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HAWAII COUNTY CHARTER COMMISSION

Transcript of Meeting of August 11, 1999

Hawaii County Liquor Commission Conference Room,

Hilo Lagoon Center

Attendance: J. Ray, E. Alonzo (after 5:12 p.m.), K. Balog, S. Bess, M. Herkes, S. Irvine, D. Kurozawa (after 6:54 p.m.), G. Martin, J. Santangelo, G. Yoshiyama, Counsel Chris Yuen, Corporation Counsel R. Wurdeman

Absent: R. Higashi

And 5 members of the public in attendance.

RAY: I’d like to call the August 11th Special Meeting of the 1999-2000 Charter Commission to order. In attendance this evening; myself John Ray, Kevin Balog, Steve Bess, Marni Herkes, Sue Irvine, George Martin, John Santangelo and Gary Yoshiyama, and we’re expecting the other members shortly.

Minutes. Following the agenda, the first item, the minutes approval. We have sets of minutes A through J from May 12th through July 28th. We’re going to go through -

HERKES: I move that we approve all of them.

BALOG: Second.

RAY: Okay, discussion? Does anybody have a problem with approving all the minutes at once? No? All in favor.

COMMISSIONERS: Aye.

RAY: Opposed? Minutes approved.

Financial Status Report. This is an informal report that I will make. If you’ll remember, we had a $30,000 appropriation for last fiscal year and $100,000 appropriation for this fiscal year. Last year, what we did was encumbered a contract to Chris Yuen for $25,000 so at the end of the fiscal year, we showed a balance out of the $30,000 of $702.45 which was not encumbered. So in other words, including the $25,000, there was only $702.45 left out.

Out of the $100,000 encumbered for this year, our current balance is $97,815.31 and the majority of those costs are for Sharron Henry, our Administrative Assistant, individual mileage and one bill to Chris Yuen. Are there any questions on that? So I really don’t have a sense to be able to project where we’re going and I think it’s a little too early in the process as far any sort of projections on how this budget will stand but anyway, so far we’re in good shape. Any questions? No? Okay, good.

Communications. There are none.

Statements from the Public. There are none.

Unfinished Business. The Rules of Procedure. I’m going to ask Mr. Yuen to explain the process we need to go through just so everybody understands that right now we’re operating from the last Charter Commission Review Rules of Procedure. Chris.

YUEN: In order to adopt a new Rules of Procedure, it’s necessary to advertise them in the paper, give the public an opportunity to comment and then pass them. I don’t know that it would be absolutely necessary to adopt new ones if we were simply going to use the old ones unchanged but there has been a change in the regular meeting time from 3:30 to 5:00 and if there’s going to be that change then we need to go ahead and go through that process of advertising the rules and then adopting the changed rules at some later point.

RAY: Other than the meeting time, there’s one other minor change that absolutely has to be and it’s just the address, but does anybody have any input on either the meeting times or anything else in the Rules of Procedure? I don’t sense that we’re absolutely set on a time or a date. We’ve talked about a bunch of different, sort of faster track scenarios. We were talking about a meeting every day this month not long ago so I don’t sense that we’re set on a specific day or time or how many meetings per month. Can I have some input there? Mr. Balog.

BALOG: Could you just, instead of giving us specific dates, say that when properly noticed to the public, the Charter Commission would then meet on that date instead of having a specific date and time?

YUEN: State law concerning meetings requires every Board or Commission to have a regular meeting date and then you can have other meetings but those are called Special Meetings and you have to do more advertising to have a Special Meeting than a regular meeting.

BALOG: So you have to have a specific day and time?

YUEN: Yes.

BALOG: A day in the month and a time attached to it in your rules?

YUEN: Yes, you have to have a regular meeting time and place. Now, you can cancel all your regular meetings and have all Special Meetings but you’re supposed to have a regular time and place set in your rules.

RAY: Let’s try to deal with our regular meetings. Is there any input from the members how they’d like to see the meeting schedule set for the next fall? Do we want to go with two meetings a month on Wednesdays? And the time as well, I’d like to discuss, for the next meeting in particular, the meeting we’ve got scheduled for the 25th. We have some fairly lengthy presentations. We have John Henry Felix coming over from City and County of Honolulu to talk about nonpartisan elections. We have the County Elections Division coming in to talk about Special Election scenarios so I would like to have that meeting start at 3:00 to accommodate not only the County people, but other folks coming in from outer island. Marni.

HERKES: I would like to suggest that we set up one regular meeting date a month, the second Wednesday of every month as a regular meeting date at 5:00. That will be our regular meeting date. Other dates will be Special Meetings that we have in order to take testimony and things. Is that legal, Chris? Can we do that?

YUEN: Yes and I guess I thought that that was what had actually happened. I thought there was a discussion somewhere on this that came out to 5:00 but I could be wrong on that.

HERKES: Well, we’ve had lots of discussions.

RAY: There was a discussion but since then we’ve gone through so many scenarios in terms of how often and when we wanted to meet that I thought I’d like to bring it up again. Mr. Balog.

BALOG: If you follow what our schedule is for this month, is this the second Wednesday already?

RAY: Yes.

HERKES: Yes, second Wednesday and fourth Wednesday is when we have meetings.

BALOG: Okay, so would be second Wednesday at 5:00 and then you could accommodate the schedule that the Chair is talking about by saying that this meeting where we’re inviting people in and we’re taking extra testimonies and getting information for subjects we want to discuss, we could start like at 3:30 or 4:00?

RAY: Well, that would be a Special Meeting anyway.

BALOG: But you could always vary the time at the Special Meeting, right? Okay.

RAY: Any more discussion or input on the idea that we go ahead, in the rules anyway, and it would read the second Wednesday of each month at 5:00 p.m. unless otherwise - John Santangelo.

SANTANGELO: I think I’ll pass. I think the last bit of conversation cleared - Just the one question is having one stated meeting a month vs. two, with the kind of schedule and the kind of work we have ahead of us, is it prudent to just have the one or would it be prudent to have two?

HERKES: I think we will have two.

SANTANGELO: But those will be Special Meetings.

HERKES: We’re just scheduling one.

SANTANGELO: So those would be special and they’re going to be special if we change the times anyway, right?

RAY: I think that’s a good point but Chris brought up the noticing requirements. If we have two, we don’t have to notice them. Do we have to notice the cancellation? How does that work?

YUEN: I think we have to send to everybody that normally gets the agenda, a notice of a cancellation of a meeting. I would suggest that you go with one a month as a regular meeting and everything else be a Special Meeting because advertising for a Special Meeting is not that big a deal and the Commission has been doing that for all the meetings so far anyway. And rather than try to fit everything - I can tell by just listening to the discussion and people’s scheduling that it may work out better to have one regular meeting and then to have Special Meetings where there’s a bit of flexibility on the time and place.

RAY: Okay, anymore input on the meetings? Yes, Mr. Alonzo.

RAY: I think it’s safe that this is a good site to put.

ALONZO: Can we lock in all second Wednesdays of each month from now until when this committee’s dissolved?

RAY: Sure. Okay, any more input on the meetings? Anything else? Does anybody else want to suggest any other changes in the Rules of Procedure? So Chris, what’s the process for making this change?

BALOG: Marni made a motion so if someone seconds her motion then you can take a vote. I’ll second her motion.

RAY: Okay, so the motion is that the meetings in the Rules of Procedure would read, under Section IV B, regular meetings will be held on the second Wednesday of each month at 5:00 p.m. All in favor.

COMMISSIONERS: Aye.

RAY: Opposed? Okay. And the only other change would be just to correct the address as for the contacting the Hawaii County Charter Commission. Okay?

YUEN: And now to finalize this, we will have to run a notice in the paper. It will have to be called a Public Hearing and if any members of the public want to testify about the rule, they can, and after that the Commission can vote to finalize the rules and they get sent to the Mayor for signature and they don’t become official until the Mayor signs them.

RAY: So it’s my understanding that until that happens, we’ll be having Special Meetings.

YUEN: Right.

RAY: Okay, moving on. New Business. Before we go ahead, on the minutes, one thing I forgot to mention. Reading through the minutes, I was amazed. I think I must have close to the world record for "you know". Anyway, I talked with Mr. Yuen and he said that it’s okay if I instruct our Administrative Assistant to eliminate the extraneous filler, the "you know’s" and such from the minutes so just to let you know, we’re going to go ahead and do that.

IRVINE: I think that would be a good idea.

HERKES: Do we get to vote on that?

RAY: New Business, Item VIII. Mr. Wurdeman is here. I asked him to come in and so I’d like to go ahead and go through the Corporation Counsel section of the Charter, so page 8, CHAPTER 2 CORPORATION COUNSEL. Mr. Wurdeman was here during the initial Department Review and he furnished us with suggestions for Charter changes so there were a number of them, just a couple that are applicable to this section, so I’d like to ask Mr. Wurdeman to go over those. Mr. Wurdeman.

WURDEMAN: The first is sort of a housekeeping matter. We suggest that language be added that "The Corporation Counsel could delegate any professional legal duties of his office to his Assistant or Deputies." That’s the practice and that’s never been challenged but we feel it might be appropriate to put it in so we won’t be challenged.

Second item is somewhat difficult to explain and it relates to Special Counsel. In this case, it’s when, as often happens, we are required to provide representation both for the County, as an entity, and an employee or sometimes more than one employee. For example, Police Department. Under State law, the Police Commission is given the authority to decide whether in a given case, a police officer is operating within the course of scope of his employment so as to warrant government paid counsel and they do this. Sometimes they do it in strange ways. There was a case that occurred about five years ago where they found that an officer who got into a fight in a cocktail lounge and broke somebody’s jaw off duty, was in the course of scope of his employment. So in cases like that, we feel that’s it’s in the County’s interest, and we should argue that this person was acting on his own and not as an employee to protect the County. Obviously at that point, we have a conflict. We are required to provide counsel but on the other hand, we feel that to protect the public treasury, we have to disclaim the employee’s actions. In that case, it’s been mandated by the Office of Disciplinary Counsel, we must hire an outside counsel so we go to the County Council and we ask for "special counsel" to represent the employee so that we can represent the County. The County Council has, in the past, been very cooperative and has generally approved such requests. Just a month or so ago, we went in on a request for an employee who was being sued for having allegedly indecently exposed himself to a young girl. We felt, as the County, that we were obligated to say that whatever he did or didn’t do was not done as an employee. In this case, it was not a policeman but it was a person covered by Union Contract and Union Contracts have much the same language as the law relating to policemen. The Council turned us down. I don’t know what the end result of that is going to be. The Union will probably have something to say about that, but the point is that I think it’s a good idea that we have Council approval when we hire "special counsel" to represent the County. But that’s a good control on just willy-nilly hiring lawyers out but when we do, in these, not all that common but is somewhat common, cases where we are forced by law or Union Contract to provide a lawyer for an individual who may not have been loyally serving the County at the time, that we should do so without having to go to Council for they might turn us down. For example, if the Police Commission required that counsel be provided in a certain case and the Council turned us down, which has never happened although they threatened to, we’d be in a real fix. I mean, we wouldn’t know where to turn next. There’d be a dilemma there so our request is that "special counsel" be defined as "counsel retained to represent the County" and not include in the definition those cases where we have to hire people to represent individuals. That’s pretty complex stuff and I’m sure there’s questions and I’ll be glad to answer them.

