2008 Amendment Proposals and Our Recommendations
by Linda Pascatore 12 October 2008 revised by Jonathan Jay 20 October
It was very difficult to find these amendments. I had no luck online at any government websites. Mahalo to Jonathan Jay, who called the county and had the pdf e-mailed to him. You may find a few errors made in converting the PDF to text. The document states that the order of these amendments will not be the order on the ballot, the amendments will not be numbered, and the title on the top will not be on the ballot. The ballot will show only the ballot question,
with no number or announced order. All of these factors seem to add to the confusion.
County Charter Amendment Proposals
PROPOSAL NO. 1:
RELATING TO COUNTY ELECTIONS
Island Breath recommendation-- Vote Yes
Currently, if they receive a majority in the primary, they are automatically elected. This can be a problem because many people don’t vote in primary elections, but still assume they will have a voice in the general election.
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1. Text
Section 1.03, County Elections
B. First nonpartisan election. To the extent possible, the first nonpartisan election shall be held in conjunction with the primary election of the applicable year.
1. Offices of the Mayor, Prosecuting Attorney and Council members to be elected by districts, if any. In the case of the offices of mayor, prosecuting attorney, or any council members to be elected by districts, [any candidate receiving a majority of the votes cast for that office shall be elected] the names of the two candidates receiving the highest number of votes for these offices in the first nonpartisan election shall be placed on the ballot for the
second nonpartisan election. However, if there is only one candidate for each of said offices, such candidate shall be elected."
Note: Charter material to be repealed is bracketed. New charter material is underscored.
2. Ballot Question
" Should the Kauai County Charter be amended to require that the two candidates who receive the highest number of votes in the primary election for the office of mayor and prosecuting attorney, regardless of whether a candidate receives a majority of the votes cast at the primary election, run in the general election?"
PROPOSAL NO. 2:
RELATING TO COUNTY COUNCIL EXECUTIVE SESSIONS
Island Breath recommendation-- Vote NO
Since Kauai’s Sunshine Law currently requires more openness than the State statutes, a yes would be a vote for allowing more closed meetings.
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1. Text
Section 3.07. Organization of the Council; Officers; Rules; Employees
" E. The council shall meet regularly at least twice in every month at such times as the council may prescribe by rule. Special meetings may be held on the call of the mayor, chairman or by five or more members. [With the exception of deliberations relating to confirmation of appointees, or consultations with the county attorney on claims, all council and council committee meetings shall be open to the public.] All council and council committee meetings shall
be open to the public except as provided for in Charter 92, Hawai'i Revised Statues."
Note: Charter material to be repealed is bracketed. New charter material is underscored.
2. Ballot Question
"Should the Kauai County Charter be amended to conform to state law requiring that all meetings of the County Council be open to the public unless allowed to the closed under the State Sunshine law, Chapter 92, Hawai'i Revised Statutes?
PROPOSAL NO. 3:
RELATING TO BOARDS AND COMMISSIONS
Island Breath recommendation-- Vote NO
County board members are public servants and should not be testifying on behalf of private interests. |
1. Text
Section 20.02. No officer or employee of the county shall:
D. Appear in behalf of private interests before any county board, commission or agency. Provided however, county board and commission members may appear on behalf of private interests before any county board, commission or agency except the board or commission on which they serve."
Note: Charter material to be repealed is bracketed. New charter material is underscored.
2. Ballot Question
" Should the Kauai County Charter be amended to expressly permit county board and commission members to appear on behalf of private interests before any county board, commission or agency except the board or commission on which they serve?"
PROPOSAL NO. 4
RELATING TO IMPLEMENTATION OF THE GENERAL PLAN
Island Breath recommendation-- Vote YES
This amendment gives the council power to approve any application for more than one transient accommodation unit (vacation rental). It also requires a public hearing for more these units. It limits the rate of increase in transient accommodation units in the county to no more than 1.5% per year, or within the planning growth rate of a future general plan.
