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HomeMy WebLinkAbout03/21/2012 Special Council Meeting SPECIAL COUNCIL MEETING MARCH 21, 2012 The Special Meeting of the Council of the County of Kaua`i, was called to order by the Council Chair at the Council Chambers, 4396 Rice Street, Suite 201, Lihu`e, Kaua`i, on Wednesday, March 21, 2012 at 8:13 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Dickie Chang Honorable KipuKai Kuali`i Honorable Nadine K. Nakamura Honorable Mel Rapozo Honorable JoAnn A. Yukimura Honorable Jay Furfaro APPROVAL OF AGENDA. Mr. Rapozo moved for approval of the agenda as circulated, seconded by Mr. Chang, and unanimously carried. Chair Furfaro: I would like to have a couple of minutes of personal privilege before we start and announce that in a joint effort with the Planning Department, the County Council has agreed to offer the facilities here at the County Council for a presentation by Richard Jackson. Mr. Jackson will be handling a presentation on Smart Growth as it relates to walking streets and environmental and public health benefits for the public on Thursday, March 29, 2012. I will be producing a presentation letter very soon but I just wanted to announce since today is the twenty-first (21St) that that special meeting will be held in the Council Chambers, but it will be hosted by the Planning Department. They plan to do a brown bag lunch from eleven o'clock through that period and that announcement will be coming up soon. Based on that, I would like to go to the first communication of today's Special Meeting. COMMUNICATIONS: C 2012-76 Communication (02/23/2012) from the Prosecuting Attorney, requesting Council approval to expend Office of Prosecuting Attorney (OPA) Regular Salary Funds to hire a Law Office Assistant. Chair Furfaro: Before we get into that item for some clarification, I would like to call up Amy Esaki and Jennifer Winn. There being no objections, the rules were suspended AMY ESAKI, FIRST DEPUTY COUNTY ATTORNEY: Amy Esaki, First Deputy Attorney. 2 SPECIAL COUNCIL MEETING MARCH 21, 2012 JENNIFER WINN, DEPUTY COUNTY ATTORNEY: Jennifer Winn, Deputy County Attorney. Chair Furfaro: Thank you. I do understand because in our last session we had some items surfaced with ethical interpretations from the Ethics Commission, as well as certain opinions from the County Attorney's Office for us to progress today there's been a request for some of the attorneys in the County Attorney's Office to assist with representation of various parties today. Could you expand on that before I go any further? Ms. Esaki: Yes, Jennifer Winn will be representing the Office of the Prosecuting Attorney and I will be advising the County Council as a body, as a whole. Chair Furfaro: I do believe that I've been informed that the representative for the County Prosecutor's Office has some questions to pose to us, is that correct? Ms. Winn: Yes Chair. Ms. Yukimura: I'd like to ask the attorneys, given that the Prosecutor will have an attorney and the County will have an attorney, isn't Mr. Bynum entitled to a attorney as well as a sitting officer of the County? Ms. Esaki: Yes, in his official capacity, yes. Ms. Yukimura: Who will be representing him? Ms. Esaki: I can also represent him or we can call in another deputy if Councilmember Bynum so chooses. Chair Furfaro: Mr. Bynum, the answer to that question is it's your choice. Mr. Bynum: I was told yesterday by the County Attorney's Office that you would not give me representation. What has changed? Ms. Esaki: We cannot represent you in your personal capacity, Councilmember Bynum. Mr. Bynum: Then I need to consult with my attorney based on a meeting I just had with the Prosecutor's Attorney. Ms. Esaki: The meeting you had with Jennifer? Mr. Bynum: Jennifer Winn. Ms. Esaki: Okay, so would you like to have your own representation from our office? Mr. Bynum: I'm happy to have you represent me, Amy, but I need to talk with you before we proceed. 3 SPECIAL COUNCIL MEETING MARCH 21, 2012 Ms. Esaki: Okay, that will be fine. There being no objections, the Council recessed at 8:19 a.m. The Council reconvened at 8:38 a.m., and proceeded as follows: Ms. Winn: The Prosecutor's Office, given these usual circumstances wanted to... they're slightly uncomfortable with allegations of potential prosecutorial misconduct based on the fact that Councilmember Bynum may be conversing with them. They have asked me to ask Councilmember Bynum a few questions if that is alright? Chair Furfaro: Go right ahead. Ms. Winn: We just wanted to make sure that you have conferred with your Defense Attorney about communicating with the Office of the Prosecuting Attorney during these proceedings? Mr. Bynum: Yes. Ms. Winn: That you are knowingly and voluntarily communicating with the Prosecutor's Office during these proceedings regarding the agenda item? Mr. Bynum: Regarding only the agenda and wait... regarding the agenda item and things that have been brought up by the Prosecutor. Ms. Winn: And that you are knowingly and voluntarily waiving any claims of prejudice to your criminal case that may arise from these proceedings? Mr. Bynum: No. Ms. Winn: And... Mr. Bynum: Wait, did you understand that answer? I don't waive anything. Ms. Winn: I understand. And that you understand that if deemed admissible, statements you make can be used against you in a criminal proceeding? Mr. Bynum: I have no idea what that means, but I'm not waiving any rights. Ms. Winn: Okay. Thank you, Chair. Mr. Bynum: Are you familiar with the Rules of Professional Conduct? Ms. Winn: Yes. 4 SPECIAL COUNCIL MEETING MARCH 21, 2012 Mr. Bynum: This is the fourth (4th) time I think in the last several months that somebody representing the Prosecutor's Office has come up here and said on the public record that I'm being criminally prosecuted at the Prosecutor's Office. That I'm being criminally prosecuted, correct? Ms. Winn: Yes, that's my understanding. Mr. Bynum: And that's been said here several times over the last couple of months by either the Prosecutor or the people representing the Prosecutor's Office. What are the rules of Professional Conduct regarding making those statements in public? Ms. Winn: I don't have that in front of me, Councilmember. There being no objections, the Council recessed at 8:42 a.m. The Council reconvened at 8:44 a.m., and proceeded as follows: Mr. Bynum: You've been able to consult the Hawai`i Rules of Professional Conduct that have been brought up here over the last two (2) meetings? Ms. Winn: I've looked at the Hawaii Rules of Professional Conduct with respect to... Mr. Bynum: I'm going to read from Rule three point six (3.6) entitled Trial Publicity, parentheses "A": a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make extra judicial statements that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicial and an objective proceeding in the matter. Under comments, parentheses five (5) under comments: there are on the other hand certain subjects that are more likely than not to have a material prejudicial effect on a proceeding particularly when they refer to a civil matter trial to a jury to a criminal matter or any other proceeding that could result in incarceration. These subjects relate to, I'll go to parentheses six (6): the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charges are merely an accusation and that the defendant is presumed innocent until and unless proven guilty. Over the last few months the Prosecutor or representations of the Prosecutor, including yourself right now, had made reference to a criminal proceeding but there has been no statement explaining that those charges are merely an accusation that the defendant, me, is presumed innocent until and unless presumed innocent until and unless proven guilty. I would say that the Prosecutor has violated the Professional Rules of Conduct in this instance and in paragraph one (1) that has made comments regarding the character, credibility and reputation or criminal record of a party subject to a criminal investigation or identity of a witness of an identity of a witness, or the expected testimony of a party. Last month the Prosecutor came here with a written statement that was marked confidential... Ms. Winn: Councilmember Bynum. Chair, if I may? 5 SPECIAL COUNCIL MEETING MARCH 21, 2012 Mr. Bynum: ...that made unfounded accusations about my conduct in the community, it was given to all of my colleagues and not me, and then the Prosecutor went out of her way to make sure that the media received a copy of those prejudicial statements. I have thanked the Prosecuting Attorney for bringing to my attention the Hawai`i Rules of Professional Conduct because I think it's overwhelmingly clear that they have been violated repeatedly over the last month. Ms. Winn: Chair? Mr. Bynum: Much to my... Mr. Rapozo: Mr. Chair, I'm going to call a point of order at this point, Mr. Chair, and I have a question for the County Attorney. Mr. Bynum: I would like a ruling on the point of order first. Mr. Rapozo: Let me make the point of order and then we can get the ruling from the Chair. This is not a court of law. This is not the body that's going to determine if a motion for misconduct is appropriate. We're on an agenda item for a budgetary matter, a request for