RAY: Ms. Irvine.

IRVINE: I wonder why should it take two-thirds a vote of the County Council for you to hire an outside person in the first place, for any reason?

WURDEMAN: I don’t know. That’s what it currently reads.

HERKES: So if you’re caught in between the Union and the Council -

WURDEMAN: And the Police Commission.

HERKES: And the Police Commission, or Parks and Rec, or somewhere else and other places -

WURDEMAN: The Police Commission, that’s set up in State law. State law also has a provision for firefighters which says that when a firefighter is acting within the course of scope of his employment, counsel will be provided but it doesn’t say how that’s determined, who decides that. Most of the Union Contracts say the same thing. They say course of scope, we provide counsel and that’s fine. I agree with that. It’s proper. But when you get into an argument about whether the gray area, when a person is on the edge of course of scope, that’s when we get into a difficult situation. For example, if the Union would come to us and say look, we think this guy was in the course of scope, we’re going to grieve it. We say no he wasn’t. Then we get into a discussion. Meanwhile the case is moving along. I mean, is the person going to get a lawyer or not and we say, well, all right, we agree with the Union. We’ll provide a lawyer. Then we go to the Council and they turn us down. Then what? Real potential for crisis there.

IRVINE: Is "special counsel" something defined or would it be better just to say that counsel may authorize the employment of additional counsel for any matter presenting a real necessity for such employment?

WURDEMAN: Well, "special counsel" -

IRVINE: Is that a term?

WURDEMAN: Is commonly used to mean someone outside the office.

HERKES: Just like a special prosecutor.

IRVINE: Okay.

WURDEMAN: Not as many questions as I thought.

YUEN: I have a question.

RAY: Mr. Yuen.

YUEN: I’m trying to figure out how to do this without, and where the money is coming from, if the Council doesn’t authorize it. Is there some general contingency fund that would be available? The money has to be appropriated for some purpose. I’m wondering if the section could be reworded so that the Council could make an appropriation with the budget for the hiring of attorneys in a conflict of interest situation without a specific matter being presented to it so that that could be then drawn on by Corp Counsel when they felt that they were required to provide an attorney? I think, as is presently worded, you have to go to Council with every specific request and then you get tied up into the facts of a particular case where they may be unsavory to the Council to appropriate the money for this particular employee and I think that is the way it works now. I’m wondering if we found a way to reword this so that in situations like you discussed, the Corp Counsel could go, as part of their regular budget request, to the Council and have a lump sum that would be available for hiring attorneys in conflict of interest situations, if that would alleviate the problem enough? Otherwise, then you’d have to find some other fund from which this is drawn even if you give Corp Counsel the power to hire "special counsel" in these kinds of situations.

WURDEMAN: Right. Well, presently we have a line item in every budget for "special counsel" and there is a lump sum there. So we go to Council once a year, at budget time, and we argue for that and they hardly ever raise it. They lower it and we dicker about that and the budget is passed with that lump sum in there. Then as an individual case arises, we go back. To make it even worse, in some cases we’ll go back and they’ll say well, you’re authorized to hire "special counsel" up to $15,000 or something. And then we say okay. So we retain someone and we write into the contract that there’s a cap of $15,000 which always turns out to be inadequate and we have to go back to the Council again and by this time, the case is half way completed and it’s really impractical. I mean, you’ve got a lawyer who’s involved in the case and $15,000 has been expended, trial’s next week, we’re out of money. I mean what are you going to do? You can’t change horses at that point so it’s not a very good system.

BESS: Mr. Chairman.

RAY: Wait. That’s not quite the way it works. I was on the County Council and been involved in a number of these and it seems that the Corporation Counsel frequently uses the County Council as sort of a leverage or bargaining tool and requests that we sort of be part of this negotiation. In other words, let’s limit it to this and say we only have that much money, or this or that, so that’s more often than not the discussion that I remember but I do think it’s an incredibly flawed process, especially when you get a bunch of new Council people or folks with no experience whatsoever. And I remember the first time I was part of this. I thought what in the world am I doing, trying to make a decision on some of this stuff with no background at all so I think it is something worth looking at anyway. Mr. Bess.

BESS: I was just going to suggest - There seems to be two situations where you’re going to go with "special counsel". One is professional competence where the office goes outside thinking that it may need -

WURDEMAN: If we ever got into something like an anti-trust case.

BESS: Right. And then you’d have to get "special counsel" there and then the other one, the conflict of interest. My suggestion is that the Corp Counsel should have the power to decide whether or not there’s conflict of interest but that there would be the safeguard of Office of Disciplinary Counsel in the event that somebody questioned whether or not you in fact, the guy really was in conflict of interest. It could go to Office of Disciplinary Counsel and then, at least as far as the conflict of interest kind of case, the Council would not be involved at all in that decision, whether to go outside and get "special counsel" other than the budgetary process.

WURDEMAN: That would be ideal from my point. Yes.

BESS: I don’t have your language in front of me, Richard, so I don’t know what you’re suggesting as an amendment, but I don’t know if, in this section, you want to distinguish the conflict of interest issue from the professional competence issue.

WURDEMAN: I saw it as distinguishing between representing individuals and representing the County. Representing the County would be something we would be required to get permission for but we could do it your way just as well and probably have the same result.

RAY: Other comments? Ms. Herkes.

HERKES: No, I have a later comment on another issue but not on this one.

RAY: Let’s work internally on some language and see what we can come up with as far as something to bring forward, okay?

IRVINE: I had one more comment. What about just under 5-2.3, it says the Corporation Counsel may delegate any professional legal duties of his office to his Assistant or Deputies and incorporate this other part in there, "and may also hire "special counsel" when a real necessity for such employment is found"?

BESS: "Real necessity or" and then we can put in the conflict of interest provision.

IRVINE: That’s a necessity.

BESS: Well, it’s a necessity but it’s a special kind of necessity. I think Corp Counsel, where there’s conflict of interest, it should clearly have the authority to - the Council lacks the competence to determine whether or not there’s a conflict of interest. I mean they may not have received the training that the Corp Counsel has with regard to the conflict of interest -

WURDEMAN: Both the Police Commission and certain Council members, and I think it is really more true of the Police Commission - you get into whether the guy did or didn’t do it which is not the issue.

BESS: Right.

HERKES: Mr. Ray, could we ask you to work with Mr. Bess and Mr. Wurdeman and come up with, and Mr. Yuen, some appropriate language and bring it back to the Commission?

RAY: Sure.

HERKES: Can I bring up my other point?

RAY: Sure. It’s on CHAPTER 2, right?

HERKES: It’s on CHAPTER 2, 5-2.2. It says "may be removed by the Mayor with the approval of the Council" and the Finance Director can be removed by the Mayor period. Why do you get the approval of the Council when you get fired? Why is that in there? Why is it different?

BESS: Confirmation.

WURDEMAN: I think it’s lifted from State law and related to the Attorney General -

HERKES: Okay.

WURDEMAN: Which is the same kind of safeguard and it is because in cases where there is a conflict between the Council and the Mayor, and the Council is seeking an opinion on something, that if that opinion displeases the Mayor that there is some protection.

HERKES: Thank you.

RAY: Any other discussion on CHAPTER 2 CORPORATION COUNSEL at this point? Okay, so we’re going to work on that last issue and come up with some language and so we’ll leave this for now. Thank you, Mr. Wurdeman.

BESS: Mr. Chair, we focused on the "special counsel" issue but is there consensus with regard to the housekeeping issue on 5.2.3? Mr. Wurdeman suggested that we add some additional language making it clear about appointment of necessary staff.

RAY: Does anybody have any problem with that? No? Okay, so we’ll just assume - no let’s wait on that as well. Okay, thanks Mr. Wurdeman.

To go back to our agenda, New Business A., it says Managing Director Discussion. It probably should have been Council/Manager Form of Government Discussion. In the past couple of months, we’ve pulled together a fair amount of material and distributed this material to the different Commission members and this is a topic that’s come up on past Charter Commissions and it’s one of the items, probably the item of greatest potential impact on the Charter, that we’ll be discussing. In regard to that, I’d like Mr. Yuen to just briefly talk about what it would mean logistically, organizationally, to the Charter if we should decide to pursue the Council/Manager form of government as a serious option.

YUEN: Just very briefly, it would require a major rewrite of the Charter and I would suggest that if the Commission were to propose a County Manager form of government that it be presented to the voters in the form of a new Charter rather than as 44 amendments to different sections of the Charter. In either case, it would be one vote. If you went with 44 amendments, it would all be voted on at one time but it is such a fundamental and basic change that if it is going to be proposed, it ought to be done as a new Charter. The Charter is presently written in bodies, separation of powers idea, between the Council and the Mayor that is really largely eliminated under the County Manager form of government where the Manager is directly accountable and chosen, usually, by the Council. Apart from that, there are a lot of specific things that need to be discussed and I think, if the discussion goes further, the members of the Commission will bring up most of them. A very fundamental kind of issue that comes up is whether you have a Mayor, somebody called a Mayor, or not. Many jurisdictions which have a City Manager form of government have a person who is designated as a Mayor and does the ground breakings and the ceremonial functions. Often times it is a person who’s either elected - it’s an elected position. Generally speaking, the Mayor is also a member of the Council when it’s done this way and may act as the Chair of the Council, may be elected specifically as the Chair of the Council. There are other jurisdictions which have a City Manager and they only have a Council and the Council selects a Chair or somebody is selected as the Chair of the Council. They don’t have somebody named the Mayor.

