Stalemate ends in salary resolution becoming law

LIHU‘E — A controversial county Salary Commission resolution squeezed through a special Kaua‘i County Council meeting Tuesday and is on track to become law next week after a split vote.

The resolution effectively freezes until July 1, 2013, the salaries of all elected officers and county department heads.

The council had rejected the resolution Sept. 7, but reconsidered it two weeks later due to pending legal questions.

The commission adopted the resolution on Aug. 5, almost five months past its deadline, before forwarding it to the council for consideration.

The County Charter states that a resolution shall take effect without the mayor’s or the council’s approval 60 days after adoption, unless it is voted down by at least five council members. The council also has the power to reject portions of the resolution.

With only six of the seven council members present for Tuesday’s meeting — Councilman Tim Bynum was absent for personal reasons — a motion to receive the resolution got stuck on a 3-3 vote.

The charter states that in case of a council member’s absence, if there is a tie the issue is automatically pushed to the council’s next scheduled meeting, which in this case is Oct. 5, a day after the deadline to reject it. As such, the resolution is expected to go into effect Tuesday.

One of the major problems that council members saw in the resolution was that it was sent after a March 15 deadline set in the County Charter.

“I took an oath to the charter, not to the variances of the law,” Council Chair Jay Furfaro said during his closing statement before casting his vote against receiving the resolution. Furfaro’s statement summarized a lengthy discussion on actual legal definitions of the verbiage in the County Charter.

Much time was spent on the meaning of the word “shall,” as used in its reference to the deadline.

Gary Nelson, a recently hired clerk at the Prosecuting Attorney’s office, said he spent the weekend studying the charter. He brought with him a Hawai‘i Supreme Court opinion stating that when used close together, “shall” means “must,” and “may” means “can.”

The only legal action the council could take was to reject the resolution, he said, adding that March 15 is the absolute deadline.

County Attorney Al Castillo interrupted him twice, saying it was a violation of the law and that Nelson may be over-stepping boundaries by providing legal counsel to the body. He warned Nelson that there could be consequences for contradicting the County Attorney’s office’s opinion.

Furfaro said he was not looking for legal advice from the Prosecutor’s Office. He allowed Nelson to continue on the basis that his testimony was his opinion.

Budget process

Another main concern was that the resolution should be sent by the March 15 deadline so the council can align salaries in the budget review process.

The council in November approved the current resolution, which set salary caps for the mayor and most department heads who had their salaries frozen since 2008.

Those caps allow, after evaluation and due process, for appointing authorities to give raises to their appointees. Only the mayor doesn’t have an appointing authority, so his cap is the salary. But for the county planning director, for example, the Planning Commission is the appointing authority. The Police Commission appoints the police chief; the Fire Commission appoints the fire chief.

Furfaro’s frustration was more apparent on the disconnect of the current resolution with the budget for Fiscal Year 2012, which started July 1. The county did not budget for those salary caps, he said, and even if no one takes a raise, the budget should still reflect the resolution. Furfaro and other councilmembers lashed out at the administration for not budgeting for these raises.

Councilwoman JoAnn Yukimura said all council members agree that the budget must reflect the resolution, but that is exactly what the new resolution does.

The council on Sept. 7 by a 6-1 vote rejected the resolution. Yukimura cast the lone vote for it because she wanted to find out if the resolution was legal. In that case, she said, there could be a mechanism to reduce salaries of high-ranked officers in a time when rank and file employees have seen their salaries reduced due to a supplemental union agreement.

Councilman Dickie Chang originally voted to reject the resolution. Two weeks later, he asked for the resolution to be reconsidered because of unanswered legal questions. The resolution by a 3-4 vote escaped rejection at the Sept. 21 meeting. On Tuesday, Chang supported the resolution.

