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HomeMy WebLinkAboutMIN CHC 1989-02-15 Minutes of HAWAII CHARTER COMMISSION February 15 , 1989 I. CALL TO ORDER The meeting was called to order at approximately 4:05 p.m. by Chairman Robert Bethea. The location of the meeting was the Department of Liquor Control , Conference Room #230 , 101 Aupuni Street , Hilo, Hawaii. II . ROLL CALL Members Robert Bethea, Chairman Present: Patricia Poppe Pete L'Orange, Francine Duncan James O. Juvik David Fuertes Pamela Cushnie Aileen Lum Steven Nishikawa Akira Omonaka Members Sherwood Greenwell , Co-Chairman (sick) Absent: Others R. Marie Jacobs , Executive Secretary Present: Fred Giannini , Corporation Counsel ' s Office Prof. Jon Van Dyke, University of Hawaii Bill Sewake, Water Manager Laura Chock, Chairman, Water Commission George Tengan, Deputy, Water Department John R. Hughes , KIPA Janice Bibb, Director, Liquor Department Gordon Pang, West Hawaii Today III . GENERAL COMMENTS 1. Chairman Bethea and the Finance Department will be meeting tomorrow to discuss the Charter ' s budget. 2. Secretary is presently setting up the office and equipment; a report will be presented next meeting. 3 . Office organizational items were discussed. 4 . Commission members were reminded to speak directly into the microphones and be aware that noises made near the microphones are amplified on the recordings . Members should make sure motions are clearly stated and that the secretary has 87 made note of those seconding the motions . Please make sure the secretary receives copies of all handouts. 5. Routine items will be summarized hereafter in the minutes instead of being transcribed verbatim. Giannini suggested leaving out organizational-housekeeping items from the minutes and making testimony only verbatim. Tapes of minutes will be saved. 6 . Secretary will make an outline of Ronald Ibarra' s previous testimony relative to suggestions for department improvements and/or changes. IV. WORK PLAN PRESENTATION/DISCUSSION By Patricia Poppe and David Fuertes Items discussed: (1) Whether or not the commission needs a mission statement and what it might be; (2) commission objectives including members totally participating, accepting responsibility and leadership, communicating, and considering the past and future roles of Hawaii County; (3) situation analysis; (4) key success factors; and (5) strategies. Handouts were distributed to commission members. V. DEPARTMENT OF WATER SUPPLY PRESENTATION/DISCUSSION By Bill Sewake, Water Manager Bill introduced Mrs. Chock and then distributed a handout concerning the semi-autonomous Water Departments its history, primary programs and general powers of the Water Commission. Commission members were given copies to review and ask questions on: CUSHNIE: Yes , thank you. Mr. Sewake, I 'm curious about two things. In your budget, when you have a surplus at the end of the year, do you turn any of that over to the County? SEWAKE: No, we keep it separately. CUSHNIE: Okay. Secondly, I was interested in knowing more about the Water Commission. You say that you meet once monthly. . . SEWAKE: Yes . CUSHNIE: . . .and it seems that through this meeting you ' re able to conduct business relating to all affairs of the Water company. Do you feel that meeting once a month is sufficient? SEWAKE: Yes . CUSHNIE: Does Mrs . Chock agree? (Nodded her head yes . ) And may I ask how long these meetings generally run? 88 SEWAKE: Generally, about an hour and a half to two hours. CUSHNIE: And do you have difficulty finding people to fill the positions--on the commission? SEWAKE: On the commission? Well , yes. It ' s the job of the mayor , so I 'm out of it actually. CUSHNIE: Does he have a right to veto or remove anyone from the commission? SEWAKE: Ah. . . CHOCK: I . . . SEWAKE: (Inaudible. ) CUSHNIE: That may be in the Charter; I could look that up. Okay. I 'm just curious as to how your commission is different from say the Police Commission and why, among other things, your time and status seems to be so effective. I understand that making money can often make one very autonomous. Thank you. OMONAKA: Mr. Chairman? BETHEA: Yes , Mr. Omanaka. OMONAKA: Thank you. Your position. . . still maintaining the same position regarding the semi-autonomous status? SEWAKE: Well , the commission has the power to hire and fire me. OMONAKA: No, but , the commission. . .what if the Charter decides to say that , let ' s put it under the mayor ' s jurisdiction then (inaudible) . SEWAKE: Then it will be the mayor ' s prerogative. OMONAKA: Do you have any strong feelings about that? SEWAKE: Well , I . . .Mrs . Chock. CHOCK: We certainly do. (Inaudible. ) COMMISSION: (Inaudible. ) BETHEA: Mrs. Chock, would you like to join Mr. Sewake at the table? We would be glad to have you go (inaudible) . I think that the specific question was , as it ' s (inaudible). 89. OMONAKA: Is the. . . is the Charter as it now stands , working satisfactorily? That ' s basically the question. CHOCK: Very much so, yes . BETHEA: Mr. Sewake, do you. . . OMONAKA: (Inaudible) changes? SEWAKE: Well , I think, you know, looking at it from the services the department provides , and the way it is now, it ' s better because we can plan for long range. I 'm not , of course, looking at it from my job perspective, but only from as far as how it benefits , I think, the water consumers. BETHEA: If I may, Mr . Omonaka, follow up specifically on this question, which I think is a very good one, my understanding is that you feel that operating as a semi- autonomous department is advantageous to the citizens of this community. SEWAKE: Yes. BETHEA: For what reason? SEWAKE: Well , I think the whole object . . .you know, most. . .you can plan for the long range, which is important in any kind of water activity. And I think this is reflected in all of the other counties . All of them are under the semi-autonomous state. Maui was part of the county; and at the last charter review that they had, their charter commission recommended that the Maui County Board of. . .Department of Water be semi- autonomous agency, which the people voted for. So Maui now is like the other islands. BETHEA: You mean, it ' s subject to less political pressure? SEWAKE: Oh, Yes . I think that ' s the other very important consideration. BETHEA: Other questions? L'ORANGE: Well , I have a question. Just as an example, let ' s say you wonder. . .you were not semi-autonomous and you had a surplus of $500, 000. The County Council could take that $500 , 000 and buy trucks for Public Works. Is that correct? (Inaudible. ) SEWAKE: That is what happened before 1949 . So, you know, the water system at that time was in very poor shape because a lot of the water revenues were being used for other political purposes . 90 L'ORANGE: So then you think. . .we ' re a semi-autonomous , the way it is , the money that is generated from the Water Department goes back into the water system? SEWAKE: Yes. L'ORANGE: Thank you. BETHEA: Mrs . Cushnie. Mr. Bethea. MayI ask, Mr . Sewake, CUSHNIE: Thank you, how you handle complaints to the Water Department? SEWAKE: We have our own complaint. . .well , we don' t have a complaint officer, but if it ' s to do with water quality, for example, I would refer it to my operations division, or. . . CUSHNIE: What if it were less scientific or technical than for water quality complaints? Such as , a complaint over personnel , or administrative decisions or policy, or long-range plans even? SEWAKE: We would handle that ourselves . And if anybody is not satisfied with our answer , then he appeals to the Water Commission. CUSHNIE: And, Mrs. Chock, do you feel that the public' s rights and interests are addressed at the Water Commission. . . CHOCK: I do. CUSHNIE: . . .hearings , if there is a complaint? CHOCK: Yes . CUSHNIE: Thank you. POPPE: I just wanted to clarify, Bill , on the financial aspect of it , it ' s my impression, and I wanted to verify it with you, but the other thing is , by being able to do your own financing and everything else, you' re not ever held hostage as it were to the budget process of the County and that ' s a positive aspect of your (inaudible) . I see it that way, but I just wanted confirmation. SEWAKE: Oh, definitely. Yes. BETHEA: Let me ask you on the bonds , since you brought it up, a follow-up question. Do you. . .you have the power to issue your own bonds? SEWAKE: Yes. 91 BETHEA: Who selects bond counsels , the financial advisor , etcetera? Does the commission? Or is it done by some other agency of the County? SEWAKE: Well , we could do it both ways , I guess , you know. We have authority to float revenue bonds. So far the bonds we floated were general obligation bonds. Generally, because we can have better rates . And we can go through it faster. And that ' s under the backing of the County. And the Finance Department has helped us in issuing these bonds. The County Finance Department . BETHEA: So that , the general obligation bonds , which pledges the credit of the entire County, is the vehicle that your semi-autonomous department usually uses to raise bonds? SEWAKE: Yes. Well . . . BETHEA: I mean, to sell bonds. SEWAKE: . . .well , we've sold bonds , I think, only about three times now in 40 years. The first one was a revenue bond. The last $7-1/2 million was a general obligation bond. But , of course, we repay the bond. BETHEA: Why I 'm asking that is there was a squable between the administration and the County Council about the selection of the bond counsel and about the selection of a financial officer. So that if you used that methodology, that is , going through the Finance Department for a general obligation bond, you can (inaudible) the entire County. Do you get involved in that process? SEWAKE: No. Not in a selection with bond counsel . BETHEA: Mrs. Cushnie. CUSHNIE: I 'd like to ask, since you' re putting up, I suppose, County properties as a collateral for the bonds , do you have a ceiling or approved level of. . .what ' s the word I want? monthly or yearly interest payments that you must maintain below certain levels? I 've heard prudent levels (inaudible) legally._ SEWAKE: Well , there' s no. . .except that on revenue bonds , you want . . .they require a certain amount of cash assets to have a good rate, you know, but in 19 . . .when we first became a semi- autonomous board in 1950 , we floated $1 . 3 million. But at that time, our annual revenue was only a quarter million. Our last bond float of $7-1/2 million was made about five years ago. Our annual income at that time was roughly, I would say, $4-$5 million, and (inaudible) certain something going, I would say, $800, 000. . . 