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HomeMy WebLinkAboutMIN CHC 1990-01-05 8 Minute of a 'ular Meeting of\ the HAWAII COTTY CHARTER COMMISSION January 5 , 1990 I. CALL TO ORDER: Chairman Bethea called the meeting to order at approximately 3 : 08 p.m. at 101 Aupuni , Liquor Department Conference Room, Hilo, Hawaii . II . ROLL CALL: Members Robert E. Bethea, Chairman Present: Sherwood Greenwell , Vice Chairman Pamela F. Cushnie Francine Duncan David Fuertes James O. Juvik H. Peter L'Orange Aileen Lum Steven T. Nishikawa Akira T. Omonaka Attorney: Christopher Yuen Secretary: R. Marie Jacobs Members Absent: Patricia M. Poppe III. APPROVE MINUTES OF 11/30/89 & 12/14/89 Mr. Greenwell made a motion to approve the 11/30/89 minutes; the motion was seconded by Ms. Lum. All were in favor. Mr. Omonaka made a motion to approve the minutes of 12/14/89 , which was seconded by Mr. L'Orange. All were in favor. IV. PUBLIC TESTIMONY: Ron Phillips re single-member districts . A. Phillips : Should have residential requirement for council members running for office. B. Phillips : Prefer that people selecting a district council representative be made only by the 730 voters in that particular district , in the primary election (Tape 1 : 1 :40) . Those electees that survive the primary election may run islandwide in the general election. Greenwell : If have district primary elections and at-large general elections, campaigning costs/time involved will not change much. If council reps ran only in their districts in both the primary and general elections , that would save time/costs; then term could be two-year periods . Four-year terms are presently more economical . C. Phillips: Four-year terms should remain. . D. Greenwell: Populations will determine the districts. Juvik: District primaries will still require one-person, one-vote definition which involves potential gerrymandering. Objection to current system is person elected from district not in residency in the judicial district . Phillips: Still fee]s that per his suggestion, those selected in the primary will continue in the general election. Phillips: Proposing that people from a district will vote in primary. Juvik: District will have to be defined by population, not by a judicial boundary, which requires reapportionment . Bethea: If at-large general election, the person elected will be from the district; but the loser in the district can win in the general election. E. Bethea: Have not agreed yet on a pie-shaped population division. Numbers are based on adding or subtracting precincts (geographical areas) . Because Lt . Governor is one who sets precincts at state level , cannot see that gerrymandering would be problem. Won' t be an exact process. F. Greenwell: Should not consider parties; should consider just that district chooses best person. Phillips: Suggesting that from primary should come candidates from each party; and can only vote for one candidate in general . Greenwell: In general election, person getting most votesis popular choice. Phillips: Disagreed. L 'Orange: Debate of issue at this time improper . 731 a V. AGENDA ITEM NO. 5 : Planning Commission Procedures ; discussion of Planning Commission/Mizuno ' s 12/13/89 letter (Exhibit A) A. Discussion: Bethea: See Sec. 13-4 (i) and Sec. 4-4 of Charter. Some commissions are only advisory. L'Orange: Solution is not changing majority definition, but making sure commission has its full powers . He ' s complaining about someone whose term has run out and commission is without its full compliment of members; i . e. cannot have majority vote. Bethea: Needs clarification of 13-4 (i) : Does "entire member- ship" include unfilled positions? Second issue: on advisory commission, majority of those present vote to make action valid. Advisory commission only goes to Council for final determination. Greenwell: Unfilled seat represents area of island; vacant seat represents non-representation of an island area (Tape 1 : 1 : 23) . Bethea: Questioned whether should be difference in vote requirements if board/commission is only (1) issuing advisory opinion or (2) making final decision. Omonaka: No. Chairman plays a big role in direction board/commission takes. Boards/commissions that have power to enact rules and regulations that affect citizens , Charter says should have majority of membership. Bethea: Re advisory boards/commissions , majority of those present at meeting is sufficient , because higher body will make final decision. Suggests that when commission has vacancies , does "majority" mean, of the positions filled? Greenwell : Charter should state "majority of nine members" so that if vacancies exist , pressure is put on mayor to fill the vacancies. Yuen: Board/commission language with authority needs clarification. Proper language would be: "the vote requires the majority of members to which the commission/board is entitled. " Re advisory boards/ commissions , Charter Commissions needs to make a policy decision. Planning Commission is not an advisory commission. Juvik: Would leave distinctions between advisory-capacity and decision-making boards/ commissions as is . Cushnie: Wished to discuss the subject of non- attendance of board/commission members and removal of non-attending members . 732 Motion No. 1: Dr. Juvik makes a motion that this topic be open for future discussion; and the correct language definitions of "majority" and "entire member- ship" state: "majority of all members to which the board/commission is entitled. " The motion was seconded by Ms. Cushnie. Further Discussion: Greenwell: Suggests including language to remove members missing a specified number of meetings. Bethea: Suggests taking care of that as a separate issue. Motion No. 1 Restated: Dr. Juvik moves that all County commissions that have the power to make final decisions must/ in all of their deliberations , whether advisory or final , require the majority of vote of all members to which the commission is entitled; and that other commissions , not previously described, may carry out business or make decisions on the basis of a simple majority of members present , assuming a quorum is present (Tape 1 : 2:43 ) . Motion seconded by Mr. Omonaka. Further Discussion: Omonaka: Asked whether this would be considered a housekeeping change? or Charter amendment? Yuen: Should make decision later as to which motions/decisions are housekeeping and which are most important . Count on Motion No. 1 : All were in favor of the motion. Motion carried. Further Discussion: Duncan: Should consider recommendations to enable boards/commissions to fill all positions during administration changes. Bethea: Sec. 13-4 (b) concerns confirmation and removal . Greenwell : Sixty days is too long. L'Orange/Juvik: Should discuss at future meeting. Prefers Mr. Yuen prepare 2-3 options to review at the next meeting (Tape 1 : 2: 37) . VI. AGENDA ITEM NO. 6: General Plan; Chris Yuen' s letter of 12/14/89 (Exhibit B) A. Discussion: Bethea: Changes were explained last meeting. "Air and water pollution" and "environmental quality" were the changes suggested. 733 Motion No. 2: Dr . Juvik moved that these changes as suggested by Mr. Yuen be adopted. The motion was seconded by Mr. L'Orange. Motion Count: All were in favor; motion carried. VII . AGENDA ITEM NO. 7: Police Department/Commission (Committee Report: Exhibit C) A. Discussion: Commission members reviewed the exhibit ' s revised wording. Juvik: Discussed the wording of the Honolulu Charter relative to the Police Commission. Suggested our Police Commission' s budget be submitted directly to the mayor, which is then approved by Council , and by-pass the Police Department review/approval . Bethea: Feels budget direction for Police Commission should be included in the Charter. Juvik: Cannot demand that Council give certain monies. Bethea: Discussed funding of investigator. Lum: Explained that secretary may not be needed because the department may absorb expense for secretary. But the new wording would allow the Police Commission to hire other personnel needed , i .e. investigator. Suggests that if investigator is included in description, Council would have to approve expenses . Yuen: Cannot force Council to fund anything except positions set forth in Charter. It ' s just entrusted to Council ' s responsibility to make sure County' s needs are funded (Tape 1 : 2: 16) . So