NEIGHBORHOOD COMMISSION

DRAFT NEIGHBORHOOD PLAN COMMITTEE MEETING MINUTES                                          

MONDAY, JULY 19, 2010

HONOLULU HALE, COUNCIL COMMITTEE HEARING ROOM, 2^ND FLOOR

530 SOUTH KING STREET, HONOLULU

CALL TO ORDER: Committee Chair Robert Finley called the meeting to order at 7:01 p.m. with a quorum of eight (8) members present.    

Members Present:  Brendan Bailey, Robert Finley, Ed Gall, Wilson Ho, Ron Mobley, Jeanette Nekota, Robert Stubbs and Sylvia Young.

Members Absent:  Sheila Apisa (notified absence).

Guests/Staff: Thomas Heinrich; Clifton Takamura; Kaleo Gagne; Robert Whitaker; Steve Glanstein; Elisabeth Contrades (Corporation Counsel); Rae Gee (Executive Secretary), Theona Kapoi (Neighborhood Commission Office).

APPROVAL OF MINUTES: The May 19, 2010 Neighborhood Plan Committee Meeting Minutes were deferred.

COMMITTEE BUSINESS:

Chair Finley thanked each member of the community who submitted suggestions and reminded everyone that this is not the periodic comprehensive review Committee directed in §2-20-101, but rather a Committee to address issues discovered on implementation of the 2008 Neighborhood Plan. This will be an ongoing process by the Committee to propose the necessary changes until the next ten year review is due in 2018.  

The following criteria were used to select the proposed amendments: (1) Does the current language in the plan prevent neighborhood boards the ability to meet and/or serve the community; (2) Is the change required to allow the Neighborhood Commission the ability to respond to complaints and concerns in a timely manner; (3) Is a change necessary to comply with State/Federal law or City Charter; and (4) Is what we recommend able to be reviewed by the Department of the Corporation Counsel in a timely manner.

Chair Finley has worked with the Neighborhood Commission Office (NCO), Neighborhood Commission Chair Bailey, have included changes recommended at the October 26^th Committee meeting, and have considered input from the community. Chair Finley was hopeful that the proposed amendments to the 2008 Neighborhood Plan being reviewed this evening can move forward to the full Commission and on to the Public Hearing process.

One Section added to the list of proposed amendments to the 2008 Neighborhood Plan is the Complaint and Review Section of Chapter 18. It was noted that the Neighborhood Plan does not allow a timely response to complaints.  With the new language being finalized, the Committee hopes to provide persons filing complaints a more responsive procedure and reduce costly hearings in the future.      

Proposed Timeline for the Amendments to go through Public Hearing –

Continuation of the May 19, 2010 Committee Meeting for the 2008 Neighborhood Amendment Plan Review –

§2-17-202(e) – Voter eligibility and registration.

Current Language: No affidavit shall be filed with the commission office by means of facsimile or any other electronic means, unless other wise authorized by law. 

Proposed Language:  (e) The Commission may specify by what means the voter registration form may be filed with the commission office provided that by mail or in person is always acceptable.

DISCUSSION:  A concern was raised pointing out that it is not necessary to change the language. Chair Finley stated the proposal was made by Bryan Mick of the NCO Staff because voters were confused with the current language and process. A concern was pointed out stating that the way the current language is written is in compliance with the law. If it is changed in the plan, consideration would have to be made to change the law.

• HEARING NO OBJECTIONS, THE PROPOSED AMENDMENT TO §2-17-202(e) WAS DEFERRED.

§2-17-204(a)(3) – Candidate eligibility and registration.

Current Language: Who is registered as a voter for the board election in accordance with section 2-17-202;

Proposed Language: No Change.

DISCUSSION: On a side note, the Neighborhood Commission Office (NCO) should provide a fill in form on the NCO website. The NCO should also change the candidate form to add a check box to identify if the individual is a registered voter in that area. It was commented that the NCO have this amendment become an NCO Office policy.

• HEARING NO OBJECTIONS, THE PROPOSED AMENDMENT TO §2-17-204(a)(3)  WAS APPROVED.

§2-17-209(e) – Candidate list.

Current Language: If a candidate dies, is incapacitated, is disqualified or files a withdrawal notice or resignation after the commission has accepted the certified election results pursuant to section 2-17-309, the seat shall be declared vacant.

Proposed Language: No Change.

DISCUSSION: This amendment is to correct a clerical error by moving it to §2-17-208(e).

•  HEARING NO OBJECTIONS, THE PROPOSED AMENDMENT TO §2-17-204(a)(3)  WAS APPROVED.

§2-17-309(b) – Certification of election results.

Current Language: The certified election results shall be made public on the first business day in June of the election year.

Proposed Language: The certified election results shall be made public no later than the on the first business day in June of the election year.

