Recently, a citizens group provided to the Kauai County Council 18 instances where it was questioned whether TVR certificates were issued in compliance with county and state laws and nine instances where it was questioned whether building permits had been
Recently, a citizens group provided to the Kauai County Council 18 instances where it was questioned whether TVR certificates were issued in compliance with county and state laws and nine instances where it was questioned whether building permits had been issued in compliance with state and county laws.
For a number of years, council members have received similar communications, which have been referred to the Planning Department, and where no enforcement action has been forthcoming. When the council tried to obtain information about these situations from the Planning Department, it was not forthcoming. What does the council do about its dilemma?
Fortunately, there is a provision in the Kauai County Charter (Section 3.17) that authorizes the council or an authorized committee to conduct investigations as to any agency or operation of the county on any subject on which the council may legislate. Last month, councilmen Mel Rapozo and Gary Hooser initiated Resolution 2013-55 seeking to form a three-person committee of council members to investigate and make findings on the matters above noted.
Under the terms of Section 3.17, the committee may hold hearings and subpoena witnesses and compel the production of relevant books and records. The section includes provisions for suitable sanctions for failure to comply with the powers of the committee.
Although Section 3.17 authorizes the entire council to be the investigative body, the resolution wisely limits the particular requested authority to three council members, which should improve the process for handling of the investigation and avoids certain Sunshine Law problems that would be involved with a larger committee.
While the section does not expressly entitle the investigative group to have a staff of professional, technical or clerical nature, it should be fairly implied to be consistent with the purpose of the section and it would facilitate the collection, organization and digestion of the data that may be necessary for an appropriate analysis. The absence of specific authority has been noted by the County Attorney, who typically seeks roadblocks for actions the mayor would oppose, but there does not seem to be a justifiable reason to require a less efficient way for the council to accomplish what it is clearly empowered to do.
Section 3.17 has existed in the charter since its outset, but the writer has not been informed of any prior occasion when the investigation has been initiated and completed. A possible reason for this inaction could be that the administration has been so forthcoming when the council may have questions that it was unnecessary. However, this was clearly not the case over the past years as frequently the cognizant department heads have simply chosen to evade or not to respond to council inquiries and the council has not pursued its remedies.
When the form of government in place is one with separate legislative and administrative branches such as is the case in our federal government as well as our county, it is virtually inevitable that there will be times when actions by the administrative branch will not be in accord with the views of the legislative branch. When this occurs it is highly appropriate that the legislative branch should have powers that enable it to identify the practices and policies of the administration and, where appropriate, to legislate required changes.
Legislative information gathering investigations are common enough in government elsewhere and it is surprising they have not been used here on Kauai.
Could it be that the council has been so intimidated by the administration when their inquiries are frustrated they have not sought to serve our citizens on issues of public interest?
It might be observed that if Kauai had a council-manager system rather than the council-mayor system it has, utilization of a Section 3.17 provision would not be necessary as the manager, who would supervise county administrative functions, would be responsible to the council. Evasion of council inquiry would not arise in that case.
The June 5 PowerPoint presentation by the planning director at the council meeting relating to TVRs offered apologies, some justifications for enforcement failures and promises, but left unanswered basic questions as to systemic and personnel deficiencies that resulted in evident compliance omissions.
Our council should not let the PowerPoint presentation distract it. It should see the wisdom of adopting the well-considered resolution before it so that its committee can investigate and make the necessary findings in order to correct the impediments that the planning department apparently has in enforcing our transient vacation rental properties laws.
The failure to take such action would leave the council appearing weak and subservient.
The implementation of the resolution would also be therapeutic in avoiding future instances where administrative department heads might be tempted to evade or be non-responsive to council inquiries concerning the conduct of the affairs of their offices. And such openness would also facilitate the transparency sought by our Sunshine Law.
At its June 12 meeting the council by a 4 to 3 vote chose to defer action on the resolution regrettably opting for indecisiveness instead of exercising its authority.
• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.