92 CUSHNIE: That ' s services (inaudible)? SEWAKE: (Inaudible. ) CUSHNIE: . . .debt service is the word I was looking for. I believe the County is limited to a prudent level of 18 or 15% debt service to. . . SEWAKE: Along there, appraised property. CUSHNIE: . . . of the other appraised property? And you have no such limitations? SEWAKE: Well , what we do is , we. . . since it ' s general obligation bond, it would be under the County limit. But whenever we have a bond float , I guess , it ' s kind of programed with our rates (inaudible) and it would be a County variance. I don' t know if I answered your question, I mean, but that ' s one aspect of it anyway. CUSHNIE: Uh-huh. SEWAKE: So it ' s roughly about ten cents per $800 , 000 (inaudible) . CUSHNIE: You could therefore issue bonds in any amount that you wanted or sell bonds? SEWAKE: In any amount that we feel our customers are willing to pay. I would like to mention that I think really what helped us get us on our feet was the Legislature and. . .and I got to give credit to people like Bill Chong and Bill Thompson and Akira, who really went to pursue grants-in-aid from the Legislature, which is free money. That ' s why we didn' t have to float so many bonds all this 40 years. CUSHNIE: Uh-huh. SEWAKE: And if you look at our. . . the last page of the. . . if you look (inaudible) in service, 1949 was a million dollars , and right now it ' s $105 million. I think a good deal of that was because of their efforts in getting free money. BETHEA: You said in your presentation that the main source of funding comes from your customers . I had a question. What other sources of income did you refer to? SEWAKE: Well , our operational sources (lost some conversation in tape change) and also, we have facility charges to developers , which is (inaudible) type fee. BETHEA: The facility charge is designed to help defray the capital expenditure portion? 93 SEWAKE: Yes , the gross portion of the capital expenditures. BETHEA: The what? SEWAKE: The gross . . .the gross. BETHEA: Yeah, okay. that , whatever So Iguess we. . . our philosophy is SEWAKE• benefits the customer , the customer should pay; and these are replacements , or anything that can give. . .would give them better service like better water quality and so forth. However , if (inaudible) broke, then expansion of the system, that should be financed by either the developer or some other government agency that is interested in floats. And that ' s where the state is coming in, source development, and developers have free facility charges for expansion. BETHEA: Let me follow up. . .one follow-up question, Dr. Juvik, then I ' ll come back. On this capital funding, does the Department of Water Supply as a semi-autonomous agency, do its own lobbying with the state for these monies , or is it part of the County package, or exactly what happens that enables you to get these. . . this money from the state? SEWAKE: For the most part , we have been on our own, although we kind of communicate with the County whenever we have to priortize our budget. For example, if the Legislature asks us to priortize the County' s. . .total County' s requests , then we would work with them. BETHEA: So that the main source of capital funds is from the state Legislature. . . SEWAKE: Yes . BETHEA: . . .and developed by the department itself? Is the commission active in that , or is it really the managerial staff? SEWAKE: Mostly the managerial staff. And also, what we do is , we try to work with Land and Natural Resources to get our water monies through the Governor ' s budget. Well , it has to be approved by the Legislature anyway, but those are the two ways that we get the funds. L'ORANGE: May I please follow up on. . .what Bill is talking about is that there was a lot of money coming from the state, put in the system. But in the last few years , it ' s been less and less money. There is still some money coming but historically the state did the capital improvement and the 94 County operated it . Okay. Now, less and less is coming from the state. That ' s why he has a facilities charge, to handle some of the growth for the smaller subdivisions , where the developers would come in and pay the whole bill. SEWAKE: Yeah, if I may, I think I 'm kind of covering it in what I have written. And maybe I should go through this whole thing and . . . BETHEA: Right . Well , before you do that , Dr. Juvik. JUVIK: I just want to follow up on the articulation of your department ' s role in the general plan process on the island. How. . . I 'm not quite clear, for example, you mentioned that the plumbing for the main capital projects have in the past, at least , come from the state Legislature. SEWAKE: Uh-huh. JUVIK: Now, obviously, that ' s a political process. And I could imagine situations where, perhaps the Legislature might find water development that may not be the highest priority, let ' s say at the condo, "for other reasons. " SEWAKE: Yes. JUVIK: And. . .how do you incorporate. . . I mean, you have to make decisions on the basis of the cost , and you' re autonomous but you' re not going to provide free water to everybody because some politicians want it. You have to operate on a budget system, you know, revenues you generate yourself. How do you deal with the County and state planning operations where they' re state proposals for development in the area and so forth when you may be forced to incorporate water systems into your own operation that maybe you wouldn' t if you had your own choice, because of the cost effectiveness of those plans? Do Y get et what I 'm talking about? SEWAKE: Well , we take whatever free money we can, I guess, is my answer. But , you know, this island is very large, right? And there are many areas without water systems. No way can revenues from our department finance the expansion of those systems. So if any federal , state or even County has. . .agency has programs for expansion of this system, we ' ll accept their criteria, for how they want to spend their money. JUVIK: For example? SEWAKE: For example, well , I mean, Pahoa was without a water system many years ago. That was with state money. All of. . .practically all of Kona is with state money. But a lot of were with substandard the plantation communitiessystems operated with state help. And yet . . .Legislature, they have 9 5 .. their own priority, but I think they've been pretty good in kind of listening to what we thought was important. JUVIK: Are there any powers not granted to you under the County Charter that you feel you' d like to have to improve the efficiency or whatever of your organization? SEWAKE: No, I think it ' s pretty well written, except there' s one area that ' s , I think, kind of ambiguous. BETHEA: The last sentence? SEWAKE: Yeah, the last sentence. And so far it hasn' t been a problem, but it could be, depending on the personalities that you have for a mayor and a manager, I guess. BETHEA: Yeah, one of the questions I asked. . .well , I had to ask is what does it mean when it says the Department of Water Supply shall be under the general supervision and control of the mayor? SEWAKE: I don' t know. I attend the cabinet meetings and I try to input whatever I can and work with the County. But generally, I feel whatever budget items and the rules and regulations of the department , are under the control of the Water Commission. OMANAKA: Mr. Chairman? BETHEA: Well , Mrs. Poppe. POPPE: I have a question on coordination with the Planning Department and the tension between zoning they may grant and your ability to grant water. In other words , there' s certainly instances where they grant residential zoning where you cannot provide water to as many lots as the County Planning Department has indicated they' re willing to go with. SEWAKE: Uh-huh. POPPE: Is this a spot problem? Is it a major problem? Is it something that we need to address here, or that we can' t address? SEWAKE: Well , I think this was created when the zoning map was created. But since then, I guess what we' re trying to do is play catch-up, you know. And one of the. . .we used to give water first-come, first-serve basis . In other words , we didn' t . . . so long as water was available, a person asking for rezoning or land use change could have it if he was first on the list. Almost five years ago, and I had (inaudible) , you know, the commission took. . .made the goal of trying to assure land owners that so long as he' s going to develop what his 96 zoning allowed, we would try to make water available to him. Now this required a lot of capital beyond the means of the commission. But for whatever places we could, especially in a growing area, in the growing area where we felt that was important , like in Kona , what we. . .that ' s part of the $7-1/2 million dollar bond we floated. And the plan was to finance that part of the system that was bottlenecking development. Could be a reservoir. It could be a (inaudible) that was too small . And we would finance that so development could occur. And at the same time, we would raise our facility charge to help repay part of that bond and also create the revolving fund so that more developments could, I mean, more improvements then could be made as developments occur. And that ' s our plan. So, in a lot of areas on this island, it ' s working right now. I mean, in a lot of areas where it required a huge capital , then obviously, we couldn' t make it work all the time, but we ' re working on it. POPPE: So the initial tension is when they went through, a while ago , and gave a lot of zoning blanket; and, if I read you correctly, then now, if somebody came in and requested zoning. . . SEWAKE: I think. . . POPPE: . . .they couldn' t get it unless you said you had the water? Is that correct? SEWAKE: Or they could develop their own. POPPE: Yeah. But I mean, in other words , the Planning Department would not say, yes , we' re going to grant this zoning, where you knew you couldn' t supply the water . . . SEWAKE: Uh-huh. POPPE: unless the developers (inaudible) . SEWAKE: Yeah, you' re talking about rezoning. Yeah, you' re talking about rezoning. POPPE: Thank you. SEWAKE: And another thing that I might mention is , I guess when the first zoning map was made, it was impractical to kind of match the exact amount of water availability to the amount of land being zoned, because then you' re saying that , you know, each. . .you' re reserving water for each of those lands and you don' t know, really, if they wanna develop. . . POPPE: (Inaudible. ) 97 SEWAKE: . . .right? So you have to make it a little bigger. You have to zone more land for this water (inaudible) . POPPE: