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HomeMy WebLinkAboutMIN CHC 1989-10-31 Minutes of HAWAII COUNTY CHARTER COMMISSION October 31 , 1989 Io CALL TO ORDER Chairman Bethea called the meeting to order at approximately 9:07 a.m. at the Liquor Department _ Conference Room #230 , 101 Aupuni, Hilo, HI . II . ROLL CALL Members Robert E. Bethea, Chairman Present: Pamela F. Cushnie Francine Duncan David Fuertes Sherwood Greenwell , Vice Chairman James 0. Juvik H. Peter L'Orange Aileen Lum Steven T. Nishikawa • Akira T. Omonaka Patricia M. Poppe • Attorney: Christopher Yuen Secretary:R. Marie Jacobs III . APPROVAL OF 10/13/89 AND 10/14/89 MINUTES: Upon motion made by Ms. Poppe and seconded by Mr . Omonaka, both of the minutes were approved; all were in favor . IV. FINANCIAL REPORT: Pages 8-11 of the financial report were sent to commission members prior to the meeting for review. The 7/1/89 beginning balance was $79 , 154.00; expenditures from that date to the date the report was mailed to commission members totaled $17, 513 . 04. Upon motion made by Dr. Juvik and seconded by Ms. Poppe, the financial report was accepted. V. PUBLIC TESTIMONY: William Bennett, on behalf of the West Hawaii Committee 653 Thanked the commission for their time and efforts in serving on this commission. Prefers people to decide item-by-item on the 1990 ballot , no matter how many Charter changes. Wants the Charter to be in step with de-centralization and more local control , in the form of: 1. Professionalism in day-to-day government management versus the appointment of personnel by a mayor; and 2. The ability of properly apportioned political districts of like socio-economic populations to nominate and elect their own council representa- tives , which does not exist under the present at-large method; commission member questioned whether it was possible to divide districts in "like socio-economic" populations. VI. AGENDA ITEM NO. 5: Discussion and possible action on proposal to replace present mayor-council system with a council-manager system: DISCUSSION: Bethea: Two choices exist : sticking with a mayor-council system; or changing to a county manager - system. Cushnie: Questioned whether a third possibility --making the mayor a figurehead chosen by the council-- was evident. Bethea: There could exist a ceremonial mayor in the city manager system. Greenwell : Depends on how the system is set up; feels the council-manager type system is inevitable, although uncertain if public ready to accept system at. next election. Also feels smaller districts would involve more people in government (Tape 1 : 1 : 32) . Juvik: Prefers retaining mayor-council form of government--with modifications--as complimentary to single-member districts. MOTION: Mr. Omonaka makes the motion to retain the mayor-council form of government, subject to modifica- tions (of duties) ; the motion was seconded by Dr. Juvik. Discussion: None was offered. Roll Call on Motion: Mr. Omonaka - Aye Mr. Nishikawa - Aye Mr. Fuertes - Aye Ms. Poppe - Aye Mr. Greenwell - Aye Mr . Bethea - Aye Ms . Lum - Aye Mr. L'Orange - Aye 654 Dr Juvik - Aye Ms. Duncan - Aye Ms. Cushnie - Aye vII . AGENDA ITEM NO. 6: Reference was made to Chris. Yuen' s letter of 10/17/89 (attached hereto as Exhibit A) and his letter of 10/25/89 (attached hereto as Exhibit B) . Chairman Bethea opened the item for discussion with a question on page 4 of Exhibit A, paragraph 3 , the first two sentences , regarding the 15% figure. Dr. Juvik: Explained the percentage represents the departure from the expected ; i . e. if you divide the total population by six districts , whatever that number is is how many should be in the district. Then you look at how many are actually in the district , compare the two figures , and reach a departure percentage (Tape 1 : 1 : 23) . Yuen: Deviation is from the mean figure. Explained that the court system wants to know the rationale for having more people in one district than in another. L'Orange: Suggested the commission members vote on whether they wish to retain the present at-large council system or consider an. alternative. Prefers having nine single-member districts.' Yuen: The state Legislature will be reapportioning districts after the 1990 census (Tape 1: 1: 10) . , Cushnie: So it ' s only if the commission decides to go to single- member districts that present apportionment numbers would be questioned. Yuen: Correct . So what the present Charter Commission should consider is setting up basic principles behind establishing the districts for the reapportionment commission which is to be set up later . MOTION: Dr. Juvik made a motion that a