BOARD OF WATER SUPPLY
COUNTY OF MAUI
REGULAR MEETING
Held at the Kahului Shopping Center, Kaahumanu Avenue,
Kahului, Maui, Hawaii, commencing at 9:00 a.m. on
March 28th, 2002.
REPORTED BY: LYNANN NICELY
IWADO COURT REPORTERS, INC.
A P P E A R A N C E S
BOARD MEMBERS:
Peter Rice, Chairman
Clark Hashimoto
Kent Hiranaga
Orlando Tagorda
Adolph Helm
Howard Nakamura
Mike Nobriga
Jonathan Starr
STAFF PRESENT:
David Craddick, Director
Ed Kushi, Corporation Counsel
Mike Quinn
Herb Kogasaka
Fran Nago, Board Secretary
IWADO COURT REPORTERS, INC.
CHAIRMAN RICE: Good morning. I'm going to
call together the regular meeting of the Board of
Water Supply, Thursday, March 28th, 9:00 a.m. We're
at Kahului Shopping Center.
In attendance we have the full board and we
have on my right Clark Hashimoto, Mike Nobriga,
Jonathan Starr, Orlando Tagorda, Adolph Helm, Kent
Hiranaga, and Howard Nakamura; Corp Counsel Ed Kushi,
Jr.; Director David Craddick, staff, and members of
the public.
If you are here to testify, we'll go into that
section of the meeting shortly.
A couple of items for the board members from
the Chair. We have an issue that was referred to the
Committee of the Whole several meetings ago that we
haven't taken up and that is the Central Maui Source
Availability issue and we need to have a Committee of
the Whole meeting, so I want you to be thinking about
some date in the near future when we can get together
just for that meeting.
Number two on the agenda is the appointment of
chair and vice chair for the coming year. Our bylaws
require that that be done at the March meeting. It
wasn't done last year at the March meeting and I
apologize because I didn't know it was in the bylaws.
But in any event, for you to be thinking about during
the meeting, we can deal with that at today's meeting,
however you want. I can appoint a committee if you
want and deal with it at the next meeting. If you
think that is in violation of the bylaws, the bylaws
provide that a majority of the board can amend them,
change that rule, so we can act on it that way. Any
way you prefer is okay with me. So those two items
for your contemplation while we contemplate all these
important issues.
Approval of the minutes of the February 28th
meeting. They have been circulated.
MR. NOBRIGA: Mr. Chairman, I move that the
minutes of February 28th be received subject to a
30-day review at which time, if there is no
corrections, they shall be filed.
MR. HASHIMOTO: Second.
CHAIRMAN RICE: It's been moved and seconded
to receive the minutes subject to 30-day review, at
which time they will be filed. Is there any
discussion on that motion? All in favor, say aye.
[Chorus of ayes.]
CHAIRMAN RICE: Opposed, say nay.
(No response.]
CHAIRMAN RICE: Motion is carried.
Testimony from the public. Members of the
public who are here, we will accept testimony at this
time if you would come up and sit at this chair next
to David. If you want to testify on a specific issue
and you want to wait until that issue comes up, that's
acceptable also.
Mr. Smith.
MR. SMITH: Chairman Rice, members of the
Board of Water Supply, my name is Jim Smith, I'm here
to testify on a couple of items and I'll do it
sequentially as it is in your agenda.
My first concern is the joint finance and
operations review committee report, Director 02-04.
I've reviewed the minutes of February 28th and in
those minutes, it was stated by the Chair that there
would be a director's analysis as well as that you
would have copies of grants submittals to review.
I saw no attachments to the committee report.
The committee report was very brief, it contained no
analysis, it contained nothing that I as a citizen
could read to believe that there was decision-making
and that approval was justified for the report. So I
would ask that you not act on that report until it is
amended to include those things.
Some things concern me about this particular
request. The rhetoric or at least the testimony on
February 28th brought out several references to
nonpolitical, references to impartiality which to me
presume that the board or the department was somehow
not credible and could not get the information
itself. And to me that needs to be done away with,
quite frankly. I think $30,000 is an enormous amount
of money for perhaps information that could be gotten
by the department and I don't see how it could be
justified, especially without reviewing any of the
previous submittals that you said you would do before
you acted.
So I would ask you not to act until you've
reviewed the grant submittals that you said you would,
and then act. That ends my testimony on this
particular issue. The committee report should in fact
show somebody what the reasoning was for a decision,
not just simply what the decision is. And to me that
might be worth doing. Thank you very much.
Next I would like to share a few comments
regarding proposed rules that are on your agenda.
Quite frankly, I would like to have Maui Tomorrow
preserve its political stance. I find it very
helpful. In any event.
So I'll turn first to the fees and just a
couple of concerns that seem to me need to be
reviewed. The schedule which would adjust the annual
basis of the fee and adjust it upwards or whatever.
The Consumer Price Index to me sets a precedent to
circumvent our charter which relates to fees being set
by approval of the mayor. So I would ask you to
delete that. It may not even be significant in
amounts, but in terms of a precedent there might be
something else that might be more significant. Bond
rates, for example, or any other type of thing you
might want to insert in the rule that in effect
[inaudible].
Page 8-5 of this rule, I really would ask you
to remove the word "penalty." To me that just changes
the whole nature of this process. And if you're
saying it's a penalty if you don't do something within
a certain amount of time, I think you've used the
wrong kind of terminology. You have a fee, you may
lose your fee, but it's certainly not punishing you
for not doing something. So I'd ask you to just
remove that word "penalty."
There is an attempt I think to change the
meaning of a word which I find -- I don't know if it's
in this one -- yeah, on page 8-3, there is a reference
to corp counsel to provide verbiage of committee
desire on HRS Chapter 46. So I'm not quite sure what
that refers to. But I know in the past, corp counsel
may include language that affects me and affects my
rights and not having an opportunity to review that
prior to its adoption would cause me a little bit of
concern.
But this rule, it shows that you've spent a
lot of time and I applaud that effort to continue.
What I see is the proposed fee schedule does not
include, from my perspective, some important items.
For example, you might want to include agriculture
uses and how that might relate to meters and such,
whether or not there is a Hawaiian Homes condition
regarding the fees. That should be up front. And it
might be also possible that you might want to extend
the payment schedule for people who are poor, for
example. It might be extended for more than three
years, it might be however long. But those are just a
few concerns on that fee provision.
The final one is your appeals to the board,
which to me is necessary, should have some sort of a
procedure. The easy one is at the back on page 2-3,
it says that the board adopted this on September 21
and it should -- 26th day of September 2001, it's on
the copy I received, and it says it was adopted then.
You might want to make sure that the right date is
there when you take the rule. It should be blank at
this point.
There is an attempt to make this procedure a
contested case procedure. Now, this is an appeals
procedure. And a contested case procedure is very
burdensome. That's where you have substantial rights
and that's where you get to bring in your evidence and
all that type of thing. And it would seem to me that
this appeal should not be a contested case procedure.
I think if you'll look at the charter in 1977 when
they were dealing with the Boards of Variance and
Appeals, they separated variances from appeals and
they conditioned the appeal upon any person, any
person who felt they should come forward. Because
we're talking about conditions that are erroneous,
that in effect are arbitrary. In other words, you
have to see this on its face as being arbitrary or as
being erroneous and nobody should have to come forward
with something that would help everyone and run
through a series of loops and expenses. It would be
an easy thing for the board to meet one time and
determine the question and rights would not I believe
be assigned at the point. But once you start using
lawyer terminology, you start using standing, you
start using things that, for example, Section 16-0276
says any person who has standing to appeal shall
petition. Well, in the first one under standing to
appeal you say anyone who's aggrieved by the decision.
Now you're going to have to spend years, in some
cases, deciding whether the person has standing when
the real issue is whether there has been error. So
you want -- I would ask you to delete that part about
any person who has standing and just say that a person
shall petition the board within 30 calendar days. So
then he doesn't have to prove he has standing because
that takes up needless time.
I would ask you to turn to 16-0279 which is
under Standings of Appeal. And in this it says the
board shall review the director's decision or order
and may reverse or modify if the substantial rights of
the petitioner may have been prejudiced. But you
still could have the real legal action, not affecting
me, brought to your attention. Okay. Which you then
would find that I wasn't substantially prejudiced by.
So then you would let the illegal action stand. This
is a hypothetical circumstance. But because you have
this language in standards of appeals, you from my
perspective have screwed it up. I mean, you need to
be -- it's the board's authority to review the
director and may reverse or modify the decision or
order if it is. That's all you have to say in that.
You've got the authority to review and to change or
delete if you find that it's based upon erroneous
information or arbitrary or capricious, you can do
that. But once you throw in that if the substantial
rights of the petitioner, okay, have been prejudiced,
well, that sets up a different scheme that you're
looking at. You're not looking at the director any
longer; you're looking at who the bugger is who is
bringing this complaint to you. I would ask you to
remove it.
All of these remarks would probably go right
back to what we're looking at, which is my primary
concern, and that is: "All appeals shall include a
processing fee in the amount of $300." Now, fees
relate to expense. In other words, the law on taxes
and the law on fees is different. A fee has to
correlate to the expense involved and you cannot
include in that expense secretarial work that normally
would occur or any of those types of things. So to
charge $300, from my perspective, is draconian. It in
fact would discourage someone bringing to the board
what they believe to be an illegal activity or an
erroneous activity, and you don't want to do that. So
if you really are concerned about just paying for
additional work, then it would be probably more
suitable in the $25 range because it would seem the
normal work of your secretary involves most of this
stuff. So I would ask you to, if you wanted to do a
fee, make it correlate to the operational expense and
that to me $300 would not be anywhere involved.
Thank you very much.
CHAIRMAN RICE: Any questions of Mr. Smith,
board members? Mr. Starr?
MR. STARR: Yeah, the fee schedule for the
Water System Development fee, the escalation clause
which we had as a Consumer Price Index fraction, do
you feel that there should be no escalation over the
next several years, or do you feel that it's just the
wrong way of pegging it? I know there was some
discussion of this in the Council. We feel it's
fairer to have it slowly rise as the cost of living
rises than to wait and then have to jump up after a
few years, you know. So we're trying to avoid having
another large step in a few years. But I understand
your point is that if we set it on something that no
one in the county has any control over, then it's
subverting the right of the mayor and the Council to
approve and even our own right to set those fees.
Would it make more sense to say peg it at
something -- at a number one percent or percent and a
half, a fixed rate of escalation and then adjust it
after a few years? What in your mind would be a fair
way of dealing with it? Because I don't think having
a flat rate and then having it jump after five years,
which is what we're doing now, is really fair.
MR. SMITH: What you're looking at though is
me buying a water meter today with a fee of $6,000 and
then my neighbor a year and a half later buying a
water meter for a fee of we'll say $6,500, not paying
the same rate that I would be paying.
But the crux of the question is, I believe,
you have an amount here, and this is an amount that
was arrived at concerning expenses, okay. That
includes what you believe will be the expenses. But
if you put a separate index involved here, then that
changes that. What I'm saying is that there is
nothing wrong with the system and if you go forward to
the Council, okay, and you give them a clean shot,
that's the system. So if in three years you need to
get more money and we'll still under a system where
you go there, you go there. And that's the system.
That's the fair way of doing it.
But this sets a practice or a precedent of
including other things besides your good judgment in
arriving at the fee. In addition to your good
judgment in arriving at the fee, you're putting an X
factor which is Consumer Price Index and then you may
even put it under X factor which might be the bond
rates. Or maybe even half of the bond rates, maybe
tie it to appreciation of property. Where are you
going to stop if you set up this practice? That's
just a response.