a position, that's what we are here for. We have wasted fifty (50) minutes of our day discussing what I believe should be in a Court, motions of various sorts. So my point is, are we on the agenda Yp g item or not? These things should be resolved before we get to the floor to do Council business. I'm asking that as to be ruled by the Chair and if you need to ask the Attorney, but I believe we are way off the SunShine Law, the agenda, this is a criminal matter that's being discussed and that's not what we deal with here in the e County Council, that's the point, Mr. Chair. Mr. Bynum: I didn't bring up the Rules of Professional Conduct, I didn't o there. We could have easily gone into this agenda item and just g Yg just handled it as routine business of the Council. It was the Prosecutor who made assertions that I somehow had a conflict even though the Board of Ethics has said that I do not. It was the Prosecutor who made the assertion that according to the Rules of Conduct that she could not speak to me and it was made clear last time by our County Attorney that that's not what the rules say at all. It says that we cannot discuss the criminal matter, which I stated that I had no intention to do. The Prosecutor has come here repeatedly over the last few months and I think very clearly now that I've been advised and I understand what the Professional Rules of Conduct, violated my rights by violating the Rules of Professional Conduct. She brought this subject up, so why do I not get to speak to it? Repeatedly over the last several years I haven't been allowed to speak... There being no objections, the Council recessed at 8:54 a.m. The Council reconvened at 9:00 a.m., and proceeded as follows: Chair Furfaro: Jennifer, we're referencing the point of order here and I want to make certain that we understand that you came up representing the Prosecutor and for me to interpret the OPA having questions posed to the Councilmember, to some degree the door was open for him to respond. I have allowed him to respond on those particular issues and I really think if we're going 6 SPECIAL COUNCIL MEETING MARCH 21, 2012 any further, there might need to be consultation by your client for the Office of Disciplinary Conduct that may be questioned. I personally want to get on with the agenda item. Do you have anything to add to that? Ms. Winn: I think this is off the agenda item. The purpose originally for asking the questions was simply to protect the integrity of a criminal process. The Rules of Professional Conduct are slightly more complicated than just reading what they say, there nuances, there can be various differences, and it is not up to me or I believe this body to determine whether or not there's been a violation of it. I am aware that my client has been in contact with ODC. Chair Furfaro: To a degree, you understand where I'm coming from? I allowed the Prosecuting Attorney's Office to have questions posed to Mr. Bynum, I gave Mr. Bynum an opportunity to respond. I do agree with your comments that there is far more interpretation needed from a legal perspective about perhaps some of the material that was read but I want to move on with the agenda item, clearly it's very important for me. As it relates to determining issues of need for a staff position, the Prosecuting Attorney Office is not asking us for money and so forth. They're asking to get a determination for the need and they opened the question as it related to our first discussion that about twenty percent (20%) of this need is related to certain program support, so to some degree moving forward, I'll allow some questions on that but this is not a Court of Law. I went to Business School, and the reality, I want to have a level playing field for everyone. I would like to terminate this engagement here and make a ruling that we need to move on with the agenda item. For the notice to the County Attorney, I also want to make sure that you understand what I said about the door opening on the Office's use in determining a need and they opened that door about the Victim Witness piece, but I want you to raise your hand and question me if that dialog is going too far in any one (1) direction. I'm asking that of you because you represent me, the Chairman of the Council. I went through last week's meetings and the minutes recorded as such and there were some reference to that but I want to get on with this and I want to remind the members, the Prosecuting Attorney's Office is not asking for money, they're asking for a position. This is not a money bill. Mr. Bynum: I'm also anxious to move on to the agenda item; I was ready to do it last week, but I'd like to respond to the final comment that Ms. Winn made. Chair Furfaro: Go right ahead. Mr. Bynum: I understand that there is nuances, that is why I spent considerable time reviewing these rules, so I just want to say that it says: there are on the other hand certain subjects that are more likely than not to have a material prejudicial affect, and one of those is the fact that the defendant has been charged with a crime unless there is an included therein a statement explaining that the charges are merely an accusation that the defendant is presumed innocent until and unless proven guilty. After repeated times the Prosecutor coming here and making public statements on the record that I was being criminally prosecuted... Chair Furfaro: Excuse me... Mr. Bynum: ...she never did this disclaimer. 7 SPECIAL COUNCIL MEETING MARCH 21, 2012 Chair Furfaro: Mr. Bynum. Mr. Bynum: That's not nuance, it's as clear as a ball. Chair Furfaro: May I have the County Attorneys up for a moment. Ms. Esaki: Yes sir. Chair Furfaro: I want to make sure you raise your hand boldly when we go too far, because I believe in my leadership on the Council trying to be fair and creating a level playfield, I want all the members to know that if you raise your hand and if I need to suspend the rules at that time, I will do as such. Mr. Rapozo: Amy, likewise, you folks are here for today unlike any other routine item. This is a unique circumstance and I don't want to have to be the one calling the point of order every time I believe, so please if you see it drifting, you have to let us know. The perception is that I'm the bad guy and I don't like that perception, but I'm going to do it as often as I believe we're going off the agenda. This is a relatively simple agenda item. It's an agenda item that's asking for a position number, that's it. I don't see why we have to continue calling point of order, let's get the discussion and move on. Chair Furfaro: Mr. Rapozo, I felt that I summarized that the same way you just did. Mr. Rapozo: I just wanted to include me in her client list as well. Chair Furfaro: Got it. Mr. Rapozo: Thank you. Ms. Esaki: All of you are in my client list, so definitely, and including Councilmember Bynum. Please proceed on the main topic of the agenda item. Chair Furfaro: Do you have any problems with my earlier determination about the point of order? Ms. Esaki: No. Chair Furfaro: Thank you. Could I ask the Prosecuting Attorney to come up for commentary about the agenda item which is a position and position number not requesting any moneys. Shay, I have a comment that I want to share with the staff before we start on your request and I wanted to get a confirmation from you on that. I have determined after looking into the AS400 that as far as moneys available in your department and comparing it to the eight (8) month actual, you are about two hundred and forty-three thousand dollars under budget. To my knowledge and interpretation of that statement I just made, it confirms that you are only requesting the position change and the number because the moneys are in fact available? 8 SPECIAL COUNCIL MEETING MARCH 21, 2012 SHAYLENE ISERI-CARVALHO, PROSECUTING ATTORNEY: That's correct. Chair Furfaro: Very good. There being no objections, the meeting was called back to order and proceeded as follows: Mr. Rapozo moved to approve C 2012-76, seconded by Mr. Chang. There being no objections, the rules were suspended. Ms. Iseri-Carvalho: I'm available to answer any questions, Mr. Furfaro. I do as I had discussed at the last meeting have a presentation to give to senior citizens at 10:00 at Anahola Club House and so... Chair Furfaro: You're probably wanting to leave here in about fifteen (15) minutes, is that what you are saying? Ms. Iseri-Carvalho: Yes. I am quickly wanting to answer any questions that the Councilmembers may have. Chair Furfaro: Members, I'm going to circulate to you this AS400 of this snapshot picture of the balances in that account, just so that you can summarize what I stated earlier. Ms. Yukimura: Aloha. Ms. Iseri-Carvalho: Aloha. Ms. Yukimura: What is the justification for hiring another law office assistant? Ms. Iseri-Carvalho: We are going into a murder trial that's beginning in May and that was my explanation the last time that the reason why we didn't wait until the new budget year was coming out was because we have this extensive murder trial that's projected to take two (2) months. It involves over thirty (30) possible witnesses. We have witnesses and experts from across the country coming in for that trial. I passed out and provided a decision, which I also