Council questions legality of salary resolution

NAWILIWILI — The Kaua‘i County Council plans to reconsider its decision on a resolution that would have frozen the salaries of most county officials for the next two years when it meets Wednesday morning.

Using the argument of illegality due in part to a blown deadline, the council on Sept. 7 rejected by a 6-1 vote a resolution put forward by the county Salary Commission.

The salary resolution currently in effect was adopted in November. It took effect July 1, raising the salaries of most elected officials and county department heads. Those salaries had been frozen since Dec. 1, 2008.

Resolution 2011-1 proposes freezing the salaries of county officials until July 1, 2013.

The Salary Commission had a March 15 deadline to send the resolution to the council — the same deadline Mayor Bernard Carvalho Jr. had to present the budget for Fiscal Year 2012, which started July 1.

“This salary resolution is not valid,” former commissioner Horace Stoessel said at the Sept. 7 council meeting.

He explained to the council that the commission sent the resolution five months after the deadline and almost two months after a salary raise had taken effect.

Councilman Mel Rapozo said appointing authorities, under the current County Charter, have the ability to lower the salaries, but not go over the cap set by the commission. Those appointing authorities include boards and commissions and the mayor.

In other words, even without the new resolution, there is still a mechanism to freeze salaries.

As Councilman KipuKai Kuali‘i said, “it’s actually the salary caps that became effective.”

Councilwoman Nadine Nakamura concurred with Rapozo and Kuali‘i.

The charter is a “very strict document,” Rapozo said, adding that violation of the charter constitutes a misdemeanor.

“You can go to jail for a year,” he said. “I’m not going to do that. I don’t think the administration is going to do that either.”

Rapozo said the resolution needed to be unanimously rejected to send a message to the commission that the council is not willing to participate in the violation of the charter.

But Rapozo’s rationale did not jive with Councilwoman JoAnn Yukimura’s, the sole council member to not vote to reject the resolution. She wanted time to have an opinion from the county attorney on the legality of the document.

“I was really moving toward rejecting the present resolution before us on the grounds that it is illegal,” Yukimura said, noting that questions on the legality of amending a fully vetted resolution were still pending.

Her reasoning met some resistance from Council Chair Jay Furfaro.

“It was the mayor and his staff who chose not to implement some of these recommendations,” he said. “That is his prerogative as the chief operating officer of the corporation called the County of Kaua‘i.”

Opining the council needs to remain independent from the process, Furfaro said Carvalho waived an $8,000 raise on his annual salary. This was “very gracious,” he said, but was his choice.

Carvalho’s annual salary cap on July 1 increased to $122,504 from $114,490, which was his salary since the last increase, Dec. 1, 2008.

The resolution may appear to be illegal, Yukimura said, but voting to not reject it would not violate the charter; it would allow the council to perform its due diligence.

“If we take time to find out if it’s legal we can curtail pay raises,” she said.

Yukimura’s calls to not reject the resolution just yet were not answered by other council members, even after Deputy County Attorney Amy Esaki said the council would have legal responses from Deputy County Attorney Mona Clark before Sept. 21, the council’s next scheduled meeting.

Before a roll call vote was cast, Councilman Tim Bynum was admittedly on the fence.

“I’m unsure whether to defer or reject it,” he said, noting the salaries of county workers from the Hawai‘i Government Employees Association union are being reduced.

In the end, he went with the majority, but only after lashing at Boards and Commissions Administrator John Isobe. Bynum said the county’s operational budget — a key, dedicated process — should reflect the recommendations of the Salary Commission.

“We have rules, and those rules are intended to be followed,” Bynum said.

Isobe said the salary resolution adopted in November had one provision that could have been a mistake by the commission; it gave the council and the mayor the authority to not implement the salaries based on the budget.

“That particular provision was called into question whether or not the commission erred in its findings and allowed the council and the mayor to do that, because the charter requires that the Salary Commission set the salaries of all elected and appointed officers,” he said.

The commission in its wisdom, given what the budget would look like after collective bargaining with the union was concluded, thought the mayor and the council would consider the budget implications and decide if the county could afford the raises, Isobe said.

The resolution was crafted to correct this flaw, he said. If rejected, the budget would need to be amended, regardless whether county officials take pay raises, he added.

Furfaro said he intended to have further discussion on the issue, even if the resolution was rejected.

Communication C 2011-273, on the council’s agenda for Wednesday, was transmitted by Councilman Dickie Chang, requesting the council to reconsider its rejection of the commission’s resolution.

Visit www.kauai.gov for more information or to watch the meeting live online.

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