LIHU‘E — The County Charter states the Salary Commission “shall” do one thing, but the county attorney said “shall” could mean “may,” providing ammunition in a battle among Kaua‘i County Council members stuck between upholding the charter and freezing county
LIHU‘E — The County Charter states the Salary Commission “shall” do one thing, but the county attorney said “shall” could mean “may,” providing ammunition in a battle among Kaua‘i County Council members stuck between upholding the charter and freezing county officials’ salaries another year.
The Board of Ethics on Nov. 1 disagreed with Councilman Mel Rapozo when it ruled that Boards and Commissions Administrator John Isobe did not act improperly by assisting the Salary Commission in crafting a resolution freezing the salaries of most appointed county officials.
Rapozo filed a complaint with the Fifth Circuit Court, seeking a declaratory judgment on the five-letter word. Is “shall” mandatory or directory?
“If you start saying ‘shall’ is not mandatory it really weakens the charter,” said Rapozo, adding that to him the charter is just as important as the state and federal constitutions.
The complaint, filed the same day as the Board of Ethics’ decision, names Rapozo and Councilman KipuKai Kuali‘i as plaintiffs versus defendants County of Kaua‘i, the Salary Commission and Council members JoAnn Yukimura, Dickie Chang, Tim Bynum and Nadine Nakamura.
Council Chair Jay Furfaro, who voted against receiving the resolution, is not named in the complaint.
If the circuit court rules in favor of the plaintiffs, it could overturn the outcome of a salary resolution which was sent to the council almost five months after a March 15 deadline. The resolution became effective Oct. 4.
“Plaintiffs pray for a declaratory judgment that Resolution 2011-1 was untimely submitted as a matter of law, and therefore is null and void,” states the complaint.
Salary resolution
On Aug. 5 the Salary Commission adopted Resolution 2011-1, freezing until July 2013 the salaries of most county department heads and Mayor Bernard Carvalho Jr.
The commission, however, missed a deadline to send a resolution to the council to be included in the budgetary deliberations for Fiscal Year 2012, which started July 1.
The charter states that “the commission’s salary findings shall be adopted by resolution of the commission and forwarded to the mayor and the council on or before March 15.”
The commission had already sent a resolution to the council in November 2010, which was adopted for FY 2012, raising Carvalho’s salary and raising the salary cap for the majority of the county’s appointed officials. The higher salary cap created the opportunity for a raise after due process.
But when the administration sent to the council the budget for FY 2012 — and when the council deliberated on it from April to May — those salary increases were not included.
When the current fiscal year began, Carvalho did not take a pay raise but other appointed officials had a higher salary cap in place allowing for a raise after due process, including performance evaluation from appointing authorities.
In some instances, this authority would be the mayor or the council, but in others it would be one of the county’s various boards and commissions.
Some council members pointed out that even if no one receives a raise the FY 2012 budget still must reflect the raises.
Council members first rejected the salary resolution, but reconsidered it a week later.
After the reconsideration, a final vote which ended in a tie — Councilman Tim Bynum was absent for personal reasons — pushed the decision back another week, causing the resolution to become automatically effective since the delay allowed it to cross a 60-day deadline for a council decision.
Pivotal in the discussions was a question of whether the charter would be violated by approving a resolution that clearly missed a deadline, even though the charter states that the resolution “shall” be adopted on or before the March 15 deadline.
County Attorney Al Castillo opined during the deliberations that “shall” sometimes means “may.”
Rapozo said filing a complaint in circuit court is the only mechanism he has to find out the definition of “shall” in the charter.
“I want to uphold the integrity of the charter,” he said.
The County of Kaua‘i and the Salary Commission have already been served the complaint, on Monday and Wednesday, respectively, according to Rapozo, who said council members have yet to be served.
• Léo Azambuja, staff writer, can be reached at 245-3681 (ext. 252) or lazambuja@ thegardenisland.com.