provided to the Administration, a new decision came down from the Court of Appeals that now requires the Prosecutor's Office... Normally we have a hundred eighty (180) days to complete a trial or to do a trial and what this decision says is that from now on what we used to use as Court congestion if another trial was in progress with another Judge that the case will get continued and it wouldn't be charged to the hundred eighty (180) days that we're required to bring a trial. Well this decision changes that, which means that if there are attorneys that are currently occupying the two (2) Courtrooms that we have with the two (2) Circuit Courts, the Admin Judge (and we've had a meeting on this) has mandated that the second, third, fourth, fifth trial, if ready to go, will have to be accommodating. This means that they will send in jurors. So instead of just being obligated to perform trials in two (2) Courtrooms, we're going to be obligated to perform trials in the ( ) g g g p other vacant Courtrooms as well. 9 SPECIAL COUNCIL MEETING MARCH 21, 2012 Ms. Yukimura: Would you layoff the new office assistant if the Hilario trial pleads out? Ms. Iseri-Carvalho: No. I just indicated with this decision there is no Court congestion if two (2) trials are going in at the same time with the two (2) Circuit Court Judges. So there will be other trials, there could be as much as four (4) trials that are going on at the same time. Ms. Yukimura: When is your Victim Witness Counselor on medical leave currently expected to return? Ms. Iseri-Carvalho: May. One (1) month, but she has already been out three (3) months already. Ms. Yukimura: So she's coming back on April 18? Is that correct? Ms. Iseri-Carvalho. We don't know. Her medical leave goes on for a month at a time. Ms. Yukimura: I understand she's written you a letter saying that she will be back on April 19. Ms. Iseri-Carvalho: She has written us a letter that she was going to be back in March, and she had written us a letter that she was going to be back in February, and all of those have been extended. Ms. Yukimura: At her request? Ms. Iseri-Carvalho: Yes. Ms. Yukimura: So she's saying that she'll be back, so if she comes back on the 19th, will you still need another? Ms. Iseri-Carvalho: Yes, because the duties of the Victim Witness Counselor is totally different from the duties of a Law Office Assistant. As I indicated at the last meeting, a law office assistant does preparation of documents, preparation of exhibits, witness contact, goes out to do interviews with witnesses, goes out to the scene, does a whole wide range of duties that incorporates some of the things that may be assigned to a Victim Witness Counselor, some of the things that are assigned to a Legal Clerk, but they are an exempt position because their job description is very unique. It was actually a created position. Ms. Yukimura: Are Law Assistants trained and qualified to counsel victims? Ms. Iseri-Carvalho: In part, some of them go to training, that's correct. But they are not Counselors, they do contact. There's a difference between counseling and Victim/Witness contact. Ms. Yukimura: Well your request is that you have two (2), your letter says you have two (2) Victim/Witness Counselors who are currently on 10 SPECIAL COUNCIL MEETING MARCH 21, 2012 leave, so it sounds like you want this Legal Assistant to serve as a Victim/Witness Counselor and do those duties? Ms. Iseri-Carvalho: Totally untrue. As I indicated earlier, I said that they would do Victim/Witness contact which is a part function of a Victim/Witness Counselor, which was also indicated to you at the last hearing we had with Ms. Gausepohl-White because that basically was her function. We do contract out to the YWCA to do counseling. Ms. Yukimura: That's on crimes of domestic violence but aren't there a lot of other crimes? Ms. Iseri-Carvalho: It's not only crimes of domestic violence, it's crimes of sex assaults as well. Ms. Yukimura: There are still many other crimes that are not within the ambit of the YWCA, right? Ms. Iseri-Carvalho: All of the cases can go to the YWCA... Ms. Yukimura: All Victim/Witness cases go to... Ms. Iseri-Carvalho: Can I finish? Ms. Yukimura: Yes. Ms. Iseri-Carvalho: What I indicated is that people have the option of calling the YWCA for different types of cases. I can tell you on Maui, there are no Victim/Witness Counselors that service any of the property crimes even though the property crimes account for a majority of the types of crimes they have on Maui. Ms. Yukimura: Is it required by statute that you provide Victim/Witness Counseling for victims of property crimes as well? Ms. Iseri-Carvalho: No. Ms. Yukimura: I want staff to get the statute, please. Ms. Iseri-Carvalho: We do provide but it's not required because Maui for the last several years have not provided and I just did a visit over at the Maui Victim/Witness Counsel because they just set up a victim center. They do not provide any services for property crimes. Ms. Yukimura: Is that your intention with the Kaua`i Office? Ms. Iseri-Carvalho: Not at this time, no. Ms. Yukimura: Is it true that you assigned Erin Wilson the Hilario case when she was hired? Ms. Iseri-Carvalho: She was assigned after, when she first came in, that's correct. 11 SPECIAL COUNCIL MEETING MARCH 21, 2012 Ms. Yukimura: Okay but don't you... Chair Furfaro: Excuse me, on that question, County Attorney. Ms. Esaki: I believe it's straying a little off the subject matter. Ms. Yukimura: Excuse me, but this is about the need for help and the reason Ms. Wilson was, at least I have the letter here that terminated her says that it was because there was no work. I think it's a legitimate question to ask. It's about management of personnel in the office and workload. So is it true that you assigned her that work to do and now she's not there because you terminated her for lack of work? Ms. Iseri-Carvalho: Mr. Chair, if I could respond? Chair Furfaro: I would like to ask, before you respond, could you be excused and let me bring the County Attorney up please. Ms. Esaki: Amy Esaki, First Deputy County Attorney. I think we're straying off a little bit on the subject again. The subject is a Law Office Assistant. I believe the Prosecuting Attorney Shaylene Iseri-Carvalho has said that the Law Office Assistant function is to do the contact, not the counseling. Chair Furfaro: Thank you very much. Ms. Yukimura: I have a question of Ms. Esaki. Chair Furfaro: Go right ahead. Ms. Yukimura: So the letter says that the Victim/Witness Counselors are on leave, this is the letter requesting a Law Assistant. I think I have a right to ask about the Victim/Witness Counselors and the work that they do and the reason that they are not available. Is that not true? Is it relevant to this question and a part of the Council's oversight in determining whether the position should be granted or not? Ms. Esaki: Perhaps there is some relevanc, but again to go into detail as to that particular individual, will it be relevant to this subject matter? Ms. Yukimura: The point is that she was assigned the Hilario trial. The Hilario trial is being given as the reason for needing this Legal Assistant, so I need to ask about it. Ms. Esaki: I don't know the response to that, but I think what was said was that this is for a Law Office Assistant who's going to do contact, not necessarily... I didn't hear her saying if it was for counseling, and therefore I would prefer you staying on the subject matter. 12 SPECIAL COUNCIL MEETING MARCH 21, 2012 Mr. Rapozo: The questions have been asked about a specific person that used to be a Counselor; the position request is for a Law Office Assistant. I understand and I think the confusion comes from the letter because the letter states the OPA has two (2) Victim/Witness Counselors who are currently on leave. I understand that the Counselors, part of the Counselor's duty is to contact victim and witnesses, that's part of their function. Ms. Esaki: That's what I just heard myself. Mr. Rapozo: The position that's being asked for has nothing to do with counseling; it's specific to potential contact with victim and witnesses. Ms. Esaki: That's what I heard. Mr. Rapozo: I read the job descriptions and I've seen a very small percentage of time that was going to be allocated to contact, not counseling. I just want to move on to the position descriptions of the Law Office Assistant. The other question is that I understand the lady sent a letter, but I'm not sure if we should be discussing that kind of personnel matters on the open floor. Granted she sent a letter and it's not stamped confidential or anything, but maybe in your opinion, is that proper to be talking about? Ms. Esaki: It was submitted as testimony? Mr. Rapozo: Yes. Ms. Esaki: As testimony it becomes public record. Mr. Rapozo: I understand that but do you think it's wise for us to be discussing it? First of all the position that the woman was in was not a Law Office Assistant. It has nothing to do with the agenda request. That's my concern. Ms. Esaki: Again, I stated let's focus on the Law Office Assistant. I heard that it was for contact, not for counseling. Ms. Yukimura: I think the Council has the right, does it not, to ask about whether a Victim/Witness person might