Mr. Sewake, if indeed Section 8-5 of the Charter presents a contradiction of terms or is , indeed, ambiguous , what do you and Mrs. Chock suggest as. . . suggest for clarification of wording, elimination of the clause, or to make it a (inaudible) section? SEWAKE: Well , I think it should be out. If the concern is that the manager would go on his merry way and be aloof to the County' s problems , you know, that the commission is appointed by the mayor , I mean, so the mayor has the ultimate. . . POPPE: You think that. . . SEWAKE: . . .control. I guess I have a feeling that that ' s the reason that section was put in. POPPE: Do you think it might strike fear in the mayor ' s office that perhaps a department might . . .policy might go counter to what the administration' s goals might be? SEWAKE: I don' t. . . JUVIK: Excuse me. Your interest in water , more or less , stops when it comes out of the faucet , or at least until it ' s delivered to the property. There' s a lot of concern in the County now about the high cost of wastewater treatment and water pollution and ground water contamination and so forth. Two questions. Do you think the model of your department could also apply perhaps to some future department in the County that might deal with wastewater? In other words , it looks like we ' re going to have to spend a tremendous amount of money in this County for wastewater control and we may have to obviously have more people hooked up to sewers and sewer charges and so forth, which could either go to Public Works or back to an autonomous department to maintain the wastewater system. Do you think that model is appropriate? Do you think the model of your department might be appropriate for wastewater greatment or secondly, would you want to take the water all the way? SEWAKE: Now. . . if that ' s the case, the answer to your question is no. JUVIK: ( Inaudible) be responsible for it? SEWAKE: The answer to your question. . . I think, it ' s a good question, but I don' t know if I 'm prepared to answer that right now. I. . .but in general (inaudible) makes some state- ments. I think. . .any agency, if you' re responsible for your income and your expenditures , I think, will do a better job in 98 economics and efficiency. But the sewer , you see, they have two things against them, I think. Number one, they cannot meet the. . .well , for (inaudible) but they cannot shut off their sewer , yeah? And then secondly, I think, capital costs for sewer construction is much higher than for water. But, on the other hand, there' s a lot of grants-in-aide from the federal government for sewer construction. . .for wastewater construction. . .now anyway. JUVIK: The point you make, they can' t shut off the sewer. You' re right , the sewer. . .but they can shut off the water. That might be an argument for keep. . . I mean, if this is the same water going through the system, that might be an argument for keeping it all in one department. SEWAKE: Well , I cannot. . . I cannot, well , I don' t believe in shutting off a customer ' s water if he pays his bill , water bill , and not his sewer bill . I think that would be a little problem there. BETHEA: It would seem to me that this is a question the secretary should specifically preserve and remind us to consider , because it is going to be a growing problem, should this whole issue stay in Public Works , or should there be a separate commission created. Is that one of the things you' re raising as a possibility? JUVIK: I 'm not advocating, per se. But I think there are in many municipalities sewer or wastewater. . . independent bodies that raise money through sewer hookups and so on. SEWAKE: If you have a few large systems , I think it can work. But I think in our case we have many small systems. I think, financially, it would be very difficult to combine the two. Because if you have a large system, and especially in areas where you' re water short , it ' s advantageous to recycle your water. I can see the two being together, but I don' t think it would apply in Hawaii . BETHEA: Perhaps the secretary can simply note that this is a topic we should raise when we have the County engineer come before us. Alright. With respect to the rest of this , would you like to summarize it , or. . .and see if we have any more questions for Mr. Sewake? SEWAKE: I think. . . for your questions , most of the important things are covered, and I don' t want to bore you with meeting this long (inaudible) . BETHEA: Well , would the commission members like to take a few minutes and glance through the remaining submission and see whether or not they have specific austions? Let ' s just take a 99 couple of minutes. I have a question on page 6. SEWAKE: Okay. BETHEA: When you' re talking about financing a capital improvement project. SEWAKE: Uh-huh. BETHEA: In the second paragraph, it says , at the present time this was (inaudible) amounts to approximately $2 million annually. You don' t mean annually, do you? SEWAKE: Annually? Yes. BETHEA: Well , if you set aside 15% of operating revenues with $3 .4 million of annual operating revenues , then what . . . SEWAKE: You mean 15 . . . BETHEA: When you said operating. . .oh, I see what you mean. SEWAKE: Well , $3 . 4 is the 1978 . . . that was just a comparison of ten years ago and now. Also, in revenue, now is $8 .7 million. so 15% of that is still under $3 million, which is what we set aside for repairing the (inaudible) . CUSHNIE: Mr . Chairman, I have a question. Mr. Sewake, it seems that the County and the state is moving towards a philosophy that water is the life blood of the islands . The agriculture is dependent on it certainly, housing and small produce farms and. . .do you feel you' re getting complete geration coop from different agencies that affect and impact your water? I 'm thinking specifically of refuse dumps , through Public Works , EPA monitoring, leaching into the water system, since we have such a closed system. Would you like to see more control over these extraneous . . . SEWAKE: Well . . . CUSHNIE: . . .areas. SEWAKE: I think there are many regulations now control- ling waste, but let me make some comments on what is in the works right now and has been for the past many years. Most of our water resources comes from the heavy rainfall area, which is the watershed (inaudible) 1 , 000 feet to 3 , 500. And this is controlled by the State Land and Natural Resources. And on the main. . . the important kind of watershed. . .well , let me back up. Land and Natural Resources have different designations for their conservation areas. P, I think, being the most protective , well (inaudible) . It would 100 be those areas which supply water to our system. And all the way down to. . .well , there' s five categories anyway. So through this process , you know, they have pretty good control , I think, on the watershed. . . in the PE category, I don' t . . .you cannot do any logging, I think, for example, or build any houses (inaudible) . So, I think we' re kind of. . .well , I think that part is pretty good. Now, the State Department of Health is proposing, because of EPA requirements , proposing regulations on waste facilities and. . . they have. . . I think they' re very strict on what you can dispose of and what you cannot , in most of the areas. One of the problems , if it ' s a problem with. . .we see most of it in herbicides and pesticides which come into the water supply. But even these are such a minimal amount that , well it ' s . . .would be able to meet the requirements of safe drinking water. The only thing is they might make the act more stringent and then there might be a violation then. It ' s just less trouble. . . the banning from the violation. CUSHNIE: We need to be able to look ahead at least ten years in helping to develop a support structure through the Charter. And if we do begin to share the philosophy that water is of the utmost concern on the island , would you like to assume any further responsibilities or control over? SEWAKE: Well , I think that kind of control should be with state. . . state and federal agencies . BETHEA: What kind of control? SEWAKE: Control of water quality in its natural state. JUVIK: Excuse me, just to follow up on the watershed issue, your points regarding DLNR, protection of the watershed areas , I think generally prevail with the exception of Kona, where most of the mauka lands are not in the conservation district . In fact , they' re in the agricultural district. I just finished a study of the Kona watersheds and one of my. . .a number of recommendations was that the County might consider a special water district for that area in order to acquire either. . .not necessarily require the land , but require protection easements for forested areas that might be essential to the water needs of that area in the future, since for historical (inaudible) Kona does not have substantial conservation-zoned lands up mauka. My point is , as I read the Charter, you have those powers at the present time. I mean, if you wanted to. . . I mean, I know, in the past , the commission is not in the business of acquiring watershed per se, because. . . you realize being on the DLNR, but there is nothing to stop you under the Charter from acquiring the watershed, is there? SEWAKE: No. 101 JUVIK: And just one last follow-up question on the wastewater question. If . . .and here I 'm just interested in the potential role of the other players in the County, the mayor , and particularly the County Council , if in the assessment of the costs of let ' s say these large wastewater treatment systems that are being put on. . . that are going to be put onto the island, and you brought up the point of the fact you can' t meter your wastes , but in fact you can meter the water the people are given and most of that water is given out is wastewater. Could you see a possibility where the Council , say, well , one of the ways we could pay for these waste treatment systems is to assess a surcharge on water used? That would be. . .that surcharge would be used to do away. . . to clean that waste up, however it went and however it would be cleaned. Now the Council couldn' t do that . It would have to be done through the commission, is that right? SEWAKE: No, the Council can. In fact , the Council had (inaudible) . A lot of the. . .the sewer bill is based on the water use, and we provide information to the County on the (inaudible) . JUVIK: Thank you. BETHEA: Are there other specific questions from commission members? L'ORANGE: General observations? Responsible. . .could be questions that follow. . . I don' t want to get into question. . . BETHEA: Well , make your observation. L'ORANGE: Okay. I think this is an excellent report; it gives a clear picture of the department. And I think it would be very helpful for us if testimony similar to this could come from the other departments, and it could be circulated prior to the meeting. Then we 'd have a chance to read it , ask intelligent questions and it would save us a lot of time here. I mean, this is really good though. Thank you very much. BETHEA: It is a very good suggestion. Can you write that on a check list for me of things to do. Just one question. I seem to be fascinated with. . .having been out in the state Legislature, and getting money was . . . SEWAKE: Well , you see my knees here. COMMISSION: (Inaudible. ) BETHEA: That ' s the process we' re really. . .all of us are interested in. 102 CHOCK: We don' t have a lobbying department or we don' t have any paid lobbists , but I tell you, Bill and George are doing a wonderful job going down and getting monies back for our department. BETHEA: Well , you' re getting monies of course, you call it for your department , but you' re getting monies for all of us that makes all of these things available. And this is not a serious , demanding question, but the County is down there right now desperately needing some infrastructure monies from the state, I mean we need them, in particular in West Hawaii in my opinion. And we need all of that. And so we try to use the clout that our legislators have, and there' s all kinds of political tradeoffs and this and that , so what do you do? Do you go down and talk to the Board of Land and Natural Resources and try to get it. . . SEWAKE: Yeah (inaudible) . BETHEA: . . . through the Governor ' s budget? SEWAKE: Well , I think if you can get it through the Governor ' s budget , that ' s the best way, you know. Because if you get it through the Legislature, when you want to have the money released, the Governor has to believe in it too. So you get whatever you can from the Governor ' s budget and the other projects , it has to make sense to both sides. BETHEA: True. Pam. CUSHNIE: Well , from the Governor ' s changing theory of financing, he seems to be doing away with the grants-in-aide and giving instead the Counties the alcohol , liquor. . .what other tax? COMMISSION: Cigarette tax. CUSHNIE: Sin taxes . Are you going to have difficulty separating your portion, your fair share, from this lump sum you might be receiving? SEWAKE: We could. We could be (inaudible) . Because traditionally, you know, the County needs its funds so I think we' re kind of low on their priority list. CUSHNIE: Uh-huh. SEWAKE: It ' s the same with, like. . .you know, before we used to have a lot of money when the federal had the housing and urban development grants . And we used to go chase after that ourselves. But they did away with that and now they have this revenue sharing where they give the County the money. I 103 guess I was total sum has been less , so we get a less amount. But we have had money from revenue sharing. CUSHNIE: Perhaps I missed it earlier. SEWAKE: It ' s more difficult. CUSHNIE: Do you apply to the County for additional funds? You do now? SEWAKE: Generally. CUSHNIE: But if the method of financing were to change, you might be put in that position? SEWAKE: Uh-huh. And I think the argument would be, you know, whenever we have improved. . .or bring in water in any area, it increases the tax. . . the County' s tax base, which is a good reason to fund, I think, water projects . CUSHNIE: Do you feel that your powers would be diluted by having to appeal to the County. . . SEWAKE: No. CUSHNIE: . . .for funds? SEWAKE: We may get less funds , that ' s all . CUSHNIE: But that may, in turn, raise your need for bond issuance? SEWAKE: Yes . Uh-huh. BETHEA: Well , except that the sin taxes would pay for County operating revenues , would fill the gap for operating revenues , and you' re going down there for Council funds? SEWAKE: Yeah. BETHEA: So that they' re (inaudible) . Any other questions? POPPE: Bill , do you think that the manager of the department must be a registered engineer? Or do you think that there is a. . . there ' s been change. . . SEWAKE: Well , the only thing you musn' t do in this life is (inaudible) . I think it ' s a big help. A big help. BETHEA: Okay. Thank you, Mr. Sewake. Thank you, Mrs. Chock. We very much appreciate your (inaudible) report. 104 VI. PRESENTATION/DISCUSSION ON CONSTITUTIONAL LAW By Prof. Jon Van Dyke BETHEA: Our next speaker is Prof. Jon Van Dyke, who works with the University of Hawaii , School of Law. And I want to particularly thank him for coming. He' s coming to us to give us some thoughts about the constitutional implications of the one man, one vote rule. I asked him specifically to look at our Charter system. He' s coming here as a volunteer, and he' s contributing his time to this commission. And we welcome you and we thank you very much for doing that. VAN DYKE: Well , thank you all very much for inviting me. Bob suggested that it might be useful to go over some of the constitutional principals that govern the kinds of decisions and responsibilities you folks have before you and so I 've kind of . . . I 've got a few ideas I ' d like to go over , and then would be available for any questions that people might have. I 've been teaching constitutional law at the University of Hawaii for about 13 years now and have worked on state constitutional issues in some detail , and was active at the 1978 Constitutional Convention. I was on the reapportion commission in Honolulu myself in ' 81- ' 82 , and so have particular information about the difficulties of that task. And my wife, Sherry Broder , was counsel to the Honolulu City Charter Commission, also in ' 82 , and I ' d like to talk for a bit about that also because that was an example of a Charter revision process that was a failure in the sense that all proposals were rejected by the voters , and there are certain things that might be usefull to recall in that process , so you may avoid that difficulty in your efforts. Well , let me start with the reapportionment problem and the problem with districting the board. . .the Council . The Hawaii County now has , of course, nine members of its Council with six of them. . .all nine are elected at-large County-wide. But six are designated to live in each one of six specific districts in the County. The. . .what we call this is a multi- member system in the sense that all nine are elected by the at-large system. That can be constitutional . It ' s used in a number of situations. But it does have the potentiality of being unconstitutional. If the result of an at-large or multi-member approach is to exclude certain distinct racial groups or other identifiable political groupings , the U. S. Supreme Court has a lot of litigation, particularly in the South where black people view at-large election processes as discriminating against them. In Mobile, Alabama, for instance, they had a system of having three council members that govern the city and because the whites have a slight majority in the population, all three 105 of them have always been white. And the blacks say, well , we ought to at least have one, given our population (inaudible) . And so the court has had a serious of litigation on that and has ruled basically that if you can show that the at-large or multi-member system is adopted, for the purpose of discriminating, of maintaining a white majority for instance, then it would be unconstitutional . In Hawaii , I think it would be hard to kind of show that, because we historically do tend to vote in a multi-ethnic pattern, but that is something to keep in mind. There was some litigation here on the Big Island in the ' 70s involving the way the senatorial districts were selected. At that time there were senatorial . . . three senators from this island and the election at that time was at-large. In other words , there was a County-wide election of all three senators , and the result tended to be that all three would come from Hilo , with none of the rest of the island represented. So there was a lawsuit brought by folks on the west side of the island saying that this at-large approach discriminated against them and had the affect of perpetuating Hilo' s dominance over the rest of the island, and tried to argue that they were entitled to at least one of the three. The lawsuit failed but it nonetheless showed that this is something to be sensitive to, that an at-large election can have the effect of limiting the diversity. Now the response, of course, in this community to that problem is to require that six of the nine be. . . live in specific areas . These six areas that people live in are not equal in population. Some are significantly larger in population than others . So that in. . . that then raises another question, is that fair to have these relatively smaller areas in terms of population, have the same slot as the larger areas have. That issue has also been litigated at the national level . And in a 1975 case called Dallas County Alabama v. Reese, the U. S. Supreme Court said that such a procedure is okay, because the. . . everybody in the county votes for it; you don' t have the one person, one vote problem; and the court said, well , it ' s kind of awkward but if that ' s the way the community wants to compromise and work these things out, it is constitutional . And in Hawaii , in addition to this County, Maui County uses that system for some of its council seats , and the Office of Hawaiian Affairs also uses it . The Office of Hawaiian Affairs has a nine-member board of trustees with five of them specifically designated that they have to come from five different island groupings : Kauai , Oahu, Maui , Molokai and the Big Island. Molokai is the smallest , of course, in that 106 configuration and leads to some significant distortion in that Molokai has kind of a fixed seat. And the other way it can be distorting is that the person elected from a district may not be, in fact , the choice of the people in that district. In the Office of Hawaiian Affairs, we had a situation recently where the person from the Maui district lost on Maui but won dramatically on Oahu because he had ohana there and, thus , was elected as the Maui representative. And this is the kind of awkwardness this system can lead to, and so you may want to review the appropriateness of this system as you go through your deliberations. There are a number of policy arguments , both in favor and against the at-large system. The at-large system tends to raise campaign expenses if you've got to campaign over the whole island, then