CHAIRMAN RICE: Any other questions? Thank you, Mr. Smith.
Any other public testimony at this time?
MS. de NAIE: My name is Lucienne de Naie.
I'm on the board of Maui Tomorrow. And greetings to
all the board members here.
I came to be available for questions about the
same agenda item that Mr. Smith referred to about the
report of the joint operations finance committee
regarding the Maui Tomorrow water research project
funding. And I appreciate the fact that Mr. Smith
reads through the minutes and analyzes things. Thank
God someone is there doing that. I certainly don't
have the time.
But I'm unaware that there were additional
studies asked at the time of the joint meeting on the
28th. And I have to say that if those were called
for, it would have been my responsibility to provide
them and somehow that slipped through my radar screen
as a request. I thought what we were doing is looking
at it if was there was a possible way to have a
contract as part of the grant arrangement that would
be -- this is Mr. Nakamura's suggestion -- that would
be acceptable to both the water board and Maui
Tomorrow. And Mr. Kushi was kind enough to fax over a
sample contract that had been used for another
nonprofit grant.
Mr. Sturtz, our president of Maui Tomorrow,
and I are in the process of reviewing that. We have
actually faxed over some comments to Mr. Kushi to ask
if this is standard procedure or if we can offer an
amended sort of version. And if there are other
documents that this board needs to review as to the
amount of research that's already been conducted, what
the findings are and so forth, we would be very happy
to provide those.
We did meet with Mr. Freedman, who is under
contract to the Board of Water Supply, to provide him
with updated information recently and he found that
very useful and we thought it very useful to see the
scope that he was undertaking in developing the
support structure for the Water Use & Development Plan
that's underway.
So I guess I'm not very familiar with going to
the County for this kind of procedure. I have been
involved in one County grant with the Haiku School PTA
a number of years ago. So if there are additional
documents that would be needed, maybe I should sit
here and take notes in writing so I could make sure
that they're provided.
I feel -- I welcome Mr. Smith's comments that
Maui Tomorrow is needed as an independent agency and I
very much agree with this. However, he may be unaware
that in the history of Maui Tomorrow, there are
several times during grant-funded projects where the
organization, under the auspices of a project, not as
a whole organization, but a project of the
organization, Maui Tomorrow has worked in conjunction
with the County and one of these was designing our
communities in which County Planning Director David
Blair and Jocelyn Carrera from the County-funded
Wailuku Main Street Association joined with the
Executive Director of Maui Tomorrow [inaudible] at
that time, in making presentations about how the
planning process worked. And this was like an
8-month, 9-month long project and I felt it did some
good.
Certainly Maui Tomorrow wants to be available
as a watch dog, but our whole mission in life is not
to intervene on county procedures or, you know, sue
over infractions of things. Our mission is to try to
influence in a positive way the policies that protect
our natural resources here and that's our mission to
contribute to sustainable planning. So if we could do
this in conjunction with a County agency, it seems
like we made a step forward.
If it was going to act as a muzzle for our
efforts to receive County funding, I for one would not
feel good about receiving that funding. So, you know,
just be honest right here.
So if there are any questions from board
members or if there are other materials that I should
be providing, please let me know.
CHAIRMAN RICE: Mr. Starr?
MR. STARR: I know we're not on that agenda
item yet, but just to clarify, it was my recollection
that in an attempt not to try to burden you with
having to create a lot of paperwork that wouldn't
really do any good, what we were asking for was I
think we called it a sample grant proposal to show how
the money would be allocated. And what we were really
looking for was a copy perhaps of the -- I think
Hawaii Community Foundation or --
MS. de NAIE: I submitted that several weeks
ago before your February 28th meeting. Was it not
received? I actually submitted the whole grant. I
thought that's what Mr. Tagorda was reading from when
he said, well, I see here you've received a $40,000
grant, because part of that grant was listing previous
grants we had received.
Yeah, I submitted it about a week before the
meeting of the 28th so that members would have a
chance to review it. So if that didn't arrive, I can
resubmit it.
Well, that was the contract. In other words,
the -- the contract just says that if you
substantially -- I can submit that page. That was a
separate page. It says if you substantially change
the scope of your grant, you need to inform us and the
amount of the grant, you know, we need to refund the
amount of the grant that you're not using and so forth
and so on. It's a very simple contract that goes with
it. But what I submitted was the proposal so that you
folks could get an idea of the scope that was proposed
for the work of the whole project.
MR. STARR: Probably deal with it on the agenda.
MS. de NAIE: Well, if I could just get more
specifics, I'd be happy to provide information.
CHAIRMAN RICE: Thank you. Adolph?
MR. HELM: One last question. And I echo
Jonathan's concern because I recently applied for a
grant through the Maui Community Foundation and what I
see here is a summary of basically what your goals and
objectives are with the project.
MS. De NAIE: Right.
MR. HELM: But again, what we had to submit
was something like this that was that thick and it had
everything from budget proposals and how the money was
to be spent. And I guess that's kind of what the idea
with trying to have --
MS. de NAIE: Okay. I didn't attach the
budget or the budget for our organization. There were
like three or four other attachments. It wasn't clear
that that was what was wanted. I got the impression
that what was asked for was the original grant
proposal in terms of what the scope of the project was
and then what the working budget as regarded this
$30,000 -- in other words, what your $30,000 would go
to, not the whole budget -- the whole two-year budget
of the project.
MR. HELM: Well, specifically you're asking
more or less like a matching fund from the county.
MS. De NAIE: I guess so, in a way, yeah.
MR. HELM: So in reality, you have to do a
proposal and in it include the budget [inaudible]. So
I guess it would help, you know, if we're going to
approve monies, we like to see that.
MS. de NAIE: Sure. I can forward those two
pages, the organizational budget in general and then
the project budget for this two-year project. Okay.
Thank you.
CHAIRMAN RICE: Thank, Lucienne. Any other questions?
Is there any other public testimony at this time?
MS. de NAIE: And could I testify later on
another matter when it comes up?
CHAIRMAN RICE: Sure.
Okay. We're on Director's Report 02-10,
request approval for an appropriation of a lease
agreement. Mr. Craddick.
MR. CRADDICK: What I've done is asked for a
budget amendment for $5,000 for rental of space for
the Board of Water Supply and staff for the remainder
of this year. And in that, it would include this past
month that we paid $1,000 for and any taxes. I don't
expect it's going to be -- we're going to be using the
entire $5,000. That's just a budget amount.
This space here, if this is not dealt with,
our agreement to use this space is up on the 30th of
this month. And we put an advertisement in the
newspaper and the only proposal that came in was from
A&B Properties for this same space here. And that
offer is good until the 31st of March.
There were some concerns about the ability to
have Executive Sessions in here. I went in the room
behind us. Apparently they used to have hula classes
in here. And because of the noise going into the
other office, that vent up there is boarded up. The
guy said he can tell people are in here, but short of
putting listening devices up against the wall, can't
hear what's going on.
And we realize the problem with the air
conditioner here, we would expect to fix that if the
board were looking at keeping this for longer -- a
longer time. And the agreement that we would have
with them would still be month-to-month, basically.
Either party could cancell at any time.
And I believe Mike maybe has something to say
about as far as the additional space usage so we're
not just using this two days out of the month.
MR. QUINN: Yeah. Mr. Chairman, board
members, if the board deems fit to approve this
Director's Report today, we would try to utilize this
space for the time that the board is not using it.
Some of the thoughts we might -- or let me backtrack.
In the current proposed organization chart that we
presented to the board at the last budget session,
workshop, we had a service engineering function in
there proposed which the board approved subject to
coming back to and basically that would be having a
one-stop area for our customers to come in regarding
permit issues and meter applications for one lot or
small subdivisions. One of the thoughts was that we
might use this space for that.
Another option would be perhaps to put a few
accounting folks down here, people that can be away
from the 5th floor and operate via a hookup system via
computer terminal.
So short story is we would try to fully
utilize this space when the board isn't using it.
Essentially the board would be using this for the
monthly meeting and usually the one day or half a day
committee meetings once a month. That's all.
CHAIRMAN RICE: Members of the board, I would
like to propose for your consideration that we approve
this only for the remainder of this fiscal year
subject to a review of the need for additional space
or other options for space, recognizing that there are
concerns about this space. Also recognizing that the
issue of office space was already referred to
committee and that the lease should have come up at
the time it was -- the ad was run and the response was
made, should have gone back to that committee for
action and referral.
But given that we also had some pressure for
handicap access, I think my recommendation would be to
approve this only for the remainder of the fiscal year
subject to review and inclusion in the budget coming
forward. And also that we not really spend any money
here until we know if we're going to stay here or not.
MR. NOBRIGA: So moved, Mr. Chairman.
MR. HASHIMOTO: Second.
CHAIRMAN RICE: Discussion?
MR. STARR: I'm prepared to support that, but
I did have a question because I had some concern
regarding Executive Session and privacy of the space
and it wasn't with that wall there, but rather with
this one here which just seems to be a partition wall.
MR. CRADDICK: These are our offices. This is
part of our space. And the wall does end back behind
there. There is nobody in any of those offices.
MR. STARR: There is not another tenant right over here.
MR. CRADDICK: No.
CHAIRMAN RICE: Kent.
MR. HIRANAGA: So this budgeted amount was for how many months?
MR. CRADDICK: Last month, this month, April, May, June.
MR. HIRANAGA: Beginning February.
MR. CRADDICK: Yes.
MR. HIRANAGA: Is this a gross rent or triple
net rent? Are you being charged CAM on this thousand
dollars?
MR. CRADDICK: No, this includes all electric, water, whatever.
MR. HIRANAGA: So it's basically $1,040.
MR. CRADDICK: Plus 4 percent.
MR. HIRANAGA: $1,041.57.
MR. CRADDICK: That's correct.
MR. HIRANAGA: Thank you.
CHAIRMAN RICE: Any other questions? Mike? Comments?
MR. QUINN: Mr. Chair, along the lines of your
proposal, we put an ad in the paper for office space
for the entire fifth floor. Those bids are due April
15th, I believe. So at that point we'll be able to
have a lot more information in terms of the total
office space picture. It may be appropriate at that
time, since the board will probably be having a budget
session later in April, we'll have that information
available to the board.
CHAIRMAN RICE: Okay, I just ask the staff,
once we have it in committee, any questions that are
asked by Kent, the reason why we're putting it in
committee so we can get those kinds of questions
answered. Yeah, Kent.
MR. HIRANAGA: I just wanted to comment that
if this -- if this is gross rent which includes the
common area charges, that this rate is very attractive
for office space.
CHAIRMAN RICE: Well, the group can elect to
continue it longer, but I think that just to allay any
concerns that there might be about this being the best
space, we make a decision with the budget for next
year. It's been moved and seconded.
MR. NAKAMURA: Mr. Chairman, I am going to
recuse myself in this matter.
MR. TAGORDA: I would like to also recuse
myself from both voting [inaudible] since A&B owns
this commercial property, just for the record.
CHAIRMAN RICE: Thank you. Let the record show that also.
It's been moved and seconded to approve the
lease subject to be a final review for next year. The
lease would be good through this fiscal year. And
that no substantial improvements be made to this space
until we make a long term decision. All in favor, say
aye.
[Chorus of ayes.]
CHAIRMAN RICE: Opposed, say nay.