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1. Text and Ballot Question "Shall Article III of the Charter of the County of Kauai be amended by adding new sections to read as follows:
SECTION I
Article III of the Charter of the County of Kauai is hereby amended by adding a new Section to Article III to read as follows:
Implementation of the General Plan
A. The power to process and to issue any zoning, use, subdivision, or variance permit for more than one transient accommodation unit shall be vested in and exercisable exclusively by the council. As used in this Section, "transient accommodation unit' shall mean an accommodation unit or a portion
thereof in a hotel timeshare facility, resort condominium, fractional ownership facility, vacation rental unit or other similarly used dwelling that is rented or used by one or more persons for, whom such accommodation unit is not the person's Primary residence under the ~Internal Revenue Code.
B. Any applicant seeking the issuance of a zoning, use, subdivision or variance permit for more than one accommodation unit shall certify to the planning department whether
any use of the units as a transient accommodation unit is projected by the applicant. Prior to granting any such permit for a transient accommodation unit the council shall conduct a public hearing and make a finding that granting such permit would be consistent with the planning growth range of the general plan and in tile best interests of the county and its people Approval of any such application shall require a favorable vote of two thirds (2/3) of the
entire membership of the council. Appeals of any decision by the council relating to such permits must be instituted in the circuit Court within thirty (30) days after entrance of the final decision of the council.
C. The council may by ordinance authorize the planning commission to process and issue such permits, or certain of them, on terms and conditions as the council may deem advisable, only upon the council's enactment of a rate of growth ordinance that
limits
the rate of increase in the number of transient accommodation units in the ,county to no greater than one and one half percent (1.5%) per annum on a multiyear average basis, or such growth rate that is within the planning growth range of a future general plan adopted pursuant to Section 14.08.
SECTION 2
The council shall adopt such ordinances, laws, rules and regulations as are necessary to carry out the terms and intent of this amendment to the Charter
SECTION 3
If any Provision of this amendment shall be held by a final order of a court of competent jurisdiction to be invalid, all of the other terms of the amendment shall remain in full force and effect."
PROPOSAL NO. 5:
RELATING TO DISCLOSURE OF INTERESTS
Island Breath recommendation-- Vote YES
This looks like a simple conflict of interest issue
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1. Text
Section 20.04. Disclosure
A. The mayor, councilpersons, all department heads and deputies members of boards and commissions and the purchasing agent shall, within thirty (30) days of assuming office, file with the board a list of all property within the county in which he has right, title or interest, a list of all business firms which contract for county business in which he has any interest, and all their places of employment, including part-time employment, all sources and amounts
of income, business ownership, officer and director positions, debts, creditor interests in insolvent businesses and the names of persons represented b(~fore government agencies. Amendments to the list, including additions, deletions or changes in title, interest in property or of employment, shall be made with in thirty (30) days of the occurrence of the amendment. The list shall be a matter of public record.
[B. Any elected or appointed officer or employee who possesses or acquires such interest as might reasonably tend to create a conflict with his duties or authority shall make a full disclosure to his appointing authority to the council, in the case of a member of the council, or to the board or commission on which he serves at any time such conflict becomes apparent. Any member of the council or any board or commission who knows he or any member of his immediate
family has direct financial interest, or that he or any member of his immediate family occupies a position of leadership in an organization which has a direct or no financial interest in any proposal pending before the body of which he is a member shall disclose such interest to such body. No appointed officer or employee shall participate, discuss or vote on such pending matter unless his vote is required to establish a quorum to act on such matter.]
B. Any elected official, appointed officer, employee, or any member of a board or commission who possesses or acquires such interest as might reasonably tend to create a conflict with his duties or authority, or who is an owner, officer, executive director or director of an organization, or whose member of his immediate family, which includes parents, siblings, spouse or children, is an owner, officer, executive director or director of an organization in any
matter pending before him shall make full disclosure of the conflict of interest and shall not participate in said matter.
C. Penalties
(1) Any violation of any of the provisions of this section shall at the option of the director of finance, render forfeit and void the contract, work, business, sale, or transaction affected.
(2) Any violation of the provisions of this section shall constitute cause for fine, suspension, or removal from off ice or employment.
D. The council shall, by ordinance, adopt, and may, from time to time, revise and amend such complementary provisions as may be necessary to supplement the code of ethics.
