Musings: Charter Changes

The Kauai County Charter Commission is considering a few measures that could make the 2016 election more interesting. 

But will it go gangbusters, and put some really juicy stuff on the ballot? Shoots, why not?

It's looking like voters will asked to decide whether Councilmembers should be elected by district, a concept adopted in other Hawaii counties, but rejected three times previously by Kauai voters. Though the tough part is determining how to create the districts, it seems the easiest and most sensible route would be to elect one member from each existing House District and four at large.

That approach also establish a training ground, if you will, for new legislative candidates in the various House districts.

The commission is also toying with the idea of changing the percentage of registered voters required to get charter amendments and initiatives/referendums on the ballot. It's currently easier to get a charter amendment on the ballot than an initiative/referendum, which is why we've seen groups like Kauai Rising try to pass off an initiative as a charter amendment, only to see their efforts fail to meet the legal sniff test.

One thought is to reduce the percentage of signatures needed for referendums (the process of voting on an ordinance already adopted by the Council) and initiatives (the process of proposing an ordinance), and raise the percentage for charter amendment. 

The Charter currently requires initiative/referendum petitions to be “signed by registered voters comprising not less than twenty percent (20%) of the number of voters registered in the last general election." Petitions for a charter amendment, which are actually much more serious, require just 5 percent. Seems an adjustment is in order.

Commission Joel Guy, meanwhile, is planning to put forth a proposal that would change how the Council fills its vacancies. Currently, the Charter states:

In the event a vacancy occurs in the council, the remaining members of the council shall appoint a successor with the required qualifications to fill the vacancy for the unexpired term.

We've seen how that plays out thrice in the last five years, and each time it's left a bitter taste in people's mouths.

In 2008, Kaipo Asing left the Council to fill the mayoral vacancy left by Bryan Baptiste's death. The Council chose former Councilman Daryl Kaneshiro to take his place. Daryl proved instrumental in passing a vacation rental bill that essentially grandfathered in all the illegals, while prohibiting the law-abiding folks from ever getting a permit. He was definitely a politicized pick.

In 2011, Derek Kawakami left the Council to finish out Rep. Mina Morita's term after she was named to the Public Utilities Commission. He was replaced by KipuKai Kualii, who had placed eighth in the previous Council election. The list of nine applicants for the position was kept confidential. There was some public grumbling about that, as well as the fact that a majority of the Council had apparently expressed its intent to pick KipuKai before the vote was actually held. What's more, he was nominated before the public had been given a chance to testify on any of the prospective candidates.

Then in 2013, Nadine Nakamura left the Council to work as Mayor Bernard Carvalho Jr.'s top aide. The Council was set to override the mayor's veto of Bill 2491, the controversial GMO/pesticide regulatory law. When it appeared the Council was unable to muster enough votes to override the mayor's veto, it recessed for a day and met in secret to pick Mason. The following day, the Council again took up the bill, and with Chock's vote, overrode the veto.

Again, none of the other candidates were publicly identified, though one was KipuKai, who had come in eighth in the last election. But when it became clear that the Council was headed for a 3-3 tie, which would have allowed the mayor to pick the new member, former Council Chair Jay Furfaro picked Mason.

The whole deal was dirty, and possibly illegal. It was one point raised, but not decided by the judge, when the seed companies sued to overturn 2491. Their complaint stated:

It [Bill 2491] was adopted — over a veto by Kauai Mayor Bernard Carvalho at the advice of his legal counsel — by a supermajority of the County Council that included a member who was selected in a manner that violated the Hawaii Open Meeting Law (H.R.S. Chapter 92).

Allowing the Council to choose a replacement from the public at large unduly politicizes the process. And in the case of Mason, it put a taint on his political career. What's more, Councilman Gary Hooser, who introduced 2491, vetted at least one prospective candidate to determine his stance on the override. That's improper. There's also no reason why the list of candidates should be kept secret.

It would be a lot cleaner to change the charter so that the eighth place candidate is automatically tapped to fill a vacancy. And if that candidate is not available or interested, it goes to number nine. Anyone who comes in eighth or ninth already has some cachet with voters.

The commission could also get really brave and come up with an amendment to clarify whether the mayor has the power to suspend and/or discipline the police chief. The issue has been festering for three years now, ever since the mayor suspended Chief Darryl Perry. Now it's headed for oral arguments next Wednesday before the Intermediate Court of Appeals. As the ICA summary notes:

The dispute arose because, in or around February 2012, the Mayor suspended the Chief of Police from work for a period of time and then placed him on administrative leave. The Police Commission unanimously voted to have the Chief of Police return to work and ordered him to do so. However, when the Chief of Police returned to work, he was not allowed into his office and was informed that the Mayor refused to reinstate him and he was still on administrative leave. Despite their ongoing disagreement, the Police Commission and the Mayor subsequently reached a decision to allow the Chief of Police to return to work.

Wouldn't it be better to let Kauai voters weigh in on this issue, rather than letting the courts decide?