[No responses.]
CHAIRMAN RICE: Let the record show there were
two recused and the vote was unanimous.
Director's Report 02-11, request authorization
to reimburse the Department of Finance for the
services of Herbert Chock for the Mahinahina
arbitration settlement.
MR. CRADDICK: This item here, if the board
wants to refer this to committee, that would be all
right. But the attorney is here to talk about it if
you want to. He's here for another matter also.
CHAIRMAN RICE: Let's make sure we speak into
the mikes to help our friends at Akaku.
I have some concerns about the request for the
approval of the expert and an amount being set for our
approval, and then the actual amount being so high and
the contract being signed by Wesley Lo, so I would
like to talk about this further in committee if there
is no objections from the members of the board. And
I'll refer it to finance committee. So ordered.
Okay. Moving on, Communication 02-08,
Mr. Craddick. Robin Nonaka, Pacific Century, is Robin
here? Anyone here from Pacific Century? Okay.
MR. CRADDICK: Let's see here. That's the
trust. Okay. Both the communications could be
referred to committee or -- as a matter of fact, we've
told the people they will be referred to committee.
CHAIRMAN RICE: Was this issue not already
referred to committee and then there was a
recommendation and there was a vote of the board
and --
MR. CRADDICK: It was on a different matter.
This Moses Timbal was the one who came to the board
and in that decision -- well, I guess the church is
trying to get out of the requirements that were put on
him to be able to do what he wanted to do. And that
basically is it.
CHAIRMAN RICE: Pleasure of this group?
MR. TAGORDA: Mr. Chairman, I believe this
item has been on the committee already and I would
like to make a suggestion that if the requestor don't
want the agreement because of that specific condition,
then we should deny his request.
MR. CRADDICK: It's different parties,
Orlando. There is different parties. The person
coming before you now is the Roman Catholic church
trustee, I guess. And the person who was before us
before is this Moses Timbal.
CHAIRMAN RICE: But Moses was representing --
MR. NOBRIGA: Himself.
CHAIRMAN RICE: Himself.
MR. CRADDICK: Yeah.
CHAIRMAN RICE: And the church then either
acquired or somehow --
MR. CRADDICK: No, no, it's always been the church property.
CHAIRMAN RICE: So then he was representing
the church. He was representing the owner of the
property.
MR. CRADDICK: He was trying to do that, I think.
CHAIRMAN RICE: I guess even though he is
Moses and this is from the trust and it's regarding a
property and the decision was made based on that
property, and so the church is now unhappy with the
decision that Moses was able to get from the board.
I'm happy to refer it to committee. I have a
personal feeling about it. I'll keep my mouth shut at
this point. If there are no objections, I'm going to
refer it back to Rules. So ordered.
Okay. 02-09, request from Katie Romanchuk.
Katie? No Katie.
MR. CRADDICK: She has been told also that it
will be referred to committee.
CHAIRMAN RICE: I will refer it to the Rules
Committee if there is no objection. So ordered.
Committee Reports. Mr. Nakamura?
MR. NAKAMURA: Mr. Chairman, finance committee
met on Tuesday, March 12th, to consider three issues.
First issue, Director 02-07 which was to request
authorization to increase the capitalization
thresholds for capital assets from $500 to $5,000.
Fiscal officer pointed out that the Government Finance
Officers Association recommended that capitalization
thresholds should not be less than $5,000 for any
individual item.
The committee felt that the request was
reasonable. There would be no negative impact on the
budget, although this would be an accounting
transaction that would have to be dealt with.
The committee recommends that the board
approve the increase of the capitalization threshold
from $500 to $5,000, which would permit the department
to expense a number of small items. And I would move
for the approval.
MR. NOBRIGA: Second the motion, Mr. Chairman.
CHAIRMAN RICE: It's been moved and seconded.
Is there any discussion on the motion? All in favor,
say aye.
[Chorus of ayes.]
CHAIRMAN RICE: Opposed, say nay.
(No response.]
CHAIRMAN RICE: Motion is carried.
MR. NAKAMURA: Next item, Mr. Chairman,
Director's 02-08 to request appropriation of funds for
design of a section of waterline replacement along
Mill Street in Wailuku, 1,100 feet to replace 4-inch
waterline with a new 8-inch waterline.
This is a project which had been planned for a
subsequent fiscal year. However, because of the fact
that the Department of Public Works and Waste
Management is initiating roadway improvements to Mill
Street, it was felt that it would be appropriate to
implement the project concurrently. And the request
is for design -- design funds in the amount of
$33,000. There are funds available in the pipeline
replacement appropriation and the committee recommends
approval.
I would move that the board authorize
expenditure of $33,000 for design of the Mill Street
waterline replacement project.
MR. NOBRIGA: Second the motion, Mr. Chairman.
CHAIRMAN RICE: It's been moved and seconded
to authorize the $33,000 for the design of the Mill
Street pipeline replacement. Any discussion?
Comments?
All in favor, say aye.
[Chorus of ayes.]
CHAIRMAN RICE: Opposed, say nay.
(No response.]
CHAIRMAN RICE: Motion is carried.
MR. NAKAMURA: Last item, Mr. Chairman,
Director's 01-53 to request approval of funding for
the Haneoo Street waterline replacement project in
Hana.
The committee had previously recommended that
this project not be approved. There were quite a bit
of -- there was quite a bit of testimony from the
residents in the area regarding this project, a
considerable amount of which was in opposition to the
project, questioning the need or the priority.
Councilman Carroll asked that the board hold
an informational meeting to explain the project to
area residents, which was done. There was no
additional information presented which the committee
felt would justify changing its position.
The Director mentioned that there were
probably other needs in Hana which could be better
addressed by the expenditure which was in excess of a
million dollars, in particular the need to integrate
the Wakio well with the other sources.
And so the committee's recommendation is to
disapprove this particular project and I would so
move.
MR. NOBRIGA: Second the motion, Mr. Chairman.
CHAIRMAN RICE: It's been moved and seconded
to disapprove the appropriation for the Haneoo
waterline replacement. Any discussion? Mr. Starr?
MR. STARR: Yeah, I'm in favor of the motion,
but I just did want to comment on another thing that
had come out in testimony and seems to be a prevalent
problem of people in Hana that there is a desire by
the community if a major capital improvement project
can be funded for Hana in the future, to provide a
waterline down to the sole commercial zone portion of
Hana down by Waikaloa. That's a project that I
believe was funded by the board about a decade or so
ago and then didn't go through. And I know the
community would like to see that done because that's
part of why Hana has not been able to move forward is
because there is no commercial zoned property with
water and fire flow where service industries can be
located.
CHAIRMAN RICE: Thank you, Mr. Starr. So
noted. Any other comments? All in favor, say aye.
[Chorus of ayes.]
CHAIRMAN RICE: Opposed, say nay.
[No response.]
CHAIRMAN RICE: The motion
is carried. Thank you, Mr. Nakamura.
Mr. Starr?
MR. STARR: This is joint finance and
operations review committee. And the joint committee
met on March 12th. The committee met and received
testimony and a presentation on the Ka Waiola water
resource study project. After deliberation, the
following motion was made, seconded, and passed by a
majority vote of the joint committee: "It is
recommended that the Board of Water Supply appropriate
funds for the board's participation in this project
and that the budget be amended to reflect this
appropriation of $30,000. This appropriation would be
subject to the approval of a contract between Maui
Board of Water Supply and Ka Waiola." The applicant
was requested to provide a sample grant agreement
showing how the funds will be used when the matter
comes before the full board.
And I recommend that the matter remain the
property of the full board because it could be
deferred until we can get a little more documentation
as has been discussed. So I move for a deferral but
keeping it in the board.
CHAIRMAN RICE: Is there a second?
MR. NOBRIGA: Second.
CHAIRMAN RICE: It's been moved and seconded
to defer this issue for the board's consideration at a
later meeting. Any discussion? All in favor, say
aye.
[Chorus of ayes.]
CHAIRMAN RICE: Opposed, say nay.
(No response.]
CHAIRMAN RICE: Motion is carried.
MR. STARR: Operations review committee also
met on Tuesday, March 12th, Director's Report 02-09,
and item 02-03. Both of these items had to be
deferred to allow for more information to be gathered
and they will be taken up by the committee at a later
date.
CHAIRMAN RICE: Okay. No action is needed
there. Thank you, Mr. Starr.
MR. STARR: I do have one other item, just
that the operations committee did another site
inspection, a very long and very interesting day. We
toured all of East Maui and definitely got to see a
lot of the different smaller water systems. It was an
enlightening experience and I want to thank the staff
for setting it up and helping us get around to all the
different areas of East Maui.
CHAIRMAN RICE: Thank you, Mr. Starr. Okay.
We're moving on to Other Business. We are going to
ask the board for a motion to go into Executive
Session to consult with our attorney on the North
Waihee land purchase.
MR. STARR: Mr. Chair, before we do that,
could I request that at least, you know, some very
general basic overview be given while we're in public
session, you know, without compromising anything that
might need to be kept confidential, perhaps something
short could be presented so that we do keep the public
in the loop here.
CHAIRMAN RICE: Absolutely. Mr. Tam? Good
morning, Mr. Tam.
MR. TAM: Good morning, Mr. Chairman. Maybe I
should introduce myself. My name is Bill Tam. I'm an
attorney with Alston Hunt Floyd & Ing. I don't know
if you know anything about my background. I would
leave it to the Chair to brief the board on that.
Briefly I've been retained -- I've been retained by
the board and the corporation counsel and our firm to
look at the acquisition of lands now owned by
C. Brewer and Wailuku Ag that is essentially the
watershed lands from North Waihee over to Waikapu and
to analyze for you and with the Chairman and with the
director which if any of those lands would be useful
to the board in protecting the resources both of the
ground and surface water and to protect for future
resource protection.
One of the issues that's arising all over the
Mainland and is going to arise here is the ability of
the waterboards to prevent pollution and competition
to the water resources which they will need in the
future.
New York City, for example, is going through
something like this right now where they're finding it
is less expensive to go out and buy the lands from
which they draw water than to build filtration plants
that EPA is going to require them. They are facing a
$5 billion filtration plant cost and a half a billion
a year operational cost, or they are going up in the
Catskills and they're actually acquiring the lands
around where they draw all their water and they are
following something called the 60-day rule which says
the distance that water would travel underground for
60 days doesn't get rid of everything, but it does a
good job of removing a lot of the things that would
get into a water source. Their water is not
filtrated; it's gravity flow from the north into the
city.
So one of the things that all over the country
boards of water supply are discovering is it makes
sense now to go out and protect your groundwater and
your surface water sources without any particular idea
of how you may use them in the future, because the
capital costs 20 years from now are going to be much,
much higher.
So one of the things we're going to try to do
with your staff is to analyze which of those lands --
maybe all of them, maybe only a portion of them -- are
critical to acquire. We're doing that right now,
we're looking at the documentation. As you well know,
this board acquired a portion of the Waihee Valley,
not all of it and not surface water, previously. So
we've got that documentation.
What we're going to be doing is working with
Mr. Craddick and your board to come back to you with a
recommendation as to which if any of those lands you
might want to acquire.
Now, C. Brewer, as you probably know, has
offered to sell all of it. They have also put a very
high price on that. It's not clear that you as a
board need all of that or all of the infrastructure
they would propose to sell you. Maybe you do, maybe
you don't. But it may be that it's wise to be more
selective for a different price as to what you want.