RAY: Thanks, Chris. Mr. Santangelo.

SANTANGELO: I’m of the impression that the last Charter Commission did take a hard look at this. It may have been hard or soft, and then it wasn’t brought up for various reasons. Is this part of it or can you add anything to why this didn’t come forward last time?

YUEN: I think that having been there, it was looked at. There were the same kinds of packets of materials that were circulated as to how it worked. There was some discussion. I don’t believe it was ever brought up to vote because there clearly weren’t six people that wanted to present it to the voters and beyond that I can’t really speak for what was going through the minds of the various Commissioners. The decision is basically, of course, not a legal one. It’s a decision of what kind of government you want to have which is a policy decision for the Commissioners to make.

SANTANGELO: Thank you.

RAY: So let’s just throw this out. We’re trying to get sort of an informal straw vote sense of how everybody feels about this and how much we want to pursue it. As Mr. Yuen said, it would be a pretty monumental undertaking in terms of reorganization or, in fact, a whole new Charter so let’s make sure this is something that we understand and do want to pursue and if we’re going to turn him loose on it. Okay? Mr. Martin.

MARTIN: Yes, you made mention of 44 possible points that would have to be touched on. Is that just a fictitious number or is that something that you actually looked at?

YUEN: That’s not a real number. That’s a made up one but there are quite a few things that are written in the Charter. The name "Mayor" may appear 44 times and I don’t want to exaggerate the - it would be a basic restructuring of the Charter. Naturally, of course, there are plenty of places that have this form of government and we wouldn’t sit here and try to do it entirely from scratch because there’s a lot of freedom in how you exactly set this up. There are models for how this is done. I’m just saying that it is a basic restructuring of the County government and should be presented as a new Charter to the voters if it’s going to be presented to them.

RAY: Let me ask you this. Let’s just take a hand count. Do you think you’ve got enough information? Have you read enough? Do you understand this issue enough at this point in time based on the information we’ve got? Does everybody feel like we’re pretty much up on what this is all about? So raise your hand if you do.

ALL HANDS WERE RAISED.

IRVINE: I have one caveat. I think I need to hear from Chris, maybe, what State laws would impact what we’re doing.

HERKES: No, what State laws would be impacted by what we’re doing.

IRVINE: Well, one way or another.

YUEN: I took a quick look at this. Let me start with an overview. In State law, the State Constitution says that the counties have the right to determine their own structure and how they function on everything except for matters of statewide significance. The first question is, does State law require you to have a Mayor/Council form of government. I don’t think so and I would like to make this as a tentative statement because there’s a couple of things I still want to look at. I think that the way the State Constitution is set up, and just for my own sense, that the counties ought to be able to determine the way they want to govern themselves, that if the voters of a particular county don’t want to have the form of government where you have an elected Mayor who is separate from the Council and they would rather have strictly an elected Council and an appointed City Manager who has many of the functions that have normally been carried out by the Mayor, I think that the County can go ahead and do that. There are some complications to this. I did a computer search of every place the word "Mayor" appears in State law, in the Hawaii Revised Statutes, and I don’t have an exact number but it’s something like 44. Just to give you an idea or a flavor of what some of these things are, they range from very minor things to fairly important things. There are many functions and powers that are given to the counties by State law in which the Mayor is given a particular role and in almost all of these cases, I think it can fairly be said that when the State Legislature passed this law and they said "Mayor", they simply assumed that the County would have a Mayor and they weren’t saying that you’ve got to have a Mayor instead of a County Manager form of government. Just to start with the examples, there are number of Boards and Commissions that are set up under State law where it says that the Mayor shall appoint certain members to the Commission. There’s an Advisory Commission to the Department of Business and Economic Development. There’s a County Arborist Advisory Committee. There’s a Commission on the Status of Women. There are several other things. But moving to the areas that are perhaps more serious and need to be looked at very carefully, the County is authorized to issue bonds and the Mayor is supposed to sign those bonds. The State law says the Mayor signs the bonds. We talk a little bit about rules and regulations. When rules and regulations are adopted, which they can be by the Planning Commission, by the Water Commission. The Water Commission can set rules about who has to hook up and how many hook ups you can have. Those are under State law. The State Statute says those are signed by the Mayor. There are a couple of instances, and these are the ones that give me concern at this point, where the State law specifically describes the Mayor as being the Chief Elected Official of the County. I think there are only two or three of those. In Liquor Control, which is delegated to the counties, there are functions that are carried out by the Mayor. The Mayor, for example, appoints, and this is in the Charter as well, the Mayor appoints the Liquor Commission. It defines the Mayor as being the Chief Elected Official of the County. The same thing is true for certain motor vehicle licensing requirements in CHAPTER 286. At this point, I don’t think that this is an insurmountable problem and I don’t think that you need enabling legislation from the State to go to a County Manager form of government. If the Commission wants to continue on this, I would like to look at it in a little more detail and present a little more of a formal opinion about this. I need to say one thing further though, and this is a complication of all of this. If the Charter does go to a City Manager form of government, I feel that one individual will have to be designated in the Charter as having those powers which are delegated to the County Mayor under State law and that person can be called the City Manager. I don’t think it has to be called the Mayor. But if you go to the kind of system where you have a Mayor and a City Manager, I feel that it would be very dangerous from a legal point of view, to try to put some of those functions with the City Manager and some of those with the Mayor. I think that all of those functions where State law says the Mayor has this power, will have to still go to the person who is called the Mayor and then you will have a split in certain powers between the City Manager and the Mayor, and I can give a more comprehensive listing of what all these State delegated functions and powers are. The final thing that I’d like to say about this is that even after I do a more formal work-up on this question which I would want to do, it’s impossible to give you 100% assurance that the City Managing form of government is legal in Hawaii without some further authorization of the State Legislature. As I sit here, I think it is but this is the kind of thing that lawyers can only give opinions and if the voters enact the City Manager form of government and somebody wants to challenge the authority of the City Manager to do certain things, it is possible that a court could say that it is not authorized under State law. I say that as a possibility and I think no attorney can give you an absolute 100% assurance that that couldn’t happen.

SANTANGELO: Thank you, Chris. This is kind of like getting into the problem solving. I sense where the Chairman is going is do we have enough information to have some opinion whether we want to pursue this or not. On my side, I looked at it and some things that caught my attention were out of looking at our peers and some figure popped out. Of 1900 of them or something, there were 1200 of them, or two-thirds, that were very similar to us that use this form of government, number one. Number two, dealing in today’s society and the importance of an administrative expertise, I kind of like the idea myself, at least looking at it. The Mayor problem, again in a problem solving solution, in the past we had a Council that the Chairman basically took on the responsibility of a Mayor and in this form, it is possible for that individual not to vote, to show guidance and leadership, break ties. So it’s interesting how that can work but I guess I’d like to fall into what the Chairman was asking us, do we, as a group, have enough information that there’s a will or a want for us to move forward on this. I personally like it but I wouldn’t want to move forward or to press moving forward, if there wasn’t a fair, clear amount of support from my fellow Commissioners. Is that where you’re going, John?

RAY: Yes and no, but I definitely want you to understand the complexity of this and let’s be serious about it if we’re going forward. If it’s just something we’re sort of not really that interested in or whatever, let’s try to figure that out. Mr. Martin.

SANTANGELO: John, to finish, the thing there was about this conflict with the Legislature or with the State law. If we were to place this on the ballot and it was to pass as a new Charter even, and I think that could be done, then it seems like there would be four years for the Legislature to grapple with this before we moved to that form of government because we are electing a Mayor shortly.

RAY: I don’t know that it would be four years. I think we decide that.

BALOG: Wouldn’t that depend on the language of the Charter amendment itself?

SANTANGELO: So you could say that in two years or something? Okay. But there seems like there would be some lead time but I just wanted to put that out there. Thank you.

RAY: Okay, Mr. Martin.

MARTIN: I guess to augment what Mr. Santangelo is saying about are we serious in pursuing it, it comes back to something that Chris said, we go through it, we jump through all the hoops, put it in place and come to find out that it’s not legal under the State umbrella. Chris, is it possible to get a ruling from the Attorney General or somebody?

YUEN: All of those things, the Corp Counsel opinion and the Attorney General opinion, are just opinions. The Hawaii Supreme Court has disagreed with the Attorney General opinions many times.

BALOG: They actually have the last -

MARTIN: They say yes is no. We know that.

YUEN: And unfortunately, I won’t say it’s completely impossible but it’s extremely difficult. I would say it is virtually impossible, to get the Hawaii Supreme Court to give, what you would call, a pure advisory opinion in advance of doing something. Some states, the government, and its actually very useful, can present ‘if we do this, is it legal?’ and the Courts will answer that. In Hawaii, they don’t.

RAY: Okay. Ms. Irvine.

IRVINE: I guess the one other thing that we have to think about is we may be enthused about this but has anybody talked to anybody outside this Commission about whether the voters might even consider this? I’m not sure.

RAY: Anybody want to respond to that? Ms. Herkes.

HERKES: We have had testimony in favor of this and have some very strong opinions from some people that I’ve talked to, so yes, there are some voters out there.

MARTIN: How many is hard to say but yes, there is some consensus.

HERKES: Well, you won’t know. We’re not restructuring, we’re re-restructuring because we had this in our Charter when we first set up a Charter - Can we get a copy of that first Charter so that maybe we can just put it out, just change a little language and see if that’s the kind of structure?

RAY: You mean under the original Board of Supervisors? Yes, sure, that’s all available to us. Other comments?

YUEN: I’m pretty sure that there wasn’t - the Board of Supervisors was set out State enabling legislation back in the Territory of Hawaii. There were territorial laws that said you had a Board of Supervisors in Hawaii County and I think that the first Charter was in ‘68 and went to a Mayor form of government and since then, all the Board of Supervisors language has been purged out of the Statutes and has been replaced to conform with the Council form of government.

RAY: Mr. Bess.

BESS: One question. Chris, I don’t know to what extent rather than seeking opinion from the AG’s office that you go for a declaratory judgment ruling. Somehow or other, accelerate the process by actually getting a decision from a Court and then that would be appealed and it would be a matter of such importance that you could get the Court to rule in a timely fashion, I would hope four or five months prior to an election. Is that possible?