E. The mayor, the council, and the board of ethics shall be responsible for the enforcement of provisions of this article."Material to be deleted is bracketed.
New material to be added is underscored.
2. Ballot Question
" Shall an elected or appointed officer or employee, or member of a board or commission not be allowed to participate in matters pending before them where the member or any member of his immediate family has a personal financial interest or an organization in which they occupy a leadership position has a direct financial interest?"
PROPOSAL NO. 6:
RELATING TO THE OFFICE OF THE COUNTY AUDITOR
Island Breath recommendation-- Vote YES
This will foster more accountability for use of public funds.
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1. Text
" ARTICLE XXXII
COUNTY AUDITOR
Section 32.01. Office Established, County Auditor
A. There is established within the legislative branch an office of the county
auditor, to be headed by a county auditor who shall be appointed by the county council and shall serve for a period of six years and thereafter, until a successor is appointed appointed The salary commission shall fix the salary of the county auditor. The county council by two-thirds vote of its membership, may remove the county auditor from office at anytime for cause.
B. The county auditor shall possess adequate Professional Proficiency for the office, demonstrated by relevant certification, such as certification as a certified internal auditor or certified public accountant, or have an advanced degree in a relevant field with at least five years experience in the field of government auditing, evaluation, or analysis A certified internal auditor or certified public accountant shall be preferred. The county auditor shall have
a bachelor's degree in accounting, business administration, or public administration or related field. If financial statement audits are conducted, the county auditor shall be a certified public accountant.
C. Except for exercising the right to vote, neither the auditor nor any member of the office of the county auditor shall support advocate, or aid in the election or defeat of any candidate for county public office.
D. The county auditor may appoint the necessary staff for which appropriations have been made by the county council. Subject to the provisions of this charter and applicable rules and regulations adopted thereunder, the county auditor shall have the same powers with respect to the personnel of the office of the county auditor as department heads have over their personnel. Staff shall be appointed by the county auditor in a manner consistent with the merit principles
devoid of any bias or prejudice.
Section 32.02. Powers, Duties, and Functions
A. Pursuant to County Charter Article III, Section 3.17, Investigation the
county council is empowered to establish the office of county auditor. it shall be the duty of the auditor to conduct or cause to be conducted:
1. The independent annual or biennial audit of all county funds and accounts to be conducted by a certified public accountant or firm of certified public accountants as required by Section 3.12 of the county charter;
2. Performance audits of the funds, programs, and operations of any agency or operation of the county as requested by the council by resolution as authorized by Section 3.12;
3. Performance and financial audits of the funds, programs and operations of any agency or operation of the county, as determined by the county auditor to be warranted. Before the commencement of each fiscal year, a plan of the audits proposed to be conducted by the county auditor during the fiscal year shall be transmitted to the county council for review and comment, but not approval The plan also shall be transmitted to the mayor and filed with the county
clerk as public record; and
4. Follow-up audits and monitoring of compliance with audit recommendations by audited entities. The county auditor shall conduct or cause to be conducted all audits in accordance with government auditing standards.
B. Audit findings and recommendations shall be set forth in written reports of the county auditor, a copy of which shall be transmitted to the mayor and to county council and filed with the county clerk as public record.
C. For the purposes of carrying out any audit, the county auditor shall have full, free, and unrestricted access to any county officer or employee and shall be authorized to examine and inspect any record of any agency or operation of the county, to administer oaths and subpoena witnesses and compel the production of records pertinent thereto. If any person subpoenaed as a witness or compelled to produce records shall fail or refuse to respond thereto, the proper
court, upon the request of the county auditor, shall have the power to compel obedience to any process of the county auditor and to punish as a contempt of the court, any refusal to comply therewith without good cause. The county auditor may retain special counsel, in the manner authorized by the county council, to represent the county auditor in implementing these powers. False swearing by any witness shall constitute perjury and shall be referred by the county
auditor to the prosecuting attorney for prosecution. In any audit which concerns the alleged gross misconduct or alleged criminal conduct on the part of any individual, such individual shall have the right to be represented by counsel and the right to have the county auditor compel the attendance of witnesses on behalf of the individual.