you obviously have to spend more and spend more time campaigning. Your link to the individual constituents are less , inevitably. And as I said before, the districts in fact may not be properly represented in the sense that they may prefer somebody else as opposed to the person who is actually elected at-large. The advantages of at-large elections is that you do have a. . . everybody is kind of committed to the whole island and, in that sense, you have people making decisions for the well-being of the entire island. And so, in some communities , there is the mix, and this is something you might consider some at-large and some district elections. This was proposed actively on Oahu during the last Charter revision and you have that mix, in fact it wasn' t adopted, but it has something to do with the (inaudible) . BETHEA: If you did that , you would be. . .people voting from a particular district would have to be on a one man, one vote basis , wouldn' t they? VAN DYKE: Well , you could, yes. Yes . If you went district-wide, you'd have to divide up the island in terms of one person, one vote and of course that would mean that the population centers , Hilo and Kona area, would have proportionately more than the less populated areas. But the, you know. . . the advantage is that those people can then fight for the infrastructure that they need and get a share of the pie that the people in that area actually need as in relation to population size. I remember growing up. . . I grew up in Virginia and. . .aboard the one person, one vote system and lived in urban areas in Washington, D. C. , and our roads were always full of potholes 107 and were never fixed; whereas in rural areas , they had these beautiful roads and so on because they were over-represented in the state legislature and under-represented. . .and that ' s the reason why I think why ultimately the one person, one vote system doesn' t make sense. So that ' s , I think, kind of an overview of the reapportionment issue. I went through. . . BETHEA: Yes , can we. . . VAN DYKE: Shall we stop and ask questions? L'ORANGE: I just want to ask a question so it ' s clear in my mind , one person, one vote, we' re talking about registered voter or eligible voter? VAN DYKE: Good question, and another one that ' s been litigated. In Hawaii , historically, there has been a use of the registered voter approach, and that was justified in part that we had a lot of military population that ought not to be considered, at least according to some people in terms of the make-up of our political community. In other parts of the country, the actual number of people has been the determining factor. And so, Hawaii . . .Hawaii ' s approach of allowing the registered voter list has come under some attack. And the most recent decisions have said that the. . . they should move toward an actual residency count under the registered-voter (inaudible) . BETHEA: Yes , Pam. CUSHNIE: I believe last January, 1988 , there was a House Bill 3164 that brought this to point , and I believe it was adopted. It does change the terminology, changing registered voters as the basis for reapportionment in state legislative districts and replaces it with the term population. Are we bound to them? VAN DYKE: I think that was the result of a court decision and so I would say, yes . CUSHNIE: I believe that is passed state-wide last year just recently. BETHEA: No, that wouldn' t impact us because of our at-large voting system. VAN DYKE: Right , if you stick with the at-large system, of course, you don' t have any reapportionment problems at all and that ' s one of the advantages. 108 CUSHNIE: But we would have to change our terminology, would we not? VAN DYKE: Well, if you went to a district system, you would then be faced with the challenge of reapportionment , how you draw the line. CUSHNIE: Uh-huh. VAN DYKE: And you would then have to draw them, I believe in the terms of the actual residents. . .number of residents rather than registered voters. JUVIK: Yeah, I 'd like to get to that issue just briefly on reapportionment. Obviously, it would be (inaudible) for us to go to some member districts . We would have to develop some reapportionment mechanism for periodic reapportionment in the district. And this is the question I wanted to ask. I assume they' re mechanisms that can be written into such a reapportion- ment provision, such as how reapportionment commission is chosen and whether it. . . constraints should be put on that commission vis-a-vis anti-gerrymandering conditions or what have you. I assume that there is a place we can go to find out that kind of information. VAN DYKE: Yes , it is an inherently political process . The way the Honolulu Charter reads, basically each city council member appoints one member to the reapportionment commission. And that one member is obviously looking out for the political needs . . . BETHEA: The gerrymanders (inaudible) . VAN DYKE: Right. And I was put on kind of by accident , I think, because one of the city council didn' t pay enough attention to his political needs , and they appointed me. But , it was a great learning experience for me to see all the other eight members were specifically. . .they knew precisely where the lines should be drawn for the advantages of their incumbent and I was very naive at the process . . . I mean, by the end , I understood it all. But at the beginning, I wasn' t sure exactly what was going on. But everybody else obviously understood the map completely. JUVIK: Is there. . . one of the problems I see on. . .as far as implementing the single-member districts here is the fact , if we were to do that , then the districts have to be based on population, and obviously the distribution of population is not coincident with the traditional districts of the island and , therefore, you end up with pretty new districts . . .well , not on one island, but you end up with obviously throwing together 109 people perhaps in Volcano with South Kona and so forth, which may or may not conform to any sort of geographically perceived regions on the island. And I guess. . . I mean, there' s no obvious solution except that that ' s one of the prices you'd have to pay for a single-member district. VAN DYKE: Maybe I should say, in terms of the mathematics of it , the way the federal courts have said that four congressional districts for the U. S. House of Representatives , the mathematics have to be almost precise, with very little deviation. But for state and local divisions , there is more flexibility, and they have committed in the range of 10-15% deviation, in order to compensate for natural geographic barriers and other logical consideration. Obviously, gerry- mandering isn' t acceptable, but if there is some good reason, they do accept a modest deviation from strict mathematics. (Tape changed; lost some conversation. ) CUSHNIE: . . .because of the (inaudible) Charter , it was brought up last meeting that we have terminology that relies on geographical and terminology that relies on population districting. Remember we pointed that out at the end of each section; there was a difference in. . . VAN DYKE: Boards and commission qualifications . . . CUSHNIE: Boards and commissions? BETHEA: Boards and commissions qualifications. I pointed out that the language was different and that sometimes they referred to geographical areas and at other times they referred with great precision to geographic districts. Now, from my point of view, I haven' t been able to find anybody who knows the difference between an area in a district , and yet there does appear to be two different selection systems. So we' re either gonna have to find out what was intended and clarify it , or make up our own, I think, somewhere along the line. But that was simply for qualifications , as I recall , for commission members. CUSHNIE: You don' t feel that would carry over into our district needs , residential needs for County Council members , if they say they are coming from a specific district and that district is overly representative or overly large? BETHEA: Well , I think what he. . .what Dr. Van Dyke said was that , based on, and if I recall what you said, it was the 1975 decision of the Supreme Court , this system of having district-living-in requirements within that large membership is not unconstitutional , even though the districts. . . the geographic districts aren' t population sensitive. In other 110 words , even though there ' s a difference in population, the at-large thing saved it , unless as a result of the at-large deal , your. . . there ' s really a way of cutting out people. CUSHNIE: My question or request from the population then comes that , for instance, Hilo and Kona both being large populated areas , ask for two representatives for two Council positions? One being North Kona, South Kona, North Hilo, East Hilo? Would they. . .are we going to be asked for reapportionment? Why (inaudible) . JUVIK: If you choose. . . only if you choose (inaudible) district. If we keep the same system, we can obviously (inaudible) . CUSHNIE: We can continue then? VAN DYKE: Yes , you can keep the same system without any constitutional barriers. CUSHNIE: Okay. BETHEA: Yeah, that ' s what I understood. The system right now works. I think that was one thing we needed to get out of the way, to be sure that in the 10 years since the last Charter Commission met, and I assume that they took this up, has the law changed? Can we keep this system? And if we can, then we know we have that option. We know that they' re are other options--single-member districts , or any other combination--and if we go that route, then we' re goinna have to be very careful to understand the requirements of the constitutional limitation. CUSHNIE: Thank you. VAN DYKE: As was pointed out , there have been Council races on this island where people've lost one election, but lost in their district from which they were housed. Another question, whether that. . . that was repeated phenomenon, perhaps then the constitution. . . the constitutionality might be challenged, but that ' s . . . BETHEA: You have a question? L'ORANGE: Is there any problem, constitutionally, with having two or more multi-member districts . Say we had three districts with three councilmen in each district collected at-large within their district? VAN DYKE: That can be constitutional and would be constitutional unless it was devised specifically to discriminate against some sub-group within that geographical setting. And in Hawaii I think it would be hard to show that 111 because the history has tended to be that people don' t vote along racial lines or along