YUEN: No. In some states, you will see judicial opinions that come out from their Supreme Courts entitled "In re ballot question such and such". I’ll double check this but I’m almost certain that you can’t do that in Hawaii. There are declaratory judgments but they require actual controversy between parties. You have to have somebody sue somebody else over a declaratory judgment and then you can’t take it directly to the Hawaii Supreme Court. It starts off in Circuit Court and Circuit Court is not going to be good enough. You would have to start off with two people that had opposing points of view on this and they would bring a suit to Circuit Court and then you would have to get the loser to appeal it to the Supreme Court and it’s very likely that all of the Courts would decline to hear it in advance of there being a real question because it’s just something that’s being contemplated at this time. As I mentioned -

BESS: I’m not suggesting that we do it at this stage of the game prior to the time that the Charter Commission suggests that we change the form. We take action. We’re presenting this amendment. Now it’s going to go on the ballot at some point in time down the line. Then you’ve got something that’s real and perhaps, you could talk the AG into suing us but to do it through the Court rather than through the AG’s office.

YUEN: It would be highly desirable to be able to do this and it makes so much sense and the kind of thing you’re talking about - I think we’ve all seen things that have happened where governments have taken certain actions and things have gone on, sometimes for years, and then it finally gets to the Hawaii Supreme Court and it gets thrown out when, if people had known when it was even being contemplated that it was not going to be legal, that they wouldn’t have started off down that road. I hate to say you can’t do something. It would be a creative kind of case to try to get the Hawaii Supreme Court to make a decision on this before it was actually brought up to the voters and it would be a first if we got them to do it. I don’t know that they’ve outright said that they won’t do something like this but it would definitely be a first.

BESS: I guess the thing that concerns me about all of this is that when you listen to the legal arguments here, well, do we have a choice. My feeling, number one, is that the State law is very clear about structure and organization and if this isn’t structure and organization, I understand that you can’t give a 100% limitation, but I would hate the legal arguments to preclude us from considering this issue because one of the things that I find attractive about this form of government is that from the limited testimony we’ve had, and in observing the way County government has been functioning, it appears that there’s a real dissatisfaction with separation of powers, that everybody’s talking about more balance and that the Council wants to perform more functions that, perhaps, border on being administrative, if not administrative. I’m not taking any position here with regard but the way it’s working is that you have two bodies, and possibly some duplication of effort, and I’m interested in cost of government and I see that this Manager form of government may reduce costs and while I have enough general information, theoretical information, as to how this system works, I’d just like to see what the practical implications are. If it were put into effect, could we save money? And I’d like that discussion to occur.

HERKES: I think Mr. Bess has touched on what I was going to say but I’d like to expand on it more. We’ve gotten bogged down in semantics here and the word "Mayor" and lost track of what is the goal. Why would we change the Charter? What do we want to do in order to change it? And I think no matter whether we use the word "Mayor", don’t use the word "Mayor" and we get sued, we still have a different direction. We’re still going in a different direction. We’re going in efficiency, we’re going in a better form of government. What we’ve heard over the last few years, is a lot of dissatisfaction with the way the government’s working. People don’t feel included and I would hope that this would be a way that they could and I think that we need to set up some goals as to what we want to accomplish.

RAY: Is that the Charter? Is that the position or is that the person that’s in the seat? I think this is the discussion we ought to be having, but if you look at our current Charter and you look at the Managing Director position and you look at the other Counties’ Charters and some have a bit more definitive language in terms of job qualifications and whatever, but under the present Charter there’s no reason that the Managing Director couldn’t operate in a much more independent, professional type position. Not so much independent maybe, but certainly more professional.

HERKES: Never has.

RAY: I’m certainly interested in what we can do in regard to moving things in a more professional direction. One thing I’ve been playing around with is some potential language or some things we might do in the present Charter in regard to the Managing Director position and I don’t have anything formally to suggest now but that is another tact we might take is to try to move the Managing Director more, in a business terminology, to the Chief Operating Officer of the County, the Mayor functioning still as the CEO, but the Managing Director as your Chief Operating Officer. Whether we could do that effectively, I don’t know but that’s something that interests me. Mr. Balog.

BALOG: Kind of along your same thoughts, in my mind, I don’t agree that the voters are so upset with the way the person running the government. It’s how the government is run. It’s more with how efficient we are. It’s not so much that they don’t like a Mayor. There’s people who don’t like people who sit on a Council that we’re discussing that may be the people electing Managing what?

RAY: Hiring a Managing Director.

BALOG: A Managing Director. I keep thinking of it over and over again. We’re trying to say that we want to be more efficient, more efficient so if you play all of this out now, we have our Council elected every two years. You get six new Council people in in two years and they terminate Managing Director that was just hired two years ago that’s going to have the powers, maybe, to authorize bonds or whatever, 44 times mentioned in the Charter, whatever it is, appoint people or whatever - whatever those duties are that we’re going to try to incorporate or however we do it. I would much rather favor what the Chairman suggested and try and see if we could have our Managing Director now be a Financial Officer of the County, the Chief Financial Officer, and be efficient from that standpoint because I view a Council as more of a legislative body than a body that should be getting six votes or whatever amount of votes you are going to come up with, to get a Managing Director and then instructing that person how to run each department. I’d rather see a little more cut and go more with somebody who would try and run the County more efficiently.

RAY: In terms of one point you brought up, as far as the potential for turnover, two year terms and whatever. I think that’s pretty effectively dealt with in most models that I’m aware of. In other words, you issue a contract with somebody, there has to be just cause so I don’t think you have that much of a threat effectively, of a new Council coming in and firing somebody just willy-nilly or whatever, but you did bring up the two year term and that’s a real dynamic under the present Charter. The two year that the Council has and the four year terms of the Mayor, that’s something that certainly is a huge advantage to the Mayor’s Office. Mr. Santangelo. Oh, Ms. Irvine, first.

IRVINE: You folks have been touching on this two year term vs. four year. I feel if we were to go with a professional manager that if we had a Mayor or a head of the County Council, so to speak, who would be in the position of Mayor, that that Chairman of the County Council really should serve for more than two years and should be elected island-wide. I know Roland Higashi had talked about going back to a six, with three people elected at-large and I really feel that if somebody’s going to represent our island, they should be elected island-wide rather than be elected from one Council District. That is the model I have from Lexington, Kentucky. They do elect part of their Council from each district for two years and then they elect, I think, three people at-large for four year terms. It would make the dynamics of the County Council a little different but it might be a thought.

RAY: That’s something that we need to keep in mind and I don’t want to get too far off on that tangent right now because that’s a whole other discussion we’ll be taking up. But yes, that’s a good thing to keep in mind is how all that would work in relation to the City Manager. John.

SANTANGELO: Back to this Managing Director and the two year. One of the advantages that appeals to me about a Managing Director is that you’re hiring expertise so it’s not like an elected official that has to, say, come up to speed, so the theory is you’re bringing in a person, he or she, that has expertise in this area and that’s where your efficiency’s going to come from. I wouldn’t want to get involved in the two or four year. That’s something that goes later on. It’s interesting that we’ve glossed over the fact that our home rule is like a child asking the parent. It is at the will and whim of the Legislature. We are only allowed this form of government because of the Legislature rather than it’s part of our right so in that, I would like, if we choose to go forward with this Managing Director, to do that and to establish the fact that if we’re going to have a County government that we have some control over that and let the State grapple with that. I go back to, and it seems from the discussion, and that’s the question I need answered because I know a lot of us have read the stuff but do we really have the information to move forward? I think if we have a consensus that we want to move forward on, I’d like to see some of the discussion limited. Then we’d know; focus on this, let’s get learned here. Let’s get the education that we need so that’s kind of where I’m at still.

RAY: Who needs what kind of information? There are some websites we haven’t fully explored. There’s some fees involved. Councilman Tyler and I had a meeting last week and he just got back from a NACO Conference and there was a good panel dealing with this directly and he put us in touch with one of the key panel members from the Vinson School of Government, University of Georgia, who’s in Asia right now. He’ll be back in his office next week and sounds like he’s a potential wealth of experience. I’m very comfortable as far as my understanding of what this is all about so you need to tell us what information you need or if you do need more, I’m sure there are resources in the State if we want to explore this further. Probably folks that have been involved in County and City governments with this set-up. I’m sure there are people around if we want to search them out. I’ve been surprised that there hasn’t been more public support for this, especially from West Hawaii. This is something I heard about, a lot of people discussing, years in the past but it’s certainly not anything people have been breaking down the door to bring up before the Commission right now. Somebody did bring up what’s their sense of public interest in this. I think it’s certainly a level of interest but I don’t have a strong sense that people feel real strongly about it one way or the other.

SANTANGELO: I guess the information I need is are we interested in moving forward with this.

RAY: I know whether I’m interested or not but I don’t know whether you are.

SANTANGELO: You asked the question. I just don’t know if we got there.

BALOG: Is it possible for us just to poll ourselves and say is this something we want to proceed with or we’d rather right now say maybe we’d like to have our Council look at other things that have come even more strongly than this which I feel will be something like nonpartisan elections?

RAY: Sure.

SANTANGELO: It’s not to the exclusion of anything.

RAY: Let’s just focus on this. I can’t come up with the perfect question to ask off the top of my head. This isn’t one question, this is the way we’re going to go. How many people are interested enough in this issue that they would like additional materials, would like us to pursue speakers or whatever to bring this issue more in front of the Commission? So how many people would like additional information. Raise your right hand.

HANDS RAISED: E. Alonzo, S. Bess, M. Herkes, S. Irvine, J. Santangelo, G. Yoshiyama

HERKES: Is there some precedency here as to whether we can handle any more information?

IRVINE: Quite frankly, John, I’ve read all 44 pages that came from Pennsylvania, it seems to be the number for the day, and we’ve had another I don’t know how many pages quite a while ago and it’s just like some of the issues they bring up, I’m not sure our island will go for this. I think we might discuss a lot and think we’re doing something and think there’s a movement for change and then we take it to the electorate and find out that we’d done a lot of work and they either don’t go to the polls at all or don’t know what we’re talking about and don’t go with a major overhaul of County government.

RAY: There’s no question it would be a major challenge to present this to the public in a clear, fair way. Mr. Balog.

