LIHU‘E — What is the real meaning of the word “shall” in the Kaua‘i County Charter? Kaua‘i voters might be asked in November to answer a question that caused much controversy last year. The county attorney and the county prosecutor
LIHU‘E — What is the real meaning of the word “shall” in the Kaua‘i County Charter? Kaua‘i voters might be asked in November to answer a question that caused much controversy last year.
The county attorney and the county prosecutor had opposing views. Judge Randal Valenciano of the Fifth Circuit Court dismissed a civil case seeking declaratory judgment on the word and said it would be up to Kaua‘i voters.
A resolution introduced this week might finally settle the issue.
The Kaua‘i County Council on Wednesday unanimously approved on first reading Resolution 2012-22 calling for the following ballot question to be added to the November elections:
“Shall the terms “must” and “shall,” when used in the Kaua‘i County Charter, be interpreted as mandatory directives and shall the term “may,” when used in the Kaua‘i County Charter, be interpreted as permissive?”
Also, Section 2. F of the resolution sets the meaning of the words “shall” and “must” as mandatory and “may” as permissive.
However, the council’s action on Wednesday is not final. Resolutions placing ballot questions have to go through at least two readings.
The council referred the resolution to the county attorney for review, scheduled a public hearing on March 28 and a second reading on April 11.
Shall, must and may
The word “shall” was the focus of a heated discussion last year on whether the Salary Commission violated the charter by sending a Salary Resolution to the council nearly five months past the deadline.
Per the charter, the commission “shall” send a resolution setting salaries of elected and appointed county officials on or before March 15, when the mayor is supposed to transmit to the council the budget for the subsequent fiscal year, which starts July 1 each year.
The Salary Commission sent the Salary Resolution to the council on Aug. 5.
County Attorney Al Castillo had an opinion that “shall” is directory rather than mandatory.
County Prosecutor Shaylene Iseri-Carvalho testified it was mandatory.
The council first rejected the salary resolution, then reconsidered it. Some of the council members saw the resolution as a mechanism to control salaries of high-ranked county officials, while others saw it as a violation of the charter.
After the reconsideration, a stalemate caused the resolution to become effective Oct. 4 after crossing a 60-day deadline for council action.
Councilman Mel Rapozo took the issue to the county Board of Ethics, which cleared then-Boards and Commissions administrator John Isobe of any wrongdoing for helping the commission to craft the Salary Resolution.
Rapozo and Councilman KipuKai Kuali‘i then filed a complaint with the Fifth Circuit Court, seeking a declaratory judgment. The civil lawsuit named as defendants the county of Kaua‘i and the four councilmembers whose votes allowed the resolution to become law: Tim Bynum, JoAnn Yukimura, Nadine Nakamura and Dickie Chang.
Valenciano ruled Rapozo and Kuali‘i didn’t have standing in the case because they didn’t suffer financial losses.
Visit www.kauai.gov for more information.
• Léo Azambuja, staff writer, can be reached at 245-3681 (ext. 252) or lazambuja@ thegardenisland.com.