single-member district option or alternative or amendment should be offered to the voters; the motion was seconded by Mr . L'Orange. Discussion: An option was suggested' of going with single-member districts ,for primary elections and at-large during general elections. Poppe: Wanted a clarification on how thi:s would work. Questioned whether this is a third option or whether it falls under the category of single-member districts. Greenwell: Suggests it may be a third option. Juvik: His motion would entertain that consideration also. Omonaka: Prefers nine members representing him on thecouncil ; present system works and should not be changed. , 655 ry K Bethea: Single-member district concept seems useless unless districts have a commonality of interests. Greenwell : The importance is that the majority of people would be represented, not that a commonality would be met. Juvik: This is such a fundamental issue that it should be presented to the voters. Greenwell: Some districts do not impact the candidate ' s election to any extent (Tape 1: 2:37) , i.e. : Puna does not impact my candidacy. Poppe: Some variation of the present system of six regular and three at-large elected council members should be offered to voters. L'Orange: Also urges commission members to consider a single-member/at-large variation being presented to voters. Roll Call on Motion: Cushnie: Aye Duncan: Aye Fuertes : Aye Greenwell : Aye Juvik: Aye L'Orange: Aye Lum: No Nishikawa: No Omonaka: No Poppe: Aye Bethea: No VIII . GENERAL: A. Discussion re Agenda For Next Meeting: 1 . Omonaka/Poppe: Single-member district variations; 2. L 'Orange: Police Commission changes ; 3 . Cushnie: Gender-neutral language, but then decided this could be taken in order of articles; and 4. Bethea: Preamble and Articles I , II and III. B. Greenwell: Wants it clearly understood that the public is aware they can have input on these items. Bethea: Whole agenda is published. C. Yuen: Simple statements can appear on the ballot in some instances , i . e. whether voters wish to change gender-neutral language (Tape 1: 1 : 17) . But the detailed language of the Charter amendments will be made available to voters prior to the election also. 656 N 1 D. Omonaka: Suggested Honolulu police commissioner be invited to address the commission. Some discussion took place. IX. SET NEXT MEETING: November 14th at 9 :00 a.m. was decided for the next commission meeting; location to be announced later. • X. ADJOURNMENT: Upon motion made by Mr. Greenwell . and seconded by Ms. Poppe, the meeting was adjourned at approximately 10:45 a.m. All were in favor., Respectfully submitted, 2-id.t.e..12-42eeeieet) R. Marie Jacob Secretary-Assistant 657 v ai CHRISTOPHER J. YUEN HILO LAGOON CENTRE,SUITE 108 101 AUPUNI STREET HILO,HAWAII 96720 ATTORNEY AT LAW TEL.(808)935-4429 October 17, 1989 Hawaii County Charter Commission 101 Aupuni Street, Suite 230 Hilo, Hawaii 96720 Re: Meeting of October 31, 1989 Dear Commission Members: I was asked to "frame the issues" concerning the two major agenda items on the October 31, 1989 agenda: the "mayor-council" vs. the "council-manager" form of government and the issue of Council representation. I thought it would also be helpful to briefly give some background on these subjects and summarize the testimony which the Commission has received so far. 1. "Mayor-Council" vs. "Council-Manacter" Form of Government. The government of Hawaii County (and the other counties in the state) is presently organized under a "mayor-council" system. Under this system the Mayor has the primary executive functions and appoints the department heads and commission members. The Council isiven legislative functions. It enacts ordinances g g and confirms (or rejects) the appointments of the mayor. We have a full-time Mayor and a part-time Council. Under the "council-manager" system, the Council appoints a Manager who is responsible for the administrative functions of the County. The Manager supervises all of the County departments. Generally, the Council is responsible for all significant policy decisions; the Manager's role is to implement these decisions. There is no "separation of powers" under the council-manager system. The council-manager system is very common in small to medium-sized cities on the Mainland, but is very uncommon in large cities (over 500, 000 in population) . The council-manager system differs somewhat . from the Board of Supervisors system which was used in Hawaii County before the adoption of the Charter in 1968. In the pre-Charter period, the County Chairman, who was elected island-wide, served as both the chair of the Board of Supervisors and as chief executive officer of the County government as' a whole. Some of the offices which are now appointed were filled by direct election under the old system (County Clerk, Attorney, and Auditor) . 