if an investigative position were set up in Charter , Council would fund it . L'Orange: Questioned whether Police Commission now has any funds available other than mileage. Yuen: They probably have mileage and travel expenses. Omonaka: Suggested stating that the Police Commission shall have the funds necessary to fund an investigative staff. Cushnie: Feels it necessary to mention funding comes directly from Council , due to less chance of conflict of interest ; it will have its own budget. Bethea: Suggested inserting the hiring authorization under the heading of Police Commission as a separate budget. Where it says , "Police Commission shall" , include powers , duties and 734 functions as a separate paragraph. Lum: Questioned how budget would be figured. L'Orange: Suggested asking the Finance Director how to word the funding portion. Juvik: Does not need particular amount of funding. Greenwell: Feels that some set funding should be made available immediately. Offered proposed language (Exhibit D) for consideration. Yuen: Proposed wording offered by the committee is in conformity with the rest of Charter language. Suggests Charter members discussing concepts and Mr. Yuen organizing how it will appear in Charter. Hand Count : Bethea: Asked for opinion on whether the Police Commission should submit a separate budget to Council to carry out investigative and other functions . Further discussion took place. Motion No. 3 : Dr. Juvik made a motion that Mr . Yuen be directed to adjust the language in the proposed draft as it relates to the budget of the Police Commission; and such language should indicate and reinforce the language Mr. Greenwell presented [Exhibit D] to best strengthen and insist that funding will exist for the Police Commission; also that the Police Commission submit a separate budget to the Council and be so stated in the Charter. Ms. Duncan seconded the motion. Further Discussion: L'Orange: Cannot imagine the Police Commission requesting a budget from Council . Juvik: Budget should be submitted through mayor ' s office. Duncan: Suggests extending the motion to include that Mr. Yuen may consult with the Finance Director re same. Juvik/Yuen: Whatever the Charter says will be observed. Bethea: Emphasizes that the motion will state merely that Police Commission will have funds necessary to carry out its functions . Juvik: Important item is that Police Commission have the appearance of being separate and independent from the Police Department . Motion No. 3 Count: In favor: Mr. Greenwell Against: Mr. L'Orange Mr. Bethea Mr. Omonaka Dr. Juvik Mr. Nishikawa Ms. Duncan Mr. Fuertes Ms . Cushnie Ms . Lum Motion fails. 735 B. Further Discussion: L'Orange: Mr. Yuen could make some recommendations for the commission to consider next meeting (Tape 2: 1: 33 ) . Bethea: Will review 7-2. 1; the change is inserting a deputy chief. Motion No. 4: Mr. Omonaka moved for acceptance of 7-2. 1 change. The motion was seconded by Ms. Lum. Motion No. 4 Count: All were in favor. Motion carried. C. Discussion on 7-2. 2: Bethea: First paragraph same. Juvik: Suggests North and South Hilo have one representative and then have one at-large representative. Cushnie: Reminder that commission agreed to leave wording as is but make changes generically. Lum: We are the only County that sets up a Police Commission via districts. Greenwell : Reason for this is it ' s so vast . L'Orange: Questioned the definition of "annual report. " Duncan: Questioned whether that was a public report. Then questioned 7-2. 2(d) , including summary of charges in an annual report; does it become public? Yuen: Charges would be lump sums without names or details . Whether this is confidential or open can be addressed by the Charter Commission, or you can leave it up to the Police Department level to address . Juvik: Report is made to the chief; and rights of confidentiality are covered by union rules. There is a document detailing what the chief can/cannot do. Cushnie: Is the annual report mentioned in (d) the same as the one mentioned in (c)? Bethea: Yes. Should specify more details regarding one or the other? Is (c) public report also? Bethea: Anything submitted to mayor or Council is public. Cushnie: Would like to see clarified who report goes to/from Bethea: I.e. : " . . .annual report of the commission to the mayor and the council?" Cushnie: Yes . Lum: Since (c) falls under 7-2. 2 , which is Police Commission, would be repetitious . Yuen: There are two reports mentioned in (d) : First report is detailed findings by commission on specific case, submitted to chief . The second sentence is a summary of all investigative activities , which is submitted in the annual report of the 736 commission, which goes to the mayor and Council. Bethea/Duncan: Can change "written report" to "statistical summary. " Yuen: Suggests Police Commission might prefer to determine what kind of report to submit; does not feel Charter Commission should detail kind of report the Police Commission should submit . Motion No. 5: Juvik: Motions that 7-2. 2 be adopted a) subject to the concern about boards and commissions in general and b) subject to Mr. Yuen and/or a subcommittee looking into strengthing the language with regard to an independent budgetary process. Greenwell seconded the motion. Discussion: Greenwell : Brought up another item of reviewing and approving legislative positions being taken by the department ; commission and department were not supporting the same positions. Commission had not had opportunity to review legislative requests of department. Lum: Subsection (e) seems to allow for commission apprising the chief of happenings. Greenwell: Police Chief was lobbying Legislature. Juvik: Subsection (b) allows for review of the budget (Tape 2: 1: 20) . Cushnie: Does not feel specific communication can be dictated . Motion No. 5 Count: Juvik: Repeated the motion. Further Discussion: Omonaka: Questioned why Dr. Juvik could amend his motion to include the amendment of the wording in (c) . Bethea: The motion on the budget position did not pass. Omonaka: Questioned why motion re budget failed and then was brought up again. Bethea: Motion was restated with reserva- tions . Juvik: Correct that initial motion was voted down. But motion language was strengthened regarding funding. Withdraws the motion; Mr. Greenwell withdraws his second. D. Motion No. 6: Mr. Greenwell makes a motion that we approve 7-2. 2 (a) as is . Mr. Omonaka seconded. There was no discussion. Motion Count: All were in favor and the motion carried. E. Motion No. 7: Ms. Cushnie moved that we adopt 7-2. 2(b) as is , seconded by Mr. L 'Orange. There was no discussion. Motion Count: All were in favor and the motion carried. 737 F. Motion No. 8 : Ms. Cushnie moved that we adopt 7-2. 2(c) as is , seconded by Dr . Juvik. There was no discussion. Motion Count : All were in favor and the motion carried. G. Motion No. 9 : Ms . Cushnie moved that we adopt 7-2. 2(d) as is . Mr. Greenwell seconded. There was no discussion. Motion Count: All were in favor and the motion carried. H. Motion No. 10: Ms. Cushnie moved that we adopt 7-2. 2(e) as is , seconded by Mr. Greenwell . There was no discussion. Motion Count : All were in favor and the motion carried. I . Motion No. 11 : Mr. L'Orange moved that we adopt 7-2. 2 (f) as is , seconded by Mr. Greenwell . There was no discussion. Motion Count : All were in favor and the motion carried. J. Motion No. 12: Mr. Greenwell moved that we adopt the Sec. 7-2. 2 (f) , 2nd paragraph, "Except for purposes of inquiry, neither the commission nor its members shall interfere in any way with the administrative affairs of the department. " This motion was seconded by Mr. L'Orange. Discussion: Cushnie: Testimony requested that we delete "in any way" because the commission does interfere in administrative affairs of the depart- ment , and examples were cited. Yuen: Has some concern. You could add , "Except for purposes of inquiry, and as otherwise stated in the Charter. . . . " Both the commission and police chief want that wording to remain in the Charter. Reason: They don' t want the commission to run the department. Motion Count: All were in favor of the motion; motion carried. K. Discussion on 7-2 . 