And so we're going to be doing that analysis for you,
prepare the maps so you can take a look at it and
bring it back to this board for a decision as to what
our recommendation would be with your staff as to what
lands make sense to get. Some of them may not be
worth much in terms of your needs.
So I think the thing I would suggest is the
board needs to look at its own long-term strategy of
what you need 20, 30 years out, not simply buy
whatever somebody happens to be selling. That's not
necessarily wise. They may want to get rid of it.
They may be happy to get rid of it at their price.
But whether you need it or not is a different question
and that's what we're going to come back and analyze
for you.
That's a brief summary. We will be glad to
prepare a map and make recommendations more
specifically. I will say that, just as an example,
this is simply -- these are the closing documents for
the last acquisition which was a limited area. So the
due diligence required in order to analyze the
easements, the restrictions, the environmental
factors. As you well know, the potential for
pollution on a lot of these properties in the past has
been ignored, but in the future is going become one of
the major concerns you will have to protect your
ground and protect what goes into it. So the due
diligence required here is going to be an important
protection against what may happen in the future.
That's a rough summary of what we're trying to do.
CHAIRMAN RICE: Thank you, Mr. Tam. Mr. Starr.
MR. STARR: Just a question. We did a recent
site inspection of the Iao and Waihee areas and our
facilities there and I noticed there is a feed lot.
There are two wells about, oh, 200 yards apart, I
believe that's Kanoa 1 and 2 or -- yeah, I believe
it's Kanoa 1 and 2. And right between them about a
hundred yards from each well is a feed lot. Is that
the type of thing that could be problematical in the
future?
MR. TAM: I have not been to that site, so I
don't know anything in particular. I will say that
EPA has adopted new regulations for what are known as
concentrated animal feeding operations. It's become a
subject of great concern by the Department of Health.
Our firm is actually involved with that issue over on
Kauai and the [inaudible] Dairy actually over there
faces some real serious problems with the Health
Department and the EPA and they actually closed
because they were on a slope that went right into a
stream and they had no way of really controlling that.
So the issues of concentrated feeding
operations and groundwater is something that EPA is
very concerned about and there are proposed
regulations that are in the making right now aside
from the existing ones. But I don't know any
particulars on that right now.
CHAIRMAN RICE: Any other questions from the
public here? Thank you.
MS. de NAIE: Is it possible to offer brief
public comments before you go into Executive Session
on this issue?
CHAIRMAN RICE: Sure.
Ms. De NAIE: Thank you. Lucienne de Naie I
guess speaking on behalf of Maui Tomorrow once again.
A couple things that I think that the board
should be aware of about this project. I think it's a
wonderful idea that the Board of Water Supply and the
County are thinking about public ownership of what has
been a privately controlled region with high
conservation value.
However, having seen that in the past these
kinds of larger sort of deals did involve
partnerships, I would urge the board to make sure that
some of the situations that have arisen in the past
about these partnerships are avoided.
One of the situations that has arisen is
over-promising a resource. And so I'm sure Mr. Tam
will be extremely diligent in researching exactly the
amount of water that would be available through the
surface system, but just urge all of you to do a good
questioning. Do we have accurate information on
flows? Is there an independent source monitoring the
current flows that are in the ditches, so that you
really know the resource that we're talking about?
And that really should be done over a period of time
because you have rainy times and dry times and get an
average.
Also, I feel it's very important that we have
I'll call them transparent contractual agreements; in
other words, contractual agreements with any potential
partners that are clear, out in the open, and publicly
discussed so there is not any surprises afterwards.
And lastly, I would really hope to see that
the management plan for these resources, once it is
decided what the county would purchase and so forth,
would include discussion of stream restoration,
especially Iao Stream. I have a personal interest in
this area, I've hiked all these streams way, way, way
up and there is tremendous plant resources, cultural
resources, and stream life even in some of the upper
portions of Waihee and Iao Stream, and we would
certainly want to make sure that those continue. So
thank you for this opportunity to offer some comments.
CHAIRMAN RICE: Thank you, Lucienne. Mr. Smith?
MR. SMITH: Jim Smith. Just a brief comment.
My understanding is that the land involved is owned by
C. Brewer and also Wailuku Ag. And Wailuku Ag, from
my understanding, is a publicly owned corporation
which is a subsidiary within the C. Brewer network,
but it might behoove you to look at that relationship
when determining who is selling what. It may in fact
be necessary that the stockholders involved with
Wailuku Ag should be consulted. That's all.
CHAIRMAN RICE: Thank you, Jim. Okay.
MR. TAGORDA: May I ask in public session,
Attorney Tam, because I don't know, I need to ask the
corporation counsel for his legal opinion if I can be
in the Executive Session since I'm with HC&S and we're
drawing water from those areas there. My question to
you is is HC&S or A&B would be involved in this land
purchasing.
MR. TAM: At this point I don't know yet. I
mean, I know there are contractual arrangements which
are -- create financial relationships and so I don't
know enough yet to judge that.
CHAIRMAN RICE: Wait. I think, to correct
that just slightly, there has been representations
that there are contractual arrangements. We haven't
seen any of them at this point.
MR. TAM: We don't yet have documentation from
the owner. The problem that would arise with your
participation I think maybe the board wants to take up
when we go into Executive Session.
MR. TAGORDA: And also in your analysis or
work with the board, would you be looking at those
land titles if they are legit.
MR. TAM: That's a necessary part of the due
diligence to analyze whether -- the nature of the
title. In other words, what is it the board or the
county would be acquiring? That gets somewhat complex
because I know the history in this case goes way back.
And so --
CHAIRMAN RICE: The answer is yes.
MR. TAM: We would have to do that in order to
fairly appraise what it is you would be buying.
MR. TAGORDA: Thank you. My second concern is
for corporation counsel, whether I can go into
Executive Session with the board members.
CHAIRMAN RICE: Mr. Starr.
MR. STARR: I believe my question has been
partially answered, but I just want to be clear in
open session that I assume you're -- the due diligence
process will be looking at allocations of water that
have been made both in the past -- I know that we've
heard that there was some going back to 1924 and also
that there may be some that would occur in the future.
So I would assume that looking at all of those past
and future allocations is part of a -- will be part of
the project.
MR. TAM: We will obviously look at what's
been done in the past. As far as what may happen in
the future, we will have prepared for you an analysis
of what the law is now and therefore what you could
reasonably expect to happen. But we're not going to
make any representations about what will be the
future, other than to advise you what the law is.
Unless you make a judgment about the valuation.
MR. STARR: If there are contractual third
party agreements to allocate water in the future, I
would guess that would be one column and then another
column would be whether they would actually fly in
light of the laws and water code. I know that
complicates things. But to try to simplify that, I
would guess that there is -- there would be two
columns there.
MR. TAM: We'll certainly have to analyze and
represent for you what our legal opinion is about the
validity of any outside obligations or any
encumbrances on that property.
CHAIRMAN RICE: Okay. Board members, there is
another issue here, C, before we go into Executive
Session, the settlement offer regarding Lower Kula
Water Treatment System. Is there a need to discuss
this or should it be referred to committee because
it's not something we've seen yet? What is your
pleasure? Committee? Kent?
MR. HIRANAGA: I don't really know anything about it.
MR. MINATOYA: Mr. Chair, Richard Minatoya,
Department of Corporation Counsel. We would like to
request that this matter be referred to committee so
that we can do an explanation for you rather than take
your time up here when you have other important
matters to discuss.
CHAIRMAN RICE: Mr. Minatoya requested that
this be referred to committee so that they can do a
presentation for the board. If there is no objection
by board members, so ordered.
MR. STARR: Which committee?
CHAIRMAN RICE: Finance.
MR. STARR: Mr. Chair, I know we were looking
to go into Executive Session and we have with us board
member-elect Ginny Parsons who I wanted to introduce.
Since she will be dealing with this with us on a
long-term basis, I'm wondering if there is a mechanism
where she could join us since she will be a member of
the board next week. I guess I'm asking corp counsel.
MR. KUSHI: My response would be no. Once she
gets aboard, she's entitled to be a board member.
Once she gets aboard, she can also look at the minutes
that we're going to be keeping.
CHAIRMAN RICE: Can I get a motion for
Executive Session to consult with our attorney on the
Waiehu land purchase?
MR. NOBRIGA: Wasn't there a question by Mr. Tagorda --
CHAIRMAN RICE: I'm sorry.
MR. HIRANAGA: I was just going to request a short recess.
CHAIRMAN RICE: Let's have a short recess.
(Brief recess.)
CHAIRMAN RICE: Yes, Mr. Hashimoto.
MR. HASHIMOTO: As you know, I represent a
participant in Central Maui Source Joint Venture. But
I think this particular issue is a relatively broad
and generic issue at this point. And while down the
road I may find it necessary on recuse myself, you
know, personally I don't see the need to do so at this
time unless otherwise advised by either corp counsel
or members of the board. So my intent is -- my
feeling is I should continue to participate and I
would make a decision on recusing myself at some
future date on specific issues.
CHAIRMAN RICE: Well, I believe in the
attorney/client arena, that you're barred from making
any comment about what's discussed anyway. So I mean
understand once we go into Executive Session.
Mr. Starr?
MR. STARR: It's my belief that the two
members should be able to hear out our attorney on
this because it is a broad issue and however their own
corporate entities that they may be involved with may
be involved, we don't even know that whether they are
or to what extent. We went through that, that we
don't even know to what extent they may be involved.
So that's not I'm sure going to be part of today's
meeting and my feeling is that they should be allowed
to join us.
CHAIRMAN RICE: I think corp counsel would
agree with that at this point. We're not making a
decision in Executive Session. We're not here to make
a decision today. And we will allow it, we'll go
forward. Do we have a motion?
MR. KUSHI: Are you asking me a question?
CHAIRMAN RICE: I'm asking you a question. I
have no legal training; I want to make that clear for
the record.
MR. KUSHI: I need to say this first. If I
speak on this, based on what I understand our ethics
board has ruled, our office may be disqualified from
representing all of you or any of you and I definitely
cannot represent the Board of Ethics. This is on the
Molina case, as I understand it.
However, just to comment, as far as going into
this Executive Session, my understanding is the
attorney that we retained, the board retained, is
going to give you a briefing. That briefing will be
confidential in terms of that's the board's attorney.
If a member feels that he has a conflict of interest,
again, that's one thing. But the Executive Session is
for informational purposes only. There will be no
action. Nobody will vote. So that resolves the
conflict of interest in my mind.
Again, the member to my left, Mr. Tagorda, I
understand that even if there was a vote at the next
meeting, he won't be here. However, anything said in
Executive Session, based on what the board's attorney
and he is a board member as of this date, shall be
confidential, as the Chair says.
Again, that's just for your information. I am
not giving you any advice because if any board member
wants to, he can take this issue to the Board of
Ethics and they will issue you a decision within a
couple months.
MR. STARR: Mr. Chair, I move that we go into
Executive Session to hear from our attorney pursuant
to the applicable statutes.
MR. HASHIMOTO: Second.
CHAIRMAN RICE: Moved and seconded. All in
favor, say aye.
[Chorus of ayes.]
CHAIRMAN RICE: Opposed, say nay.
[No response.]
MR. KUSHI: Mr. Chair, can you also in your
motion include the item number B, the Craig matter.
CHAIRMAN RICE: Sure. No objection to that?
MR. STARR: No objection.
MR. NOBRIGA: No objection. I just never knew
we could do that.
CHAIRMAN RICE: Okay. All in favor?
[Chorus of ayes.]