‘Do it right next time’

Councilwoman Nadine Nakamura had voted twice to reject the resolution; once on Sept. 7 and again on Sept. 21. She said she was not clear on the legislative intent of the resolution, but has since “grilled” one of the primary authors of the document. The intent, she said, was to tie the resolution with the budget.

Although she voted to receive the resolution, she had some words for the commission.

“Let’s do it right the next time,” Nakamura said.

Councilman Mel Rapozo said the resolution was an attempt to weaken and make the charter flexible, and vowed to follow with legal action if the resolution was received.

“This is our charter and we must follow it,” he said. “I’m prepared to take this to court.”

Councilman KipuKai Kuali‘i said it is the council’s duty to protect the charter. By the council’s passing of the resolution it could mean that the commission could make resolutions all year round, he said.

“Clearly I think we are going to a place where it is only going to create more problems,” Kuali‘i said.

Replacing Section 2

Some council members questioned the legality of Section 2 of the resolution. This section used to state that “The Mayor with approval of the County Council is hereby authorized through the County’s annual operating budget to limit the funding and thereby reduce the salary for any non-elected offircer or employee to an amount lower than the figure established for the position of this resolution.”

The new version of the resolution replaces this section with: “The Salary Commission finds that current salaries of the Prosecuting Attorney, First Deputy Prosecuting Attorney, Deputy Prosecuting Attorney, County Clerk, Deputy County Clerk, and County Auditor are higher than their administrative counterparts listed under Article 1 of this Resolution. Therefore, the salaries of the Prosecuting Attorney, First Deputy Prosecuting Attorney, Deputy Prosecuting Attorney, County Clerk, Deputy County Clerk, and County Auditor that took effect on 12/01/09 shall remain frozen on 07/01/13 or until such time that the salry levels paid to comparable administrative officers and employees listed under Article 1 have caught up.”

Mona Clark of the County Attorney’s office “repeatedly stated that it had been deleted because it is illegal — an admission, incidentally, that was about eight months late in coming because the commission should have been advised last November that the section was illegal,” concerned citizen Horace Stoessel said in an email Tuesday. “It was inserted so the mayor wouldn’t have to bother with getting boards and commissions who have appointing power to go along with his desire to defer raises, as he had had to do in 2009.”

• Léo Azambuja, staff writer, can be reached at 245-3681 (ext. 252) or lazambuja@kauaipubco.com.

Léo Azambuja – The Garden Island

LIHU‘E — Kaua‘i County Councilman Mel Rapozo on Tuesday afternoonfiled a complaint with the county Board of Ethics, requesting anadvisory opinion on the actions of Boards and CommissionsAdministrator John Isobe and the county Salary Commission.

“I would request that the County of Kaua‘i Board of Ethics renderan advisory opinion on whether any of the actions taken by theSalary Commission in adopting Resolution No. 2011-1 containconflicts of interest between the administration and SalaryCommission,” Rapozo said in the complaint.

Rapozo said Commission Chair Charles King had asked Isobe to submitprior to the July 26 commission meeting a draft of Resolution2011-1. The resolution was adopted during the commission’s Aug. 5meeting.

At the July 26 commission meeting there was also a request by MayorBernard Carvalho Jr., dated July 15, to defer his salary raisewhich took effect July 1.

Also on the agenda that meeting was Ordinance 907, whichincorporated Isobe’s position under the commission’s salary-settingauthority.

Rapozo said rather than independently establishing the basis forits salary-setting decisions in public meetings, the commission“appears to be functioning as an arm of the mayor’sadministration.”

Since the commission’s authority includes elected and appointedofficers in the administration, Rapozo questioned if there is aconflict of interest for having Isobe draft a salary resolution tothe commission with no prior guidance from such commission, ratherwith information and guidance reflecting the administration’ssalary-setting objectives — including Carvalho’s July 15 request todefer his July 1 raise.

A second concern puts in question a potential conflict of interestin the relationship between Boards and Commissions and the SalaryCommission — the resolution also incorporated a salary schedule forIsobe.