3 , alternatives A and B: Lum: Alternative A is the Police Commission' s preference. Alternative B is police chief ' s preference, containing "statement of reasons . " Bethea: Difference is in alternative B, must give reasons and a hearing. Yuen: Correct. Reason statement of intent appears in alternative B is to avoid any interpretation problem. Alternative A is clear. Bethea: Don' t even need "without cause being stated" in alternative A. Yuen: Correct. Police Commission requested that wording. 738 Motion No. 13 : Dr. Juvik moves that 7-2. 3 , alternative B be adopted, including job description and specifications. Discussion followed. Motion No. 13 Restated: Dr. Juvik moves that Sec. 7-2. 3 , alternative B be adopted. The motion was seconded by Mr. Greenwell . Further Discussion: L'Orange: Asked clarifi- cation on "hearing, " whether it abides by the rules of the Police Department and is closed. Yuen: Police Chief decides whether hearing is closed or open. L'Orange: Could public member demand hearing be open? Yuen: Yes , if reasons for hearing do not affect the person' s privacy. Cushnie: Chief should have right to know why he is dismissed and supports alternative B. Motion Count: All were in favor of the motion; the motion carried. L. Motion No. 14: Juvik: Wants job qualifications of police chief included in Charter, and likes Honolulu specs of 5 years ' minimum experience, and makes a motion to this effect . Motion seconded by Ms . Cushnie. There was minimal discussion. Motion Count: All were in favor; motion carried. M. Discussion on 7-2.4 : Yuen: Differences are: Last few words were deleted from the end of (b) and (d) has been added to allow the Police Commission to be informed of events. Motion No. 15: Dr. Juvik motions that Secs. 7-2.4 , 7-2. 5 and 7-2 . 6 be adopted as are shown in the proposal . The motion is seconded by Mr. L'Orange. Motion Count : All were in favor; motion carried. N. Motion No. 16: : Mr. L'Orange moves that Charter Commission ask Mr. Yuen to investigate how best to insure that the positions that we have approved are funded. Seconded by Ms. Cushnie. No discussion. Motion Count: All were in favor; motion carried. VIII. AGENDA ITEM NO. 8 : Council/Single-Member Districts A. Motion No. 17: Mr. Greenwell moved this item be deferred to the next meeting; seconded by Dr. Juvik. 739 Discussion: Omonaka: Feels should not be continually deferred. Greenwell: The votes are tied. L'Orange: It was also previously tabled. Cushnie: Went on record previously that everyone should be present to vote on this ; and all should vote as courtesy. Motion Count: In favor: Ms. Cushnie Opposed: Mr. Bethea Ms. Duncan Mr. Omonaka Mr. Fuertes Mr. Nishikawa Mr. Greenwell Dr. Juvik Mr. L'Orange Ms. Lum previously left the meeting. Motion carried. IX. AGENDA ITEM NO. 9 : Initiative & Referendum A. Discussion: Juvik: Suggests be put on next agenda. Would like an idea of how commission stands on subject. Doesn' t feel initiative should be modified except for how long signature is valid and whether or not current percentage to introduce initiative should change. Feels percentage should be lowered from 15 to 10 or 12%. Prefers initiative be wide open as it now is. Bethea: Should voters be forced to limit provisions re land planning? Depends also on whether Legislature limits provisions . Motion No. 18: Mr. Omonaka moves that Art. XI not be changed in any way, seconded by Mr. Nishikawa. Further Discussion: L'Orange: Corporation Counsel ruled that signatures are valid for the term of the mayor, which is too long. So would vote against the motion. Bethea: Would also vote against it. Cushnie: Would like to review petition items. Motion Count: In favor: Dr. Juvik Opposed: Mr. Bethea Mr. Nishikawa Mr. L'Orange Mr. Omonaka Mr. Greenwell Mr. Fuertes Ms . Duncan Ms. Cushnie Motion fails . 740 X. AGENDA ITEM NO. 10: Arts . V and VI: Executive Agencies XI. ADJOURNMENT: A. Motion No. 19: Dr. Juvik moves that these items be taken up at the next meeting and that the meeting be adjourned. Mr. L'Orange seconded. Motion withdrawn by Dr. Juvik. Discussion: Omonaka: Pefers not to skip around but review Charter articles in order. Bethea: Only discussed a couple a controversial items and have discussed articles in some order so far. Omonaka: Prefers to go article by article. Juvik: Certain issues needed to be heard first to allow debate time and allow idea development. Bethea: Will move along in order as much as possible, and will continue to have 3-hour meetings . Bethea: Items proposed for the next meeting: Art. VIII , Arts . V through VII and IX. XII. SET NEXT MEETING: Tentatively set for 9 a.m. on January 19th in Waimea. XIII . ADJOURNMENT: Meeting was adjourned at approximately at 6: 07 p.m. Respectfully submitted, Vl• � R. Marie Jacobs Secretary-Assistant 741 I • •moo.•• • Bernard K.Akana , , L�L... Planning Commission Mayor tt. „�,., If 25 Aupuni Street,Rm.109•Hilo,Hawaii 96720• (808) 961-8288 `o \\J December 13, 1989 Robert Bethea, Esq. Chairman Hawaii County Charter Commission Hilo Lagoon Centre 101 Aupuni Street, Suite 235 Hilo, Hawaii 96720 Dear Chairman Bethea: I am writing to you on behalf of the Hawaii County Planning Commission to seek your assistance in clarifying a procedural problem in voting and to also voice our opinion concerning our duties . The background for this request concerns interpretations of the current charter by the corporation counsel ' s office . As you may be aware, the planning commission serves two functions, as an advisory body making recommendations of approval or rejection for subdivision or zoning ordinance changes . The . commission has final authority for such other matters as appeals from the director, special use permits, and variances . We have always been guided by Hawaii County Charter, • section 13-4 ( i) , which states : The affirmative vote of a majority of the entire membership shall be necessary to make any action of a board or commission valid; provided, that in the case of ( an) advisory board or commission, the affirmative vote of a majority of those present shall be sufficient to make any action valid. Prior to last year, the commission had worked under the premise that where a recommendation was being made, then the commission was only advisory and a majority of those members present was needed to sustain an action. Conversely, when a final action was to be taken, then a majority of the full commission would be needed to approve any action. EXHIBIT A 742' (14 pgs . ) Robert Bethea, Esq. Page 2 • December 13, 1989 rendered the corporation counsel ' s However, popinion subsequently indicates that the planning commission is not an "advisory board or commission" within the meaning of §513-4 ( i) and 4-4 of the charter, since the planning commission does have some final authority in several areas in sometimes acting in an addition to advisory capacity . Therefore, the corporation counsel' s opinion is that all of the planning commission' s votes shall be by a majority of five, since it is entitled to nine members. We ask that the charter commission clarify the present language to state explicitly what our votes must be in the different situations . Furthermore, we wish to clarify the wording "majority of the entire membership, " the corporation counsel has stated this means the total membership to which the commission is entitled, i .e. , nine people . At some points in time, we have fewer than nine members actually appointed and would like to know if these vacancies should also be counted toward total membership. I 'm sure your clarification of that point would be greatly appreciated not only by this commission, but others as well. I have enclosed the three opinions of the corporation counsel which have raised these issues for your review. Finally, the commission wishes to express that it feels that its current duties and responsibilities are proper and would like to see that those duties and responsibilities remain with the commission. I hope that this input is timely and that the Charter Commission will be able to consider our requests . I or other members of the commission would be more than happy to appear before the commission should you feel it necessary. Sincerely yours , GAR 'MMIZUNO, _ iairman GT:hc Planning Commission Enclosures cc: Mayor Corporation Counsel Planning Director 743 17171, •gTmaed esn 20 aouETaen E ao; MOTTE oq AxEssaoau eq FInoM segos enT; 'saaqulew euTu ;o buTgsTsuoo uotssTmmoD buTuuPTa E go eseo alp uT 'sntis, •Lresse eu si dtgsaequzaiiu-e5 gue