e8 ([iawaii) so that their terms ma ntli,exceed lour Vole For Not Mor Th r Or (1j' consecutive two year err ? FOX, Robert A. + PRESENT PROVISIO : Presen Se lion 3-2 of the Hawaii Cou Charter pr ides WATAfJAf3EE, Herber -S-��! r that council members are elec ed lor_lw year terms with no limit on the numb f" terms I flint a council membe ay-sery PROPOSED AMEN MENT:If appro ed,the County Charter would 13"merlded to provide flint the term of a In i)tlnoil-Membe will be limited to f;ur conse utive two`ydar•terms or a total of eiyhl years a r This anJendmanl does net pe-vent a member fr'brit-get bing more than four It rms as onU78s'1he-1er s are not consecutive. l--�� IF YOU AG�1EE 11 pi�YES > r PHOPO�AL 1, VE 'YE IF YOU DI`.'%Gfl[�'YiII.iji I'f IOPUSAI 1�V 1 E 'PIU� NO t 2 n� PROPOSAL�2 Vacanc in office. Should we elleal (Lte-np ovision that creates a ac��gqt y wit n an elected official rtm. follbnothor loctive office, during the own j rn I office, and replace it wi h_a—prdvis1 it that creates a vacancy�(Rh�ter nZt.Ile office sought overlaps fife lrm (ZCi r. office held? PRESENT, PR WS ON:/Presently Section 13-1 (1) (9)\\of the HawAli County Charter provides Ihala�officlsis declared vacant it the office holder files to run for another elective ice. 1'ROPU E:1 AMEND It approved, the County h.rrlL�w��uI be amended to provide that an ofli4o would a declared vacant it the \ / efeclrs oft: i5l,ran for another elected office \�!! and U n1 I.-t b9an before the end of the ! form r f if C. tic Ilela.An elected official could run I ran,; herded office, and retain the 011ie it Il,e term b gan after the end of the = term orlitar-o ' e h d. c IF YOU AGREE WITH PROPOSAL 2, VOTE 'YES.' YES > 4- 117- YOU DISAGREE WITH PROPOSA!.2, VOTE 'NO.' NOw-> + 601 VOTE BOTH SIDES (OVER) B 602 VOTE BOTH SIDES (OVER)y B B62 SEI82 r > COUNTY OF HAW �;• STATE OF HAWAII ".,•��,• BILL NO. 2 2 9 Draft 2 ORDINANCE NO. 98 78 AN ORDINANCE TO INITIATE A CHARTER AMENDMENT TO SECTION 3-2,ARTICLE 19I OF THE HAWAH 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 dccision-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 finds it necessary to change the current limit of four consecutive two-year terms to two consecutive four-year terms. In the 1996 general election,the voters of Hawaii County enacted an amendment to the Hawaii County Charter establishing term limitations of council members not to exceed four consecutive two-year terms.The effective date of the 1996 Hawaii County Charter amendment establishing term limitations not to exceed eight consecutive years in county council office is twelve o'clock meridian on the first Monday of December, 1996. A provision for incorporating existing term limitations within a conversion to four-year,terms of office is provided in Section 3 below. 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]h=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]=consecutive [two]f=year terms. Candidates shall be nominated and elected in accordance with the election laws of the State." SECTION 3. Four-year terms of office for council members shall commence in the year 2000. To honor the spirit and intent of the 1996 term limitation Charter amendment,this ordinance establishing conversion to four-year terms of office beginning in the year 2000 determines that any council members elected in 1996 and re-elected to office in the 1998 and 2000 general elections shall be eligible to serve consecutive terms of office until 2004. This ordinance finds that incumbent council members elected in 1996 may serve two(2)two-year terms until the year 2000,and one(1)four-year term until the year 2004. Any candidate(s)newly elected to the County Council in the 1998 general election, upon serving one(1)two-year term until the year 2000,shall be eligible to serve two additional four-year terms of office until the year 2008. This will allow council members first elected in 1998 to serve three consecutive terms of office,thereby achieving parity with any incumbent council members elected in 1996 and who are thereby eligible to serve a total of three consecutive terms until the year 2004. SECTION 4. Material to be repealed is bracketed. New material is underscored. SECTION 5. 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 or the application,and to this end, the provisions of this ordinance arc declared to be severable. SECTION 6. Upon adoption of this ordinance,this council,by appropriate resolution, shall provide that this amendment be submitted to the electorate of Hawaii County for approval at the next 1998 general election. SECTION 7. Upon approval of the Charter amendment proposed in this ordinance by a majority of voters voting thereon,as duly certified,the provisions of Section 3 of this ordinance shall take effect at twelve o'clock meridian on the first Monday of December after the 1998 election. INTRODUCED BY: COUNCJL MEMBER, UNI'Y OF HAWAII JR/rf Hilo,Hawaii A . Date of Introduction: June 1, 1998 Date of 1st Reading: June 1, 1998 Date of 2nd Reading: June 16, 1998 Date of 3rd Reading: July 1, 1998 Effective Date: July 22, 1998 REFERENCE: Comm: 896 2 - OFFICE OF THE COUNTY CLERK County of Hawaii Hilo .Hawaii ROLL CALL VOTE Introduced By: John Ray AYES NOES ABS EX Date Introduced: June 1, 1998 Arakala X Frst Reading: June 1, 1998 Chung X Published: N/A . Leithead Todd X Ray X REMARKS. Reynolds X Santangelo Smith X Ier X Ya on 0 Second Reading: Jtme 16, 1998 ROLL CALL VOTE To Mayor. N/A AYES NOES ABS EX Rchutted: N/A Arai aki x Effective: N/A (hung Published: N/A I.eithead Todd X Ray X REMARKS. Reynolds X Santangelo X Smith g Tyler X Yagong X 7 2 0 0 1 DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. Approved/Disapproved this day C IL CHAIRMAN Of 19 �40-�10� COUNTY CLERK MAYOR, COUNTYOFHAWAII Bill No.: 229 (nrAff 2) Refemnce: C-816/FC-24`� Ord.No.: 98 78. r .• OFFICE OF THE COUNTY CLERK County of Hawaii Hilo , Hawaii FR ROLL CALL VOTE Introduced By: AYES NOES AB EX Date Introduced: . First Reading: Chun Published: Leithead-Todd Ray REMARKS: Reynolds Santangelo Smith Tyler Ya ThiTd ROLL CALL VOTE Reading: July 11 1998 To Mayor. July 7, 1998 AYES NOES ABS EX Returned: July 23, 19 9 8 Arakaki Effective: July- 22, 1998 Chung x iblished: July 29, 1998 Leithead-Todd x Ray x REMARKS. Reynolds X Santangelo X Smith x Tyler x Yagong X 74— 2 0 11 0 I DO HEREBY CE Krniw,,. was adopted by the County Council and published as Indicated above. FORM ORP02ATION COUNTY OF HAWAII Date Appmv#d48i:wprPared this 14 day 2CIL HAIRMANof 19 /�LERK K� R. COUNIOOF HAWAI! Bill No.: 229 (Draft 2 j �v Reference: C-816 FC-242 Ord.No.: Ub 7b