CHAIRMAN RICE: Opposed, say nay.
[No response.]
CHAIRMAN RICE: Okay. We're in Executive
Session. Clear the room, please.
[Executive Session held.]
CHAIRMAN RICE: We're out of Executive
Session. We're back on the agenda.
MR. NOBRIGA: Mr. Chairman, I would like to
move that we authorize counsel the flexibility to
negotiate the settlement of the item we had in
Executive Session. Item B. And also to proceed in
our indemnification discussion pursuant to the same
matter.
CHAIRMAN RICE: Is there a second?
MR. HASHIMOTO: Second.
CHAIRMAN RICE: Okay. Any discussion? All in
favor, say aye.
[Chorus of ayes.]
CHAIRMAN RICE: Opposed, say nay.
(No response.]
CHAIRMAN RICE: Motion is carried.
C was referred to committee already.
D, Water System Development fee.
MR. CRADDICK: This is the one that previously
went to the Mayor and Council and was rejected. So
what we're asking here is that if there are any
changes to be made, that the board make the changes
and then we put this back out to public hearing.
CHAIRMAN RICE: That's right. The comments
that I heard had to do -- and the comments I heard
today had to do with the Consumer Price Index issue.
Are we willing to drop that in order to send it back
up? I did not hear -- personally I did not hear
anyone resisting the actual rates. Of course,
everyone is going to resist the increase, but the
council I don't think was balking at that.
Mr. Craddick?
MR. CRADDICK: For a dollar amount, the
average over the last seven years was about 2 percent.
Two percent of the fee would amount to I think $50,000
in the worst case and I believe it was about $15,000
this last year.
MR. QUINN: Yeah.
MR. CRADDICK: Somewhere in that order of
magnitude. So we're not talking about a lot of money.
By the time this goes back to the counsel, we will
have lost many times this amount of money just in the
delay. So, you know, whatever the reason is they
don't want to do it, my recommendation is to drop
those two sentences at the bottom of page 36 there
where it says this schedule will be adjusted on an
annual basis beginning July 1st in accordance with the
Consumer Price Index. Now this says Hawaii -- U.S.,
so this isn't even the right one here. But dropping
that sentence basically. It was changed I think to
the Hawaii Consumer Price Index.
MR. NOBRIGA: Mr. Chairman, being this point
was the grandchild of board member Hiranaga, I would
prefer if we get his comments before we take action on
this.
CHAIRMAN RICE: Okay. Where is he?
MR. NOBRIGA: As chairman of the Rules
Committee, and upon hearing the testimony provided to
date, perhaps it would be more in line for the board
to not give away this right to review these increases
on a more consistent basis and in that way we provide
for the maximum of public input. I say this in light
of some proposed charter amendments that if they come
into effect would greatly affect the way this rule
will be implied -- taken in the future.
CHAIRMAN RICE: Mr. Starr.
MR. STARR: Mr. Chair, I just want to comment
that I'm going to refrain from participating in the
discussion and also recuse myself from voting on it
because a company that I have ownership interest in
has a meter reservation and may be affected by it.
CHAIRMAN RICE: I guess that's personal interest. Mr. Craddick?
MR. CRADDICK: What Commissioner Nobriga said,
I think maybe makes sense to hear what the community
has to say about this provision, whether anybody else
in the community agrees with the council to take this
out. So understanding that after it goes out to
public hearing, you can remove it then certainly makes
sense. But as I said, my point is just it's not --
the amount of money we're losing right now, we've lost
many times this amount already and we will continue to
lose if we go back and they reject it again because of
this.
CHAIRMAN RICE: Kent, we've delayed any action
on this Water System Development Fee Rule because you
were thought to be the author of the Consumer Price
Index clause and we heard that certainly from the
Council that it was a sticking point and no one wanted
to take action until we got your comment as to whether
we should remove it and send it out that way or --
MR. NOBRIGA: Maybe we were mistaken.
MR. HIRANAGA: Are you sure it was me?
MR. CRADDICK: I think this came in as a
result of some previous council members that used to
be on the council and granted --
CHAIRMAN RICE: Be that as it may, what's the
pleasure of this body in terms of -- we're going to
send it back out -- I mean, are we going to send it
back out as it is, or are we going to take it out?
MR. HIRANAGA: I guess my thought is any
concerns about the council losing control over meter
fees because of the CPI index. I think I asked David
to do a calculation based upon the current fee and the
CPI adjustment since that last fee adjustment, what
the rate would be today is -- what was it?
MR. CRADDICK: I think it was about somewhere
between 14 and 15 percent increase.
MR. HIRANAGA: So it would be under $4,000.
So, you know, we're talking a 3 percent increase a
year, we're talking $180 a year. Five years, we're
talking a thousand dollars. I think the costs of the
meters will be growing much greater at that pace, but
if it's going to cause a delay in the approval, I
don't believe that the board feels that it would
expedite the approval process on that particular
clause.
MR. NOBRIGA: I would move that we strike this entire sentence.
MR. HASHIMOTO: Second.
CHAIRMAN RICE: It's been moved and seconded
to remove this sentence from the new rules that goes
out to public hearing. Any comment? All in favor,
say aye.
[Chorus of ayes.]
CHAIRMAN RICE: Opposed, say nay.
(No response.]
CHAIRMAN RICE: Motion is carried.
Is there anything else we want to change in this?
MR. NOBRIGA: Where is the -- I know we tried
to get this rule to take effect when we first passed
it, yeah. Try and get retroactive, yeah. Was it this
rule or was it another rule?
CHAIRMAN RICE: No, it was this rule. I think
it was changed to be effective upon approval by the
council, right? Because we thought that was not going
to fly. Okay. So that's the change, we're going to
send it back out and schedule the public hearing. Do
we need to a motion to schedule public hearing or no?
We've approved the rule and now we just ask staff to
schedule a public hearing. Okay.
MR. NOBRIGA: With the intent that the public
hearing be in the Upcountry Kula/Makawao/Pukalani
area, perhaps?
CHAIRMAN RICE: I don't have a problem with
that even though I'm driving from Lahaina. I was
going to ask that it be held in Lahaina. Just
kidding.
MR. NOBRIGA: I don't know. What about -- the
last public hearing we had, there was discussion about
scheduling -- it wasn't this rule, though.
CHAIRMAN RICE: The upcountry meter rule.
MR. NOBRIGA: Erase, erase, erase.
CHAIRMAN RICE: All right. So we're going to
schedule a public hearing.
Let's move on to E, which is confirmation of
scheduling of the second public hearing on public
practices [inaudible] appeals, amendment to water
system development fee, there we go. We want both
sections of the rule now to go together.
MR. HASHIMOTO: Yes.
CHAIRMAN RICE: I want to make that clear with
the board. We've got this Water System Development
Fee broken into two rules. Now that we've remapped
this section, we're going to take them out together.
Right? And then we're going to submit them that way.
The water meter issuance rule, okay, that's all going
to be at the next public hearing.
MR. CRADDICK: Along with the one on the
development 500,000 gallons?
CHAIRMAN RICE: Yeah, the settlement rule.
Let's put them all together. Upcountry is fine with me.
MR. STARR: I don't want to participate.
CHAIRMAN RICE: I'm sorry. So that doesn't
need any action. We're going to schedule a second
public hearing and put all the rules in there. So
guys, bring your pillows. And I think we need to go
to Molokai to be sure. Adolph is happy to chair those
meetings. He does a fantastic job. I meant to thank
him earlier. Okay. That's so ordered. There is no
need to take any action on that. Right? Okay.
Presentation of resolution to outgoing Board
of Water Supply member Orlando Tagorda. Orlando,
front and center.
The way the staggered terms work, Orlando, if
we all aren't here, we can't say that we've been here
with you for the whole five years and that -- but our
short experience with you has shown us that you're
very hard working and caring member of the public and
I think that you've shown the highest level of
integrity in every issue and we want to thank you for
your participation. Five years is a long time and it
is appreciated, I can tell you that. Just having been
here for a year and so many months and I've already
[inaudible] five years. So on behalf of the board and
members of the department, I want to present you with
this honorary clock.
The resolution that we have is whereas Orlando
Tagorda, Kahului, Maui, was appointed to the Board of
Water Supply of the County of Maui April 1, 1997, and
his term will expire March 31, 2002. Whereas the said
Orlando Tagorda served as vice chairperson of the
Board of Water Supply from April 1, 2000 to March 31,
2001. Whereas the said Orlando Tagorda has
unselfishly and with dedication devoted without
compensation his time and energy into matters dealing
with the Board of Water Supply, all in the interests
of the people of the County of Maui. Whereas during
the time of his service as a board member, he has
contributed generously of his knowledge and skills to
make business and policy decisions for the board that
will influence its direction and operation for years
ahead. Whereas his interest in this board and
department has been greatly appreciated by his fellow
board members. Now therefore be it resolved by the
Board of Water Supply of the County of Maui that it
does hereby congratulate, commend, and thank the said
Orlando Tagorda for the five years of faithful and
outstanding service he has rendered as a member of the
Board of Water Supply and be it further resolved that
the members of this board extend to Orlando Tagorda
our sincere aloha and best wishes for his continued
success and much happiness in his future endeavors.
And be it further resolved that a copy of this
resolution be transmitted to the said Orlando Tagorda
and to the Maui County Mayor and Council and to the
Maui News. Thank you, Orlando.
MR. TAGORDA: Thank you, Mr. Chair.
MR. NOBRIGA: I move to accept the resolution.
CHAIRMAN RICE: It's been moved and seconded
to accept the resolution. Discussion?
MR. STARR: I just want to comment that it's
been a special pleasure for me to serve with
Mr. Tagorda and he's been a good and strong and
honorable voice on this board and we'll miss him and
be happy to serve with you any time, any place again
in the future because you've been really good. So
thank you for your service.
CHAIRMAN RICE: Any other comments? All in
favor of the motion, say aye.
[Chorus of ayes.]
CHAIRMAN RICE: All opposed, say nay.
[No response.]
CHAIRMAN RICE: The motion is carried. Thank
you, Orlando.
MR. TAGORDA: May I? Thank you, Mr. Chairman
and members of the board. I'm honored to receive this
resolution and I would like to make a few comments
before I end my term.
I have tried to make a difference and tried to
speak on behalf of the majority of the community in my
years on this board. I have spent many sleepless
nights worrying about making the right decision on
certain issues. But I have always voted how I feel in
my heart, combined with the information given us. I
have always been well aware of the confidence given to
me when I was appointed to this board.
There are many good people in this department
and I want to thank them. One person I especially
want to thank is Fran Nago. She works very hard for
this board and goes the extra mile. I'm often aware
of your frustration. But even in your frustration,
she's always kind to me and members of the public. I
appreciate all your efforts and hard work. Thank you,
Fran, for all the good deeds that you have done for
me.
I had much higher hopes of moving the
department forward than I've been able to realize. I
had hoped to have given the director an annual
evaluation and by doing more evaluations, we would
have been able to provide more direction. I am glad
to finally see an evaluation on my last meeting
agenda.
I encourage all the board members to continue
to do annual evaluation, provide direction, and set
clear policies for the director and the department. I
hope you will continue to focus on what is best for
the community, remembering that you represent the
people of Maui.
Finally, I sincerely appreciate the time I've
been given to work for one of the most important
boards on the County of Maui. Thank you all and God
bless.
CHAIRMAN RICE: Thank you, Orlando.