better be able to do all the jobs that have to be done in the Hilario trial which includes not just contact, not just legal assistant work, but also counseling and support of victims and witnesses, is that not true? Ms. Esaki: Well if you're asking a broader question like that then you could ask the question as to whether rather than a Law Office Assistant, would it be more appropriate to have a Victim/Witness... Ms. Yukimura: Better use of a position and of the County's money. Ms. Esaki: That is a legitimate question of the Council. Ms. Yukimura: Thank you. 13 SPECIAL COUNCIL MEETING MARCH 21, 2012 Chair Furfaro: I'm going to recognize the Prosecuting Attorney but you still have the floor, Vice Chair Yukimura. Shay did you want to respond before we go back to her? Ms. Iseri-Carvalho: Yes. First of all, Councilmember Yukimura misstated when she read a letter indicating that the person was terminated because there was no work. It was because of there was lack of work, because that person's time was being utilized only forty percent of the time it was not being utilized as far as the counseling aspect. This position is doing work on the case and victim/witness contact. We still have a Victim/Witness Counselor that is assigned to assist with the counseling aspect of taking care of victims in the Hilario trial. That component is being addressed by another Victim/Witness Counselor. What we are looking for in this position is not a counselor, we already have that. We are looking for a person that can do preparation of trial; the Law Office Assistant is similar to a paralegal. They actually go in Court, they make copies of DVDs, and they have all of the notebook preparation for the attorneys that are going to trial. Those duties cannot be done by a Victim/Witness Counselor. They are specifically prohibited from doing those types of duties and we would be violating their union rule should we assign those kinds of duties to a Victim/Witness Counselor. I would also like to note that the reason why we're using a Law Office Assistant not only for its versatility but because of its cost. A Law Office Assistant is almost half the cost of a Victim/Witness Counselor but can do a lot more duties. That is again another way our cost saving measures of trying to utilize the services of a person that expand far more than what a Victim/Witness Counselor could do. Ms. Yukimura: Your letter here says that the Office of the Prosecuting Attorney has two (2) Victim/Witness Counselors who are currently on leave and would like to hire a Law Office Assistant to assist in the operations of the office. That is a clear implication that because two (2) Victim/Witness Counselors are on leave, you want a Legal Assistant and I think you have said that the Legal Assistants are not trained to do all of the work of the Victim/Witness Office. Ms. Iseri-Carvalho: That is correct. They have totally different job descriptions. I've indicated at the last meeting that I was going to utilize the Law Office Assistant twenty percent (20%) of the time to do victim/witness contact. I think you are mistaken in to believing that a victim/witness counselor that all they do is counseling, because they don't. Ms. Yukimura: No, I know that in fact... don't they prepare subpoenas? Ms. Iseri-Carvalho: No. Ms. Yukimura: They don't? Ms. Iseri-Carvalho: I mean they can, but that's not their major function. It's rare; only if, for example, a victim shows up at the office, they can, but rarely do they prepare subpoenas. Ms. Yukimura: Isn't that more flexibility whereas the Legal... 14 SPECIAL COUNCIL MEETING MARCH 21, 2012 Chair Furfaro: Vice Chair, please let the response come because we're all anxious to hear the response. Ms. Iseri-Carvalho: And in fact we've had Victim/Witness Counselors who have refused to do subpoenas. Ms. Yukimura: Well that's grounds for termination if you want. Can you please explain lack of work? You said she was only doing forty percent (40%) of her time for lack of work? Chair Furfaro: County Attorney. Ms. Esaki: Amy Esaki, First Deputy. Again I think we're straying from the subject matter and can we go back to the Law Office Assistant. Ms. Yukimura: Excuse me, County Attorney. I was following up on an answer that Ms. Iseri-Carvalho gave, so I think I'm entitled to ask her to explain that. Ms. Esaki: Yes, but again we're straying and can we just go back to the Law Office Assistant. Ms. Yukimura: It's relevant to the workload which is a question here. Ms. Esaki: The workload of the Law Office Assistant? Ms. Yukimura: And the workload of the Victim/Witness Office which is mentioned in the letter here, and in fact it's also mentioned that two (2) Victim/Witness Counselors are currently on leave which indicates it's a workload issue. Ms. Esaki: Well then it would be the workload of the Law Office Assistant. Ms. Yukimura: No, it's the workload of the Victim/Witness... counselor absence. Ms. Esaki: I guess you're asking them what will this new Law Office Assistant Clerk will be doing. Ms. Yukimura: I'm asking why was a Victim/Witness Counselor relieved for lack of work, if there is so much work to be done. Ms. Esaki: I think that is going away from the subject matter. Ms. Yukimura: Of workload? Ms. Esaki: Well if you're saying workload, we should look at the workload that's for the prospective Law Office Assistant Clerk. 15 SPECIAL COUNCIL MEETING MARCH 21, 2012 Ms. Yukimura: No, I have a right to ask whether it can be carried by some other more flexible position. Ms. Esaki: Okay and then it goes back to the question on the flexible position and not specifically for why the person was relieved of their duties. Ms. Yukimura: I'm trying to understand whether there was a lack of work or not. If there was a lack of work then it doesn't make... and the Hilario trial was assigned to this person who's been gone, I'm trying to understand how that all happened. Ms. Esaki: Perhaps that's another item for a topic for discussion... Ms. Yukimura: Why is it related to the Hilario trial which is the reason for this... Chair Furfaro: I think the County Attorney was trying to address me as to a procedural question that may require other posting. Please let me let the County Attorney finish. Say that one (1) more time please? Ms. Esaki: Perhaps that subject matter should be for a posting on another agenda for further discussion. Currently at this point, the discussion is on the Law Office Assistant, the workload of the Law Office Assistant, and whether there are any items currently that are not being addressed that the Law Office Assistant would have to take care of. Chair Furfaro: Vice Chair, because the Prosecuting Attorney Y has indicated she may be leaving soon, would you yield the floor to other members? Ms. Yukimura: Yes. Ms. Nakamura: Good morning Shaylene. I just have a couple of questions. Because it's late in this fiscal year, are you looking at this as a temporary position or as one that would carryover in the new budget? Ms. Iseri-Carvalho: It would also carryover. We have talked to the Mayor's Office and have discussed this position specifically with them. Ms. Nakamura: Is this one of the eighteen (18) new positions? Ms. Iseri-Carvalho: No this is not. Our departments were not allowed to put in any new positions. We provided a narrative and justification for the positions, but none of, what I was told, none of the department heads were able to put forth any new positions. I only learned from the message that there were eighteen (18) new positions, but my understanding when I had met with the Administration was that there were no new positions, and we could request, but none would be given in this March submittal; however, we should provide that information still because in the May submittal, they would consider it. 16 SPECIAL COUNCIL MEETING MARCH 21, 2012 Ms. Nakamura: So you will be requesting this additional position in the new budget? Ms. Iseri-Carvalho: That's correct. And that again is not only because of the Hilario case, but I passed on the Buono case that you have which now Court congestion, which the Court ruled or used to rule that if the two (2) Courtrooms were being occupied, then the other cases could exclude the time from rule forty-eight (48). Well this decision says you cannot. Meaning that we have been informed that they will now be able to open up four (4) Courtrooms instead of two (2) Courtrooms. Ms. Nakamura: So you're saying that the long term impact of this decision is that you will need additional staff to serve the current level of attorneys? Ms. Iseri-Carvalho: Right. Like I said, if you look, just came out the end of January. We did have discussions with the Administrative Judge who informed us that based on this decision, it will open the door to have more trials. As I discussed earlier, when we do have trials in each Courtroom, in any given week, we have approximately ten (10) to twenty (20) trials set and right now we're setting trials four (4) months down the line. Ms. Nakamura: In terms of attorney versus staff support ratio, where does your office compare to other Prosecutor Offices around the State? Do you have any idea? Ms. Iseri-Carvalho: This Council has been quite generous actually in the last two (2) years in having us come up to par, and we have