ett; 3o AAT1oc`etu 3o egos e4qumai-3-E ue--' -rur ed--asn7ao-4-s rthe aauvT2e—t---LIOdn btTgZE UT SE Tons 'AgToPdeo Laos-pipe ue UEtq aegg0 UT buTl.3e sT uoTssTEiiuzoj bu uuEZa atm LiKK =ariatog •saagmem euTu 3o pe4sTsuoo uoTssTUXuo, egg gETg buTmnsse--sagon aeat 'spaoM aexpo uT ao mnaonb E 3o AgTaocPu E 4sE81 gE uvem pTnoM aegmnu E mons 'aouegsuT UE Tans uT uoTssTmmOD buTuuPTd eq; 3o esPo eqq uI •pepBeu sT -gETg• TTE sT' quesead saagmam auq 3o agon enT .EULTt33E UE 'AgToedeo Taosinpe LIE UT EUTgoi sT U6T9STwII703 egg eaeltA sebuegsu -asouq UI •Agtoedeo bupiem-AoTTod a uT ao AgToedeo AaosTnpE ue uT buTgDE sT uotssTmwoo 01.14 aat .egm oq SE epees eq gsaT; gsnm uotgeuTwaegep E 'agon .ETnoTg.Ed E ao; Aaessezeu sagon go aegwnu egg eu-waa .ep oq seaTsep euo uegm 'snTs „ •pTTen UOTwe Aue a em oq queToT; ns eq TTETs quesead esotg go AgTaocPw a 3o agon enT4ewaT33e eTq u0TSSTumzoo ao paeoq AaosTnpe 30 eseo agg uT gETq 'pepTnoid :pTTen uOTssTmmo3 ao paeoq 3o U0T43E Aur exam og AxEsse eu eq TTeTs dTgsaegmam eaTque eTq ;o AgTaocem E 3o agon anTgemtT33E aTs„ • : sepTnoad • 'TTEMPH 3o Aquno0 'aegaPtiD ' (T) t'-ET uoTgaaS 'MX 9TOT;.ot •buTgop uoTssTUImoD buTuuPTd : 811 :T ct ens •aw avec OZL96 TTPMPE 'oTTH TTEMe'H 3o Agunop aogoaaTe buTuueTa Tcngens puomAEll •2W ZL6T 'TT aagmsoec • • Mr. Raymond Suefuji -2- December 11, 1972 If a request for a use permit or variance is brought up before the Commission for a vote and it 'fails to gain the support of five members of the Commission, the request dies. If a request for a variance or use permit is denied, i.e. , it fails to receive five affirmative votes, no new application for the same relief covering all or any portion of the property involved in the original application will be received by the Planning Commission for a period of two (2) years from the effective date of the final denial of the original application. (See Subsection B, Section 35, Ordinance 63) This office is cognizant of the fact that only seven of the nine positions on the Planning Commission have been filled at this time. We have been informed that this has caused a • continuing difficulty in gaining a sufficient number of persons to conduct the business of the Commission. It should be noted . that the comments above were applied to a Commission consisting of nine members. The fact that the Charter requires the "affirmative vote of a majority of the entire membership" (emphasis added) creates the necessity of an opinion as to what "of the entire membership" means. We believe that an affirmative vote of the majority of the entire membership means an affirmative vote of a majority of the members actually appointed to the Commission. Thus, despite the fact that the law provides for a commission of nine persons, if the Planning Commission actually has only seven appointed members, the number of votes needed to act in a non-advisory capacity would be a majority of seven, or four members. To hold that "an affirmative vote of a majority of the entire membership" is five of nine regardless of the number of members actually appointed to the Commission may lead . to an absurdity. If, for instance, it was only possible to appoint four members to the Commission, the Planning Commission could never take any affirmative action on an application for a variance. Section 1-15, Hawaii Revised Statutes, provides that every construction which leads to an absurdity shall be rejected. We follow Section 1-15, HRS, in making our inter- pretation. Addressing our attention to the problem presented by Quality Sheet Metal Co. , Ltd. ' s variance request on December 22, 1971, we make the following comments: 745 ` Mr. Raymond Suefuji -3- December 11, 1972 Since the Commission consisted of nine appointed members at the time the variance was considered, five affirmative votes of the Commission were needed to approve the request. Failing to get five affirmative votes, the appli- cation died and Quality Sheet Metal Co. , Ltd. , must make application in compliance with Subsection B, Section 35, Ordinance No. 63 . As stated above, the effect of failing to receive five affirmative votes is that the variance application is defeated. As to the similar question created by a variance request by Economy Motors, the above reasoning should be followed. It would appear from the information submitted with your request that the variance request of Economy Motors was defeated regardless of whether or not seven or nine members were actually appointed to the Commission at the time the request was considered. We wish to call toour attention Y an inconsistency between Section 13-4 (i) of the County Charter and Rule I (D and E) , Rules for the Transaction of Business , Planning Commission, concerning voting procedures. Under Section 13-4 (i) , a vote of the majority (of the • members appointed) is necessary to transact business, whereas, under Rule I (D and E) , Robert' s Rules of Order prevails requiring a vote of the majority (of the members appointed) present at the hearing to transact business. It is our recommendation that your staff discuss and decide which procedure is most advantageous for the conduct of your business and amendments to the Charter or your Rules be enacted accordingly. Until such time that a decision is made, Section 13-4 (1) of the Charter must be followed. That is, in order to approve 746 • Mr. Raymond Suefuji -4- December 11, 1972 a variance ors ecial use, an affirmative rmative vote of a majority Y of all the members appointed is necessary; an affirmative vote of a mere majority of the appointed members present is not sufficient. Thus, if your Commission consists of seven members, four affirmative votes will be required. Very truly yours, STEPHEN G. BESS Deputy Y t Corporation Counsel P P SGB :ds cc: Mayor APPROVED: CLIFFORD H. F. LUM Corporation Counsel • 747 • • /,oNt Y.Cs jhj�1 • 'J%-.NT F K. CARPENTER MAYOR : ��.y� al; •++�,w4�o. CORPORATION CU JP+SE: ' TELEPHONE NO. 18081 96'-P251 .�►E•OF•N'.JI ' COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL HILO LAGOON CENTER 101 AUPUNI STREET.SUITE 325 HILO.HI 96720 January 12, 1988 • Mr. Thomas A. Krieger Chairman, Planning Commission County of Hawaii 25 Aupuni Street Hilo, Hawaii 96720 . • Dear Mr . Krieger : Re: Voting by Planning Commission Members This is in response to your request for comments on the following topics. 1. Voting proceaures when voting on zoning and general plan amendments . The planning commission ' s role as established by the county chatter on both zoning ana general plan amendments is to make a •recommenaation to the county council on the proposed amendment. The language regaraing the procedures is similar . For zonings, §5-4 .3 (c) states as follows: "Review subaivision ana zoning ordinances and amendments thereto drafted by the director and transmit such ordinances with recommendations thereon through the mayor to the council for consideration and action. The commission shall recommend approval, in whole or in part, with or without modifications, or rejection of such ordinances. " For general plan amendments , §5-4 .3 (b) states as follows: 748' • bir . Thomas A. Krieger Page 2 January 12, 1988 "Review the general plan, its amendments and other plans ana modifications thereof and transmit such plans with recommendations thereon through the mayor to the council for consideration and action. The commission shall recommend approval, in whole or in part, with or without modifications, or rejection of such plans. " According to these charter sections, the commission is required to (1) recommend approval with or without amendments , or (2) recommend rejection. No alternatives are presented. In relevant part, section 13-4 (c) describes the vote necessary 'to make the required recommendation as follows: "The affirmative vote of a majority of the entire membership shall be necessary to make any action of a board or commission valid; . . . . " • A valid vote of the planning commission requires five votes. This five-vote requirement is based on the assumption that commission members will satisfy their commission duties by attending meetings regularly. Since it may be difficult to get five votes on an issue, if only a majority of planning commission members attend, members who have accepted the responsibility of service on the commission should make every effort to attend each meeting of the commission. If the commission