Loophole benefits length of councilmembers’ service

In 2006, a Kauai Charter amendment was adopted by our voters which provided that no person could be elected as a councilmember for more than four consecutive terms. The enactment resonated a prevailing sentiment that is reflected in numerous other elective positions, including the limitation to two terms of the president of our country and the mayor of our county, that it is preferable to have our representatives be citizens in government rather than career politicians. The amendment also reflected voter concern about the limited turnover of council incumbents because of our citizen’s predilection for electing those with name recognition. The amendment had one major loophole — it did not limit total number of terms, only consecutive terms.

 The amendment has been construed very favorably for incumbents under legal rulings that it was not intended to be applied retroactively  or even counting a term commencing in the year of its adoption. Under these interpretations, persons elected in 2006 and serving consecutively since then may seek election for what is counted as their fourth term this year.

There are now two candidates seeking election to the council this year who will not be eligible to seek election as a council member in 2016 — Jay Furfaro and Tim Bynum. Both of these persons have been well supported by Kauai voters in the past and appear likely to be reelected this year.

Mr. Furfaro is currently serving as the Council Chair and, if reelected, is expected to continue to serve in that capacity. He came to the council following a successful career as an executive in the hotel industry, but his performance on the council has not been marked by  being an active advocate, although he has on occasion initiated important legislation, but rather, particularly in his most recent terms, as an agile moderator and parliamentarian. He was first elected to the Kauai County Council in 2002 and if reelected in 2014, he will have served seven terms on the council.

Mr. Bynum’s prospects for reelection are shakier — he finished seventh in the August primaries. He alienated many citizens by his costly lawsuit against the county  and his questionable actions in manipulating the real property tax law which resulted in many resident taxpayers having heavy tax increases this year.

A prime beneficiary of the loophole, which only counted consecutive terms, is JoAnn Yukimura. While Ms. Yukimura trained as a lawyer, she did not pursue legal work. Instead, her history of service with the Kauai government is complex, controversial and extended. She first sought election to the County Council in 1976. She is now a candidate for election for her tenth term as a County Council member. She also served for six years as mayor of Kauai County.

Rather clearly, she has been illustrative of what we think of as a career politician. If reelected in November for her tenth council term, she will have been associated with Kauai government for nearly 40 years.

The transition of Ms. Yukimura’s focus has followed a very typical pattern that is readily observable in long-term politicians. Earlier in her service, she was an advocate of Kauai’s Sunshine Markets and she opposed high rise and other property developments. More recently, her attention has shifted to expanding government services such as the financially disastrous Eastside multi-use path, sponsoring studies and the quite unprofitable, The Kauai Bus. These propensities have been highly controversial and opposed by many concerned about Kauai’s financial responsibility. As her tenure on the council has lengthened, her proclivity to be a commentator on matters before the council has grown and seldom are there any non-routine agenda items on which she does not either question a witness or offer a point of view. This  participation extends council meetings sometimes unduly but seems to be tolerated because of her gracious style.

The term limit concept is not without opposition. Many believe that its effect of removing representatives who have become experienced in government affairs is counter productive. But on Kauai, and elsewhere, the prevailing sentiment appears to be that opening the door for younger and fresher minds is the better choice for the community. The continuing presence of the councilmembers discussed on our County Council will most likely continue for another two years and we will leave to the future the decision whether the term limit amendment might better have been enacted earlier or without its loophole.

Walter Lewis is a retired lawyer who lives on Kauai and writes a regular column for The Garden Island.

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