658 We have received a considerable amount of testimony on both sides of the question of the adoption of a council-manager EXHIBIT A system. Without taking sides on the merits of the arguments, I think it is fair to summarize the testimony as follows: Proponents of the council-manager system argue that the office of chief executive ought to be filled by a professionally trained individual with experience in administration. They also maintain that the division of functions and powers between the executive and legislative branches leads inevitably to wasteful conflict between Council and Mayor over their respective powers and responsibilities and to disagreements which detract from the County's ability to pursue a consistent and uniform policy. Opponents of the council-manager system argue that an elected Mayor makes the government more responsive to the voters; that the appointed County Manager is vulnerable to shifts in Council coalitions; and that adequate professionalism can be assured within the present system. If this Commission decides to place the council-manager system on the ballot for approval by the voters, it will have to extensively rewrite the Charter. The most practical approach would be to present an entirely new Charter to the voters for consideration rather than to amend the present Charter to conform to a council-manager plan because there are too many sections which would have to be changed simultaneously. A number of subsidiary questions would have to be decided, including: --whether to eliminate the office of Mayor entirely, or to have a Mayor for ceremonial purposes, and if so, how to select the Mayor; - --whether appointments to boards and commissions would be made by the Manager or by the Council. (In council-manager communities, the Manager usually makes all appointments, including boards, commissions, and department heads) ; --the job tenure of the County Manager. (The manager typically serves "at will. " Some jurisdictions require a hearing or some special majority for removal) ; --the procedure for appointment of the Manager, and the required qualifications; --whether to retain the present structure of departments and commissions (especially whether to place the departments that are now under the control of commissions under the Manager instead) . There are "model" charters based on the council-manager system which we can use for guidance in drafting a new charter if the Commission decides to place this proposal on the ballot. From a strictly legal point of view, the County has the authority to switch to a council-manager system by enacting a new charter. However, there are innumerable references in State law to functions that are supposed to be exercised by the mayor of the county. I would not interpret these references as a 659 -2- F. • requirement that the county have a mayor: the decision whether to have a mayor-council form or a council-manager form of government would appear to pertain to the "executive, legislative and administrative structure and organization" of; a county, for which the county's charter is superior to inconsistent provisions of state law. Haw. State Const. art. VIII, §2., ;If a council- manager charter is drafted that does not include a mayor, or has a "ceremonial" mayor, the charter should contain a provision that the Manager shall exercise the functions and powers that are assigned by state law to the Mayor. 2. Council Representation. At present, the Council consists of nine members, all of whom are elected at-large. Six members must reside in districts: one each from the districts (presumably the judicial districts) of Puna, Ka'u, North and South Kona combined, North and South Hilo combined, North and South Kohala combined, and Hamakua. A candidate for a district seat must be a "resident' voter" of the district at least 90 days before the primary election. Residency is defined in terms of being; a registered voter from the district. (See Hawaii County Charter §3-3 and §13-1(f). (4) ) . The districts have very uneven populations. However, a system of at-large elections, with district residency • requirements, has been held by the United States Supreme Court not to violate the constitutional mandate of one person/one vote, even though the districts are not of the same population size. We have received some testimony about possible legal challenges to the, at-large voting system based upon the possible discriminatory effect. As