Clerk’s salary still stirring controversy

LIHU‘E — Since Dec. 1 when a majority of the Kaua‘i County Council appointed Peter Nakamura to continue serving as county clerk, some officials have remained embroiled in a controversy that stems in large part over their interpretation of the County Charter.

Council members Tim Bynum and JoAnn Yukimura have alleged procedural errors in the process that gave Nakamura a 7 percent pay raise on Dec. 1, 2009.

“To me, it’s really clear,” Bynum said. “The Salary Commission requires certain criteria to be met. Those criteria were not met.”

But Council Chair Jay Furfaro says due process was followed — including two council votes on the matter — and Nakamura’s pay raise was appropriately approved by the appointing authority. He has asked the county attorney to review the legality of the matter.

The charter mandates the commission set its rules of procedures. As such, the commission has established three requirements for a salary increase. Interviews with county officials and a review of public records suggests these criteria were not met in the case involving the council’s approval of a pay raise for the county clerk.

The commission’s rules state in part that the salary increase for certain non-elected officers is contingent on the personnel director’s receipt of the following:

— A memo from the officer’s or employee’s appointing authority at least 30 days prior to the increase certifying that appointee’s performance has been evaluated pursuant to procedures established by the personnel director.

— A copy of the officer’s or employee’s completed performance evaluation evidencing that the appointee has met or exceeded job requirements.

— Based on the evaluation, the appointing authority’s recommendation on whether a proposed increase should be granted.

Yukimura questioned the legality of Nakamura’s pay raise largely because it was not first recommended by the appointing authority — in this case, the council — as required by the commission’s rules.

“The only way the appointing body can act is through a meeting and a vote. And where is the record of that meeting?” Yukimura said. “How can you say that the council made a recommendation if there was no meeting?”

Former Councilwoman Lani Kawahara, who served on the council for the last two years but decided against seeking re-election this fall, said there was never a meeting where the council decided as a body to recommend raising Nakamura’s salary.

Bynum stopped short of calling the move illegal, but said the council never recommended the raise. It was the Salary Commission that first recommended it, which is contrary to the rules, he said.

Former Councilman Daryl Kaneshiro, who left the council last month after choosing to not seek another term, had a different interpretation.

“I don’t think the council has to recommend a pay raise at all. I guess there’s a Salary Commission that sets the pay,” said Kaneshiro, noting that the council can do an evaluation if the body is unsatisfied with the clerk’s performance.

Councilman Dickie Chang was uncertain whether the appropriate process was followed, but said the salary increases put forth in the resolution — which also included the county auditor’s and deputy clerk’s — will be revisited at a later date.

The resolution

The Salary Commission on Aug. 25, 2009, sent a resolution to the council that recommended freezing the salaries of the mayor and most department heads. The resolution recommended pay raises for the county clerk, deputy county clerk, auditor, prosecutor, first deputy prosecutor, deputy prosecutor and all seven council members.

“They got a raise when people were losing their jobs or getting pretty significant salary cuts,” Yukimura said.

Bynum said he did not want his raise.

“I tried to give it back,” he said, adding that the charter forbid it.

On April 1, 2010, Bynum appeared before the Salary Commission to share his concerns that Nakamura’s salary ($114,848), along with the salary of the auditor ($114,848) and prosecutor ($114,848), were greater than Mayor Bernard Carvalho Jr.’s salary ($114,490).

The council voted on Sept. 23, 2009, to receive a communication from the commission establishing the salaries by resolution. On May 26, 2010, the council voted to approve the county operating budget for Fiscal Year 2011, which started July 1 and included the clerk’s salary increase.

In a “media statement” last week, Furfaro said Bynum voted in favor of measures concerning Nakamura’s pay raise twice, once when receiving the commission’s communication and again when approving the FY11 budget.

As shown in the minutes of the council’s Sept. 23, 2009, meeting, Bynum seconded the motion made by Chang to receive the communication regarding the commission’s resolution.

“Seconding is meaningless to me,” said Bynum, adding that he didn’t recall doing so.

Then on May 26, 2010, the council voted unanimously to approve the budget, which contained — among a litany of other items — the salaries of all department heads, including Nakamura’s.

“There’s no way accepting a budget or accepting a resolution that is a Salary Commission recommendation constitutes a recommendation for a salary increase. That’s a real stretch,” said Bynum, adding that he was not even thinking about Nakamura’s salary when voting for the budget.

“Receiving a communication is not endorsing all of its content,” Bynum said. “Voting for a budget is not a ‘recommendation from the appointing authority.’ Council members accept provisions all the time that have elements or portions they are not in agreement with.”

County Attorney Al Castillo advised the council at its Sept. 23 meeting that receiving the communication for the commission’s resolution was the same as approving it. He recommended at the time that the council defer it so it would be “pending approval.”

“I think that makes a big difference,” he said, according to the minutes to the meeting.

Yukimura disagreed with Furfaro’s assertion that due process was followed.

“It would have to be a resolution, not from the Salary Commission, but maybe from one of the council members,” Yukimura said, regarding how the salary-increase process begins for the positions that fall under the council’s purview. “It has to be initiated by a member of the County Council.”

All the communication did was approve the process defined by the commission, she said, adding that due process has to be followed, including a council meeting and a vote.

“That’s the only way that a body can act,” Yukimura said. “Otherwise it’s illegal.”

Bynum said that when the commission sent the communication to the council, he asked then-Chair Kaipo Asing to amend the resolution to reduce the salaries for the positions that were supposed to receive the raise.