DISCUSSION: A comment was made that this amendment allows for flexibility.

•  HEARING NO OBJECTIONS, THE PROPOSED AMENDMENT TO §2-17-204(a)(3)  WAS APPROVED.

§2-17-202(b) – Voter eligibility and registration.

Current Language: (b) An individual officially listed by the city clerk as a registered voter for the State election in the city as of the third Friday in February of the election year.

Proposed Language: (b) An individual officially listed by the city clerk as a registered active voter for the State election in the city as of the third Friday in February of the election year.

DISCUSSION: A comment was made that stating the term active will begin to use legal terms. The term “active” is not defined in the Plan. Another comment was made stating that the term “active” should not be used. Chair Finley stated the Committee will confirm with the City Clerks Office if the voting section of the plan continues to be a problem. The committee will request a definition of “active” from the City Clerk and make changes to the amendment if necessary.

•  HEARING NO OBJECTIONS, THE PROPOSED AMENDMENT TO §2-17-202(b) WAS DEFFERED.

Chair Finley called a recess at 7:35 p.m. and called the meeting back to order at 7:50 p.m.

Audience member Steve Glanstein requested to comment before the Committee. He distributed a written statement and highlighted that the internet agenda posted on the NCO website does not provide any specific notice to the public of the actual amendments to be considered. Attention to Att. Gen. Op. 85-2 which states in part that it is not sufficient to list broad categories of items. Proper adoption of the Neighborhood Plan and its amendments is important. Mr. Glanstein urges the Neighborhood Plan Amendment Committee to carefully observe the Sunshine Law throughout the entire decision process.

Commissioner Mobley commented that he does not feel there is a violation of the Sunshine Law if this is a continuance to a prior meeting, an amendment list would have been available at the prior meeting.

Elisabeth Contrades, Deputy of Corporation Counsel highlighted Chapter 18 of the Neighborhood Plan and the proposed amendments:

Chapter 18 – Review and Complaint Processes.

Proposed Language:

 Subchapter 1  Review of Board Activity

§2-18-101                Request for review.

§2-18-102                Review process of the commission.

Subchapter 12  Sanctions

§2-18-2101              Complaints General provisions of the sanction hearing process.

§2-18-2102              Sanction hearings initiated by the executive secretary or the commission.       

§2-18-2103              Sanction hearings initiated by a board, board member, or the public.

§2-18-2104              Sanctions.

§2-18-205                Contested case process.

SUBCHAPTER 1

REVIEW OF BOARD ACTIVITY

§2-18-101  Request for review.  (a)  Any person may seek the review of:

(1)        Any board action or activity; or

(2)        The official action or activity of any current board member;

by written request to the commission within forty-five calendar days after the action or activity.

(b)        Upon review of the action or activity, the commission chair or any duly authorized representative of the commission may:

(1)         Provide a response to the requester and the applicable board or board member, setting forth the conclusions of the commission chair or the representative on the review;

(2)         Where practicable, mediate a resolution between the requester and the applicable board or board member on any issue under review; or

(3)         Present the request to the commission for the commission's review.

(c)        If the commission chair or the authorized representative provides a response pursuant to subsection (b)(1), any requester, board, or board member subject to the review that is not satisfied with the response may within forty-five calendar days of receiving the response request in writing further review of the matter by the commission pursuant to section 2-18-102.

(d)        The commission chair shall regularly report to the commission on the review requests received, the nature and the disposition of those inquiries, and may make recommendations to the commission.

(e)        The commission may authorize the executive secretary to perform the actions set forth in subsections (b) and (d).  [Eff           ] (Auth:  RCH §14-103(a)) (Imp: RCH §14-104)

§2-18-102  Review process of the commission.  (a)  The commission shall review any request presented to the commission pursuant to section 2-18-101(b)(3) and any request seeking further review pursuant to section 2‑18‑101(c).

(b)        Except as prevented by law, the commission shall initiate a review by its next regular meeting after presentation of the request.  The commission may seek additional relevant information to provide a sufficient basis for the prompt consideration and disposition of any matter.

(c)        The commission shall resolve the matter in the best interests of fairness, adherence to law, and to provide policy and administrative guidance for the neighborhood board system.

            (d)        If the commission finds that the actions or activities of the board or board member were inappropriate, the commission may:

(1)        Recommend appropriate actions or remedies equal in measure or extent to the significance or seriousness of the action or activity; or

(2)        For actions or activities that violate this plan, initiate a sanction hearing pursuant to section 2-18-201.  [Eff           ] (Auth:  RCH §14-103(a)) (Imp: RCH §14-104)

SUBCHAPTER 21

SANCTIONS

§2-18-2101  Complaints General provisions of the sanction hearing process.  (a)     Any person, board, board member, or the executive secretary may file a complaint A hearing to consider the imposition of sanctions against a board or a current board member for alleged violation(s) of this plan as follows may be initiated by:

(1)        The executive secretary, at any time, by written recommendation to the commission;

(2)        The commission, at any time, by adoption of a resolution;

(23)       A board or board member, upon the filing of a complaint with the commission office on a form provided by the commission office within forty-five calendar days after the alleged violation(s); or

(34)       A member of the public, upon the filing of a complaint with the commission office on a form provided by the commission office within forty-five calendar days after the alleged violation(s).