BALOG: I just feel for myself, just looking at what to me is part of our goal and our job, is to look at the Charter and see what we can change that makes sense and to be part of it, like Mr. Bess says, to put it the best way, is to be more efficiently and cost savings but I just don’t see this as something that’s knocking me over and throwing me on my butt that is one of the pressing issues that makes me tick on this Commission. I don’t need no more information. I even brought my stuff that was mailed about this stuff just in case we talked specifically about some of the stuff that we’ve had to read and I don’t need any more things to read.

RAY: Okay. Mr. Martin.

MARTIN: On what Kevin is saying and I think what I’m hearing from across the room is that we go through the motions, put it forth and it doesn’t even get a ground swelter. You can sell ice to an Eskimo, it’s possible, it’s been done before so with whatever we come up, if in fact we do want to come up and how we present it to the public is what’s going to make or break the issue and any issue, whether it be the nonpartisan, whether it be this particular one that we’re grappling with right now in the Managing Director, and it’s not for us to decide, whether it be right or wrong, I think it comes out to what the public wants and it comes down to that ground swelter. I’ve heard some talk about it. Maybe not enough but I have heard some so are we willing to pursue it? And once we are, then how do we sell it is what it comes down to.

RAY: I don’t think we have to decide that right now.

MARTIN: Oh sure, I’m not saying that but that’s the jest of it.

RAY: Marni.

HERKES: Mr. Ray, I remember when we were hiring, was it hiring an attorney, we had a straw vote. No, it was hiring the secretary as to whether it was going to be Civil Service, we had a straw vote. Do you want a straw vote today?

RAY: I do, but -

HERKES: That’s what I think. You do, but when you mention more information, I just kind of went "oh" but I would like to hear that guy.

RAY: You’re not going to hear that guy. What you’re going to get is basically the same type of stuff you’ve already gotten. It’s going to be how ever many pages from the Institute of Government at the University of Georgia on City Manager form of government and what they think the pros and cons are, so I don’t think it’s going to be formatted in any different way than what we’ve already received.

HERKES: I had an advantage probably, that I don’t think anybody else in this room, in the League of Women Voters and the AAUW put on a forum and we had a Township Manager and a City Manager - They were both married to airline pilots so they came to Kona for vacation and we had them talk to us and the Head of the Neighborhood Board of Oahu. A lot of this material that they brought was from that City Manager so that information - It’s very valuable to have somebody in that role talk to you about what it’s like.

RAY: Was that something you would like?

HERKES: Yes.

RAY: Okay. John.

SANTANGELO: I didn’t mean to say that more information, and as sensitive as Mr. Balog wants to be, I agree with a certain part of that. What I want to know is are we interested in pursuing this and the point that Kevin brought up was, and part of that discussion would be at what cost. There’s things that have been discussed like nonpartisan and other things that may come before us, I wouldn’t want to pursue this at the cost of other things like that. I think those are important. On the other hand, what the public thinks, I don’t know how we can possibly second guess them. This panel was brought together to get it’s collective intelligence to look at things and say do we feel that this would create a higher quality of life for the County, and if we do, let’s pursue it, and that’s what I’m wondering. How do we feel about this and can we take a straw poll to pursue this or not?

RAY: Mr. Balog, and then let’s call for the vote.

BALOG: I agree with that, with the last part. We were brought together, and it’s true for us collectively, to think if you do make a change, if it’s for the betterment of the County and we had a summary that was put out and if you go by this summary, there’s some things on here that are real hot items that a lot of guys spoke out against and some items that nobody’s talked about period. One person brought up and no one else but I just think that John is right, that we have to just, for us to know right now, if we’re going to pursue this, let’s do it and if we aren’t and we feel it wouldn’t be for the betterment of the County, then you go that route too, but whatever it is, just get it over with and let’s do it. Don’t keep saying well, let’s see if we need more information or less information, or whatever. If we’re going to go for it, worry about how you’re going to do it after you figure out you’re going to go for it but take a straw vote to see if you’re going to go for it.

BESS: Coming back to why this City Manager appeals to me is because it appears to be an efficient, professional form of government. It may or may not be at lower cost. It certainly seems to provide for a greater degree of accountability. Those are the things that I would like us to focus on and I’m not necessarily hung up on going City Manager. If we can play with the existing Charter and achieve those same attributes, I’m hot for it and I would certainly be willing to go the route of exploring, and early on in the issue, a look, are we going to provide for more professionalism and accountability in terms of administering this government and let’s see where we get with that. And come back to City Manager if we realize the structure itself doesn’t provide for that. I’ll pull back from - I’m appreciate hearing from the guy from Georgia. It’s not a function of more information, it’s a function of really discussing this and really coming to an honest opinion about whether or not we really want to go this route or not but I look at the practical side of this, about going the City Manager and think, my goodness, maybe John, your idea is best. Let’s look at the Charter and try to fine tune it with these attributes that are so, to me, very appealing about the City Manager form of government.

RAY: Okay. Ms. Irvine.

IRVINE: John, could you speak to what you think might be able to be done with the Managing Director’s position as it is, that would make it more like this Council Manager?

RAY: I haven’t come up with anything really dramatic or exciting. I’m still working on it. It would be hard and it really boils down a lot to who the person is. I mean, right now if you had the person that were so inclined, I think they could creatively do a whole lot with our present structure of government to make things much more professional in terms of how it is structured. Mr. Martin.

MARTIN: Just a point of clarification. I know we’re going to take this straw vote very shortly here but we have two members missing so just keep that in mind.

RAY: Okay. Let’s just have a show of hands of who would like to at least pursue this further to the point of us following up on some of these additional websites, this new contact we’ve gotten that Curtis brought up and see where that leads us, so show of hands, your right hand.

HANDS RAISED: E. Alonzo, S. Bess, M. Herkes, S. Irvine, J. Santangelo, G. Yoshiyama

RAY: So for now, we will see what we can pull together and I’ll also see what I can come up with and -

MARTIN: If I may. So now you’re going to allow our counsel to also pursue his endeavors in finding more information for us?

RAY: In a limited way, not -

MARTIN: I think we should release the hounds. That’s what the body just indicated.

HERKES: You have to pay for them when you release them, you know. We’ve only got $97,000.00.

BALOG: Hey, that’s the breaks. Go back to the Council and ask for more money.

RAY: Agenda. New Business. We’ve concluded for this evening, the discussion on the Council/Manager form of government so we’re going to proceed to item B. Charter Review- Articles I, so page 2, Article I. Does anybody have any input on this initial short Article I?

BESS: Mr. Chairman, I would move that we tentatively, with the ability to come back, approve the language in Article I, as stated in the present County Charter.

MARTIN: Second.

RAY: All in favor?

COMMISSIONERS: Aye.

RAY: Our first act. Progress. Okay, now we’re on a roll. Article II.

BESS: So moved.

HERKES: Second.

RAY: Any comments on Article II? No? All in favor?

COMMISSIONERS: Aye.

RAY: So this is all just very tentative. Okay, now to get more into the meat of it, to move to Article V, CHAPTER 2, CORPORATION COUNSEL, which I think we’ve already addressed as well as we can this evening.

CHAPTER 3, DEPARTMENT OF FINANCE. Unfortunately Mr. Takahashi is on vacation right now so otherwise he would have been here this evening. As you know, he’s submitted a fair amount of material to us so my suggestion is that we - There’s some things we could discuss without him here, one thing that I think came up was - no, the qualifications is covered in another section so does anybody have anything they want to discuss on Department of Finance this evening? Ms. Herkes.

HERKES: The third sentence in (e) - there’s something wrong with it and I think they’ve left part of the old Charter in there. "Examine all contracts...." and then after the semi-colon, "approve every such document shall be subject to director of finances’ approval but the director of finance shall not approve...." so I think I’d take out from "shall" to "approval" and then it reads all right. I think they’ve just left something in there from the other one.

"(g) Maintain a general accounting system for the city" which I agree with. "Require all county agencies and executive agencies to report and remit all receipts to the finance director as often as the finance director deems desirable." You guys that were on the Council, is that something - that seems to me to be kind of nitpicky. Seems to me that you give the agencies and executive agencies a budget, tell them what they can spend their money on and then you let them spend the money on it.

RAY: I’m not aware that that was an issue, certainly not a problem that I’m aware of, Marni, but we can -

HERKES: It was an issue when the Mayor was the Finance Director, I know that.

IRVINE: I think it was the problem of shifting funds from one place to another.

HERKES: No, it was the problem that every single receipt came across. I mean if a department head wanted to go to Honolulu, and it was in his budget, he had to come and ask permission of the Finance Director. That’s ridiculous.

SANTANGELO: That’s not the case, is it?

RAY: Not that I’m aware of.

HERKES: Not anymore, I don’t think.

SANTANGELO: That certainly wasn’t my -

HERKES: I think it was changed by the Mayor. But remit all receipts to the Finance Director - is that something that belongs in a County Charter? It just seems to me that that’s -

BESS: Well, if there’s a question in his mind, it just leaves him the discretion to be able to just do a quick check and see if people are abusing their authority.

HERKES: If it isn’t desirable, he doesn’t ask for it.

BESS: Yes, if there’s no reason for it, he doesn’t have to do it.

SANTANGELO: And Harry’s a pretty reasonable person. It might be good to at least get him to answer that, Marni.

HERKES: I’d like to just pursue that to see whether that’s - yes.

RAY: Okay, yes, earmark that and let’s follow up on that with Mr. Takahashi. Anything else under Department of Finance?

HERKES: The Auditor, when not in conflict with the Charter. The Auditor of the County is provided by law. Do we have an Auditor or is the Treasurer our Auditor, or is that something you want to leave? That came up before, yes.

RAY: That is a discussion which we have already embarked on with Mr. Takahashi so I’d like to have him here because that’s something that we very much need to talk about and address.

HERKES: Okay.

IRVINE: John, yes, I feel that’s a big subject too because every time the County gets audited at the end of every year, the outside Auditors say we need to have an internal audit and I do have those papers. I guess I haven’t passed them out to everyone because maybe we didn’t have our Secretary doing that at that time but maybe everybody should get these papers and I’ll pass them out. But Takahashi talked about the problem. There’s a Legislative Auditor at the County Council and then if we set up an Auditor here, and he was worried that they didn’t have specific duties to find, in his testimony.

RAY: In both cases, right? So it creates a lot of misunderstanding.

IRVINE: Yes, so I wonder, would it make any sense to ask the Legislative Auditor to come by when he’s here to discuss this so that we could clarify what we’re doing? I mean, or is Legislative Auditor a good name for what goes on in that office? Maybe it just creates confusion.