provided those numbers and will provide those numbers again during budget. We are pretty close with the operational aspects of the staff members to the attorneys relative to the other counties based on the population. Ms. Nakamura: Thank you. Chair Furfaro: Questions from other members other than Vice Chair Yukimura? Mr. Rapozo. Mr. Rapozo: I guess this is new to us because it rarely shows up before the budget. Normally positions surprise us at the budget session, when we get the new budget I think Mr. Kuali`i recognized it last year at the budget, so you're coming to us before the budget saying you need a position for the reasons that you stated in your letter with the position description and all of that, versus surprising us at the budget. Ms. Iseri-Carvalho: I think all along we've provided the Council and have been very open and transparent as far as what the needs of the office has been and relative to the amount of cases that we've been charging. We want the Council to be a part of knowing what the needs of the community is and the reason why this surfaces as opposed to reallocations or some other manner that we're able to do it is to give and bring public awareness to not only Councilmembers but to all of the parties involved. We do have these kinds of discussions with the judiciary, there have been a lot of changes that have occurred just within the last six (6) months with respect to how cases are being processed. I felt that it was important 17 SPECIAL COUNCIL MEETING MARCH 21, 2012 to be again open and transparent about how we are requesting positions and the reason for those positions and the fact that we're continually working with the Administration in providing the needs that we have in our office to not only ensure that the community is safe but also to support the Kaua`i Police Department. Mr. Rapozo: My last question, what is the... and this is more for the public, what is the big difference between the Victim/Witness Counselor versus your Law Office Assistant? Because I think that's a lot of the confusion right now is trying to mix the two (2) but it's two (2) separate... it's apples and oranges, I guess. Let's stay away from the Victim/Witness but what is your main and I've read it but the public doesn't have the opportunity to read it. What is the big benefit to your office for a Law Office Assistant? Ms. Iseri-Carvalho: They basically do all of the trial prep, they're able to do jury instructions, provide motions, responses to motions, finding of fact, conclusion of law, they also do preliminary charging of cases, create and serve subpoenas, they also utilize their contacts in the community in order to ensure that those subpoenas are served. Their versatility is very important and in fact this position was created by our office and we went through the whole personnel process because there was not a position like this that existed in any other county. Mr. Rapozo: I'm hearing your definition or description, would it be similar to what a paralegal would do? Ms. Iseri-Carvalho: Exactly. And again even more because a paralegal doesn't go out and serve documents, subpoenas... Mr. Rapozo: Main thing the public can understand that a paralegal is a lot more than a clerk. That in fact a paralegal can do those things, filing motions, writing motions in which the average person cannot do. Ms. Iseri-Carvalho: Right, they do legal research. A lot of the Law Office Assistants actually do, they do obtain case laws for the attorneys because they're being trained in-house to do these types of things. Again it was a unique position that was created based upon the needs of the office because we needed that type of versatility in light of the fact that when we first started we had such a really small staff. Chair Furfaro: Mr. Chang. Mr. Chang: Thank you Shaylene, thank you for being here this morning. Given approval, do you have somebody in mind? Ms. Iseri-Carvalho: We already have somebody within the office that have been obtaining training as it is, because we've had people that had to step in. I want to say that we did not know that the two (2) Victim/Witness Counselors were going to be on leave. As soon as we found out really is when this letter was written and then the extension for the other Victim/Witness Counselor, so the fact that we're here today was because this information just came to light. Mr. Chang: If you're hiring from within, does that person need to be replaced? The person that would potentially be hired from within, do you now need to create a position? 18 SPECIAL COUNCIL MEETING MARCH 21, 2012 Ms. Iseri-Carvalho: No. They are already occupying a position already. Mr. Chang: So if you're hiring from within, you won't need another person to fill in? Ms. Iseri-Carvalho: Well I'll need another person but we won't need another position. Mr. Chang: Okay, thank you. Chair Furfaro: Mr. Kuali`i since the Prosecutor's Office has indicated she needed to leave and I did want to give Council Vice Chair Yukimura another opportunity, do you have any questions? Mr. Kuali`i: Not at this time. Chair Furfaro: Vice Chair, ou have the floor again. Did Y g you have your hand up? Okay. Mr. Bynum: Good morning Ms. Iseri-Carvalho. You said that the Law Office Clerk is not a Victim/Witness Counselor? Ms. Iseri-Carvalho: Law Office Clerk? Mr. Bynum: I'm sorry the Legal Assistant... Ms. Iseri-Carvalho: It's two (2)... we have Legal Clerk, we have Law Office Assistant, and we have Victim/Witness Counselors, they're all different positions. Mr. Bynum: When you were here last time you said that twenty percent (20%) of this person's time would be involved doing things that in the past have been done by Victim/Witness Counselors? Ms. Iseri-Carvalho: A part of the Victim/Witness... Mr. Bynum: You said they would be present in the room when the victims were interviewed. Ms. Iseri-Carvalho: Yes. All Law Office Assistants are present in the room when the victims are involved in trial preparation. Mr. Bynum: Who does the clinical supervision of this position? Ms. Iseri-Carvalho: There is absolutely no clinical aspect to this position. Mr. Bynum: Who does the clinical supervision of the Victim/Witness Counselors? 19 SPECIAL COUNCIL MEETING MARCH 21, 2012 Ms. Iseri-Carvalho: Mr. Chair, the County Attorney has raised her hand. Chair Furfaro: I'm sorry, I was reading something. County Attorney. Ms. Esaki: Again the question is straying from the subject matter. Mr. Bynum: The Prosecutor had said again now that this person is going to be present in the room when victims are being interviewed, so I wanted to determine who's representing the victim there. I think the question is germane. Ms. Esaki: I believe you're asking if there's a clinical supervisor... what the question was. Mr. Bynum: I'll ask a different question. When you... Ms. Iseri-Carvalho: Maybe I should clarify because you mentioned that there's a victim in the room. In the Hilario case, the victim died and so the victim would not be in the room when they did interviews, there would be witnesses but definitely the victim would not be present. Mr. Bynum: Do you think a witness to a murder might suffer some trauma as a result of that? Ms. Iseri-Carvalho: Definitely and we have a victim/witness counselor that is assigned to assist with that aspect of the trial. Mr. Bynum: When you began your term, how many Victim/Witness Counselors were there? Ms. Esaki: You're straying. .g Mr. Bynum: This letter cites Victim/Witness Counselor being on leave as a rationale for this position; I want to determine what the staffing of Victim/Witness Counselors are. Chair Furfaro: County Attorney would you come up to the mike please? Ms. Esaki: I believe again that that can be the topic for another agenda item, as far as the staffing for the entire office. Mr. Bynum: May I respond? Ms. Esaki: And I believe the subject matter again is on the Law Office Assistant which I heard was to do contact and not to do counsel. Mr. Bynum: I've been sitting here listening to the other questions, we talked about the Mayor's budget, we've talked about what's going to be in the budget, and nobody interrupted and said that wasn't the agenda item. I'm 20 SPECIAL COUNCIL MEETING MARCH 21, 2012 trying to talk about what the Prosecutor wrote in her letter that tie in between Victim/Witness and this request for this position. I think that this, and I said this many times, this thing about straying from the agenda is being unequally applied. In spite of the fact that I have an OIP opinion that says if there's a rational nexus, if there's a connection, that we are free to do that. So I'm tired of repeatedly being shut down from asking questions and given the same latitude that other members are enjoying. Chair Furfaro: Excuse me. Mr. Bynum: These are simple questions. I'll answer the question, when the Prosecutor began there were five (5) Victim/Witness Counselors, and I want to know how many are currently on the job. Ms. Esaki: You can ask about the current... Mr. Bynum: Why can Councilmember Nakamura ask about the Mayor's budget? Ms. Esaki: Councilmember Nakamura was asking, as I recall, whether this was going to be a permanent position or temporary position and that was the reason for the explanation. Mr. Bynum: I will ask a different question. Ms. Esaki: Thank you. Mr. Bynum: You've received the Mayor's budget that he submitted last week? Ms. Iseri-Carvalho: I haven't reviewed the Mayor's budget proposal. They may have sent it to our office, I was on O`ahu Monday and Tuesday, I just got back. Mr. Bynum: Did the Mayor reduce your budget year over year? Ms. Iseri-Carvalho: I don't know. Mr. Bynum: You don't know? Ms. Iseri-Carvalho: I don't because I haven't seen the budget. Mr. Bynum: You haven't discussed the Mayor's budget with any County personnel? Ms. Iseri-Carvalho: I was off island Monday and Tuesday. Mr. Bynum: So you are not aware of whether this position is in the Mayor's budget or not? Ms. Iseri-Carvalho: I know it is not because they told me when I met with the Mayor's Office that no department heads were getting any new 21 SPECIAL COUNCIL MEETING MARCH 21, 2012 positions. I was told that, so I assumed that they followed through and gave no department heads positions. Mr. Bynum: Why would we want to fund this position now when it may not be in the budget in a few months? Ms. Iseri-Carvalho: Because I'm requesting the assistance for the help that we need and it is your prerogative if you decide our office does not need any help to assist with a huge murder trial and assist with any of the Court congestion. Mr. Bynum: I believe the Council has a record of providing resources above and beyond what the Mayor recommended for the last couple of years. Ms. Iseri-Carvalho: Again, what relevance is that? Mr. Bynum: You're asking us to create a position and you said that it was not a temporary position, it's a position you intend to keep. Ms. Iseri-Carvalho: It's a position that we have discussed with the Mayor's Office to be placed in the supplemental budget, which is the May budget. Mr. Bynum: When did you have that discussion with the Mayor? Ms. Iseri-Carvalho: When we had our budget meetings with the Mayor. Each department head was requested to bring forth a narrative requesting the needs of the departments. Mr. Bynum: So the Mayor has a commitment to put it in the supplemental budget in May? Ms. Iseri-Carvalho: The Mayor said that although new positions were not placed in the March budget, maybe positions could be placed in the May budget and they would leave that option open. That's what we were told. Mr. Bynum: But you agree that the Mayor's budget states his intention for the budget that he just submitted last week? Ms. Iseri-Carvalho: I don't know what the Mayor believes. I cannot comment on what the Mayor believes. Mr. Bynum: Well if you asked him for this position and he didn't put it in the budget, he's basically saying that... Ms. Iseri-Carvalho: That's not what they said. They said that no department heads were getting new positions, that's what I was told in the March submittal. But in the May submittal depending upon their forecast and the numbers that they were going to run and the amount of needs that they were going to consider in the totality of the circumstances, they would prioritize and potentially put in positions for my department, for Public Works, for Planning, for everyone 22 SPECIAL COUNCIL MEETING MARCH 21, 2012 else. It was an option that was left open depending upon what the needs were for the departments and how much revenues we were going to get to support those needs. Mr. Bynum: I have one (1) last question for now. I'll pass for now. Chair Furfaro: Vice Chair Yukimura, you have the floor. Ms. Yukimura: How many attorneys do you have in your office? Ms. Iseri-Carvalho: Twelve (12). Ms. Yukimura: And how many support staff do you have? Ms. Iseri-Carvalho: I don't have that numbers, it's about half. I can read from here... the ones that are filled or the ones that aren't? Ms. Yukimura: Positions that you've been assigned and funded. Ms. Iseri-Carvalho: Well we don't have the support because we don't have the body in at least two (2) positions. So the rest of them... we have a investigator, Special Investigator, Program Assistant, Law Clerk, Law Clerk... we have approximately seventeen (17) that includes administrative staff as well as Law Office Assistant and investigators and Legal Clerks. Ms. Yukimura: And how many Legal and Law Clerks do you have? Ms. Iseri-Carvalho: Legal Clerks, we have six (6) and two (2) supervising Legal Clerks and Law Office Assistants, we have... Ms. Yukimura: Just Law Clerks. Ms. Iseri-Carvalho: Law Clerks, we have one (1). Ms. Yukimura: So you have eight (8) Legal Clerks and one (1) Law Clerk? Ms. Iseri-Carvalho: Yes, Legal Clerk is secretarial staff, that's what a Legal Clerk is. All they do is type documents that the attorneys request. Ms. Yukimura: How many Law Office Assistants? Ms. Iseri-Carvalho: Four (4). Ms. Yukimura: And those are all positions assigned, not just filled positions? Ms. Iseri-Carvalho: They are filled positions temporary with one (1) year benefits. 23 SPECIAL COUNCIL MEETING MARCH 21, 2012 Ms. Yukimura: How many assigned positions do you have that is positions may be unfilled but you have them funded and available? Ms. Iseri-Carvalho: Law Office Assistants or any other positions? We have an Administrative Officer that is not filled. Ms. Yukimura: And is that the only unfilled position? Ms. Iseri-Carvalho: And one (1) deputy position and that is the only unfilled positions. Ms. Yukimura: Alright. You have seventeen (17) support staff and twelve attorneys? Ms. Iseri-Carvalho: Approximately, that is correct. Ms. Yukimura: Okay. You said your ratio of Law Clerks, you're doing pretty well on that? Ms. Iseri-Carvalho: We have only one (1) Law Clerk. Ms. Yukimura: Okay. Ms. Iseri-Carvalho: And Law Clerk is a summer hire type person. Ms. Yukimura: When you said that you were doing pretty well on your staff to attorney ratio? Ms. Iseri-Carvalho: Relative to the other counties. Ms. Yukimura: Right. So what is that ratio? Ms. Iseri-Carvalho: I don't have that number available. I just gave you all the positions that we had, so you can just put it in and put it in a percentage form. Ms. Yukimura: Can you send us the ratios of our County and the other Counties. Ms. Iseri-Carvalho: We could (inaudible) you could probably fill it out because it's probably in the budget that you guys just received. Ms. Yukimura: Are you saying that you're not going to send us... Ms. Iseri-Carvalho: I said we already did. We provided that information in the Mayor's budget. Ms. Yukimura: I'd like to see what your idea of the similar ratios are. 24 SPECIAL COUNCIL MEETING MARCH 21, 2012 Ms. Iseri-Carvalho: That's what I indicated to Councilmember Nakamura that we will be providing at the time we do our presentation. Ms. Yukimura: Could you submit it in relation to this request? Ms. Iseri-Carvalho: Sure. Ms. Yukimura: Okay, thank you. In terms of when your Victim/Witness, those absent are coming back, do you have some estimated times? Ms. Iseri-Carvalho: We have for one (1) of them because I've indicated that they do a leave every month. Ms. Yukimura: And for the other one? Ms. Iseri-Carvalho: We don't have anything; that is with the County Attorney's Office. I don't have any expected date of return. Ms. Yukimura: Okay. So you do have a Victim/Witness Clerk? Ms. Iseri-Carvalho: Yes. Ms. Yukimura: Can that perform things like Clerk duties like preparing subpoenas? Ms. Iseri-Carvalho: No. That position is a VOCA position, so they only do contacts with victims. Her primary job is to check on addresses and phone numbers and see if we can save money for County by calling up the victims or the witnesses to come to our office to pick up their subpoenas, as opposed to us using a investigator or processor. Ms. Yukimura: But I thought you said this Legal Assistant position, you just needed for contact with victims. Ms. Iseri-Carvalho: It's totally different. This person is only checking addresses. The Victim Law Office Assistant is actually looking over the reports and going through the reports. Ms. Yukimura: Don't Don t Victim/Witness Counselors have to do that too? Ms. Iseri-Carvalho: Absolutely not. They're there for counseling aspects, not for the case. It's two (2) separate job roles. Ms. Yukimura: That's not my understanding. Ms. Iseri-Carvalho: I believe that is because Ms. Diana Gausepohl-White testified to that, that they do not involve themselves in the trial preparation type of the case. They accommodate victims and witnesses to Court, they pick them up from work, they address whatever needs they need for restitution, those are the kinds of job descriptions that they do. 25 SPECIAL COUNCIL MEETING MARCH 21, 2012 Ms. Yukimura: I'm going to ask for a copy of your Victim/Witness Counselor job description. Now you have a Program Specialist who was originally hired as a Victim/Witness Counselor, could that person not help out temporarily? Ms. Iseri-Carvalho: She is, because we don't have an Administrative Officer, so Cyndi's job description is being spread out around by three (3) of the staff persons, my secretary, the grant coordinator, as well as the program assistant. Ms. Yukimura: And why are you not hiring a Administrative Officer? Ms. Iseri-Carvalho: Because the County Attorney's Office has refused to post our position and we have an agenda item that's going to be coming up next week to bring that forward. Ms. Yukimura: The County Attorney has refused to let you post the position? Ms. Iseri-Carvalho: Well the County Attorney informed the Personnel Office that they will not allow us to post that position at the SR that the Civil Service Commission came back with. Ms. Yukimura: Chair, I'd like to request a letter of inquiry to the County Attorney's Office. Chair Furfaro: You may do that, but I think because agenda time for tomorrow's posting is 4:00 tomorrow, I will be sharing a letter of request from the Prosecuting Attorney's Office which came to me hand delivered yesterday requesting this agenda time. I'll share that with you as well. Any more questions? Mr. Bynum. Mr. Bynum: The Program Assistant that Councilmember Yukimura just referred to was hired originally as a Victim/Witness Counselor, correct? Ms. Iseri-Carvalho: Yes. Mr. Bynum: And she remained in that position how long? Ms. Iseri-Carvalho: I'm not exactly sure. I would have to find out to get that exact number. Mr. Bynum: It was a short period of time? Ms. Iseri-Carvalho: Several months before we started getting our Pohaku Program onboard and that's when she was transferred over to handle our Pohaku Program. Mr. Bynum: So during that period of time, there were four (4) Victim/Witness Counselors on salary? 