has to re-vote on issues because of a lack of a majority, it is inconvenient and results in unnecessary time delays on these important issues. Commission members should attend all meetings unless excused by the chair. As lack of attendance presents a problem, the commission should consider amending its rules of procedure to make unexcusea absences a cause for the commission to recommend removal of the offending member to the mayor . I am available to assist you in drafting such a rule. 2. Propriety of a member abstaining from voting . Another obstacle to obtaining the necessary five-vote majority is presented when members who have participated in the 749 Mr . Thomas A. Krieger Page 3 January 12, 1988 hearings and who are present abstain from voting . Of course, if there are ethical considerations; such as a conflict of interest, which prevent a commission member from participating, the member should declare the problem and abstain from participation in the hearing as well as from voting. If, however, no ethical problem presents itself , each member should realize that a chief duty and responsibility of commission membership is voting on these issues. In the absence of a conflict of interest, failure to vote on a matter that is pending before the commission is a failure to perform the sworn duties of a planning commissioner and is therefore improper . Very truly yours, 7 . HN A. waGNER fiorporation Counsel PKO:h • • • 750 • (-417!.1f BERNARD K. AKANA : .; , RICHARD I. MIYAMOTC • MAYOR CORPORATION COUNSEL TELEPHONE NO. (808)961-8251 •0,-_."14 ,. W COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL HILO LAGOON CENTRE 101 AUPUNI STREET.SUITE 325 HILO.HI 96720 • March 20, 1989 Mr. Gary Mizuno, Chairman Planning Commission County of Hawaii 25 Aupuni Street Hilo, Hawaii 96720 Dear Mr. Mizuno: Re: Votes needed by the Planning Commission to take action when there are vacancies This is in response to your letter of March 13 , 1989 , in which you requested that our office review the voting procedures with respect to the number of votes necessary for the Planning Commission to take action on a matter before it . This office has advised the commission that five votes , a majority of all the seats of the nine-member commission are necessary if the commission is to take action. The commission has experienced difficulty in obtaining the needed five votes partly because there are two vacancies on the commission and partly because not all of the members attend all of the meetings . Section 13-4 (i) of the Hawaii County Charter states: "The affirmative vote of the majority of the entire membership shall be necessary to make any action of a board or commission valid; provided, that in the case of advisory board or commission the affirmative vote of a majority of those present shall be sufficient to make any action valid. " At present, the Planning Commission, which consists of nine positions, has two vacancies . An opinion given by the Office of Corporation Counsel to then Planning Director Raymond Suefuji on December 11, 1972, interpreted the term 751 , Mr. Gary Mizuno Page 2 March 20, 1989 "a majority of the entire membership" to mean "a majority of the members actually appointed to the Commission. " [See Exhibit A] . Under that interpretation, if only seven members of the Commission are actually serving as members, and there are two vacancies, an affirmative vote of four members would be sufficient to "make any action. . .valid. " Recently, however, the Planning Commission was verbally advised, at a meeting, that "a majority of the entire membership" meant a majority of the total number of seats on the board or commission, regardless of the number actually filled. Under this interpretation, even if there are two vacancies on a nine-member commission, an affirmative vote of five members is still required to "make any action. . .valid, " After researching this issue, it is the opinion of this office that five affirmative votes are necessary to validate an action of the Planning Commission. Under the common law, a majority of a body such as a board or commission constituted a quorum, and the vote of a majority of those present was sufficient for valid action by the body. Mann vz Key, 345 So . 2d 293 (Ala. 1977) ; Annot. 63 A.L.R.3d 1072, 1077. This has changed: "The applicability of such common-law rule has, however, been very generally limited, in more recent times, by statutes which establish specific bases upon which to calculate and determine the requisite. majority. " 63 A.L.R.3d 1072, 1077. Hawaii is one of the jurisdictions in which statutory law has changed the old rule. Section 92-15 of the Hawaii Revised Statutes provides as follows : "Boards and commissions: quorum; number of votes necessary to validate acts . Whenever the number of members necessary to validate any act, of' any board or commission of the state or of any political subdivision thereof, is not specified in the law or ordinance creating the same or in any other law or ordinance, a majority of all the members to which the board, or commission is entitled shall constitute a quorum to do business, and the concurrence of a majority of all the members to which a board or commission is entitled shall be necessary to make any action of the board or commission valid; . . . . " HRS X92-15 , as amended. [Emphasis supplied] . 752 Mr. Gary Mizuno Page 3 March 20, 1989 • The state statute thus provides that a majority of the members to which a commission is entitled (five out of nine in the case of the planning commission) is necessary to validate the action, unless an ordinance or other law provides otherwise. It therefore becomes necessary to determine whether charter section 13-4(i) provides differently from HRS §92-15 . Charter provisions and statutes are to be reconciled and not regarded as superseding each other where there is no irreconcilable conflict between them. 6 McQuillin, Municipal Corporations, §21. 31. Therefore, if there is authority supporting an interpretation of Hawaii County Charter §13-4(i) which makes it consistent with HRS §92-15 , then that consistent position should be adopted. Although there is authority supporting the opinion of December 11, 1972 [see Ram Development Co. v . Shaw, 244 N.W. 2d 110 (Minn. 1976) ; City of Alamo, Heightsy Gerety, 264 S.W.2d 778 (Tex. Civ. App. 1954) ] , the greater number of cases supports the position that the term "entire membership" means the same as "all the members to which a board or commission is entitled, " thus • making the charter section consistent with the state statute. A recent case dealing with this issue is found in Braddv v. Zych, 702 S.W.2d 491 (Mo. App. 1985) which dealt with the required number of votes to pass an ordinance by the St . Louis Board of Alderman. Ordinances had been passed by the board and then vetoed by the Mayor. The city .charter required that a two-thirds vote of the board was required to overturn a veto. The board consisted of twenty-nine members, with a president elected at large and twenty-eight alderman elected from wards within the city. In Braddy, the board voted on overturning the veto, which resulted in 19 votes in favor, 6 against, 3 absent, and 1 vacancy. The president of the board ruled that the veto had been overridden, because two thirds of the actual membership of the board voted • favorably, with the number of alderman reduced by the single vacancy. The court disagreed with this interpretation and ruled that the term "all the members" means all of the members to which the board is entitled: "Treating the language ' all the members ' as referring to the entire Board as defined in the Charter ter creates a predictability and definiteness in the requirements for the enaction of laws . It also gives substance to the charter scheme that representatives of sufficient wards to adequately represent the residents of the city support an enactment before it becomes binding on 753 _ Mr. Gary Mizuno Page 4 March 20, 1989 the city as a whole. Interpreting ' all the members ' to be less than the full board established by the Charter creates the possibility that legislation may be enacted which has support in less than the required number of wards. " 702 S.W.2d at 493-494 . q This reasoning has significance for g the Hawaii County Charter, because the Planning Commission. has members appointed geographically. Hawaii