RAY: Right, yes, we can pursue that, sure. Okay. Also under the Department of Finance, 5-3.4. The Pension Board. Have we received anything?

HENRY: No sir.

RAY: Does anybody have any thoughts in regard to the Pension Board?

YUEN: This covers a small group of people. This is old County pensions and Gary will probably explain this better than I do but this is not the pension system that everybody’s in now. This is people that are on these really old County pensions. That’s who’s covered by this Pension Board.

HERKES: Do we need this Pension Board?

YUEN: They have one and I think that things do come up under these old pensions and there is a Pension Board like this. Ronnie?

(Indiscernible comment from one of the guests.)

BESS: Does this Pension Board currently have any control over any funds? Did it actually serve as fiduciaries in the management of pension funds or have all their funds been transferred to ERS?

RAY: I don’t know.

YUEN: I’m just going by memory here and I don’t think that they actually invest funds or handle funds. I think that they do things like who is a beneficiary when somebody dies and they didn’t designate. There’s a very limited responsibility of this Pension Board. I just remember when I was serving in Corporation Counsel, I talked to somebody who’s on this Pension Board who was not very happy because they didn’t have anything to do and was commenting how little responsibility and how few people were involved in these pensions. Beyond that I really can’t say anything but I’m pretty sure that they’re not sitting on a stash of money and investing it.

IRVINE: We do have a letter dated April 29, 1999 from the Department of Finance to John Ray concerning the Hawaii County Pension Board and they said "In response to your letter of April 15th requesting comments from the Pension Board, we placed the subject on the agenda for our next meeting, June 1, 1999" and it’s signed by Ruth Walker. She says "we will submit our comments shortly thereafter." She’s the Chair of the Hawaii County Pension Board. So maybe we should just follow up with a letter to Ms. Walker and ask her to justify their existence.

RAY: We have. You remember our second round of follow-ups went out but we’ll follow up and make sure something wasn’t lost in the loop there.

Let’s take a five or ten minute recess right now and get everybody back before we proceed to the Planning Department discussion.

RECESSED The Chairman called a short recess at 6:40 p.m.

RECONVENED The meeting reconvened at 6:54 p.m.

RAY: I’d like to reconvene the meeting. I’d like to welcome our newest Commissioner, Dr. Daryl Kurozawa who just arrived all the way from Kailua-Kona.

We’re now at CHAPTER 4 PLANNING DEPARTMENT. I’d like to mention for the record that we have yet to receive any formal comments from the Planning Commission. We have solicited those but as far as I know, they haven’t formally agendized. Maybe we can come up with some discussion this evening that will encourage them to do so. But anyway, let’s just go ahead and start our initial discussion on this CHAPTER 4 PLANNING DEPARTMENT. Mr. Santangelo.

SANTANGELO: Well, the one thing, John, that you and I on the Council experienced sometimes, when you have certain things that really bring out the needs and the different needs between people and with this Planning Commission, I’m just wondering if this Board would consider maybe looking at creating another Planning Commission, one East Hawaii, one West Hawaii because it got really obvious to me that there was really different needs there and it would give a certain amount of autonomy to an area that has social/economic differences from East Hawaii. It’s a Commission. I would envision it to be identical to what we have in East Hawaii but to have, not a separate Mayor or a separate County, but again, a separate Planning Commission and we do have past Commissioners here so it’d be interesting to see how they jump to the mike. But that was the thought I had.

BALOG: Well, I don’t know if any of them jump to a mike.

RAY: We did receive a couple of letters that refer to the possibility of separate Planning Commissions for East and West Hawaii and also one letter from Mr. Graham in Hawi which also came up with some suggestions in terms of how the Commissioners would be appointed. He came up with a suggested scenario where the Mayor would appoint a certain number of members and the Council Members would appoint a certain number of members so anyway, that’s an interesting possibility as well. Does anybody have any comments on the idea of separate Planning Commissions? Mr. Balog, I believe, was on the Planning Commission.

BALOG: Just to comment on my esteemed fellow Commissioner’s comments. We actually discussed this item on the Commission level and with the Planning Department and this discussion came out. The final analogy was that the Department, as well as Commissioners that were presently - well, this was about maybe a year or a year and a half ago. Oh, I’ve been off for a long time already so maybe two years ago. They felt that the representation that came as far as what was done in another part of the island was helpful for them to make decisions on their part of the island. They didn’t feel they didn’t have enough representation for their own specific area. It went from that to now being appointed the same way the Council Members are elected specifically by Council Districts so that even further gave the people within those districts more representation instead of having at-large members on the Commission and every scenario that came down - it never came down to when a vote was ever taken. You couldn’t point your finger at something and say well, this was an East vote vs. a West vote on the Commission level which sometimes was said, or was implied, that was happening on the Council level. It was more of a "this is what the Commission felt was best for this particular application and this particular area".

RAY: Kevin, what about the workload and the logistics of making meetings. That’s something that’s always seemed like this Commission, in particular, is just an enormous amount of -

BALOG: There was talk of electing the Commission. Nobody on the Commission was for having elected Commissioners but they were rather in favor of having more - actually the Commission needs more help, assistance on the workload. The main reason why things were done late and the workload was heavy is information came into the Commission two days before a meeting. Eighteen agenda items, a stack this thick, depending on what you’re doing so stuff like that was hard. I still keep in touch with them. They now have two meetings a month but they still don’t have - I think our workload was - we averaged about 25 agenda items a month plus two or three contested cases. They’re down to about 10 agenda items and no contested cases so the workload, from what used to be a lot of workload, has shrunk down and now they have two meetings but there’s people on there now who have said if they had to be appointed and being told if they had to show up to two meetings a month, they wouldn’t have taken that position. So I think there has to be some balance that the people that you are choosing, you have to know that they’re professional people. They aren’t all retired and that they do need some consideration for their time that they’re serving more than just getting mileage and sometimes, when they had to stay at a late meeting because you’re at a meeting in Kona and you live in Waimea, because you aren’t two districts away and it’s midnight, they won’t pay for your hotel room. It’s stuff like that that’s very disturbing to Commissioners.

RAY: Wouldn’t that be an argument for separate Commissions and cutting the workload in half?

BALOG: I don’t think so. Honestly, I don’t because there’s meetings that - they’re few and far between but when something does happen, personally I believe if you’re serving a County in a non-compensory way and something goes longer than what it should go, if you’re tired, the County should allow you to say, I’m tired, I don’t want to drive, I want to rest, instead of saying you’ve got to live two districts away to get compensated to stay in a hotel room. That’s all I’m saying.

RAY: But like you said, if you’re a professional person and you’ve got to be at work the next morning, it probably doesn’t make any difference.

BALOG: Well, they don’t have that problem now.

RAY: Ms. Herkes.

HERKES: I find that the, and Chris, this is probably a question for you too, that the Planning Department is amazingly backward in their communication tools. They will not fax me or e-mail me meeting notices and I don’t know if that’s a State law and I have a feeling that they won’t put their agenda on the web. That they won’t get them to people. They won’t video conference Planning Commission meetings. There’s a lot of things that could be done to make Planning Commissions much more open to the public besides starting a second Commission. I’m not really against a second Commission. I think financially it’s probably not as efficient and I think there is some value in having an island-wide body. I think it does make a more cohesive governance but I think there’s lots of things that the Planning Commission could do to make it less onerous for the general public as well as the Commissioners to comment.

RAY: Is there anything you think, in the Charter, we could do though, to address that?

HERKES: I’m not sure. I’ve been reading it and I don’t see where I could put it in there but I think that we’re trying to solve a problem that has other solutions, meaning that I don’t know if the Charter needs to be changed. Maybe it’s some minds that need to be changed.

IRVINE: Quite frankly, I thought this was a very interesting suggestion because I think that people can’t be asked to volunteer two mornings a month, is what it is right now. They used to just run meetings till midnight as you said, but I thought it was mainly a West Hawaii suggestion that we do split it and I would, as a resident of East Hawaii, be happy to allow a little more autonomy for that side of the island if they feel it would be a good idea or if there’s that notion.

RAY: Okay. Mr. Balog.

BALOG: Just a couple of things. One is we went through Commission rules and what Ms. Herkes is bringing up about notification and trying to get stuff out to the public. Through rule there is so much you can do and I think the Planning Department or Commission has done more probably to get things out noticed than most other Boards of Commissions but the failure with that is that public still has this, quote, feeling that they’re excluded from what happens and we’ve tried. It was the first year when I was Chairman, they did do a few live TV feeds of Commission hearings but it came down to is the County willing to pay for that or not, and the answer was no, and they took their few TV feeds and that was it. I think if something like planning and at least to Planning Department - Personally I think the Planning Department probably should be split up. One should be handling everything except Planning Commission and the other side should be handling only Planning Commission and I’ll tell you the reason why. You have a staff member who works for the Planning Commission but one day a week has to go sit at the front counter. Then you have another staff member who works for the Planning Commission and one day a week they sit at the counter so before you know it, the staff that is supposedly helping this body doesn’t have the time to do their job. And the other thing, it just popped to my mind when Sue said oh, to oblige West Hawaii and East Hawaii to give more autonomy. One of the things that came up was that was brought up by, in fact, I think it was the Commissioner from Kona, Katayama. Don’t quote me on this but one of the things that she brought up was that she felt that if you had two separate Commissions, if Kona made a decision and they looked at a rule slightly differently because you have discretionary views and they said yes or no to a specific scenario and someone didn’t like what they said, they’d come to East Hawaii and say more or less the same application, just in a different place, let’s see what we can do over here. I’m just saying, so they started arguing back and forth and you can say so much to the rule, but every application you’re looking at, as that application right now in that area, and a lot of things that influence a body like the Planning Commission or the Land Board or even the State Land Uses, if you have 50 or 100 people sitting in front of you and seeing your County Council ranting or raving one specific way and there’s been times that you go in different direction than the public and that’s one of the harder decisions to do but in general, if the public in that area comes out strongly and the rule says well, you have discretionary views, just look at if they need it or don’t need and you find, oh well, there’s one thing over here on the rule tree, sub-section A, number 4 that says you don’t need this, they’ll point to that so I’m just saying it was looked at kind of thoroughly.

RAY: Ms. Herkes.

HERKES: Mr. Ray, I believe that Maui has three Planning Commissions, Maui County, they have one in Lanai, one in Molokai and one on Maui.