“I didn’t make that motion because it would’ve been argumentative,” said Bynum, noting that he had been having other differences with Asing. “If I go on the floor and make motions that I know are going to be defeated over and over again, that means I’m going to be more an outsider.”

Bynum said he could have — and maybe should have — spoken up about the pay raise when it was before the council, but was concerned about being seen by his colleagues as grand-standing.

Yukimura said it is “hard to think of everything” in the moment.

“Sometimes you still should make motions, even if you don’t have support,” she said.

The rules

The commission’s rules state that salary increases are contingent on the personnel director’s receipt of a memo from the appointing authority at least 30 days prior to the increase. Yukimura and Bynum said this did not happen.

Such a memo, originating from the council, should certify that the appointee’s performance has been evaluated pursuant to procedures established by the personnel director.

The council, according to the rules, must also send a copy of a completed performance evaluation showing that the employee or officer — in this case, Nakamura — had met or exceeded the job requirements for the appraisal period.

Furfaro said that on Sept. 23, 2009, Asing circulated evaluation forms prepared by Personnel Director Malcolm Fernandez.

All seven council members serving on the legislative body at the time confirmed they completed the evaluation form.

Because it is a personnel matter, Furfaro said he could not disclose the contents of the evaluation.

“I am confident that Mr. Nakamura met the requirements for his raise,” he said in a statement.

Bynum, however, said there is no evaluation in Nakamura’s personnel files.

“How could the Salary Commission or the personnel director have an evaluation when it doesn’t exist in his file?” Bynum said.

Council members are allowed to review the clerk’s personnel files, he said.

Yukimura said the whole council should have reviewed the evaluations and then made a recommendation for a pay raise based on those evaluations.

Kawahara said she requested to see the evaluation records, but could not comment on what she saw because she was unsure if disclosing its contents would be breaking the law.

Chang said once he turned in his evaluation, he never saw it again.

He said he thought Asing was going to share the results with the council, but apparently never did.

Asing was unsuccessful in his bid for re-election last month. He has not responded to repeated requests for comment.

“Was it destroyed or whatever? I don’t know. All I can tell you is that I filled it up and have never seen it again,” Chang said.

Yukimura said that according to the rules the evaluation has to be sent to the commission 30 days prior to the raise taking effect. “I don’t think that was the case,” she said.

A memo from the council chair to the personnel director seems to back up her claim. On Dec. 14, 2009, two weeks after Nakamura’s pay increase took effect, Asing sent Fernandez a one-paragraph memo stating that Nakamura had met or exceeded job requirements for the position of county clerk.

“I understand that you will transmit the results of his evaluation to the Salary Commission,” Asing said in his memo to Fernandez, almost four months after the commission submitted its resolution to the council and almost three months after the council unanimously received it.

The only person copied on the memo was Nakamura. The memo does not indicate that there was any attachment that could contain the evaluation required by the rules. County spokeswoman Beth Tokioka confirmed Wednesday that there was no evaluation attached to the memo.

“He sent that over there without any council approval, on his own, unilaterally,” Kawahara said of the memo Asing sent to Fernandez, adding that the chair can not act alone as the appointing authority.

“It needs to be presented to the full body,” she said. “That memo was sent without the body’s authority.”

The performance

Procedure aside, Furfaro defended Nakamura’s raise. He said it was justified in part because 2010 was an election year and a new deputy county clerk, Eddie Topenio, was recently hired, putting an extra workload on Nakamura in terms of training and overseeing the election. Furfaro also backed the county auditor’s raise, saying it was a new  position, created in 2008 and implemented in 2009.

Despite the controversy over his pay raise, Nakamura received only favorable public comments during the inauguration Dec. 1, when he was sworn into office after council’s 4-2 vote.

Kaneshiro and Chang also praised Nakamura for his dedication to the job.

“He’s there 10 hours a day, seven days a week,” Kaneshiro said. “He deserves to be paid for every hour he works.”

Kaneshiro said if Nakamura’s hours at work would be broken down, he would probably be making less than almost all of his staff.

“Peter should take time off, but being Peter, you can’t force the guy to take time off,” said Kaneshiro, adding that the large amount of vacation time Nakamura accumulated was because he’s a “workaholic.”

Nakamura was paid some $50,000 in unused vacation time, according to county officials.

Chang said that in his evaluation he pointed out many good things about Nakamura, but also advised that he should take some time off work.

“Peter is just work, work, work. He’s so old-style, first one in, last one out,” Chang said.

Chang, who first took office in December 2008, said he relied solely on his observations during two years as a council member to evaluate Nakamura’s performance.

“In my short two years in office, he’s always been efficient,” Chang said. “I think he did a good job.”

Bynum, however, has shared his concerned over the clerk’s performance.

In a Dec. 1 memo, Bynum recognized Nakamura’s assets while detailing his shortcomings. Of particular concern, he said, are: the clerk’s repeated failure to respond as required by law to Uniform Information Practices Act requests; the clerk’s poor management of crucial county records; and improper salary issues.

The clerk has not responded to repeated requests for comment.

The commission’s rules state that the new officer or employee salaries cannot exceed the maximum salary established in the resolution. The respective appointing authority, however, is allowed to set the salary of any new or existing appointee at a figure lower than what the resolution established.

The council has no authority over the salary of the county prosecutor, an elected official. The council has appointing authority for the clerk, deputy clerk and auditor. Other department heads are appointed by the mayor or their respective commissions, and their salaries are managed by those corresponding authorities.

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