Okay. We're going to move on. Nominations
for chairman and vice chairman. What is your
pleasure? Do you want a committee? Do you want to
act on it? Mr. Starr?
MR. STARR: I would like to ask corp counsel
whether we have to act on it -- whether we have to act
on it today or whether it's possible, if we were to so
desire, to have nominating committee and deal with it
at another meeting.
MR. KUSHI: Mr. Chair, just looking at your
rules, it does state that the board shall elect a
chairperson and a vice chairman form its members,
their term shall be for one year and may continue for
such time until their successors are duly elected.
I'm not sure when your current officers' terms
began. But even if they expired, they may continue
until the new people come.
CHAIRMAN RICE: But isn't that in conflict
with the bylaws?
MR. KUSHI: Well, these are your rules. I
don't know what bylaws you're talking about.
I apologize, Mr. Chair, I have never seen
these bylaws and I feel like a fool right now, but it
was apparently adopted June 16, 1998. Did it go out
to public hearing?
CHAIRMAN RICE: I don't know.
MR. KUSHI: Well, you weren't here, I wasn't here.
MR. CRADDICK: Peter, I believe it was passed
as a resolution of the board's agreement amongst
themself.
MR. KUSHI: If that's the case, then your
rules supersede that.
CHAIRMAN RICE: And would it be the pleasure
of this body that I appoint a committee?
MR. NOBRIGA: Yes, Mr. Chairman.
CHAIRMAN RICE: Then I would appoint a
committee of Kent Hiranaga and Clark Hashimoto and
I'll throw in Adolph Helm so there is three. How is
that?
MR. HIRANAGA: The purpose of this committee is to?
CHAIRMAN RICE: Is to make a recommendation
for the chairman and the vice chairman for the
succeeding year.
MR. CRADDICK: Peter, I don't think we've ever
had three board members because I don't know if they
intend to notice a meeting, but you've got three --
two or more board members, you've got to notice a
meetings and just usually the two of them get
together.
CHAIRMAN RICE: Sorry, Adolph, you're on
Molokai. You don't mind, do you?
MR. HELM: Don't mind.
CHAIRMAN RICE: Mr. Starr?
MR. STARR: That's fine with me, though I
would assume that they will come back with
recommendations for people to be on the slate and
people could still be nominated from the floor or
whatever and then there will be an election. They're
not going to come back and say these are the --
CHAIRMAN RICE: No, no, I think there is
always nominations from the floor. Robert's Rules of
order provides for that. Everybody happy with that?
Mr. Tagorda?
MR. TAGORDA: Mr. Chairman. Yes, it's me
again. And since I won't be coming here next month
and participating in those nominations, I would like
to make a few observations, a statement for the
committee members about Jonathan Starr, whether you
guys want him to be the chair or the vice chair,
that's going to be your call. I think Mr. Starr has
been in this board the longest, so with Mr. Adolph
Helm. And I think he may have more time to devote,
you know, with county, with the department or water
issues in the community. And I see him to question
and really challenge the department on many occasions
and those are the qualities that I want the chairman
or the vice chair. And I'm kind of proud of what he's
done. It appears to me that he had knowledge of water
issues. He attends all meetings. And that's why --
his dedication and commitment and he does look up to
the best interest of the community, Mr. Chair.
So whether the nominating committee wants him
to be the vice chair or the chairman, please give a
way of my -- that good traits about Jonathan Starr as
a member of this board. Thank you.
CHAIRMAN. RICE: Thank you, Mr. Tagorda. I'm
sure Mr. Starr thanks you.
Okay. Moving on. Personnel matters,
continuing evaluation of the director.
As instructed, I sent the director a letter
that I believe you all saw a draft of regarding a
performance evaluation. And at this point, David, you
have the option of convening this discussion in
Executive Session or you can remain in Public Session,
I believe. That's correct, Mr. Counsel?
MR. KUSHI: Correct.
MR. CRADDICK: I'll leave it in public session.
MR. HIRANAGA: Mr. Chair, was the letter
transmitted to the director?
CHAIRMAN RICE: Yes, it was.
MR. HIRANAGA: Can we be provided a copy of that letter?
CHAIRMAN RICE: Yeah, it was transmitted
"personal and confidential" and -- where the heck did
it go. I tabulated the average scores by item and I
added the written comments as I could read them from
the board members.
Mr. Starr?
MR. STARR: I assume that by the fact that
this is being held in open session, that this letter
becomes a part of the public domain now. Is that
correct?
MR. KUSHI: Responding to your question, I was
thinking about that myself and I think you need to ask
the employee if he understands his rights to keep it
confidential. And if he does, then it will be
confidential. But apparently the discussion will be
in open session.
MR. CRADDICK: I don't mind.
CHAIRMAN RICE: It appears that Mr. Craddick
is acknowledging that the discussion and the
correspondence will be made available. So be it.
MR. STARR: Can I read this letter into the record then?
CHAIRMAN RICE: Sure.
MR. STARR: Okay. "To Mr. David Craddick,
Director of Department of Water Supply, County of
Maui. Dear David. On January 8, 2002, the Board
conducted a performance review based on a job
description you received from the Board. As you know,
the board members were asked to evaluate your
performance under each of the performance categories
on a scale of 1 to 5. "One" represented marginal
performance, "two" for adequate, "three" for
competent, "four" for commendable, and "five" for
distinguished performance. I tallied the evaluation
from all eight directors and your overall score was an
average of 43 points and if you divide that by 20
questions, your average score per question would be
2.15 or slightly more than adequate.
"Under the explanation of the scoring, this
means that you meet the requirements for the position
but there is clearly room for improvements.
"A sheet is attached that shows your average
score by category. There were eight categories where
the average score was between marginal and adequate.
There were four categories where the average score was
exactly adequate or two. There were five categories
where the score was between adequate and competent,
two categories where the average score was competent,
and one category where the score was between competent
and commendable.
"The written notes that accompanied the
evaluation sheet clearly expresses concern relative to
your leadership and overall management skills. You
are considered to be knowledgeable about water
resources and the nuts and bolts of water drilling and
treatment.
"Communication is another issue for everyone.
Most critical, in my opinion, was your average score
of 1.25 on the last question, "Creates a level of
confidence and trust with the board," and I plan to
raise this issue at the next meeting of the board.
Sincerely, Peter Rice, Chairman, Board of Water
Supply."
I certainly have a lot of concerns with the
performance over the past three years. This is the
first opportunity that I've had in three years as a
board member n participating in an evaluation, but I
know that some of the same comments that were made
when we did our evaluation were also brought up during
a previous evaluation by the previous board. And you
know, especially when it's creating a level of
confidence and trust with the board and in my own
belief with the public, that there is a lot to be
lacking. You know, a score of 1.25 is a failing grade
and the overall score of 2.15 is certainly less than a
50 percentile grade. That's not -- I think that we
strive for excellence, we don't strive for barely
adequate.
Among issues that I have is that I feel that
over the years a lot of actions have been taken to
confuse the board members and providing information
that is at best unclear. And I know this is a comment
that you've heard before and I for one was hoping that
this is something that would change over time and I
really haven't seen this.
I would like to pass these around. This is
just one example from something that took place at
last month's meeting. This is a photocopy of a page
from the monthly division reports that you presented
us. And this is water pumping for throughout system
and water use throughout the system. And I look at
this as critical information. I believe this is the
same document that's passed on to the State Water
Commission who are currently looking at the
possibility of designating Iao and Waihee aquifers as
a management area. So this is the one place where not
only the board but the commission and also the public
can get information about our water use.
And at the last meeting, I was sitting looking
at it and I -- there was a conversation going on and I
started adding up some of the columns. And after
adding up three or four columns, especially regarding
the year-to-date and total-last-12-months, I found
that the numbers were not adding up, that there are a
number of total columns that did not agree with the
lines of data. And especially -- well, look at the
number for Waihee, 579, where you see year-to-date is
732,639 gallons, total-last-12-months was 245,738
gallons, which of course skews the rolling average
that's used as a benchmark. There are some other
discrepancies as well.
After the meeting, I brought this to you
outside this room. I said I started adding these up,
I was wondering if my math was wrong. And you told
me, oh, that, there are quite a few mistakes in that,
I'm aware of that.
And I said, well, you know, why do you present
it to the board.
And you said, well, I'm going to present a corrected copy.
I was waiting for that. That never came.
At today's meeting, I started looking at this
month's and I found some discrepancies in the math in
this month's pumping reports as well that doesn't seem
to add up. And I find this, you know, along with
other things over the years to be very, very
disturbing.
So with that in mind, I feel that certainly
there is confidence lacking and I would like to, in
accordance with the board's abilities and duties under
the Charter, to make a motion here today. And I would
like to move that the current director be removed from
his position as Director of the Department of Water
Supply. I also, as part of that, would like the Chair
to be able to pay proper severance compensation after
consultation with the corporation counsel and
personnel services.
CHAIRMAN RICE: Is that a motion?
MR. STARR: That is a motion.
MR. TAGORDA: I second.
CHAIRMAN RICE: Okay. It's been moved and
seconded to remove the director and to pay appropriate
compensation severance, upon consultation with legal
counsel.
Mr. Craddick?
MR. CRADDICK: First of all, you haven't
allowed for any testimony on this item and there may
be people that want to give testimony on this item.
CHAIRMAN RICE: You need to speak up.
MR. CRADDICK: There may be people that want
to give testimony on this item and no provision has
been allowed for testimony on this item, at least not
by myself anyways. So I would like to be able to say
something.
CHAIRMAN RICE: You're speaking.
MR. CRADDICK: Okay. First of all, I would be
very interested to know --
MR. HIRANAGA: Mr. Chair, excuse me for
interrupting David, but it would seem premature that
this motion has been put on the table because an
evaluation is a communication tool to describe to the
director the feelings of the board. And upon
receiving the evaluation, I would think he would have
an opportunity to respond to each issue. It would be
my hope that if the board was unhappy with the
performance, that he would be given notice and another
evaluation be done in six months so that he would have
an opportunity to correct any deficiencies that have
been [inaudible]. That's my understanding of an
evaluation. You know, he hasn't been evaluated for
three years. He doesn't know -- in writing officially
been given notice of his deficiencies.
CHAIRMAN RICE: Okay. Your point is taken.
There is a motion and a second on the floor.
Mr. Craddick?
MR. CRADDICK: Spoken very well.
CHAIRMAN RICE: Mr. Hashimoto?
MR. HASHIMOTO: I think I agree with Kent
because he just got the letter -- when did you get the
letter?
MR. CRADDICK: Yesterday.
MR. HASHIMOTO: And I think it would -- for
him to respond and maybe in six months to bring up his
deficiencies or whatever it is. I don't think it's
fair for Craddick or anybody else if anybody else on
staff we did the same thing. So I think I agree with
Kent that it's a little premature right now. I would
vote against the motion.
MR. NOBRIGA: Mr. Chairman, having to deal
with personnel matters on a daily basis outside of
this position on the board, dismissing an employee is
not the thing you want to do frivolously or at the
spur of the moment. It involves countless volumes of
documentation that can -- that does point out where an
employee is derelict or is nonconforming to the job.
I don't believe that Mr. Starr's one instance of
pointing out an error is sufficient grounds to even
bring up the matter of documentation. If there are
other areas where we would like to present such
documentation, then it's only fair that we as the
governing body and the employee himself have a time
period to review such errors and then move forward
from there.
So I am not really in favor of the motion.
Although we have expressed some problems with our
personal dealings with David, there is other steps
that I really would need to see happen before this
type of action would go forward, for me.