your counsel, I thought it appropriate for me to comment briefly on this. The Voting Rights Act of 1965, as amended, prohibits voting arrangements which have the effect of discriminating against minority racial groups. (42 U.S.C. §1973 . ) Such practices also violate the Constitution if done with discriminatory intent. In a number of court cases on the U.S. Mainland, courts have held that specific: at-large voting arrangements had the effect of preventing candidates preferred by minority groups from being elected. Thornburg v. Ginales, 478 U.S. 30 (1986) ; Citizens for a Better Gretna v. City of Gretna. Louisiana, 834 F.2d 496 (5th Cir. 1987) ; United States v. Dallas County Commission, 636 F. Supp. 704 (S.D. Ala. 1986) . To prove such a claim, the party opposing the at-large system must demonstrate that (1) the minority group is sufficiently large and geographically compact to constitute a majority in a single- member district, (2) that the minority is politically cohesive, and (3) that the majority has in past elections voted sufficiently as a bloc to usually defeat the candidate preferred by the minority. Thornburc;. 660 -3- • In my opinion, a challenge to Hawaii County's at-large voting system based on election results in the past few elections could not succeed. It would be difficult to prove that there has been racial bloc voting against a minority that has significantly decreased the representation which the minority would have had with a single-member district system. In the Mainland cases where an at-large system was successfully challenged, there has been fairly clear racial bloc voting in ethnically polarized communities (for example, in Gretna, no black had ever been elected although blacks comprised 30% of the population) . Several modifications to the present system of selecting the Council have been proposed: (1) all members to be elected from single-member districts (nine districts have been proposed as the specific number) ; (2) six single-member districts with three at- large districts; (3) all to be elected at-large, with no residency requirements; and (4) district elections in the primary, with at-large elections in the general election. Any Council election system which involves election from a district, including the proposal for district elections in the primary only, would come under the constitutional one person/one vote requirement: the districts would have to contain approximately equal resident populations. Deviations of up to about 15% have been upheld by courts if necessary to achieve some important policy; for example, to preserve existing political units. If the County adopted district council elections, it would have -to establish a reapportionment commission to draw the district boundaries for the 1992 election because the boundaries should be based upon the most recent census, and the results of the 1990 census will not be available until sometime well after the Charter Commission has disbanded. As an aid to members of this Commission who might be trying to determine the approximate sizes and boundaries of single- member districts, I will enclose under separate cover a tally of registered voters by precinct. While districts must be based upon resident population, not registered voters, the number of registered voters probably bears a close enough relationship to population for the Commission to get a general idea of what districts might look like given various assumptions. The supporters of single-member districts have argued, generally, that the district council member will more truly represent the. district if elected solely from the district and that island-wide campaigning is too difficult and expensive. Advocates of the at-large system havestated that council members elected from only one district will tend to look at issues only from the perspective of their district and that the individual voter has more power if he or she can vote for nine Council members rather than just one. 661 -4- I I More stringent residency requirements have also been proposed. I was asked whether a longer pre-election requirement for residency within a particular district would be legally permissible. Residency requirements for public office for state and local elections have been frequently challenged on constitutional grounds. Unfortunately there is no consensus among the courts, and the United States Supreme Court has never ruled on the issue. The Hawaii Supreme Court upheld the state's requirement that members of the Legislature have three years' in- state residency against constitutional challenge in Hayes v. Gill, 52 Haw. 251, 473 P.2d 872 (1970) , appeal