those kind of lines. People in fact tend frequently. . .to specifically vote to have people of different races representing them. L'ORANGE: As a follow-up then, if you had a 10-13%, let ' s say, deviation between (inaudible) multi-member districts based on what you' re saying, would that still be alright? Or would you have to get closer deviations? VAN DYKE: Probably if it was over 10 , it might be suspicious , and I 'm giving a kind of off-the-top-of-my-head answer, but I would say 5-10 probably would be acceptable. L'ORANGE: So what you' re saying is that , single-member , you could have a larger deviation on the County level . Or multi-member, it should be closer to. . . okay, thank you. JWIK: Just want to follow up on your experiences in reapportionment . Is . . . if we were to go to a single-member district system, in which we would then need to develop a reapportionment provision for the County Charter, are there any specific. . .and recognize that it is basically part of the process , based on your own experience, are there provisions that you can just fairly simply state that you think might be useful in such a reapportionment provision in the Charter , that would at least tend to protect the rights of everybody on the island in all of the geographic areas and so on? VAN DYKE: Yes , the Hawaii Constitution, not the present one, but the previous one, tried to state a series of principals that involved things like trying to keep islands together , and trying to not have dramatic geographical splits in the districts and things of that sort. So one could come up with a list like that and talk about it , natural geographical boundaries and so on. But it. . .applying those in the real world do tend to become difficult. And so I would recommend that what you try to do is simply de-politicize the reapportionment body. In other words , have it somehow selected in a non-political process , to the intent that that ' s possible so that you have people that have no stake in the process drawing the lines . And I think that ' s the safest protection against gerrymandering. JWIK: Are you suggesting (inaudible)? VAN DYKE: Well , you could have it appointed by a judge, for instance, or somebody outside the political . . . the active political process . Something of that sort. BETHEA: Alright , Jon. Did you want to continue on the other? 112 VAN DYKE: Yeah, let me just go through the ideas that I had as I was reading the Charter and, base the (inaudible) on my discussions with Bob. The question of initiative and recall and referendum is , of course, always a lively one. And in the Hawaii County Charter , one thing that I noticed is that the percentage of signatures necessary varies with regard to initiative, recall and referendum. It ' s 15% of the people that voted in the last mayoral election for initiative; 25% for recall ; and 20% for proposing an amendment to the Charter through the (inaudible) process . So you have three different numbers , without any particular reason as to why they ought to be different. And each of those numbers is relatively high in comparison to other areas that use the initiative. On Oahu, for example, it ' s 10% for each of those categories . And there was an attempt to raise it to 20% on Oahu, which was defeated. So you may want to consider either standardizing those three numbers and possibly lowering them, depending on how you feel about the appropriateness of this process , whether it ought to be encouraged or what . The other thing that is . . .was interesting to me as I was going through your Charter is that the provision on limiting topics for initiatives had been deleted, I guess in 1982, so that now that there are no limits on initiatives. And I 'm not familiar with exactly what the political dynamics of that were, but you may want to discuss whether or not there ought to be some limits . You have a kind of, what we call , an indirect initiative in the sense that the. . .once an initiative is proposed, the Council is supposed to look at the matter and decide whether or not to adopt the matter, and it only gets put on the ballot if the Council decides not to. I think that ' s a sensible provision. The other question that is left unclear is whether or not a signature, once put on an initiative ballot , is good indefinitely. The. . . there doesn' t seem to be an answer to that in the Charter. So that you could have people gathering signatures for three or four or five years and then turning them into the Clerk. Probably, that ' s not a good idea, that there probably ought to be some limit and if. . . in other words , the petition drive ought to lapse after two years , or something like that , if the prerequisite number of signatures are not obtained. And so you may want to say something about that. BETHEA: It looks like there is a limitation. . . VAN DYKE: Sorry, maybe I . . . 113 BETHEA: . . . on 11 . 2. The initiative and the referendum. VAN DYKE: Well , 11 . 2 in the version I have says it ' s deleted. BETHEA: Oh. VAN DYKE: Deleted in 1982. BETHEA: Then I have an old copy of it. VAN DYKE: The version I got out of our library simply has a couple pages inserted with a new chapter. . .new Article 11 , 11 . 2 deleted. OMONAKA: It ' s on the last page (inaudible) . BETHEA: Oh, yeah. There ' s an insert here. VAN DYKE: Was this a major issue in 1982 or was this . . . OMANAKA: It had to do with. . . originally the Charter did not go by for initiative on things such as budget , so I think the initiative changes that . . .you can allow an initiative on the budget (inaudible) . VAN DYKE: Has there been any such initiatives? OMANAKA: Only to change the Charter (inaudible) . VAN DYKE: But since ' 82 , have there been any budgetary initiatives? In California, of course. . .there' s been plenty of budgetary initiatives that . . .having to do with taxes and so on, which are. . . created a lot of chaos and so, I think that limitation was put in simply because budgetary matters tend to be the sort of things that seem to lend themselves better to the legislative give-and-take, whether (inaudible) totally up or down situation on an initiative. So, this is a definite. . . I don' t know what the percentage of the vote was , but it must be something that is faithfully foreclosed by that election. Of course, you may want to reconsider. OMANAKA: One other question. BETHEA: There were something like 40 or 50 initiative items on the last California budget. I would just make a general comment to the commission. How many people here can remember the items that were on the ballot of the last election? You know, it shows that. . . I mean, if you had to sit down, you all looked at it , probably some of you understood it maybe at the time, but you can' t remember it now. 114 OMANAKA: Mr. Chairman? BETHEA: Yeah. OMANAKA: Regarding your comment about different percentages of recall and initiative, I think the thought behind that is not to allow a recall procedure that easily. See, that way, I think. . . the initiative, maybe we should have a lower (inaudible) . And that ' s (inaudible) . VAN DYKE: Well , I think, you know, that ' s a defensive position. JUVIK: You mentioned that the percentage of signatures required for many. . .for all three of these are extremely lower in the other than this County and note, for example, in certain (inaudible) in California, initiative requirements are about 5% or 8% in some cases . Could you put a number on, sort of an average across the U. S. ? Or is it pretty varried? VAN DYKE: Yeah, it does vary. But I think 10a is probably normal. Of course, in some communities . . . but it ' s easier to get to than others , just by the way people function and the extent to which they' re accessible in shopping centers and so on. So you know, I don' t think there ' s a right or wrong way, but I suspect that Hawaii County figures are a little big higher than normal . BETHEA: Other questions on that subject? L'ORANGE: I have a question on the initiative (initiative) . Is there any way that you can make the collection of signatures follow the rules? I 've seen it happen in Kona and it just. . . the guys all just say, sign this , sign this , sign this , and you know there' s no explanation; there' s no. . .nothing that ' s done, except you know there' s not the statement or anything. It ' s just the pages. And is there anything that we could do or look at that makes the process , you know, valid for all parties? VAN DYKE: Well , I think the language is fairly good that ' s now in there, which requires that the statement be on the document that is being signed and that people sign it knowingly. So it may be a question of enforcement rather than the law. In Oahu, after the last recall . . .after the (inaudible) council , this was litigated aggressively. The council people that . . . (inaudible) a republican, were recalled by a driver (inaudible) or others were organized. And Patsy was then sued for improperly conducting the recall. And the court ' s dismissed their claim saying that it seemed like the process had been okay. 115 And in addition, the other remedy is , that the people can simply vote against the recall . In other words , it ' s not something that the courts need to supervise aggresively, because the. . .ultimately, the good sense of the voter will protect the process against abuse. Sometimes the voters don' t exercise as much good sense as we would like, but ultimately that is the source of all power in our system. So, we have to I think rely on the people taking it seriously. L'ORANGE: Jon, I 'd just like to comment that I 've seen a lot of people that do it very responsibly. Okay. I mean, most of thep etition drives (inaudible) very responsibly. But there have been some real abuses where people go in car windows and sticking the thing in the car. BETHEA: Ms . Cushnie. CUSHNIE: Mr. Chairman, I might just comment that perhaps those sticking the initiative or petitions in the window are not taking it seriously. Because as we went through the Hapuna Beach initiative recently, that came under very (inaudible) scrutiny by the County Clerk. And he does have a rather detailed description of what he can accept before he certifies the petition. And (inaudible) may have some gray areas which you may want to further pursue with the County Clerk. But he does have on page 22 , Section 11 . 