MR. HELM: I share this because I also, you
know, work as a manager and I deal with personnel all
the time. So my concern is when you do give an
evaluation, you identify those weak areas and ways of
improving those weak areas as part of your
expectations or within your performance management
plan. So I -- obviously we've identified a couple low
scores that addresses some of the communication
problems and some of the conflicts we have in Dave.
So I think it's also part of our role to also say,
okay, what are our expectations for him to improve,
what are some of the development objectives for him to
improve. Are we offering him opportunities to
improve.
And I think we need to also look at that as
something critical to anybody. David as a director is
not exempt from training. I mean, maybe he needs
exposure to public relation methods and how to deal
with the public, how to build confidence in the board.
I think we need to have those kind of expectations in
place so that he can take corrective actions in
improving himself. That's all I got to say.
CHAIRMAN RICE: Mr. Nakamura?
MR. NAKAMURA: Mr. Chairman, while I believe
some of -- or perhaps many of Board Member Starr's
concerns are well taken, I also feel that at this
point it would be premature to vote in favor of this
action.
However, I think that some of these issues
have been festering, if you will, for long enough and
I believe that now that the director has the
evaluation, and some of the -- the nature of some of
the areas where the scores were low particularly
concern me, the issues of confidence, trust,
communication, overall management skills. Those are
very troublesome to me and I do feel that the
management of the department definitely needs to be
upgraded. I believe that the director having been
given the evaluation should now perhaps in working
with the chairman come up with a plan, if you will, to
improve the areas of deficiencies and that within a
relatively short period of time that there would be a
reevaluation. And I'm really thinking more a matter
of month, not years. But I think the process would
really be a more fair process if he were given that
kind of an opportunity.
CHAIRMAN RICE: Mr. Tagorda?
MR. TAGORDA: Thank you, Mr. Chairman. I'm
glad to finally have a review about director's job
performance. It bothers me that the director in
charge of water, our most precious resource, could
only pull an evaluation that is slightly above
adequate. The people on Maui deserve more. Adequacy
is not enough for me to retain you as a director.
For five years I have heard that David knows
water, but not good with administration or speaking
skills. I constantly hear of deals being made, people
being treated unfairly, and major inequities in how
people receive bills and other special treatment from
the department.
Just last week, if you know, we found a cross
connection at a new home in Hana. A cross connection,
Mr. Director. We also know that the department person
made the cross connection. This is a blatant
violation to our rules and regulation. How can this
happen? This is what causes the community to distrust
the department.
This department cannot continue to use short
term fixes for its problems. We need a strong,
credible administrator. We need someone who is
respected in the community for his ability to get
things done, not just because he's a nice guy. It's
about time the board members step to the plate and
make changes in our [inaudible].
I think David is a very nice man, but his
ability to communicate and his literacy is always in
question. I don't think he's a good administrator. I
believe it takes a good administrator to make a good
department and make the community understand why we
need to raise rates to give them the service they
want. I believe it will continue to be difficult to
get the community and the council to buy into rate
increases until we change management.
If the board would like to utilize David's
strength, then move him into another area within the
department where those strengths will be realized.
Thank you, Mr. Chair.
CHAIRMAN RICE: Thank you, Orlando. Any other
comments? Yes, Kent.
MR. HIRANAGA: I believe that the director
should at the next general meeting provide, if he
wishes, written comments to each of the items because
I think there are always two sides to the story. And
if there is a staffing situation or whatever, he
should bring that to the board's attention. Being
given the evaluation, if he only received it
yesterday, does not give him time to review and
comprehend what is being communicated. There may be
reasons for certain actions. He should be given the
opportunity to provide formal comment.
CHAIRMAN RICE: Yes, Mr. Starr.
MR. STARR: Mr. Chair, I feel strongly on this
matter and I think that it's an overall problem. My
feeling, serving on this board and trying to
understand the issues, has often been similar to
someone trying to watch a shell game and trying to
figure out which shell that the pea is under, they're
constantly moving and constantly being changed around
to confuse us. So I do feel strongly about this.
But listening to my fellow board members, it
seems that perhaps it might make sense to give a
little bit of time for the review process that we have
done to settle in. I do feel that it should be fair
to the director to let him answer to that. And so I
would be willing, if we set a fixed date, say the
second meeting, you know, say 60 days, that that would
be the May meeting, to go through another review
process and see if the shortfalls have been corrected
or answered. I feel that I would be amenable to that.
I don't want to just let this go and let another three
years go by before another board takes the issue at
hand. I feel that if we don't deal with it today, we
should look at it again after a short, say, 60-day
period.
CHAIRMAN RICE: Mr. Hiranaga.
MR. HIRANAGA: I agree with Mr. Starr that we
should set a specific date to review the evaluation,
but we will be having two new board members coming on
board next month. I would be more comfortable with a
six-month period beginning April 1, which would make
it end of September. End of September. Isn't
September a general board meeting we have another
evaluation. That would be my suggestion. We give
time for the two new board members to evaluate the
director's performance. It will also give him time to
do whatever reorganization or administrative
organization to bring his department to within the
expectations of the board.
CHAIRMAN RICE: Okay. Mr. Nakamura?
MR. NAKAMURA: I think that's a reasonable
time period, but I think if we're going to do that,
that we should have David submit to us at the next
board meeting a response and, where appropriate, some
sort of specific plan as to how he is intending to
address the identified shortcomings or deficiencies.
CHAIRMAN RICE: Mike?
MR. NOBRIGA: What I found kind of
uncomfortable was that Mr. Starr took a little bit
different road of approach with his comments on this
agenda item. It has been the kind of procedure in the
past that discussion is free-flowing prior to a motion
being made; not to, you know, say that we condone the
meeting not following Robert's Rules of Order, it's
just that most of the agenda items that come before us
are usually precluded by a lot more discussion.
CHAIRMAN RICE: So now we have a motion and a
second on the floor. Mr. Tagorda, did you want to say
something?
MR. TAGORDA: Are you willing to withdraw your
motion, Mr. Starr? I'm willing to withdraw my second.
You going to give him six months?
CHAIRMAN RICE: What I heard --
MR. STARR: Mr. Chair, I would be willing to
do it. I feel six months is too long. I feel that
that's a long, long time. I would like to request
that that period be shortened and then I would be
happy to withdraw my motion. Perhaps, you know, if
it's not two months or not six months, maybe it's four
months, three months or four months.
CHAIRMAN RICE: Yes, Adolph.
MR. HELM: Maybe I can suggest to look at it
in an increment basis where at what stage has he shown
improvement and is he working on certain areas of
improvement that he needs to work on and just
reevaluate, but not come up with any consensus until
maybe six months. So that we can review in a very
short session just to see where is he at and just to
be on top of it, and maybe that will address
Jonathan's concern and not have this issue slide away.
I guess that's maybe Jonathan's concern.
MR. STARR: Well, one other thing I would like
to direct to corp counsel and to make clear to my
fellow board members as I see it is that we have a
charter obligation to hire and fire the director.
That's basically the only real direct power that we
have. And as I understand it, we don't have to do
that for cause, that there is no legal obligation for
us to prove or show cause, that that is just something
we're empowered to do and we can do it for whatever
reasons the board believes in. And I would like to
ask corp counsel if this is correct, this view.
MR. KUSHI: Mr. Chair, Member Starr, in
essence you've stated what the charter says. The
charter says specifically the board hires and fires
the director. I've done some preliminary research and
I will not discuss this in open session. I would be
glad to discuss this in Executive Session in terms of
your powers, duties, and liabilities.
However, just to the say that it's my
preliminary research that the director as well as the
deputy are employees at will. However, there are some
exceptions to that legal doctrine which are
[inaudible] -- the exceptions to the at-will
employment doctrine, which I believe is better
discussed in Executive Session. But in essence, you
are correct. But how you go about it is a different
matter.
CHAIRMAN RICE: What I'm hearing here,
gentlemen, is that we want to give Mr. Craddick an
opportunity to respond, we want to set another review
date, possibly more than one review date to a final
decision in some people's mind in six months, some
people it seems to be sooner. Is that correct?
MR. NOBRIGA: Yes, Mr. Chairman.
CHAIRMAN RICE: And given that we have a
motion and second on the floor, we either vote on it
or they withdraw their motion and second based on more
favorable motion for everyone to vote on. What shall
it be?
MR. STARR: I'll be willing to withdraw my motion.
MR. TAGORDA: So am I, Mr. Chairman, withdraw my second.
MS. de NAIE: I've probably sat in at Board of
Water Supply meetings over the last five years or so
and at the other meetings like County Council meetings
and Water Commission meetings, maybe a little bit
longer than that. And I have a perspective that's
from I guess the public viewpoint, and that is as a
person who's had a lot of employees, I think it's wise
for a board like this that's charged with an extremely
important responsibility to realistically look at a
person's strengths and weaknesses because everybody
has them. And I know it's the common thing now that
you evaluate and then you see if a person can improve
and so forth, and that's all really good, but if a
person's basic strengths lie in another area, it is
hopeless to keep saying well, maybe they will change
over here. And you're really shortchanging the public
by insisting that that be your procedure.
I think Mr. Craddick is a very intelligent
person. I think he knows a lot about water. I think
he's a very good-hearted person, a contributing member
to the community, and so forth and so on. But as I as
a member of the public have a hard time understanding
what he tries to explain about what's going on with
water. And I'll just offer you one little brief
thing. A few years ago I was at a County Council
meeting. Mr. Craddick was talking about water
availability to counsel members. I just couldn't
follow him.
I was standing in the back next to a person
who was at the time deputy corporation counsel. I
turned to this person, I said, "So what was David just
saying?" This person turned to me and said, "I have
to tell you the truth, I can't follow him most of the
time either."
Now, I don't think that this kind of
communication is David's long suit. First of all,
he's very soft spoken. I really think that you need
to find -- Mr. Tagorda is right, you need to find a
place in the organization where his skills are going
to be of benefit to the water department, and get
somebody who can really take the vision of what this
board is trying to do, translate it in a dynamic way
to the public so that the public feels confident and
wants to get behind it, and spare this poor man the
torture of having to go out there and do something
that may not be his forte and not make him fight for
his existence. So that's just my two cents worth.
Thank you.
CHAIRMAN RICE: Thank you. Okay.
MR. GRANTHAM: Can I say something, too,
Mr. Chair? My name is Dan Grantham and I've also been
following water board meetings, not only following
them but having to watch them on tape afterwards to
put them on the air.
And I like David. David's a real easy person
to like. However, Clark's point about the time here I
think is poorly taken. I've watched Orlando ask for a
long time he says "I want to be able to vote on the
director before I leave the board." Way more than six
months ago. Six months ago the director received, you
know, preliminary comments from the board about his
communication style. Unfortunately, I don't believe
Adolph was at that meeting.
You went into Executive Session afterwards and
I actually had a conversation with David outside and
said, David, you know, it sounds like they're having a
problem with communication. I mean, that was the word
that came up more often than not. And I hope I'm not
betraying a confidence, but David said, well, there is
people on there that just want to get rid of me.
If that's the case, David has had plenty of
warning. You don't needed to give him another six
months, another year. I think he should just do it,
you know. He's going to wonder do I have the
confidence of the board here or not. He's going to be
coming here every time, you know, gee, I'm on
probation, what do I do? I don't think it's fair to
treat somebody like that. Either you trust them or
you don't. I don't think it's fair to the public.