26 SPECIAL COUNCIL MEETING MARCH 21, 2012 Ms. Iseri-Carvalho: Yes, for the period of the time, yes. Mr. Bynum: And why did that person get transferred to a different position? Chair Furfaro: County Attorney. Ms. Esaki: Amy Esaki, First Deputy County Attorney again. I think again you are straying from the subject matter. Can we go back to... Mr. Bynum: Ms. Esaki. Ms. Esaki: Yes, Councilmember Bynum. Mr. Bynum: Ms. Esaki, it's in the Prosecutor's letter that the lack of Victim/Witness Counselors is part of the rationale for hiring this position. So there was a Victim/Witness person, first it was five (5), then three (3), then it was four (4), there's been all of these changes and now that's part of the rationale so I don't know why these simple questions can't be answered. I restate my objection that this rule is being and it has been in my opinion for a long time, unequally applied. Ms. Esaki: The subject matter is the Law Office Assistant. I know you have questions about the two (2) that were mentioned but again that's the subject matter of two (2), the Law Office Assistant and the reason is for the two (2), but not going farther in the past. Ms. Yukimura: The question is about allocation of resources and positions and she is asking for an additional position. It seems very logical to ask about how certain positions especially one that had some capabilities for doing the work that she's asking of a legal assistant to be able to ask questions about that. It seems directly on point. Ms. Esaki: Well your question previously was about, was there any position that could do the same thing, I think that was relevant. However to ask about the past Victim/Witness Counselors who may have left or whatever, it's going... Ms. Yukimura: A manager has a position, they come to us and ask for it in the budget and then they move it to another place and then come in and ask for another position. Why can't we ask about why that position was moved? Ms. Esaki: Maybe you can ask about the overall structure but not particularly why... the focus is on the current position and how it fits in the office. Ms. Yukimura: How it fits in the office. Ms. Esaki: Yes and I will say no further. Mr. Bynum: I'd like to ask a proactive question so you don't raise your hand and come up again, may I? 27 SPECIAL COUNCIL MEETING MARCH 21, 2012 Ms. Esaki: Sure, go ahead. Mr. Bynum: We heard testimony that a portion of this position will be doing activities that had been done by Victim/Witness Counselors. I have a real concern about untrained people being involved that have no clinical supervision involved with victims because anybody that's worked with victims know that... we do a trauma assessment and it's not just witnessing of a crime or the victimization of the crime that creates trauma for victims, it's also about their interaction with the legal system and how it works. The reason we have Victim/Witness Counselors is because they're trained and have sensitivity to whether the involvement in the system is increasing the trauma of the victim or witness. Victims and witnesses have been known to be suicidal and be a threat to themselves or others, and the reason why we have Victim/Witness Counselors is to protect and have people that are trained to see those signs, and so I want to ask questions about how this person is going to be able. How the Victim/Witness Counselor, if they're not present, can I ask those questions? It's about the protection of the people of Kaua`i and standards of clinical practice. I don't know how a new hire that has no training and no supervision can, we can have that and I'm concerned. Ms. Esaki: I think your question Councilmember Bynum, goes to the extent of the contact that this Law Office Assistant has with the victim. I've heard that there's only contact, not counseling; however, you may want to ask- you can ask about the extent of the contact. I've heard that the Legal Office Assistant will be sitting in... Ms. Iseri-Carvalho: (inaudible) Ms. Esaki: But then there will be another person, the Victim/Witness Counselor sitting in, so I'm not sure of the clinical supervision question, that's sort of outside but again that is not... you can ask about the extent or the duties of the Law Office Assistant. Ms. Iseri-Carvalho: Chair Furfaro, may I respond and I believe this was brought up by Councilmember Rapozo. We are really mixing apples and oranges. We have a Victim/Witness Counselor that is assigned to this case that is totally separate and apart from the position that we are requesting. We have a person who's been there over twenty (20) years that are involved in the Hilario case as a Victim/Witness Counselor to provide whatever needs that they need from a clinical perspective. That is not what we're asking here. We are asking for a Law Office Assistant and all they are doing is the contact of the victims and the witnesses, they are not doing any counseling at all. I said this I don't know how many times but to constantly try to compare apples and oranges, it's just outrageous to me. We have a Victim/Witness Counselor, we have and is requesting a Law Office Assistant to not only assist in the Hilario trial, but to also assist in future upcoming trial because of this Buono decision. Mr. Bynum: You said this is not just about this one (1) case right, you have many cases. You presented testimony about the overwhelming caseload of the Prosecutor's Office has. Right now you have one (1) Victim/Witness Counselor on the job, correct? Is that correct? 28 SPECIAL COUNCIL MEETING MARCH 21, 2012 Ms. Iseri-Carvalho: We have on our job, we contract out to the YWCA, and they have numerous counselors that are available for our office. Mr. Bynum: Do the counselors from the YWCA come to the Prosecutor's Office? Ms. Iseri-Carvalho: Yes. Mr. Bynum: And sit in on... Ms. Iseri-Carvalho: Not on the case prep because that's confidential, that has to do with attorney-client privilege, but yes they come to our office. They come when we have especially sex assault cases, they're automatically given cards. We consult with them on the abuse cases, we have interchangeable contact with the YWCA with respect to the counseling aspect. This position again is on a Law Office Assistant. Mr. Bynum: As you know I'm quite familiar with the services of the YWCA but they do not provide services to physical assault victims, terroristic threat assault victims, they only cover certain things that they're contracted, is that correct? Ms. Iseri-Carvalho: That is not correct. They do assist our victims who are domestic violence and that is totally off of the agenda item, anybody knows that. Mr. Bynum: My concern... Chair Furfaro: That's it. County Attorney. Ms. Esaki: Those discussions can be handled on another topic in another agenda. Mr. Rapozo: Maybe at budget. Ms. Esaki: Yes, I think that's more appropriate than it is on particularly the Law Office Assistant position currently for today. Mr. Bynum: Again, I didn't bring up the YWCA, the Prosecutor did. Ms. Esaki: I understand; however, for future discussions... Mr. Bynum: I give up. It's obvious that we're not going to have dialog about concerns of the safety of our citizens, so I give up. Ms. Esaki: I believe Councilmember Yukimura asked whether there was any other way or position that could do the same task, so I think the question was asked. Chair Furfaro: Vice Chair Yukimura. 