5 , specific areas in which he needs to certify that it is correct and it can be challenged in court , does not meet that certification. Also, on. . . just above 11-6 , referring back to signatures being withdrawn, Section. . .paragraph A just above 11-6 , any of the people withdraw their signatures from the petition. And I thought that in going through the difficulty with County Clerk there was a time limitation as to how far back the signatures could be collected. He was accepting them back to the last election that had referred to Hapuna Beach. He had a specific. . . but that we could look into to. I think. . . BETHEA: I would suggest that the commission needs to answer that question. There' s no point in the County for having to struggle around and having to guess what is right or what is wrong. I think one of the things that we can do and, for example, is to make that very clear. And I think I. . .we talked about that , whether you saw anything else in those provisions that simply wasn' t clear that we could clear up as a commission. I think that ' s one of the things we want to be alert to as we go through the Charter. OMANAKA: Mr. Chairman. I 've had some phone calls with Rudy Legaspi , the former clerk. And if you send him an invitation, he said he' s be glad to come in and talk about the. . . 116 BETHEA: I certainly have him on my list of people that we very definitely need to talk to. OMANAKA: He' s willing to come. BETHEA: Yeah. CUSHNIE: Dr. Van Dyke has brought up some outsider ' s point of views which are interesting because they tend to prove true in the (inaudible) practicality. Did you have anything else on your list that we might be aware of? VAN DYKE: Well , one thing again, drawing upon what the Honolulu Charter Commission did is the idea of de-gendering the text. The Charter now uses the word he after , you know, the mayor has his (inaudible) powers , he did such and such. So that ' s easy enough to clear up. And I think it would be the sensible thing to do, cause that to be done. And the way it reads on the ballot is simply that the change is proposed and then it has the. . .no substantive significance to it . JUVIK: What about positive gender balancing; for example, boards and commissions at the moment are specified that members must come from certain districts on the island; in the case of some committees, that they can only be slightly one political party or another. Would there be a problem placing a gender consideration in that? In other words , the gender should be barely or proximately represented? VAN DYKE: Okay, let me try to answer that . . . constitu- tional scholar . Because it ' s a very tough issue. We just had. a case that came down about two weeks ago from the Supreme Court on affirmative action in the race area, in which the majority said very strongly that race-conscious characteriza- tions ought to be avoided unless you are responding to a specific type of discrimination that has occurred in the past . In other words , racial balance for its own sake is not acceptable, that we ought to be picking up people as indivi- duals rather than members or races . Probably they would think the same in regard to the sex-kind of classifications in general . Now, there may be exceptions ; they may be some situations where a balance serves a very useful purpose . And Justice Stevens wrote a concurring opinion that said perhaps in the school system you would want to show to the students a diverse faculty and you' d be justified in making positive efforts along those . . . to achieve that kind of a goal . But the new justice is particularly (inaudible) and Justice Kennedy seemed to take a very negative view of any kind of balancing and so, my guess is , that it probably would not be acceptable . That ' s a good show of a specific discrimination response . POPPE: Do you have any comments you can share on this general issue, what would worry me a little bit, is the 117 • pendulum swings the other way, all the way to where it ' s getting to in the workplace, where all we would look at in boards and commissions is to get the precise number of percentages of women, men, and all racial extractions and qualifications of being on the board would get thrown out the window completely, would be my other concern, that . . . VAN DYKE: Yes . POPPE: . . .we could overdue the whole issue . VAN DYKE : That ' s right . That ' s the kind of analysis that this opinion offers , and says that ultimately we want . . . our goal is to have a situation where we ' re not conscious of (inaudible) race . . . POPPE: That ' s right . VAN DYKE: . . .and therefore we can' t get there by having all this race. . . POPPE: By calling attention to it . VAN DYKE: That ' s right . BETHEA: Or a situation where gender is really not that critical, is it? Maybe we could use the word she throughout this thing and then we ' ll have it understood that it includes he . COMMISSION: (Inaudible . ) VAN DUKE: I mean, that is what some authors were doing and if you' re writing a description about the care of babies , you know, you might well want to shift from hes to shes and so on to be neutral . But I think in this kind of document , you probably want to . . .actually, there isn' t . . .aren' t that many hes a lot of times . It just says , you know, repeats the noun, the mayor, just the mayor that, which is a good way to avoid it . But probably in those instances where you feel it necessary to use the pronoun, probably he or she would be proper usage . JUVIK: One last question. All of our good works obviously come to naught if the voters either don' t understand what we ' re proposing to them or well, being rejected for very good reasons , but , given that , we have to put this in certain of legalese for the purposes of the Charter, is you. . .you mentioned the rejection of the Charter Commission in Honolulu. . . can you give us any quick suggestions on how we can write Charter provisions , or how we can structure them in such a way that the voter will know what the hell we ' re dealing with? 118 VAN DYKE: Okay. Well, yeah. Thank you. I do want to mention that . Let me start with the Con-Con ballot in ' 78, which was statewide, then talk about the Honolulu Charter Review Commission. The ballot in both of those situations . . . the structure of the ballot became . . . took up an enormous amount of the group ' s time and became very controversial . In ' 78, they proposed about 178 different amendments to the State Constitution and grouped them in about 35 categories . So there were 35 separate decisions to be made. The delegates of the Con-Con obviously wanted them all to be adopted, and so they offered the voters this set of alternatives . You could vote yes on everything. That was an easy vote to say. Or you could vote no on specific things that you didn ' t like. And if you voted no on some, all the others were deemed to be yes . And so what happened is that there were a number of controversial ones , and so a lot of people voted no on a lot of them. But the nos did not get 50% on any one of them, and so all were adopted. And this of course pleased the delegates and, in my judgment, there were a lot of good provisions , so I thought it was a good tactic; but it was thought by many people as being unfair because it was obviously stacked in favor of a yes vote, because the people who did not vote on certain things because they didn' t care and understand it , they were deemed to have voted yes on all those provisions . So that might be something you' d wanna avoid because it seems a little shady to stack it in that fashion. Now in the Honolulu situation, what they did and, again they had some very controversial ones, they were getting rid of the district . . . the neighborhood boards and they were increasing salaries and changing the size of districts and adding positions and so on, to the staff. So basically they offered the voters an all-or-nothing package . You gotta take all our amendments or none of them. And in that situation, everybody had one or two of them they didn' t like, and so virtually everybody voted no . It was . . . the vote was 160,000 no and 50,000 yes , which is an unheard of landslide against the . . . this kind of a package . So that again I think would be something to avoid, that you wouldn' t want to list all your amendments separately. And then, in terms of how you write them, you have to of course have one version in which you layout specifically the exact language changes that you' re making. But then you would have a summary as well and you' d have an educational program in which you' d try to make available to people the different arguments in favor of the proposals . And in terms of language, I think just a kind of common sense summary of what exactly you' re trying to accomplish. And in the Honolulu situation for instance, they would publish full-page ads in which they listed everything and they had, you know, what the change was and what 119 the reasons were, and they made it quite simple . And it is regretable that it was all turned down because most of them were quite sensible and there were just a couple that were controversial and that generated the opposition. One of the. . . some of the council members suggested that what they should have. . . should do is take the controversial ones and list them separately. And then kind of have a patch- all for all the ones that were basically housekeeping or, you know, fairly uncontroversial ones . So I suppose that would be an alternative too , to package it that way. But basically I think the best approach is to , you know, offer the voters as much information and fully. . . give them as many choices as possible . Most . . . the ' 78 Con-Con ballot was challenged after the vote was taken. There was litigation that went to the Hawaii Supreme Court . And the Hawaii Supreme Court basically upheld it saying, well , we have to again rely upon the good sense of the voters . This isn' t particularly something the courts can work out very well . If a mistake was made, as an easy political remedy, you can put this thing back in the ballot and have another election. And that ' s tended to be the way courts have handled this . There are very few cases in which courts have overturned those . One case where they did--and maybe it ' s worth mentioning-- in Tennessee they were . . .voted whether or not the county should allow liquor by the drink. It kind of boggled the area. And the people putting it on the ballot obviously were not in favor of this and so they hada symbol by the place where you can vote . And if you wanted to allow liquor by the drink, the symbol was a serpent . And if you wanted to keep the county dry, the symbol was a Bible . That was something. And so the court in that case said it was unfair, misleading to the voters . But you know, if you can avoid something that extreme, you probably can get away with anything. But the best advice is try to be as fair as possible. BETHEA: But have you seen other language other than this for-and-against thing? I found that that was a great big source of confusion in these initiatives . People never know. I mean, for-and-against , and you get double negatives in there and all this other type of stuff, whereas something that could he talked about , yes or no, and I just don' t have the experience about whether or not there ' s other language that you could put on the ballot that would be a whole lot clearer than. . . VAN DYKE: People, I mean, in. . .generally in speaking nationally, people instinctively have tended to vote no when they don' t understand things . So you do. . . I m just looking for the ones I have , yeah, the ' 82 . Honolulu one was yes and no. If that makes any difference . 