(b)        The commission may, at any time, dismiss any complaint or end any sanctions proceeding for failure to comply with any requirement under this subchapter.

(c)        Within ten calendar days after the receipt of recommendation, adoption of resolution, or filing of the complaint, the commission or its authorized designee, who may be the executive secretary, shall send a copy of the complaint to the respondent.

(d)        Respondent shall file a written response to the allegation(s) with the commission within forty-five calendar days after the date a copy of the complaint was sent to the respondent; provided that the commission or its authorized designee, who may be the executive secretary, may extend the filing deadline if the respondent submits valid reasons for the delay in writing before the filing deadline for the response.

(e)        If the respondent fails to timely file a response, any allegation contained in the recommendation, resolution, or complaint shall be deemed admitted by the respondent.

(f)         After the foregoing provisions have been met, the commission shall set a date for a hearing.

(g)        Within ten calendar days after the hearing date has been set, the commission shall notify in writing the respondent and the complainant, as applicable.  A copy of the applicable recommendation, resolution, or complaint, and the response, if any, shall be included with the notice.

(h)        All mailings to respondents and complainants, as applicable, shall be by registered or certified mail, return receipt requested.

(i)         As used in this chapter:

            "Complainant" means the board, board member, or member of the public who initiates the sanction hearing process.

            "Respondent" means the board or board member, or both, named in the recommendation, resolution, or complaint that initiated the sanction hearing process.  [Eff           ] (Auth:  RCH §14-103(a)) (Imp: RCH §14-104)

§2-18-2102  Sanction hearings initiated by the executive secretary or the commission.  (a)  This section shall apply to all hearings initiated in accordance with section 2‑18‑201(a)(1) and (2) 2-18-101(a)(1).

(b)        Not less than ten calendar days before the hearing date, the respondent shall file with the commission, and the commission shall provide to respondent, a list of witnesses (including addresses), a list of exhibits, and copies of any evidence to be introduced at the hearing to support their respective positions.  Failure to abide by the provisions of this section may result in the exclusion of the witnesses or evidence, or both, at the hearing.

(c)        The sanctions hearing shall be conducted by the commission pursuant to HRS Chapter 91 as follows:

(1)        The commission shall initiate the hearing by setting forth the respondent's alleged violations of the plan and the commission's evidence of the violations.

(2)        The commission may seek additional relevant information from the respondent or other persons in furtherance of determining the issue(s) under consideration.

(3)        The respondent shall respond to the allegations and may present any evidence in furtherance of the respondent's case.

(4)        During the presentation of the case by either the commission or the respondent, cross-examination of witnesses shall be permitted.

(5)        The formal rules of evidence shall not apply to the sanction hearing process.

(6)        After the presentation of the case by the respondent, the commission shall deliberate and determine whether to sanction the respondent and, if so, the appropriate sanction equal in measure or extent to the significance or seriousness of the violation(s).

(7)        After due deliberation, the commission may render an oral decision.

(8)        Within fifteen forty-five calendar days after the hearing, the commission shall issue its decision in writing.  [Eff           ] (Auth:  RCH §14‑103(a)) (Imp: RCH §14-104)

§2-18-2103  Sanction hearings initiated by a board, board member, or the public.  (a)  This section shall apply to all hearings initiated in accordance with section 2‑18‑201(a)(3) and (4) 2-18-101(a)(2) and (3).

(b)        Any board or person filing a complaint must have a legally protectible and tangible interest adversely affected by the violation(s) alleged in the request The Commission, at its discretion, may appoint a hearings officer, who may be the executive secretary, to conduct the hearing and make recommendation to the Commission.

(c)        Not less than ten calendar days before the hearing date, (1) the complainant and the respondent shall file with the commission a list of witnesses (including addresses), a list of exhibits, and copies of any evidence to be introduced at the hearing to support their respective positions and (2) copies of the list of witnesses, list of exhibits, and evidence shall be exchanged between the complainant and the respondent.  Failure to abide by the provisions of this section may result in the exclusion of the witnesses or evidence, or both, at the hearing.

(d)        The sanctions hearing shall be conducted pursuant to HRS Chapter 91 and proceed as follows:

(1)        The complainant shall make an opening statement, if desired, stating what the complainant intends to establish.  The respondent may then make an opening statement, if desired, stating what the respondent intends to establish.

