Monday, July 5, 2010



(PNN) -- The proposal for a county manager form of government on Kaua`i will not appear on the ballot this November if the Charter Review Commission follows the recommendation of its Special Committee on County Governance (SCCG).

According to the recommendation section of the SCCG’s Report to the Kauai County Charter Review Commission:

The Special Committee on County Governance, by unanimous vote, recommends against placing a measure for a Council-Manager form of government on the 2010 General Election ballot. The committee, accordingly, recommends the adoption of this report, and further recommends that the issue of a Council-Manager form of government be postponed indefinitely.

After five meetings and three public sessions held across the island, Chair Patrick Stack and members Joel Guy and Jan TenBruggencate ultimately decided that, in keeping with their charge according to the county charter itself, they could not place the matter before the voters despite what they called “frequent, long-term and. well-reasoned arguments in its favor by a small group of committed citizens”

According to the report:

The Special Committee was constrained by the authority given the Charter Review Commission under the existing Kaua`i County Charter. Section 24-03 of the County Charter contains this authority: "In the event the commission deems changes are necessary or desirable, the commission may propose amendments to the existing charter or draft a new charter which shall be submitted to the county clerk." (Emphasis added) This is a key point. The Charter Review Commission is not authorized, as many public testifiers suggested, to place an item on the ballot simply to allow voters to express their choice.

The committee found the key phrase to be “necessary or desirable” after they compiled an actual 78 page Proposal for a County Manager Form of Government based on a submission from a group called “Citizens Ad Hoc Committee for a County Manager System”.

The committee did note that, although the charter commission has to find the changes necessary or desirable there are two other ways to get charter amendments on the ballot- via citizen petition or via county council resolution, neither of which have the restrictions the commission does.

The proposal document was complied by the committee by going through the county charter, page by page and word by word, replacing the word “mayor” with “county manager” where applicable, giving instructions for designating the chair of the county council as the “mayor”, listing methodologies for the appointment of the manager and listing qualifications for the job as well other changes.
The document has not yet been cleared by the county attorney’s and attorney general’s offices according to the report which also notes that none of the committee members are attorneys. The report does not say whether it be submitted to those offices before it comes before the full charter commission for a vote.

Despite questions raised as to whether the meetings, and especially the document produced- were covered by the sunshine law, according to one of the members of the Citizens Ad Hoc Committee, Glenn Mickens, the Office of Information Practices told him that the committee’s activites were exempt from the open meeting law under section 92 2.5 as long as the full commission dealt with the report according to the sunshine law provisions.

The report describes the changes that were made in the proposal saying

(t)he draft charter proposed a county governance system in which citizens would elect six members of a County Council, and would separately elect a Mayor. The Mayor would sit as chair of the County Council and would have limited administrative authority.

The Mayor and County Council would together select a professional County Manager. The County Manager under this system would be charged with the administration of county affairs, including the appointment of department heads unless otherwise provided for in the Charter.

But while the committee noted that the majority of those that they heard from were opposed to putting the measure on the ballot, the report say that:

(w)e note that in passing, but counting votes is not the Special Committee's assignment.

An important measure is whether the proposed system passes legal muster, which requires an opinion. from the County Attorney and/or the state Attorney General. We have not received a legal opinion on this specific proposal. State law requires a "county executive, administrative and legislative structure."

That structure is required in two different parts of the law of our state: Article VIll of the state constitution and Hawaii Revised Statutes Section 46. But making legal determination is not our assignment.

The Charter Review Commission's authority and thus the Special Committee's authority under the County Charter is to "study and review the operation of the county" and to recommend changes that it feels are "necessary or desirable." Setting aside our own judgment is not within our authority. If the members of this Special Committee were to move forward an issue the committee members do not feel is necessary or desirable, simply to give voters a chance to make a selection, we would violate our oaths to defend the County Charter.

Our assignment is to determine, after our own honest, extensive and considered review, whether the proposed form of government is a better form of government for this county at this time, or if it represents a necessary change. If we believe that it is, then we should recommend putting it on the ballot. If not, we should not.

The “findings” section of the report weighs the current mayor-council and county manager systems and lists the benefits and limitations of both concluding by saying that:

(t)he Special Committee finds no fundamental flaws with the Council-Manager form of government, but does not find that it inherently superior to Kauai’s current form of government, and does not find that a change from the current system is necessary or desirable for the effective functioning of government.

The full finding section reads as follows:

The Special Committee on County Governance finds that a Council-Manager form of government is a viable means of governing a municipality. The Committee finds that the Council-Mayor form is also a viable system, and one with a long history in Hawaii and on Kaua`i. The Special Committee finds that a large majority of individuals testifying or otherwise providing information to the committee favor retaining the current Council-Mayor system, for a variety of reasons. One often repeated reason was to have a direct voice in the selection of the county administrator, rather than an indirect voice through selection of a county manager through a single Mayor-Council panel.

The Special Committee finds that a key argument for the Council-Manager form of government is that it provides for an administrator for the county who has specific education and experience in management. The Committee finds that such experience could also be mandated for a mayoral aide under the current Mayor-Council system.

The Special Committee finds that a County Manager would be unable to function with the flexibility envisioned by some proponents due to legal limitations on his/her authority. In part, this is because under existing state law and county charter provisions, a County Manager would not be able to appoint many of the county's chief department heads. State law requires the personnel director and liquor control department head to be appointed by commission, and county charter requires the planning director, water department manager and the police and fire chiefs to be appointed by commission. A Mayor is similarly limited in oversight.

The Special Committee finds that the County Manager system removes certain cheeks and balances from county government, including the veto power of a mayor over legislative measures, and the development of a recommended budget under an elected administrator and its approval by an elected legislative body.

The Special Committee finds no fundamental flaws with the Council-Manager form of government, but does not find that it inherently superior to Kauai’s current form of government, and does not find that a change from the current system is necessary or desirable for the effective functioning of government.

According to the Charter Review Commission section of the county web site no meetings of the commission are scheduled yet.

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