120 OMANAKA: Excuse me a minute . What do you think about the (inaudible) . VAN DYKE: The balloting, you mean? OMANAKA: No, the (inaudible) but that ' s the education process . VAN DYKE: Well, I think this sort of thing is very useful to kind of lay out all of the revisions in some sort of detail and to make it accessible to. people . I think they then tend to trust the system more, the more education you can provide to them. BETHEA: Did anybody else other than me think the for-and- against thing (inaudible) ballot confusing on the Hapuna initiative? COMMISSION: (Agreed. ) BETHEA: Everybody? VAN DYKE: I think the problem is that in different issues , you may be. . .if the initiative (inaudible) zone, which is against the hotel . In another case, it may be for something. In other words , it ' s difficult , because each case is a unique situation where you may be . . . in one case, if you' re for a hotel, you' re against down zoning. So, I don' t know how a (inaudible) resolve that . . . DUNCAN: Well, that question has been brought up. . .was brought up in the process , that there is a need for procedures on the determinig language and it probably has to come after the filing of the petition with the County Clerk. Just how much input does a petitioner have (inaudible) have in determining the language that ultimately gets on the ballot? BETHEA: Well, just as a general comment, it means to me that the whole thing should be just asobjective and just as clear as possible and, maybe, I don' t know that it . . .should be some other way so that it really is as clear as possible to the voter and perhaps that means more flexibility, not for or against, or yes or no, or whatever you're supposed to most appropriate to state the question fairly and objectively in a manner that ' s easily understood. JUVIK: That may have to do with the summary provision, you know, the actual language of the. . .down to the ordinance. . . or initiative may be fairly specific because it ' s addressed to a specific issue. But the summary that proceeds that on a ballot that briefly summarizes it, could say, if you want a 121 hotel at Hapuna, vote yes; if you don' t, vote no . That ' s all . And put in some (inaudible) . Who decides that , I don' t know. BETHEA: It says . . .because it says , shall contain an objective summary of the substance of the measure, and shall have below the ballot title designated spaces for and against . Maybe it was . . . DUNCAN: And the (inaudible) is , who determines what ' s objective? SEVERAL: (Inaudible . ) JUVIK: (Inaudible . ) CUSHNIE: Mr. Chairman? BETHEA: Yes . CUSHNIE : In the case of the Hapuna initiative, the word- ing was left up to the petitioner, Jerry Rothstein and lhJ.s committee . And without misspeaking for him, or speaking for him (inaudible) reverse psychology tactic, that they were counting on being (inaudible) . POPPE: I understood it was Jerry that , he did not have an ample opportunity to participate in that . . .in the wording of • the summary. CUSHNIE: Okay. That needs clarifying then ' cause my under- standing was he wrote it and it was sent to the Lt . Governor . POPPE: He said that it was not in the language that he presented. CUSHNIE : (Inaudible. ) JUVIK: It might be a place for a judge to step in or something to write the summary. VAN DYKE: Yeah, well , I 've just been handed the ' 79 ballot, which does have yes or no, and it seems . . . 1 mean, this is a very fine kind of educational document , I think, because it lays out fairly specifically what they had in mind and this . . . I didn' t know this before, but I guess the proposal at that time was to have two at-large and five district members , which was voted down. So , I guess that would make you wonder whether you should reopen that or what . But this seems like a fairly sensible proposal that was offered in 1979 . BETHEA: Dr. Van Dyke, do you have other observations that . . . 122 VAN DYKE : No, that was about the extent of the . . . BETHEA: If anything occurs to you, just drop us a line because we ' d very much appreciate your comments . We do want to end up with as clean a document as we can. And if there are no further questions , we thank you. (Recess . ) VII . WORK PLAN PRESENTATION/DISCUSSION By Patricia Poppe and David Fuertes Fuertes continued to discuss the mission statement and its need to be broad. He reminded commission members to look ten years down the road and see what the County' s ultimate goals should be. Poppe suggests we question how the Charter works and discover its strengths and weaknesses , the key factor being to insure voters understand everything. We should continue our self-education program. Bethea suggested getting to know other systems as well as our own and questioning whether we should retail our present form of government or change it . Cushnie suggested this mission statement : "We are here to provide through the Charter the structure necessary to allow the County of Hawaii to meet the challenging needs of our peole , with efficiency and sensitivity. " She noted it was up to us to provide the legal structure and verbage when working on the Charter revision. Omanaka stressed the importance of having as many departmental and outside presentations as possible. L' Orange suggested discussing time frames to enable the review commission to "fit in" as much as possible . VIII . SETTING OF NEXT MEETING The next meeting is scheduled for March 8th at 3 : 30 p.m. in the Liquor Commission conference room. Members were reminded to work on a mission statement in preparation for discussion. IX. ADJOURNMENT The meeting was adjourned at approximately 6 : 50 p.m. Respectfully submitted, 2,27epize.)*,,,,,Qaddia-- R. Marie Jaco - 123 WATER DEPARTMENT PRESENTATION 4111 . by Bill Sewake Outline _: Suggestions I. WATER DEPARTMENT A. Semi-autonomous department 1. Wishes to remain semi- 1. Less political and personality pressure autonomous 2. Remove sentence "under 2. Controls own finances mayor" a) Floats own bonds for funds 1) County property as collateral 2) Controlled percentage debt service • b) Self-financed by operational sources and facility charges c) No appealing to Council for funds d) Lobbies for grants-in-aide from • federal and State Legislature e) Seek monies from Dept. of Land-and • Natural Resources ilkf) Water monies remain only for water useage g) May not receive fair share of "sin taxes" B. Complaints handled within department 1. Appeals handled. by Water Commission C. Master plan 1. Planning Department zoning works with water available for use or self-development • of water resource 2. State control/regulations of watershed 3. Retain State control of watersheds • D. Wastewater 4. Juvik, - consider special 1. Sewake feels it can be handled water district for Kona semi-autonomously 5: Does not want to handle 2. Does not feel sewers can be shut off for wastewater; suggests non-payment of bills State do it II. WATER COMMISSION 6. ASK P.W. : re-cycle,-water? A. Appointed by mayor -wastewater self-supporting? (PP.98-9) B. Meets once per month, 1-2 hours; C. Handles appeals re personnel, administrative 123 . 1 and/or policies Corrected: 07/10/89 CONSTITUTIONAL LAW PRESENTATION by Prof. Jon Van Dyke Outline Suggestions I. REAPPORTIONMENT A. Honolulu Charter Commission - 1982 1. Proposals rejected by voters 1. Don't give voters an all-or- 2. Honolulu Council elected by at-large nothing option system 3. Discussed discrimination of ethnic and area groups B. Hawaii's 1970 election involving senatorial district representatives 1. At-large election outcome mainly representative of Hilo a) Perpetuating Kilo's dominance b) Limits diversity of people 3) Can be required that people come from specific districts C. Office of Hawaiian Affairs 1111 1. Requires 5 of 9 members to come from five different islands D. Maui has at-large system E. General at-large system 1. Raises campaign expenses and time needed to campaign island-wide 2. Constituent link is weaker 3. Districts not represented by popular choices 4. Advantage is, all are committed to well- beirr;of entire island 5. No reapportionment problems F. One vote, one person election 1. Population centers have more representatives 2. Smaller population centers under- represented 3. Advantage is fight for infrastructure needed in area 123 . 2 11/1 4. Registered-voter approach 5. Residency count less controversial 6. Cushnie: Bill 3164 Bethea: No Big Isle impact 7. Redraw district lines 8. Involves non-conformance of geographical area 9. Allow 10% deviation 2. Recommends de-politicizing 10. District living-in requirements reapportionment body 11. Consider discriminatory practices II. PREVIOUS HAWAII CONSTITUTION A. Stated principals 1. No dramatic geographical splits in districts 2. Emphasized keeping islands together III. HAWAII COUNTY CHARTER A. Initiative, recall, referendum • 1. Percentage of signatures necessary varies 3. Consider standardizing a) 15% initiative percentages; 10% is norm b) 25% recall 1) Omanaha: purpose not to allow a recall easily 2) People can vote against recall election itself 3) Cushnie: Section 11.5-6; certification standards c) 20% referendum (proposing amendments to Charter) 2. Oahu retains all three at 10% B. Initiative on limited topics was deleted 4. Set some initiative (Section 11.2) topic limits C. Indirect initiative (only gets put on ballot 5. Supports indirect if Council decides not to adopt) initiative D. Ballot signatures 1. Should signatures be good indefinitely? 6. Need to limit number of a) Cushnie: time limitation set by Clerk years to collect signatures 1110 123 . 3 2. Number of. signatures 7. Bethea: need to set 3. L'Orange: validation of signatures/ time limit initiative 8. Need to set number of E. Budgetary initiatives signatures needed F. Charter wording relative to genders 9. Need to consider budgetary initiatives 10. Consider de-gendering i 4111123 .4