RAY: They are separate islands so it is somewhat different.

MARTIN: Unless they bridged them in the -

RAY: Wait, hold on.

HERKES: Can I finish my statement? In that context, they are still the same County and they would have solved some of these problems of conflicts and going back to another Commission or something so I would really appreciate it if we could bring somebody from the Maui - I don’t know if whether the Planning Department, whoever’s in charge of the Planning Commissions and ask them how it works with more than one Planning Commission. I think Maui’s the only island that has different Planning Commissions.

RAY: Okay, we’ll get some information on that. Hold on. Mr. Alonzo.

ALONZO: Basically, the Planning Department is understaffed so a lot of times the staff is overworked and when they’re overworked, sometimes there’s a double load of work that has to be done to distribute to the Commission. As far as getting the materials on time or late, there’s a workload on that. Also, a couple of years ago, maybe three or four years ago, County Council wanted to take away some of the power from the Commission but it didn’t pass. Also, like the (indiscernible) Fund, the Commission asked the County Council to take over it and they refused because the workload for them to read up on all the material would take too much time for them and they bring it back to the Commission. But having two Planning Commissions on both sides, yes, you would reduce the workload but when you make decision-making like Commissioner Balog was saying that if you have an application in West Hawaii that isn’t approved, they would come to East Hawaii. This is disapproved but the same format is there and then you’re going to have conflict and the more is going to land courts, end up in courts, or Board of Appeals have to do some research and it will tend to delay projects or further progress on future.

RAY: Okay.

BALOG: I just had one comment about Maui, Lanai and Molokai deal. It’s hard to compare that County having three Commissions with splitting a County that is in one land mass with that and I’ll give you the reasoning behind that. In theory, this island has two major towns, or I guess they’re called towns, or cities or whatever you want to call them and in that sense, because you have on one island, similarities in East Hawaii and West Hawaii. It’s driveable. They’re connected by roads, land mass, that’s one thing. You couldn’t take, I believe, some projects that were applied for on the island of Maui and take that project to Molokai because it wouldn’t make sense to a developer or whatever. You could possibly take a project, in my opinion, that is for East Hawaii, if you wanted to have, let’s say, what don’t we have over here? We don’t have, what is that hardware store?

SANTANGELO: Eagle.

BALOG: Eagle. Let’s say Eagle wants to come into East Hawaii and the people where they go, say they don’t want Eagle and they still put in their application. They have to go through a permit process. They get denied. Then Eagle goes to Kona and they say this Commission over here denied us but we want to come to this island. Here we are. And the people in Kona say well, eh, right on. And it’s almost the same application, the same situation. They’re denied in one place based on supposed rule and in the other place, they could possibly be approved because people come out and testify in favor. So how do you say one rule was wrong, apply this rule here and say, well you’re denied because of a rule and over here you’re approved because of rule? I think it’s a tough, tough answer.

RAY: Mr. Santangelo.

SANTANGELO: The reason I brought it up is, and I wouldn’t want to do something because it would make a certain people feel good, but if we look at administratively, like you said, efficiency, workload and then taking the social/economic similarities in areas and we are more agricultural over here and they have differences in West Hawaii and that very thing that Kevin brought up is the reason why I would favor something like that. If the East Hawaii, and you delineate where the authority is, and if in East Hawaii they did not want this Eagle but in West Hawaii they did, that would just show that there’s a difference in needs, wants and if it was approved over there, that’s the way it should work. And so in looking at, again, the expense is one thing but the travel, the ability to serve and to do the work properly, it seems to me that it makes sense in this instance especially, more than anything else in government, and a way of testing it that the Commission could be a nice way of checking this out. So, I see the very argument supporting that.

RAY: Steve, Mr. Bess.

BESS: One of the things that concerns me is I think there’s a need for a General Plan, the entire island. There may be functions that make sense to split off but certainly with regard to coming up with a General Plan rather than the implementation of a zoning ordinance or a particular variance action, that you ought to have a General Plan and that would go against having two separate people coming up with their own plan.

SANTANGELO: Once every ten years, yes.

BALOG: Well, that’s been debated too.

RAY: Hold on.

BESS: No, I would hope that any splitting off, if there were to be splitting off, that these people are governed by the General Plan, right?

RAY: Sure.

BESS: And that there is a uniform application of what that General Plan means.

RAY: Absolutely, but you could under law have a pass by ordinance, any number of designed districts or whatever and it wouldn’t operate any differently, right? They all operate under the General Plan and then you’d have a specific Regional Plan or a Commission or group that dealt with that so I don’t see that would be any different.

BESS: So when it comes to Regional Plans, let me ask, do you see that the Planning Commission, if there was a Planning Commission in Kona, would have their own ability to come up with their own design, standards -

HERKES: We have a design.

BESS: Yes.

RAY: Excuse me.

HERKES: Okay. He was looking at me so I - sorry.

RAY: I think we’re talking about two separate things as far as

BESS: I may be confused, sorry.

RAY; Ms. Herkes.

HERKES: I renew my request for Maui to come. They have a General Plan. They have Regional Plans. They have all of these problems and they have some of the answers. I’m not speaking, however, in favor of separate Planning Commissions and I’d like to also say that the rule that the Eagle Hardware would be approved on one side and disapproved on the other would be a Restrictive Business Practice Rule and I would not be in favor of the Planning Commission doing that. Go ahead.

IRVINE: I was going to say concerning General Plan vs. the kinds of things that the Planning Commission does by way of permits and SMAs and things when they actually have power to do something, under our Charter it says they review the General Plan and make recommendations and this other permitting processes could be done on either side and when it’s time for a whole General Plan, we’d have to see, maybe, how Maui does it or whether another Commission is brought together or whether they would work together on that.

RAY: I think everybody would work together on it and everybody would be part of that process. I don’t see that as -

BALOG: Could I ask one question, though? We kind of got on this just to see if it would make sense but if we’re looking at the Charter, to me, how to make it more serviceable to the general public, my million dollar question for even going and inviting somebody from Maui to explore why or how it works and what makes it tick, is how much will the public benefit if we go on this route and we see if it makes sense to split a Commission. So what we’re paying for now one, we pay for two times by two Commissions because right now the staff that’s doing the work, if you look at it in general, the bulk of the work for the whole island is being done by the same staff and if you’re going to start going down a road where you’re going to be saying here is one for this region and here’s one for that region, I guarantee you, you’re going to have to increase staff. You’re going to have more Commissioners and to me, having served on the Planning Commission, personally I think it’s too burdensome to two parties. One is anybody that wants to come and testify for or against it. That’s to me what I call a party. And the second is the applicant. So if you look at what people have to go through to be part of a planning process, to me it’s too much. It’s just my personal feeling. I just don’t see how we’re going to benefit the public by having two Commissions.

ALONZO: Spend more.

BALOG: Just to say that, oh, we’re going to have nine people from this regional area, or it could be seven people from this regional area, to make that decision for that regional area so we’re further going to try and split up Council Districts or whatever it is, to say here’s your membership. Now you guys have an odd number of people and this is what you need and this is the rules you’re going to follow and here’s your staff and that’s what you’re going to do. I really disagree. I think it’d be, in my honest opinion, a waste of our time.

SANTANGELO: Just a quick comment. If you have two Commissions, I don’t see how that generates any more applications. You’re dealing with the same amount of work. You’ve separated that over two different bodies that might have, and that’s the only reason for bringing this up - I haven’t served on the Planning Commission, I have no prejudice one way or the other but may have a better expertise in that area and maybe a little more accountable within that region, again bringing into account the social/economic similarities that they have, but the same amount of work. I mean, as far as the Planning Department goes, they’re going to have to deal with it one way or the other. You just send it one direction or the other. And that’s not to be meant as an argument pro or con. It’s just meant as information. Thank you.

RAY: Marni.

HERKES: As far as asking for a change in structure in permitting, would that effect any of the work of the Planning Commission or the Planning Department?

RAY: I don’t believe so.

HERKES: Not in any way?

YUEN: Not the proposal that they were making. Those were all permits that are issued by us on a staff level, not on a Commission level.

RAY: Steve.

BESS: This whole idea of two Commissions. Is this because of the unresponsiveness of, or the inability of, the current Planning Commission to handle their workload? Are the decisions too slow?

SANTANGELO: No. I’ve seen personally, with the stuff that they send to the Council, I’m really glad they’re there because there’s only so much work you can do and approving certain things, it was good to know the work that they did and to go over and look at the recommendations.

BESS: So you don’t see that by splitting these two it’s going to speed up things at all?

SANTANGELO: I think it makes it more efficient that the stuff coming to the Council, and they are making decisions that are law, which I struggle with myself, but they’re making decisions that have the effect of law and so you want some accountability. You want to know the work’s being done. There’s a tremendous amount of work so there is something to do with splitting it. Mostly, Steve, it has to do with being closer to the people and making decisions that impact the lifestyles in those areas and having a little more autonomy over that because there is such a huge difference.

BESS: So the real thing here is that socio-economically, there’s such differences that the Kona people feel that the East side is not sensitive to their regional needs?

SANTANGELO: I don’t think that’s it at all.

BESS: No?

HERKES: I don’t think you can say that.

SANTANGELO: No.

BESS: I’m missing something then. Where’s the problem?

RAY: Okay, I feel -

BALOG: Let’s take a straw vote. I’ve got to go and I don’t want to leave in the middle of a discussion.

RAY: Well, we’re not going to decide anything tonight.

BALOG: Well, good. Can I go then?

RAY: Sure.

BALOG: Thank you.

BESS: I just don’t understand -

RAY: I think it’s very much a home rule issue. It’s very much an East vs. West Hawaii issue because I hear this all the time in West Hawaii so that’s the main input I get is that it would be a decision made more closer to home and more reflective of desires and the situation in West Hawaii that I hear more from than East Hawaii but Chris and I were talking about this a couple of days ago and he brought up interesting points which I hadn’t really thought about and kind of pros and cons and if you think about it, say resort development in West Hawaii where a substantial amount of the employment may come from East Hawaii so then you’ve got West Hawaii deciding presumably for West Hawaii but are they really when maybe the employment base is in East Hawaii. So that’s kind of an interesting point that he brought up which would be an argument against separate Planning Commissions. In other words, deciding some things supposedly for West Hawaii that could have a significant impact on East Hawaii. That’s just part of it. But to answer Steve’s question, yes, I think the main input I hear has to do with more of a home rule issue. Kevin.

