Council heats up over resolution on salary freeze

NAWILIWILI — A lengthy and at times heated Kaua‘i County Council meeting ended this week without a decision on a controversial Salary Commission resolution that would freeze the wages of certain county officials.

The passionate discussion, which has involved a serious debate over the legality of the resolution itself, will resume at a special council meeting Tuesday afternoon at the Historic County Building.

While council members seemed to agree the salary freeze was the right thing to do, particularly given the economic climate, they questioned the process at which the resolution reached their hands for decision-making.

The council on Wednesday decided by a 4-3 vote to reconsider the commission’s resolution it had rejected by a 6-1 vote on Sept. 7. Councilwoman JoAnn Yukimura cast the lone “no” vote at the earlier meeting, arguing there were legal questions still begging for answers.

The resolution narrowly escaped rejection a second time, when by a 3-4 vote a motion to reject it failed. Council members KipuKai Kuali‘i, Nadine Nakamura and Mel Rapozo voted for the rejection. All three had voted earlier in the day against reconsideration.

In both instances, voting last in a roll call, Council Chair Jay Furfaro cast the deciding vote on the resolution that would freeze the salaries of several county officials, including the mayor’s.

Council members scheduled for Tuesday a special full council meeting to gather more information and decide what to do with the resolution the commission sent them Aug. 5, well past the March 15 deadline set in the County Charter.

If the council does not take action on the resolution by Oct. 4, it will become effective, freezing the salaries of most elected and appointed county officials until 2013.

Legal advice

The salaries of most county officials have been frozen since 2008. A few positions received raises in 2009. The council in November approved the current resolution, setting pay raises to those county officials and department heads who had not had a raise since 2008. But on March 15, when the administration sent the council the budget for Fiscal Year 2012, it did not include the raises; the supplemental budget sent in May also failed to include the raises and the council did not catch the omission before its approval.

“Right now the budget does not contain the required amount,” County Attorney Al Castillo said.

By the commission blowing the deadline, council members on Sept. 7 said they could not accept the resolution, and rejected it on the basis that it would have been a violation of the charter.

But on Wednesday Castillo opined that the wording on the charter, “shall,” does not necessarily mean that March 15 was the ultimate date. Besides, he said, there were instances, as recent as 2009, when a resolution was accepted after the beginning of the fiscal year.

Castillo said council members could reject his legal advice but by doing so they could be subject to personal exposure.

“If you hold fast to each March 15 — March 15 of 2011, March 15 of 2010, March 15 of 2009 — you might be raising a legal question of the propriety or the impropriety of the past salary resolutions,” said Castillo, adding that he cannot find any legal precedent that says the March 15 deadline means the March 15 of the same year.

“Based on that I ask you to not make a big issue of the March 15 (deadline) and not set a precedent,” he said.

Budget amendment

Despite casting the last votes that sent the resolution into reconsideration and denied a second rejection, Furfaro was not shy in showing his frustration with the commission and the administration. Instead of the council approving the resolution, he said the administration should have come before the council requesting a $173,000 General Fund appropriation to cover the raises.

“If the administration wants to come up and massage something or so forth, guess what?” Furfaro said. “They come back to the council with a budget amendment for specific salaries, and a rationale behind it based on performance.”

The current salary resolution actually sets salary caps, and gives appointing authorities the power to raise salaries up to a certain level, after evaluation and due process. Since some department heads are appointed by boards and commissions rather than by the mayor, those department heads could technically get a pay raise after due process.

Nakamura said she agreed with the resolution’s intent. “It’s not time to be raising salaries.” The problem that she was concerned with was the legality of the process.

If the council rejected the resolution a second time, several boards and commissions could still raise the salaries of their respective appointees, and the mayor’s salary would still be muddled, Councilman Tim Bynum said.

The current resolution went into effect in the beginning of FY12, July 1. Almost three months into the current fiscal year, no one has taken a raise.

At first it may appear that keeping the status quo would have been fine if Mayor Bernard Carvalho Jr. had taken his approximately $8,000 pay raise. His appointing authority is the island’s registered voters. The Salary Commission sets his salary cap, which in the mayor’s case is the salary he receives.

But keeping the status quo would raise another flag: Even if no one takes a pay raise, and if Carvalho chooses to donate his differential, the FY12 budget still has to reflect the pay raises. Pay roll, including benefits, accounts for nearly 70 percent of the county’s operational budget, according to Furfaro.

“I agree with Chair Furfaro,” Bynum said. “If the Salary Commission sets caps that’s what we gotta budget for.”

Tempers flare

Councilman Dickie Chang was responsible for sending the communication for Wednesday’s request for reconsideration. Chang, who had voted on Sept. 7 for the resolution’s rejection, said there were still legal questions that had not been answered.

On Sept. 7 Castillo and Mona Clark, the deputy county attorney familiar with the commission’s meetings, were not present. On Wednesday, both fielded a heavy onslaught of questions from council members.

“These seven brains here, we can make decisions, we don’t always have to rely on the attorney,” said Kuali‘i, explaining why he would vote against reconsideration. “We are the elected officials. We are charged by the people to make these important decisions, and I thought we did that two weeks ago.”

Rapozo said Castillo should advise the council on the resolution; it represented a conflict of interest because the document also affects the county attorney’s salary.

But Bynum was puzzled with Rapozo’s comments.

“I’m not sure opining on something that makes sure you don’t get a raise is a conflict of interest,” he said.

Rapozo said it was ironic that the person who crafted the resolution, Boards and Commissions Administrator John Isobe, was the only county official who would get a pay raise if the new resolution is approved. Isobe’s position is not listed in the new resolution.

Arguments between council members were also passionate. Furfaro in a couple instances asked council members not to approach each other across the table and called recess to try to cool off tempers. At one point Rapozo stormed out of the chambers after Yukimura, an attorney, told him he didn’t understand the legalities involving the resolution.

“I do understand JoAnn, maybe you don’t,” said Rapozo, standing up from the table as Furfaro’s gavel hit the wood. “I don’t need to be told I don’t understand.”

When the meeting resumed, Yukimura said she wanted to apologize to Rapozo.

“I don’t understand either,” she said, adding that what she meant was that she didn’t think anyone at the table understood the legalities until they would be able to discuss them with the county attorney.

The new resolution changes Section 2 of the old resolution, which some council members suggested was illegal.

The old resolution gives power to the council and the mayor to reduce through the annual budget process the salaries of “any non-elected officer or employee to an amount lower than the figure established for the position in this resolution.”

If the revised resolution is approved by the council, Section 2 would be changed to state that “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 (these six positions) that took effect 12/01/09 shall remain frozen on 07/01/13 or until such time that the salary levels paid to comparable administrative officers and employees listed under Article 1 have caught up.”

Visit www.kauai.gov for more information.

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

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