(2)        The complainant may proceed with the complainant's case by calling witnesses or submitting any evidence in support of the complainant's case.

(3)        During the presentation of the case by either the complainant or the respondent, cross-examination of witnesses shall be permitted.

(4)        Any document, writing, or object introduced as evidence in support of any party's position must first be examined by the opposing party before being introduced as evidence.

(5)        The formal rules of evidence shall not apply to the sanction hearing process.

(6)        After the conclusion of the presentation of the complainant's case, the commission may make a determination whether or not the complainant has submitted sufficient evidence to support the complainant's case.  If so, the respondent may proceed with the respondent's case.  If not, the commission may adjourn into an executive session to determine whether or not to dismiss the complaint.

(7)        After the conclusion of the presentation of the respondent's case, the commission shall deliberate and determine whether to sanction the respondent and, if so, the appropriate sanction equal in measure or extent to the significance or seriousness of the violation(s).  If the Commission finds that the complaint is frivolous, or was filed to embarrass or cause harm to an individual, it may issue sanctions against the complainant.

(8)        After due deliberation, the commission may render an oral decision.

(9)        Within fifteen forty-five calendar days after the hearing, the commission shall issue its decision in writing.

(10)       If the hearing is conducted by a hearings officer, the hearings officer shall submit a written report and recommendation to the Commission within thirty days after the hearing.

(a)                 The hearings officer shall serve the written report and recommendation to complainant and respondent.  It shall presume that such written report and recommendations are received by the parties within three (3) days of mailing.

(b)                 Any party who objects to any portion of the hearings officer’s written report and recommendation must file and serve written objections to such report and recommendation within fifteen (15) after the date of mailing.

(c)                 The Commission shall review the hearings officer’s report and recommendation and all objections and shall issue its decision within sixty days of the date of mailing of the hearing officer’s report and recommendation to the parties.  [Eff       ] (Auth:  RCH §14-103(a)) (Imp: RCH §14-104)

§2-18-2104  Sanctions.  (a)  The commission, after conducting a hearing pursuant to this subchapter, may impose sanctions on a board, or a current board member, or a complainant.

            (b)        Sanctions may be imposed subject to one or more conditions.  Sanctions which may be imposed include but are not limited to:

(1)        Letters of reprimand with instructions for remedial action;

(2)        Removal of a board officer from the board office;

(3)        Suspension of a board member from the board for a period of not more than sixty calendar days, with any board meeting missed during the period of suspension of the board member to be counted as an absence;

(4)        Removal of a board member from the board for the remainder of the member's term of office; and

(5)        Suspension of a board's operations.

            (c)        If a board is suspended, the suspension shall apply to all board activities, unless otherwise specified in the suspension order.  A suspension may be based on, but not limited to:

(1)        Unfilled vacancies on the board;

(2)        Successive failure to attain quorum; and

(3)        Exigent circumstances relating to board conduct.  [Eff           ] (Auth:  RCH §14-103(a)) (Imp: RCH §14-104)

§2-18-205  Contested case process.  Any party subjected to sanctions after a hearing conducted pursuant to this subchapter who is not satisfied with the commission's determination may apply to the commission for a contested case proceeding pursuant to chapter 91, HRS, within thirty days after the commission issues its written decision.  [Eff           ] (Auth:  RCH §14-103(a)) (Imp: RCH §14-104).

DISCUSSION: A comment was made to focus on the “complaint” and not the “sanction.” Titling the chapter as such would seem more appropriate. The language and use of vocabulary is critical to this section. It was suggested to use direct language. A comment was made stating part of the process is a policy issue. It was suggested to use in internal process that the Executive Secretary could address before going through the full process of a hearing. Another comment was made to have Corporation Council review 8-C, which constituted of three years of Saturday morning meetings that will give suggestions to the Complaints process.

• HEARING NO OBJECTIONS, THE PROPOSED AMENDMENT TO CHAPTER 18 WAS APPROVED.

It was noted that the format of the proposed amendments will be reviewed and properly formatted by Corporation Council. The handouts received by members of the public are for easy viewing and commenting. Commissioner Mobley recommended the amendment list include the deleted amendments and why it was recommended not to be amended.

A comment was made to have the amendments list attached on the NCO website immediately following the 2008 Neighborhood Plan.

Kaleo Gange and Robert Whitaker introduced themselves as the Chair and Vice Chair of the Manoa Neighborhood Board Number 7. They stated they were in attendance of the Committee meeting because they wanted to be actively involved with the Neighborhood Board System.

ADJOURNMENT:  The meeting adjourned at 8:21 p.m.

Submitted by: Theona Kapoi, Neighborhood Commission Office

Reviewed by: Bob Finley, Chair Neighborhood Plan Committee