County Charter §5-4 .3 . To allow the interpretation that the commission could take action with less than a majority of all the positions to which the commission is entitled would be to allow action without insuring the widest possible geographical input. It would also remove an incentive for the mayor to appoint commission members as quickly as possible. It could lead to a situation .in which a mayor, who is politically compatible with seven remaining commissioners and unable to find two additional politically compatible, geographically qualified appointees, simply decides to keep the commission operating with seven members, despite the fact that the charter requires nine. The difficulties caused by the requirement that five affirmative votes be obtained in order to take action act as the incentive to keep each seat on the commission occupied. A number of other jurisdictions come to the same conclusion as Missouri . In Steiner Inc. vL Town Plan and Zoning Commission 2f- the Town gf Fairfield, 175 A.2d 559 (Conn. 1961) , the Connecticut Supreme Court ruled that statutes requiring a vote of two-thirds of "all the members" for action meant that five affirmative votes were necessary from the seven position' commission even where an unfilled vacancy reduced the actual membership to six. In Rocklands Woods, Inc. ILL Suffern, 40 App. Div. 2d 385 , 340 N.Y.S.2d 513 (1973) , the court held that where a vacancy reduced a five member village board of trustees to four members, a vote of two affirmative, one negative, and one abstention was insufficient to amend the village's zoning ordinance. In State ex. rel . Roberts ILL Gruber, 373 P.2d 657 (Or. 1962) , the specific term "entire membership" was held to mean all of the positions to which a council was entitled. The state of New Jersey also concurs . In Country Club Towers Tenants Association v. Country Club Towers I and II, 195 N.J. Super 110, 478 A. 2d 420 (N.J.. Super 1984) , the town municipal council, which had seven positions, and two unfilled vacancies, 7.54 Mr. Gary Mizuno Page 5 March 20, 1989 voted 3-2 to reverse a prior ordinance. The court ruled that the vote was a nullity, because the law required action by a majority of "all the members, " and that meant four out of seven. See also South Hamilton Association Mayor gf Morristown, 99 N.J. 437, 493 A.2d 523 (1985) . Therefore, this. office concludes that the meaning of "entire membership" as it is used in §13-4 (i) of the Hawaii County Charter means the same as "all the members to which the board or commission is entitled" as stated in HRS §92-15 . Even though there are two current vacancies on the Planning Commission, five affirmative votes are necessary to take action. Please contact this office if there are any questions . Very truly yours, RICHARD I . MIYAMOTO Corporation Counsel By 71/ FREDERICK GIANNINI Deputy Corporation Counsel FG:mo 755 CHRISTOPHER J. YUEN HILO LAGOON CENTRE,SUITE 108 101 AUPUNI STREET HILO,HAWAII 96720 ATTORNEY AT LAW TEL.(808)935-4429 December 14, 1989 Hawaii County Charter Commission 101 Aupuni Street Hilo Lagoon Centre, Suite 235 Hilo, Hawaii 96720 Re: Charter §3-16, County General Plan • Dear Charter Commission Members: I was asked to rewrite the second sentence in §3-16, "General Plan, " beginning with, "It shall contain . . . " to include the concepts of air and water pollution and environmental quality, but without otherwise altering the sense and meaning of the section. As members of the Commission noted, the sentence begins to fall apart at the clauses which begin with " . . . the most desirable density of population . . . " and ending with "air pollution. " The question is what phrase modifies these clauses. Is the General Plan supposed to " . . . contain a statement of . . . the most desirable density of population, . . . , " etc. , or is it supposed to " . . . contain a statement of development objectives, standards and principles with respect to . . . the most desirable density of population . . . , " etc.? Or do these clauses stand by themselves? There is some difference in these readings. If, for example, the General Plan must contain " . . . a statement of . . . the general location and extent of public utilities and terminals . . . , " I would expect to see the actual locations described (at least generally) in the General Plan. However, if the General Plan is to contain " . . . a statement of development objectives, standards and principles with respect to . . . the general location of public utilities and terminals, " I would expect to see a description of the criteria for deciding where to locate public utilities, as well as a description of their locations. (In practice, both the 1971 General Plan and the recently enacted General Plan describe where the utilities are and give standards for locating them. ) I believe the better reading of this section is that "a statement of development objectives, standards and principles with respect to . . . " is intended to modify each of the clauses which follow, for two reasons. First, "a statement of development objectives, standards and principles with respect to air pollution" makes much more sense than "a statement of . . . EXHIBIT B 756 (3 pages) air pollution. " Second, the overall thrust of the section is to have the General Plan contain the general policies to guide development. In rewriting this sentence to make this more clear, without changing the meaning, I tried to make the least possible alteration to the present sentence. I propose adding a colon after the phrase "with respect to, " and adding the terms "air and water pollution" and "environmental quality. " The sentence would then read (with changes underlined) : "It shall contain a statement of development objectives, standards and principles with respect to: the most desirable use of land within the county for residential, recreational, agricultural, commercial, industrial and other purposes which shall be consistent with proper conservation of natural resources and the preservation of our natural beauty and historical sites; the most desirable density of population in the several parts of the county; a system of principal thoroughfares, highways, streets, public access to the shorelines, and other open spaces; the general locations, relocations and improvement of public buildings, the general location and extent of public utilities and terminals, whether publicly or privately owned, for water, sewers, light, power, transit, and other purposes; the extent and location of public housing projects; adequate drainage facilities and control; air and water pollution; environmental quality; and such other matters as may, in the council's judgment, be beneficial to the social, economic, and governmental conditions and trends and shall be designed to assure the coordinated development of the county and to promote the general welfare and prosperity of its people. " A brief note about any major change in the Charter requirements for the General Plan. The General Plan must conform to the Charter. I presume that the recently enacted General Plan was prepared to conform to the existing Charter. If the Charter requirements are substantially changed, the General Plan will have to be re-examined to see if it conforms to the new Charter. 757 If it does not, a new General Plan will have to be prepared and adopted. Yours truly, 2'�e 2 Christopher J uen CJY:yt • 758 From: Yuen on 01/04/90 COMMITTEE REPORT ON POLICE DEPARTMENT The Charter Commission has heard forceful testimony from the police commission and the chief of police that the present Charter provisions on the police department should be revised. Your Committee addressed four major topics in its discussions over the police department: (1) the power of the police commission to investigate public complaints of police misconduct; (2) the responsibilities and powers of the police commission and the police chief; (3) the procedures for removal of the chief; and (4) political activities by police officers. Your Committee has prepared a draft revision to the Charter, with alternative provisions, for the consideration of the full Charter Commission. Because Charter language is necessarily brief and general, your Committee has also prepared this report •to give the full Charter Commission a fuller understanding of the considerations that underlie the draft revision. If the Charter Commission chooses to recommend a revision of the Charter to the voters, your Committee suggests that it also adopt a report of the reasons for the changes. Such a report will educate the public as well as provide a source document in case of future questions over the interpretation of the Charter. 