D. The county auditor's performance shall be evaluated annually by the county council. The county auditor's audit activities shall be subject to quality review in accordance with applicable government auditing standards by a professional, nonpartisan group. The written report of the independent review shall be transmitted to the county council and mayor and filed with the county clerk as public record.
E. For the purpose of this section and section 3.12: "An agency or operation of
the county" includes any administrative agency, semi-autonomous agency, council office, and other establishment of county government supported, in whole or in part county or public funds.
"
Council office" includes the county council itself, the office of a councilmember and the councilmember's immediate staff, the office of the county clerk. This definition applies only to those sections. It shall not be construed as excluding the office of the county auditor and the legislative branch.
"
Record" includes any account, book, paper and document, and any financial affair, notwithstanding whether any of the preceding is stored on paper or electronically.
Section 32.03. Audit Committee.
A. The county council may establish an audit committee, the members of which shall individually advise the county auditor on the following: formulation of the plan of audits proposed to be conducted by the county auditor pursuant to Section 32.02.1c: conduct of audits, follow up of audits, selection of private contractor,,; to perform audits for the county auditor; evaluation of preliminary audit findings and recommendations and county agency, officer, or employee
responses to the preliminary findings and recommendations: and evaluation of the county auditor's performance during each fiscal year. If established, the audit committee shall consist of five members.
1. One member shall be the chair of the county council committee with jurisdiction over the administrative budget ordinances; and
2. The other members shall be appointed by the county council. The county council shall appoint members who are qualified by experience, expertise and independence to perform the duties of the audit committee. A member appointed by the county council shall not hold any other office or position with the county while on the audit committee. The method of appointment, terms and specific qualifications of the appointed members shall be established the county council
by ordinance or rule. The county council also may establish by ordinance or rule provisions for the removal of an appointed member for cause. The audit committee shall be within the office of the county auditor.
B. Members of the audit committee shall advise the county auditor. All audit committee meetings shall be open to the public except as provided for in Chapter 92, Hawai'i Revised Statutes.
C. The chair of the audit committee shall be appointed by the county council in the manner provided by ordinance or rule. A meeting of audit committee may be called by the committee chair or county auditor.
D. Members appointed by the county council shall not be entitled to compensation for serving on the committee. The member from the county council shall not be entitled to compensation for serving on the committee that is additional to the compensation received as a councilmember. All members, however, shall be entitled to be reimbursed for travel and other necessary expenses incurred by them in the performance of their official duties.
E. Section 23.02. Boards and Commissions shall not apply to the members of the audit committee.
Section 32.04. Transition Provision concerning the Transfer of Audit Functions to the Off ice of the County Auditor.
A. All lawful obligations and liabilities owed by or to the office of the county clerk relating to financial and performance audits on June 30, 2009 shall remain in effect on July 1, 2009. The obligations and liabilities shall be assumed by the office of the county auditor. All contracts held by the office of the county clerk relating to financial and performance audits, which are to remain effective after June 30, 2009, shall be assumed by the office of the
county auditor. The contracts shall continue in effect until fulfilled or lawfully terminated. All financial and performance audit activities administered by the office of the county clerk on June 30, 2009, shall be assumed by the office of the county auditor on July 1, 2009.
B. On July 1, 2009, all records, data, and information held by the off office of the county clerk relating to financial and performance audits which have not been completed as of June 30, 2009 shall be transferred to the office of the county auditor.
C. The legislative auditor (program analyst V) and program support tech positions in the office of the county clerk on June 30, 2009 shall continue with the office of the county auditor July 1, 2009. These employees, if positions were already filled, shall continue service without any loss of vacation allowance, sick leave, service credits, retirement benefits, or other rights and privileges because of the charter amendments. Nothing in this subsection, however,
shall be construed as preventing future changes in the employee's status pursuant to the county auditor's powers with respect to personnel in the office of the county auditor."
2. Ballot Question
" Shall there be an Office of the County Auditor, established within the Legislative Branch, to conduct or cause to conduct performance and financial audits of funds, programs, and operations of any agency, department or operation of the County?"
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