BESS: Is it a home rule with Kevin mentioning that the votes coming down in the Planning Commission don’t appear to be by district?

RAY: Well, that’s his read on the thing. I don’t necessarily agree or disagree but I definitely know that that’s not the perception with a lot of people in West Hawaii.

HERKES: It’s more perception.

IRVINE: Perceptions are very important and I think that’s what I hear from West Hawaii.

RAY: And part of my interest in this is trying to heal the ill will and conflict between East and West Hawaii. I think this is something that interests me because it might be a way to address this issue in a lot of people’s minds.

I thought you’d gone.

BALOG: I wanted to say something before I left.

RAY: Okay.

BALOG: I know everyone goes to this perception and I always hear everybody tells me this and everyone tells me that. I sat in the hot seat for three years, more than any other person, so I can tell you for a fact, I had people like Barney Herkes, who I never knew before, "oh, this is a good project, Kevin".

HERKES: On what?

BALOG: The school.

HERKES: Hualalai?

BALOG: Whatever it was. I don’t even remember them because I don’t want to remember them. There was too many of them.

HERKES: I don’t remember that either.

BALOG: But I remember you walking up to me. I honestly believe this. This perception that people think that oh, you’re going to do this big favor if you have two Planning Commissions. You know what’s going to be the next thing? On you know what, the guys in Puna, out there in Pahala, they need one too because they’re different from the guys in East Hawaii. Gee, those guys in Waimea that everyone perceives are a bunch of S-N-O-B-S. Well you know what, they need one too because they all think they’re better than the guys in Hamakua and the guys in Kona. So I’m just saying we’re sitting here saying that there’s this perception that ill will and mending feelings and stuff - I don’t believe that. There’s been certain decisions I can honestly say, that in general, there’s been people in the public who’ve been pissed but you know when any Board, and I’m sure Chris can tell you this, they do something, I would say, 90 to 95% of every Board’s decisions goes unnoticed. People agree with the decision, eh, no one ever wants to print in the paper "good job" but when there’s ten loud mouths in a community that want to grumble that they didn’t like that decision, then all of a sudden there’s - here’s comes the word - there’s this perception that people aren’t looking at the feelings of the people in that area. I’ll tell you personally, I was pissed at Chris as a Board Member when he voted against OJI. I was there as a member of the community supporting timber. I went. I read my deal. He voted against it but I thought why couldn’t he listen me so I felt the shoe on the other foot and I was thinking, you know what, I must not be seeing the whole picture. I know what my interest was but obviously, there was interest of other people so it made me respect, in that sense, how people felt in different ways and I just don’t see this big thing that there’s this big fence to mend. I mean, we’ve done stuff that people have gotten upset in Waimea and people always will get upset at some decisions but 95% of the time, or 90%, let me tell you, it goes unnoticed and they agree with every decision that Board or Commission makes, whether it’s Planning or any other Board or Commission. But it’s the few decisions that people think make or break their life and they want to appeal it to the Supreme Court, and they have that right, but it doesn’t mean that that body is insensitive to those people’s feelings in that area. It just means that, to me, the system works because everybody on any decision has that right, but some decisions people feel are more serious or more sensitive than others and I felt honored when someone appealed one of our decisions because it tested that we, as a body, came to a decision the right way and when it was appealed, if it was overturned, we could look at it and see what we did wrong. And if it wasn’t overturned, right on, we did our job. But I don’t see 5,000 voters on West Hawaii asking for a West Hawaii Commission because they’re upset at the insensitivity that the Commission has portrayed over this period of time, but that’s just my opinion.

RAY: I think people do feel very disenfranchised from government and in fact, this whole issue of home rule and whether it’s a separate West Hawaii County or whether it’s townships or whether it’s neighborhood boards, you know Hawaii is unique in the United States in that we have no government below the County level. There’s nowhere else in the United States, Kevin, where whether it’s Puna or whether it’s Waimea or whether it’s Hamakua, everywhere else in the United States, they do make their own decisions. That’s the way it works everywhere else. Hawaii’s the only place that we have this level of State control and this level of County control so it’s a very real issue with a lot of people and whether this is the answer or whether this is something to move in that direction, I don’t know but I think that’s where it’s coming from.

HERKES: I’d like to throw out that we could probably replace the Planning Commission, both of them, with neighborhood boards and or townships so that’s another facet that we could talk about, whether we have a Planning Commission at all.

BALOG: Actually, just to let you know, I think you’d have to get a reading from your attorney because you would have to go back and look how many times Planning Commission or whatever is in the State law that delegates those specific power to the Boards. Because it was discussed too. We had brought that up too, Marni.

YUEN: I did write you a letter on sub-governments and I said that I wasn’t going to talk about whether you could organize Commissions specifically because it would be different for each Commission. There is a significant legal issue about whether you could have two Planning Commissions that have actual power. This is going to sound a little bit similar to my discussion of the Managing Director, the County/Manager form of government, except that I have more hesitation in saying that the County has the freedom to organize itself with two Planning Commissions than I do about saying that you can go to City Manager form of government. First of all, you have to separate it out. The Planning Commission has advisory powers and it has some actual permit granting powers. The advisory powers are on things like rezonings and general plan amendments. Those go first to the Planning Commission but whether the Planning Commission votes up or down, they still go on to the County Council for final action. The Planning Commission, though, does have the power to grant the SMA permits, special permits which are unusual uses in agricultural districts like if somebody wants to build a church in an agricultural district, certain use permits like golf courses, amusement parks, that need a use permit in some zones. The legal question comes about because State law that gives the County zoning and permitting power says that the County shall have a Planning Commission. Now is this just another accident of the fact that they weren’t thinking that you might want to have more than one Planning Commission or do they mean a Planning Commission, one Planning Commission. I say this as a significant question and I’m aware that Maui County’s organized itself now so they have three Planning Commissions. That has never been actually challenged in court. Nobody who’s been denied a permit by the Molokai Planning Commission has ever gone to court and said, no, no, you can’t have a Planning Commission that’s just set up for part of the County. This is something that can be argued either way and I think that again, partially because of my bias that the County, if the voters of the County so choose, that they ought to be able to organize themselves how they want. I would say that the County should be able to have two Planning Commissions but I do have a great deal more hesitation in saying that, and I say that with a great deal less certainty than I feel about the City Manager. The way this would come up, and just to give you a scenario that you can hang your hat on, would be that suppose there was a major project that was proposed in, let’s just say it was proposed in Waikaloa that needed SMA permit and say that it was such a major project that it had impacts that carried over to other parts of the island, as it very easily could. It might be projected that a good deal of the employment would come from East Hawaii, that it would effect traffic in Hamakua on the Belt Highway. It would have effects outside of the West Hawaii District, but let’s say that it just went to the West Hawaii Planning Commission and let’s just, for the sake of this example, say that it passed but that there was a strong opposition to it that took it to court and said that you cannot make a decision like this with a Planning Commission that represents only part of the island because they are not considering the effect that this may have on the other part of the island, the people who are not represented, and ultimately it would come down to this question of whether the State Legislature was serious and meant one Planning Commission when it said a Planning Commission and you can say they just worded it that way but you could also say that there was a conscious decision that you ought to make planning decisions on an island-wide basis. I hesitate to predict how this would come out if it were in a court case. The difficulty, again, similar to what we talked about with the City Manager but perhaps more severe, is that it does create a degree of uncertainty in the planning process, like for this applicant. It would leave the side that was a losing side a legitimate legal issue that could be raised against the decision by either of the Planning Commissions on either side. I’m giving you this somewhat off the cuff and I haven’t researched it in any great detail but I do want to mention that this is a real question. I talked to Corp Counsel on Maui about this when I was working on the request that I look at sub-governments because I thought I would get into this Planning Commission question but it was a little more complicated and I wanted to finish that letter that I was doing on having multiple County governments. They hadn’t really thought about it that way, as being a big question and nobody had challenged it in the County of Maui and I think for obvious reasons, a decision on Lanai is not going to effect people who live on the island of Maui that much, by in large. They’re not people who commute back and forth whereas on this island, of course, even though you live in a particular district and a permit may be granted in one district, the people who work there may come from another district. People may drive through there and be effected and it very easily could effect your life even though it does occur in another district.

RAY: Other comments?

HERKES: That’s the end of that. Thank you, Chris.

RAY: Well, this is not anything we’re going to decide tonight and we haven’t even heard anything from the Planning Commission.

BALOG: I did tell the current Chairman, Tanaka, and I have talked to the Director, to please make sure they get our comments to us by the next meeting so they do have a meeting, I believe it’s this coming Friday and they were going to have some discussions and try and get a letter to the Charter Commission.

RAY: Okay. Good.

BALOG: So I did make some contact for you.

IRVINE: Should we tell them we’re looking at the possibility of two Planning Commissions so they could address that?

RAY: Yes, I’ll correspond with them. Okay.

BALOG: Can I be excused, Mr. Chairman?

RAY: Yes.

BALOG: Thank you.

RAY: Let’s have a brief recess, just a couple of minutes. What’s everybody’s pleasure? You want to keep going?

RECESSED: The Chairman called a brief recess at 7:40 p.m.

RAY: Let’s reconvene the meeting. We’re going to stop with the review, CHAPTER 4, and when we go back into the Charter, we’ll start at CHAPTER 5, and left on the agenda, Announcements.

The next meeting is going to be two weeks from tonight, a Special Meeting the 25th and I’d like to start the meeting at 3:00 p.m.

HERKES: 3:00 p.m.?

RAY: Yes, at 3:00 p.m. that day and I’ll go over with Sharron, the agenda and we will put some other items on the agenda in the Charter Review Section so whatever time we have that we want to spend, we can get as much done as possible so since we have embarked on this Council/Manager-Managing Director discussion, it might be fun to look at the Managing Director section and discuss that under ARTICLE 6 and then Public Works, if we can schedule to get them here. We’ve already gotten quite a bit of input from them so that’s another good discussion we can start working on and follow through and then maybe take up Parks and Recs, as well. Okay? Move to adjourn?

SANTANGELO: Move to adjourn.

ALONZO: Second.

RAY: Okay, all adjourned. Thank you.

The discussion ended at 7:45 p.m.

Respectfully submitted,

Sharron Henry

Secretary-Administrative Assistant