1. Investigate Public Complaints. Your Committee concurs with the recommendation of the present chief and of the present police commission that the police commission be given the power to investigate charges of police misconduct brought by members of 759 EXHIBIT C (11 pages) the general public. The police commission should be able to independently investigate such charges, report its findings to the chief, and recommend appropriate disciplinary action. Disciplinary actions are controlled by civil service rules and by the collective bargaining agreement. The police commission will not have the power to impose discipline directly and so can only report its findings to the chief of police. It will then be the chief's decision to initiate disciplinary actions, if such actions are warranted by the circumstances. In order to carry out this function, the police commission must be given the power to hire an independent investigator so that it need not rely on the police to investigate the police. Also, your proposed revision would require the chief to report to the commission about disciplinary actions (or non-actions) taken by the department on cases heard by the commission. The police commission's power to investigate charges brought to it by members of the public should not be exclusive. The chief of police must retain the authority to investigate and to act on charges of police misconduct even if these are also being investigated by the commission. The commission's role is to provide an independent check on potential police misconduct. If the chief of police did not have the power to initiate disciplinary action against a police officer based on a public complaint unless the police commission first made a finding of misconduct, the chief of police would lose a great deal of authority, and the disciplinary process could become very 760 awkward. For example, the chief of police might believe that an officer's misconduct warrants an immediate suspension; the police commission might take weeks or months to initiate and complete an investigation. The individual police officer's rights against unjustified discipline are protected through the civil service and collective bargaining grievance procedures. 2 . Responsibilities of the Police Commission and Chief. The present police commission complained that its responsibilities and powers were not well defined in the Charter. In particular, the sentence: "Except for purpose of inquiry, neither the commission nor its members shall interfere in any way with the administrative affairs of the department" had been interpreted in a way that essentially limited the power of the commission to include only the power to hire and fire the chief. Your Committee has added a number of express powers for the police commission. These are contained in §7-2 . 2 (a) to (f) of the draft Charter revision and include the power to investigate citizen complaints. Your Committee felt that the Charter should retain the concept that the chief of police controls the department and that the commission should not interfere with administration. The police commission should not have the power to direct the activities of the chief or of subordinate officers or to override decisions made by the chief. Accordingly, your Committee retained the "shall not interfere with the administrative affairs" language. Actually, both the present police commission 761 and present chief recommended retention of this language. In your Committee's view, this language is intended to discourage the police commission from interjecting itself in the internal administration of the department. It would be highly disruptive for the police commission to try to involve itself in promotions, transfers, the hiring of individual officers, the command structure, and other details of internal organization, for example. At the same time, your Committee believes that in addition to hiring the chief and investigating misconduct, the police commission can serve a general advisory role. This advisory role is implicit in the submittals of both the present police commission and the chief of police to the Charter Commission: both would give the police commission the power to review departmental rules and to comment on the budget. These powers have been incorporated into your Committee's draft, along with the power to advise the chief on police-community relations, which is a particularly useful and appropriate function for the police commission. 3 . Procedure for Removal of the Chief. The Charter Commission heard two different proposals for the removal of the chief. The police commission favored retention of the present system, which essentially allows the commission to remove the chief at will. The police commission proposed that the removal could be "without cause being stated" or "at its pleasure. " Present Charter language actually has this effect; the police 762 commission apparently wanted to make this abundantly clear. The chief, on the other hand, proposed a provision similar to that of the Charter of the City and County of Honolulu and the Maui County Charter which states that the chief cannot be removed unless given a "written statement of the charges against him" and "a hearing before the Commission. " Your Committee was in general agreement that the chief ought to be removed only for serious reasons, after due deliberation, and that the Charter should attempt to foster relative immunity from political pressure. The chief's job tenure should be based on performance, not personalities. One positive effect of having the police chief appointed by the commission, rather than by the Mayor, is that this shields the position from the electoral cycle. The Honolulu and Maui Charters' "statement of charges" language suggests that the chief must be found guilty of some kind of illegal conduct before removal is warranted. Your Committee felt, however, that the commission's justifications for removing a chief should not be limited to official misfeasance or malfeasance. The chief of police, even if a model of honesty and integrity, should be removed if he or she cannot effectively administer the department. This is the same as the job tenure situation of other department heads. Your Committee differed on whether the Charter should include some formal requirements prior to the removal of the chief. All agreed that the chief should not have actual job 763 tenure in the civil service sense; i.e. , that it would be too cumbersome if the chief could be removed only after a factual finding of good cause. There was support, however, for a requirement of a statement of reasons and a hearing, although there was also support for retaining the present Charter language. Accordingly, your Committee offers two alternative proposals on the removal of the chief. Alternative A is essentially the same as the present Charter. The additional "without cause being stated" language proposed by the police commission has been included to make the meaning of this section clearer to the voters. Alternative B would require that a motion for removal of the chief contain a statement of reasons and that before final action was taken, the chief would be given an opportunity for a hearing. The ultimate decision would remain in the complete discretion of . the police commission. It is not your Committee's intention that the police commission be required to prove the reasons given for the chief's removal, only that the chief have the opportunity for a hearing at which he or she may respond. The chief would have the right to waive the hearing. The commission must provide a "statement of reasons" rather than a "statement of charges" as in the Honolulu and Maui Charters, to avoid the suggestion that only official misfeasance or malfeasance will justify dismissal. 76.4' Under both alternatives, the deputy chief could be removed by the chief with the approval of the commission, without cause being stated. 