dismissed as moot 401 U.S. 968 (1970) , but this decision would not be controlling against a challenge in federal court. After reviewing the applicable law, in my opinion a requirement that a candidate for a district seat have more then a few months' residency in. the district would probably be unconstitutional if the candidate were actually elected at-large, as is the case under the present Charter. The usual justification for residency requirements is that they allow the voters to get to know the candidate better; this justification does not hold if the candidate is not actually elected from the district. Courts have not been sympathetic to the justification that long-time residents are likely to be better acquainted with the needs of the district. If the candidate were actually elected by the district, the residency requirement would have a better chance of being upheld, but it would still be questionable. With periodic reapportionment, an incumbent councilmember's home may be put in another district, and a lengthy residency requirement might make it impossible for the councilmember to move a mile and continue to represent the bulk of the cad district. I hope my comments will assist the Commission in arriving at its decision. Yours truly, Christopher J. ,Yi, en CJY:yt 662 -5- CHRISTOPHER J. YUEN HILO LAGOON CENTRE,SUITE 108 101 AUPUNI STREET HILO,HAWAII 96720 ATTORNEY AT LAW TEL.(808)935-4429 October 25, 1989 Hawaii County Charter Commission 101 Aupuni Street, Suite 235 Hilo, Hawaii 96720 Re: County Council Districting Dear Commission Members: I have enclosed a list showing the number of registered voters at each precinct for your use in reviewing the issue of Council district representation. The districts mentioned are the existing representative districts. As I mentioned in my letter of October 17, 1989, single- member Council districts would have to be based on resident population, not registered voters. The ratio of registered voters to residents may not be the same in different parts of the island. Some regions may have a higher registration rate of eligible voters or a greater proportion of eligible voters (because minors are included in the resident population) . You may note that the existing state representative districts, which are also apportioned on the basis of resident population, differ significantly in the number of registered voters. This is probably a result of different registration rates and population changes since the last reapportionment. Assuming for the sake of simplicity that the proportion of registered voters to residents is similar in the various parts of the island, if there were nine single-member Council districts, each district would contain roughly 5000 registered voters. If there were six single-member districts, each district would contain roughly 7600 registered voters. Yours truly, GHR1STQPHER J. Yu.N Christopher J. Yuen Enclosure EXHIBIT B CJY:yt 663 1ST DISTRICT HOVE Community Center 292 Naalehu Elementary School Cafeteria 701 Kau High School Cafeteria 718 Volcano Community Center 700 Mountain View Gym 982 Kalapana Congregational Church 258 Kurtistown Park Pavilion 770 Pahoa Community Center 1976 Shipman Gym 573 Keaukaha School Cafeteria 809 • Ainaloa Longhouse 1746 TOTAL 9525 2ND DISTRICT Kapiolani School Cafeteria 815 Waiakea Recreational Center 735 Waiakea Intermediate School Cafeteria 1375 Waiakeawaena School Cafeteria 1154 AJA Memorial Hall 1794 Waiakea Uka Gym 2158 TOTAL 8031 3RD DISTRICT Waiakea High School Cafeteria 1230 St. Joseph High School Gym 1314 Hilo High School Cafeteria 736 Hilo Vocational Rehabilitation Center 494 Ernest B. DeSilva School Cafeteria 1520 664 • 3RD DISTRICT (continued) Kaumana Elementary School 707 Hilo Women's Clubhouse 882 TOTAL 6883 4TH DISTRICT Hilo Union School Cafeteria 431 Haaheo School Cafeteria 945 Kalanianaole School Cafeteria 707 Kulaimano Elderly Housing Center 734 Honomu Gym 249 Hakalau Gym 121 Honohina Hongwanji Social Hall 95 Laupahoehoe Community School Library 471 Ookala Gym Annex 150 Paauilo School Cafeteria 50.1 Honokaa_High School Cafeteria 1506 Paauhau Social Hall 122 Kukuihaele Community Hall 203 Halaula School 514 TOTAL 6749 5TH DISTRICT Milolii Halau 176 Hookena Elementary School Cafeteria 263 Honaunau School Cafeteria 679 Konawaena High School Cafeteria 1761 Kona Baptist Church 1085 665 -2- 5TH DISTRICT (continued) Kahakai School Cafeteria 1579 Kona Imin Center 643 Hale Halawai 1851 TOTAL 8037 6TH DISTRICT Kealakehe School Cafeteria 2393 Waikoloa Village Clubhouse 467 Spencer Park Pavilion 250 Kahilu Town Hall 2368 Ikuo Hisaoka Gym 1056 TOTAL 6534 GRAND TOTAL * 45 ,759 * I.. -3- 666