Tuesday, December 22, 2009


STRAW MAN STRONG MAN: The great talking-past-each-other debate on the “proposed” county manager (CM) system between retired former Judge Al “let ‘em go” Laureta and county watchdog Glenn “hope springs eternal” Mickens continued in the letters to the editor column of the local newspaper today with “Yogi” Mickens “it’s better because it’s better” response to Alfred E. Laureta’s “what, me worry?” demand to know “what’s broken” in Kaua`i county government.

As we’ve said before while we aren’t exactly on the CM conga line we certainly can articulate what the some of the problems are and have done so especially in the past month or so albeit in a cursory manner.

We hope to try to get into some more detail as to what doesn’t work and what kind of specific changes to the charter would be appropriate to address those impediments to good governance over the next few weeks.

But another letter today, this one from Democratic party leader Linda Estes, brings up an issue that has been bandied about although, from Estes letter, it apparently is largely misunderstood.

Everyone we’ve heard speak on the matter contends that Kaua`i has a “strong mayor” system. But Estes makes an argument that in fact:

Kaua`i has a weak mayor form of government because the mayor cannot appoint several of the department heads. Civil Service, Police, Fire, Water, Planning and Liquor are critical departments in county government and the mayor, at this time, cannot appoint the people to head those departments. If he cannot appoint them, how can he hold them responsible for the operation of their departments?

The proposal to put those departments under the direct authority of the mayor should be on the 2010 ballot. Then, if it passes, the people of Kaua`i can decide at a later date if they prefer a county manager or a strong mayor form of government.

First of all the term “strong mayor” derives from what the mayor’s powers are as opposed to those of the county council’s- the traditional balance of power between legislative and administrative branches of government.

The strongest parts of the mayor’s powers on Kaua`i stem from the total ban on any interference by the council in administrative matters enshrined in our charter.

The only way the council can compel the mayor or his/her appointees to appear and answer questions is under one provision that requires the council to launch an official investigation to do so. Otherwise, as we detailed recently, the administration can refuse to even explain how it plans to spend- or in fact did spend- the money the council appropriated or acted upon a piece of legislation passed by the council.

That’s why you see the words “requests the presence of the administration to discuss...” on council agendas.

Another strength of our administrative branch is the power to appoint almost every single member of the administration- except for the county attorney and those that, as Estes points out, are appointed by a board or commission - without confirmation by the council.

Here too the mayor, as most all administrators do, naturally has more power than the council since he selected the members of those boards and commissions (B&Cs) for the most part and the council can only disapprove them. As a matter of fact the council cannot even remove them without the mayor asking that they be removed.

There are some B&Cs where the mayor and council each appoint three members each and those members select one more. But, illustratively, it should be remembered that the original charter did not have this provision and it only arose because of the strength of the mayor... it’s an example of how the original charter was designed to provide for an extremely strong mayor.

There are other provisions that strengthen the mayor’s power as opposed to those of the council but essentially the mayor has a thumb on the balance of power everywhere except for appropriating money or passing ordinances.

Even there there is diminished accountability and, as we’ve seen, administrative rules promulgated by the administration sometimes carve out loopholes in ordinances that are less than specific- some that actually conflict with the law- leaving the council the option of liking it or lumping it... or suing the administration in court, as happened in the “constitutional” budget crisis during the Yukimura administration

The six departments that Estes cites are the exceptions and were set up that way because those specific departments it was thought would be the most subject to political interference and members of the public should be entrusted to make the hiring and firing decisions- with the “check” on their power being that they are appointed and confirmed by elected officials.

But few can argue that that system has worked well. What has happened in practice is that because the department heads have no set terms after which they must face re-approval or renewal of their contracts it becomes almost impossible for a board to remove them.

As a matter of fact there is no procedure for removal of the appointee in the administrative rules any of board with appointment power.

With the staggered three year terms and a two term limits for B&C members after a while few of any of those who appointed the department heads are on the current board and the employee becomes the boss and in fact mentors the members and advises them when they meet.

As a matter of fact, some members have no idea that they are empowered to remove the department head if they want to. And most wouldn’t know how to do it if they did.

Estes suggests that putting them under the mayoral appointment system would solve that problem. But then we’re right back where we started with politics playing a large part in the hire, no council approval and of course a lack of continuity when administrations change- which, when these appointing B&Cs were originally set up, could have been every two years.

But rather than throw out the baby with the bathwater a few fixes might be in order.

The first is a set term for board-appointed department heads. A charter provision calling for a standard contract length- say three years although it could be otherwise- along with a template for a required re-evaluation and re-hire protocol would go a long way to re-imbue the members with a sense that they are indeed in charge.

A charter provision could be somewhat detailed or leave the fleshing out to an ordnance and administrative rules. But right now there is no standard and these department heads become entrenched serving for decades without so much as an opportunity for their appointing authority to really look at their job performance without appearing to be “making waves” or “rocking the boat”- something that, on Kaua`i almost insures they will not be serving on B&C’s very long as the recent Rolf Bieber episode so clearly demonstrates.

Other than the police department we can’t think of a B&C that ever removed a sitting department head... or even attempted to do so. And technically the police commission didn’t do that either, causing the political free for all surrounding Chief KC Lum’s “removal” (he actually retired).

But the contention that Kaua`i has a weak mayor system and that strengthening it is the answer is to cherry pick one “exception that proves the rule” and use it to define the whole system rather than taking a broad perspective when examining the charter and how it plays out in reality.

A charter amendment calling for all mayoral appointments to be confirmed by the council would go a long way toward equalizing the balance of power along with a modification of the strict no-interference clause. Many jurisdictions allow for subpoena power for the legislative branch without launching a formal investigation- and in fact legislative approval of all department heads is the norm across the country.

As we’ve said before, with a requirement for a certain educational and experiential standard and council approval the current charter provision for the Administrative Assistant (AA) could become the very “county manager” that proponents seek. Perhaps the addition of an independent panel that would submit of list of possible hires would be a wise addition to the process of selection of the AA.

We’ll try to get into more specific problems with the charter and possible fixes over the next month or so but suffice to say that the same ends that the CM proponents seek could be accomplished through narrower targeted amendments to the structure expressed in the charter without scaring the b’jeezus out of a citizenry that may be adverse to a “rewrite” of the charter” and/or “eliminating the mayor”- both things that amount to “experiments” and rightly make voters apprehensive.


We’ll be playing with our new chew toys and a bit intermittent over the next two week. If we’re not here, we’re there- so there, hear?

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