4 . Political Activities. The Committee was strongly sympathetic to the suggestion of the chief that political activities by police officers should be restricted. However, no specific proposal is being offered because of counsel's opinion that State law is controlling on this issue. 5. Miscellaneous Considerations. §7-2 .5 of the draft revision, "Dismissal, Suspension, Demotion, or Grievance, " is the same as §7-2 . 6 of the present Charter. This section has the useful function of making it clear that the job grievances of individual police officers should go through civil service channels, not to the police commission. Your Committee also notes that this section is clearly not meant to give civil service protection to the chief and deputy chief. Your Committee has included in §7-2 . 1 language stating that there shall be a deputy chief of police to make it clear that this position should always exist and be funded by the Council. Your Committee feels this is an essential position. It may be necessary to also amend §4-5 to make it clear that the Council must fund deputy positions which are specifically created by the Charter. Your Committee has deleted the clause "pursuant to the rules of the police commission" from §7-2 . 5 (b) of the present Charter (§7-2 . 4 (b) of the proposed revision) that the chief of police 765 shall "train, equip, maintain, and supervise the force of police officers and employees pursuant to the rules of the police commission. " As it stands in the present Charter, this clause suggests that the police commission must adopt the rules of conduct for police officers. The police department's rules of conduct for its officers are now contained in the "General Orders, " which in actual practice have been established by the police chief and have not been adopted by the commission. The "General Orders" control a wide range of on-duty behavior, such as the use of uniforms, use of vehicles, and so forth. Your Committee believes that the chief should have the power to issue such orders without first obtaining the approval of the commission. The police commission is given the power to enact rules for its own procedure and for the conduct of matters under its control and may review departmental rules, such as the General Orders. Your Committee did not have a strong opinion on minimum qualifications for the position of chief of police. While it is undoubtedly desirable to have an experienced individual, the police commission has so far selected such individuals without guidance from the Charter. If the Charter Commission would like to incorporate minimum qualifications, these could easily be inserted in the proposed revisions. DATED: January 3 , 1990 Committee Members: Pamela Cushnie Aileen Lum Akira Omanaka 766 From: Yuen on 01/04/90 COMMITTEE'S DRAFT CHARTER REVISIONS Police Department §7-2 . 1. Organization. There shall be a police department consisting of a police commission, a chief of police, a deputy chief of police, and the necessary staff. §7-2 .2 . Police Commission. The police commission shall consist of seven members, two of whom shall be residents of the combined districts of North and South Hilo, one from the district of Puna, one from the district of Ka'u, one from the combined districts of North and South Kona, one from the combined districts of North and South Kohala, and one from the district of Hamakua. The members shall be appointed by the mayor and confirmed by the council in the manner prescribed in Section 13-4 . The police commission shall: (a) Adopt such rules as it may consider necessary for the conduct of its business and the regulation of the matters committed to its charge and may review the rules and regulations of the department. (b) Review the annual budget prepared by the chief of police and may make recommendations thereon to the mayor. (c) Submit an annual report to the mayor and the council. (d) Receive, consider, and investigate charges brought by the public against the conduct of the department or any of its members and submit a written report of its findings to the chief of police. A summary of the charges filed and their disposition shall be included in the annual report of the commission. 767 (e) Advise the chief of police on police-community relations. (f) Hire personnel necessary to carry out its functions. Except for purposes of inquiry, neither the commission nor its members shall interfere in any way with the administrative affairs of the department. [Alternative A] §7-2 .3. Chief of Police and Deputy. The chief of police shall be appointed by the police commission and may be removed by the police commission, without cause being stated. The deputy shall be appointed by the chief of police with the confirmation of the police commission and may be removed by the chief of police with the approval of the commission, without cause being stated. [Alternative B] §7-2.3. Chief of Police and Deputy. The chief of police shall be appointed by the police commission and may be removed by the police commission at its sole discretion. Any motion for removal of the chief of police must contain a statement of reasons, and the commission shall not vote to remove the chief of police unless the chief of police has been given an opportunity to respond to the statement of reasons at a hearing before the commission. The deputy shall be appointed by the chief of police with the confirmation of the police commission and may be removed by the chief of police with the approval of the commission, without cause being stated. §7-2 .4. Powers, Duties, and Functions of the Chief of Police. The chief of police shall be the administrative head of 768 the police department and shall: (a) Be responsible for the preservation of the public peace, prevention of crime, detection and arrest of offenders against the law, protection of the rights of persons and property, and enforcement and prevention of violations of all laws of the state and ordinances of the county and all regulations made in accordance therewith. (b) Train, equip, maintain, and supervise the force of police officers and employees. (c) Promulgate rules and regulations for the organization and administration of the police force. (d) Make periodic reports to the police commission about the activities of the police department and about actions taken on cases investigated by the police commission. (e) Have such other powers, duties, and functions as may be required by the police commission or provided by law. §7-2 .5. Dismissal, Suspension, Demotion, or Grievance. The dismissal, suspension, demotion, or grievance of any police officer or employee in the police department shall be under procedures set forth by civil service laws and regulations. §7-2 . 6. Administrative Supervision. The police department shall come under the general supervision and control of the mayor. 769 1•J�t_Y•UI`�11 ICL • 10-044—'440 �aii � �v 1� • 11 ivu •W�� i .vL rise 1 rt4 • • CHARTER REVIEW • POLICE COMIXIISSION PROPOSED LANGUAGE ARTICLE VII CHAPTER 2 POLICE DEPARTMENT Section 7-2.3 [Department Rules].Pawers,_ Duties and Functions of the police commission. The police commission shall: (M Adopt such rules as it may consider necessary for the conduct of its business and regulation of the matters committed to its charge by law. [Except for purposes of inquiry, neither the commission nor its members shall interfere in any way with the administrative affairs of the department.) The--commission shall be responsible to set general policy for the police department but no indiv ual member • the commisc' . .., shall int.erfe.-- 'n any.. way_ N,Lith the administrative affairs..of the depax-t,.merit. (b) pe*,view and approve theaxxri>rial budget prepared by the • chief ofpolice and fir make recommendations thereon to the consider and investigate charges brought by. the w.lblic against theconduct of.the department or any of its embers and $ ibmit a w t en report a its findings to the chief of police. A suxxirriary of the charges filed. and their disposition shall be imparted to the rn yor and the county council. For the purposes of this . there. shall be budgeted sufficient funds in the annual budget of the police department, for use by the police commission to to hire independent. investigators to fulfill- the intent of tills section. (d) Review ..: .tzd approve_legislative_ tak.eni2y the department Note: Items [bracketed] are being deleted from the present' charter • and items underlined are being added. • EXHIBIT D 770 • (1 page)