David has tremendous skills and I respect them
enormously. Communication -- I was going to suggest
that one possibility if you do want David on so much
that, you know, there is a radio show on Saturdays, a
guy does musical history and he has a buzzer that
comes on, it's called the irrelevancy alarm. And I
was going to suggest maybe there is some software out
there that you could plug in, you could get a
contradiction alert and you could have a sound on it
like a truck backing up or something, beep-beep-beep,
you know, or maybe you could have a fog horn for,
"Hey, we're lost in the dark again."
I think that you should reconsider putting
things off and just been straight with the man. And I
really think Orlando deserves his say. He's been
asking for it for years. And I think out of respect
to him, I think he should have his say. Thank you.
CHAIRMAN RICE: Mr. Tagorda has had his say
all day today. Gentleman, is there a motion?
MR. NOBRIGA: I think the Chairman summed it
up in his comments earlier, but I'll move that we
receive written comments to the Chairman's letter --
to the director within three weeks so we can all
review it before the next meeting; that a preliminary
course of action be defined by May's meeting; and that
a final decision made no later than September 1, 2002.
CHAIRMAN RICE: Is there a second?
MR. NAKAMURA: I second that motion.
CHAIRMAN RICE: Seconded by Mr. Nakamura. Any
discussion? Yes, Mr. Starr.
MR. STARR: I would have liked an earlier
date, but I will go along with it.
CHAIRMAN RICE: Okay. Any other discussion?
All in favor, say aye.
[Chorus of ayes.]
CHAIRMAN RICE: Opposed, say nay.
[No response.]
CHAIRMAN RICE: Unanimous. Motion is carried. Okay.
It was a long agenda. We have a public
meeting update, water issues.
MR. CRADDICK: I think mainly just the charter
commission meetings and the water issue, there has
been a number of testimonies and the board chair gave
the letter from the board to the charter commission
there at last night's meeting and that will be their
final meeting, public meeting, and then they have got
some decision-making starting next week on that matter.
MR. STARR: Mr. Chair, I have a question about
some meetings that I saw the director had advertised
in the newspaper but had never come before the board
and I have some concern about that. And, you know, it
ties in with the previous matter because I don't
believe that he always gives the public the straight
scoop. I think that he's manipulating, gives several
answers to the same question.
I would like to know what these meetings,
which are supposed to educate the public about Iao
Aquifer, are intended to do. And it seems to me that
such meetings should really be authorized by the board
and at least the board should know about them
officially before they get advertised in the
newspaper.
CHAIRMAN RICE: I agree. I don't know
anything about the meetings and I think public
meetings need to be approved by the board.
MR. STARR: Can I request that these meetings
be cancelled unless they be approved by the board?
CHAIRMAN RICE: Mr. Craddick, is there a
reason for the meetings? There is four, I believe.
MR. CRADDICK: I would like to know when you
decided that department meetings had to be approved by
the board. We have many of them.
CHAIRMAN RICE: We have many public meetings?
MR. CRADDICK: Yeah. So this particular one
we just took a lot of effort because I knew a lot of
people are confused about the Iao issue and I felt
that it was important to -- as a matter of fact,
somebody from the high tech park actually came to me
and suggested it, that we let the public know what is
going on. And I thought that was a good idea.
But I certainly will, if the board feels that
that's the correct way to go, get the meetings
approved. But if you want the communication to
improve with the public, then, you know, you can't say
you want it to improve, but you don't want it to
improve on the other hand.
CHAIRMAN RICE: No, that's not the case. And
I think this is a perfect example of what needs to be
taken from this meeting. The Iao Aquifer issue is a
particularly sensitive issue. You know that, we all
know that. So why would you schedule some information
meetings on something that we all know is extremely
sensitive without talking to the board? It just
doesn't make sense.
So someone calls up a board member and says,
oh, you're having informational meetings on Iao.
Well, I'm sorry, I apologize to the Maui News, but I
don't happen to read the Maui News that often and I'm
shocked. I said I'm not aware of anything. Duh,
dummy. You know, that is not the way it should work.
And besides that fact, I don't know what other public
meetings we hold on a regular basis and if we do and
nobody knows about them --
MR. NOBRIGA: Why have them if nobody knows?
CHAIRMAN RICE: Somebody must know about other
public meetings we have on issues. If we don't, then
I don't know what they are. So I think it is
embarrassing and it is exactly the issue. It's a
particularly sensitive issue and I would think as the
director you would want the board to say heck yeah, we
agree with what's going out there. We aren't too --
and here's -- and this does relate to the other issue
we just talked about. There are not two entities
here. There is not a board and a department. And
that is a feeling that I get since I've been on this
board.
There is one entity. The Department of Water
Supply has a board. It is the Department of Water
Supply. We are the Department of Water Supply.
Period. And the attitude that these guys want this
but it's better for us to have this and we're going to
try and fight our way each way, that doesn't work.
That's creating a conflict. That attitude is creating
a conflict. It causes everybody to have some
disturbing experience somewhere along the line. And
so you have to work with the board. You win some and
you lose some. The board is going to be wrong, yeah,
and you're going to be wrong, yeah. But are you out
by yourself when you're wrong, you're in big trouble.
Yes, Mr. Hiranaga.
MR. HIRANAGA: My suggestion on such an issue
would be to David that if you felt there was a need to
have these meetings, then you would send Peter an
e-mail with copies to all board members, saying I
think it's a good idea if I have these meetings, blah,
blah, this subject, what do you think. And you'll get
a response from Peter: I agree, I don't agree. Cc
other board members. If they have comments, they will
send an e-mail to Peter with their comments so he can
send you a direction as to whether this is a good idea
or not.
But to go ahead and do something without
discussing it and then be chastised about it, you do
that too many times, you're going to find yourself way
out on a limb. That would be my suggestion.
CHAIRMAN RICE: Yes, Clark.
MR. HASHIMOTO: Also on communication, I think
almost all of us have e-mail. Isn't that a more
efficient way of communicating?
MR. NOBRIGA: That's what he said.
MR. HASHIMOTO: I know, but we don't get --
MR. HIRANAGA: It's cost efficient.
CHAIRMAN RICE: I think at this point what do
we want to do with those meetings?
MR. CRADDICK: Peter, I'll cancel them.
CHAIRMAN RICE: They stand cancelled.
Mr. Starr?
MR. STARR: I don't want to keep beating a
dead horse here, but this is something that I've
mentioned in at least six of the last 12 meetings is
the department having various type of public meetings
without the board's being notified. And this is not
the first time. But I'll let it go at that.
CHAIRMAN RICE: Yes, Kent.
MR. HIRANAGA: My suggestion to you, Jonathan,
is you start keeping a log of all these things so that
at the next evaluation you'll have --
MR. STARR: I could give you a very long list,
but I try to go to every public meeting that the
department has and it bothers me when someone says,
oh, why weren't you at the meeting last night, and I
never heard of it.
MR. HIRANAGA: Every deficiency that you
identify, so that at the next evaluation you can
provide this.
CHAIRMAN RICE: Okay. Anything else? Where
is my list of monthly division reports? I would like
to ask -- you want to say something?
MR. NOBRIGA: No, no.
CHAIRMAN RICE: On the monthly division
reports, we have -- I thought we had a section for
subdivision requests and approvals. It's engineering.
It's right in the beginning. Where is it? Did I miss
it? Right here. Yeah. There is ten -- it's a quick
one. It says there is ten building permits approved
by the staff and the director. There is one
subdivision application approved. That's well and
good, but I guess the question that's been raised is
is there a backlog of those, do we know how many have
been requested and how many have been approved, and I
think we would like to see a little bit more detail on
that report. And if -- yeah, we did ten building
permit applications and one subdivision ap, is there
-- but is there 25 waiting, it indicates a problem and
I think that's something that's important. That's my
comment on that.
Yes, Mr. Nakamura.
MR. NAKAMURA: And under Reports, I know,
David, we had talked a little bit about this -- at
least in the evaluation, you know, you had called me
about it. But my feeling about those monthly reports
is that there needs to be at least some commentary or
analysis on some of the numbers. For instance, the
figures that Jonathan circulated on, you know, on the
pumping, what does this mean? What is the implication
at Iao Aquifer or in the case of the plant report,
basically what does this tell us in terms of how much
we're pumping, are we -- from one system to another.
I think we need to have some of that just capsulized.
CHAIRMAN RICE: And in the event that we know
that any of the reports are inaccurate or mistakes,
they need to be corrected and resubmitted, please.
MR. HIRANAGA: I had a question on the
easements granted to the board. Is there compensation
that's granted to the grantors or background
information on those two easements that are accepted
for the [inaudible] water system.
MR. CRADDICK: If there is compensation,
you'll know about it because it has to come to you.
But we don't usually give compensation for fire
hydrants.
MR. HIRANAGA: So these are fire hydrants.
MR. CRADDICK: I would expect so, but I'm not
positive right off the top of my head.
CHAIRMAN RICE: So let's include that. That's
the kind of detailed information I think that -- yes,
Mr. Tagorda.
MR. TAGORDA: One thing I want to point out,
Mr. Chairman, before we adjourn. Go back on monthly
division report. The Department of Water Supply
letter on that Lahaina water treatment facility
modification, I have a question about the department
intention to a water contract portion of it, for
$355,000 and we have only a funding of $1 million and
the low bid came in at $1.5 million. I think the
board should really look into that before you go ahead
and give the contract for a portion of that project.
Because I don't know if you're going to get available
funding to complete the project. And that money will
be again encumbered, which has been a practice of the
department since I've been here, Mr. Chair.
CHAIRMAN RICE: Thanks, Orlando. Yes.
MR. STARR: My feeling is this should go to
redesign and find a way to do it for the money
available to us. I'm sure there is maybe some bells
and whistles or something that can be taken out, but I
was also a little concerned when I saw this letter
dated February 28th.
MR. CRADDICK: So what do you want to do on
that one? Delay the thing? Because what it is is we
have problems with algae in the tank. That's the
basic problem. We need to cover the roof. That
portion is only $300,000. What we wanted to do also
is build another tank; that's not critical, so we
dropped it out. Later on if the board -- if more
justification is there to do it and we've got the
budget to do it, then I would bring it back to the
board. But it is within the budget allowed and I must
have thought something about it because otherwise I
wouldn't have informed the board there about it, but
--
MR. STARR: I agree I want to fix the problem.
If this is a stand-alone roof and if the feeling is
that this is the cheapest way to do it, I don't have a
problem with that.
MR. NOBRIGA: If the scope of work of the
project was initially intended to do what it's doing,
I'm in favor of making a motion, if we have to, to let
the project go through.
But if the scope of the project as intended
included everything, then we should resubmit this to
CIP and finances to either expand the budget or change
the scope of work.
CHAIRMAN RICE: So the scope of work would
have been for the entire project.
MR. CRADDICK: Yeah.
MR. STARR: Mr. Chair, can we do this in
committee? I don't think this is really --
CHAIRMAN RICE: Yeah, CIP. Okay.
MR. CRADDICK: It may -- by now it may have
already been awarded. I don't know right off the top
of my head that portion.
CHAIRMAN RICE: Let's check on it. Okay.
Anything else? Move to adjourn.
MR. STARR: So moved.
CHAIRMAN RICE: So ordered.
(WHEREUPON, the hearing was concluded.)
Department of Water Supply
County of Maui
P.O. Box 1109
Wailuku, HI 96793-6109
Telephone (808) 270-7816
Fax (808) 270-7951