29 SPECIAL COUNCIL MEETING MARCH 21, 2012 Ms. Yukimura: Thank you. Which Victim/Witness Counselor is assigned to Hilario? Ms. Iseri-Carvalho: Marla Torres-Lam. Ms. Yukimura: She's able to do that and all the other Victim/Witness work that has to be done, since she's the only one there? Ms. Iseri-Carvalho: I'm sure she would want to get additional help and if you guys want to put in a position for a Victim/Witness Counselor or two (2) then by all means, put it in two (2) new positions. Ms. Yukimura: I'm sorry but there are already three (3) positions I believe. Ms. Iseri-Carvalho: But those people are on leave. Ms. Yukimura: Three (3) additional positions in addition to Ms. Marla. Ms. Iseri-Carvalho: People are on leave for various reasons. Ms. Yukimura: And that's something a manager needs to answer to. Ms. Iseri-Carvalho: When you have a person on leave for funeral services or because their husband died, that's a manager problem? Ms. Yukimura: No, but the other two (2) regarding are not re g g funeral services. Chair Furfaro: I think on this note, we've exhausted all of those discussions, and I would say that Mr. Rapozo, unless it is to the point on issues that we just exhausted these other things, Mr. Bynum has indicated he's quit with his questions. Mr. Rapozo: And that's part of the reason, because the comment that we're not interested in discussing public safety is of concern, because I think we all... and I'm not going to say more... I, more than any other, but I will say that I'm very interested. The only real question is will your, and I think you said it enough times, but I've heard it being asked again and again, and I want the public to understand that your Law Office Assistant will not be doing Victim/Witness counseling. Ms. Iseri-Carvalho: Absolutely not. They're not qualified to do that. Mr. Rapozo: Okay and likewise, would you expect your Victim/Witness Counselor to do motions, pre-trial prep? Ms. Iseri-Carvalho: Absolutely not, they're not qualified to do that. 30 SPECIAL COUNCIL MEETING MARCH 21, 2012 Mr. Rapozo: So these are two (2) separate positions that fill two (2) separate voids, and you believe that this is required not just for the Hilario case but going forward because of the congestion ruling that we just got from the Supreme Court on January 13? Ms. Iseri-Carvalho: That is correct. Mr. Rapozo: Thank you. Mr. Chair, I have no more questions and I'm ready to vote. Chair Furfaro: Vice Chair Yukimura, unless these items are specifically within the parameters that we have been cautioned on by the County Attorney, you have the floor as long as we're in that parameter. Ms. Yukimura: I'm asking about the job description of the Law Clerk. Chair Furfaro: Go ahead and pose your question on the job description. Ms. Yukimura: The Law Office Assistant does not, they may type up motions, but they don't actually create them right? They basically... Ms. Iseri-Carvalho: They create motions. They're simple motions, like motions to dismiss, that they are well capable of creating, typing and filing. Ms. Yukimura: And the Victim/Witness Counselors do not do that? Ms. Iseri-Carvalho: No. Ms. Yukimura: But they do subpoenas? Ms. Iseri-Carvalho: Rarely. Rarely do they type out subpoenas. Ms. Yukimura: But they are supposed to be able to do it under their job descriptions? Ms. Iseri-Carvalho: I believe they should, that is correct. Ms. Yukimura: Alright, thank you. Chair Furfaro: On that note, I am going to ask for public testimony as the Prosecuting Attorney has indicated that they are double booked. Will someone from your office remain here? Ms. Iseri-Carvalho: This is a very important item and I did send my First Deputy to fill in to do the first half of the presentation and I'm hoping that I will be able to finish up with the second half of the presentation. KEN TAYLOR: Chair, members of the Council, my name is Ken Taylor. I'm sort of disappointed in activities this morning because a lot of the 31 SPECIAL COUNCIL MEETING MARCH 21, 2012 questions I believe are getting into micromanaging the Prosecutor's Office. In recent past I believe the Prosecutor's Office showed that they increased the cases that they've dealt with and showed some increase in caseload itself. This morning it was said that the Prosecutor's Office is under budget by four hundred thousand dollars ($400,000.00), those two (2) issues alone should simply say and the answer to the question-give the Prosecutor's Office the need for another person. It's not your job to micromanage the Prosecutor's Office and get into all of these minor details of what this person does and what that person does. That's my personal feeling and I'm sorry that some of the Councilmembers have taken it upon themselves to micromanage this particular situation. I would hope that you would move forward and vote on this position and fill it as requested. Thank you. Chair Furfaro: Ken, just to correct yourself, there is not an actual number that they spent for the budget. There's a forecasted expenditure which they are under by two hundred sixty-three thousand dollars, it's not comparing budget to budget, it's actual versus their forecasted budget for eight (8) months. Thank you. Is there anyone in the audience that wishes to speak on this item? Members, any further discussion before I call on the vote for this allocation of a new position number, any further discussion? Mr. Bynum. There being no objections, the meeting was called back to order and proceeded as follows: Mr. Bynum: I think creating a new position is a serious matter and the Mayor has submitted his budget without this position in there. I think that is significant and I'm reluctant to create a new position that the Mayor has not recommended be in the next budget. We heard today that the Victim/Witness person's absence, whose justification for this position is presented to us and intends to return to work April 19, I think it was. I'm not convinced that this position is necessary. I would feel differently about it if it was in the Mayor's budget submittal. Chair Furfaro: Any further discussion? Ms. Yukimura: Yes Mr. Chair, I would like to ask for a deferral for two (2) reasons. One (1), I would like to get the job descriptions of all the positions in the Office and also to understand from the County Attorney the problems with the Administrative Officer, I think that's a really big gap right now. And with that and better understanding of the positions, we would be in a better position to decide whether or not because as I understand it, we're approving a permanent position and we don't know what the budget is. I know there's the excess of money but I want to recall for all of us that we put in a hundred nine thousand dollars extra, special at the attorney's request, to offset furloughs and overtime, when there was already a projected amount of money. There's an issue of what the Mayor called lapse money in his address where departments put in far more than they really need and that's why there's extra money left. It doesn't mean that it should be used for something that's not really fully documented and needed. I think there's still a lot of questions about the need and I think we should get all the information possible before we make this position permanent, especially as we're coming up to the new budget and especially since there's going to be a return of one (1) of the Victim/Witness Counselors. Chair Furfaro: Mr. Rapozo. 32 SPECIAL COUNCIL MEETING MARCH 21, 2012 Mr. Rapozo: I'm not going to be supporting a deferral. We , had this on the agenda long enough. It's real simple, if you don't support it, you vote no. If you have questions, we got the budget coming up. I think the Prosecuting Attorney's Office has justified the need for this. We're kind of focusing on the Victim/Witness, I don't know why we keep focusing on Victim/Witness. There's a congestion issue, there's an issue with victim/witness contacting that I think was explained in my mind satisfactorily and just because it's not in the Mayor's budget, doesn't mean we cannot put it. I going tell you, I really appreciate the fact that we're brought the information before the budget and not surprised. Mr. Kuali`i called it last year, the manipulation where we show up at the budget, all of a sudden a position number was taken mid-budget year, reallocated, hidden here and hidden there, and then we show up with a new director position or a new high level position, all of a sudden we're surprised. Now if we cut it, we got to remove a warm body. First of all, let me say thank you for coming ahead of time. I don't expect the Mayor to agree with every department head on every position that they want, I mean that's why we're here, the Council is here. I've heard enough as the Chair of Public Safety of this congestion issue I believe and I haven't spoken to the Prosecuting Attorney about this but as I read this Supreme Court decision, I think we all better fasten our seatbelts because I would expect more position requests for attorneys and clerks because we're going to have multiple Courtrooms now, multiple trials that are going to require more resources, so fasten your seatbelts because I think we're in for a ride thanks to this Supreme Court decision. I encourage you all to read it because it's going to increase the needs for resources Statewide thanks to Buono. I'm going to support this today. The motion on the floor, Mr. Chair, is to approve and I would ask that my colleagues support it and then we can move, we've already spent two (2) hours and almost fifteen (15) minutes on a request. Thank you. Mr. Chang: Right from the beginning the agenda item was to hire a Law Office Assistant and I think that's what the discussion was all about. The Prosecutor is not asking for additional funds, the money is already budgeted. I think when we go through the budget we can much more scrutinize, we talked about March, we'll be talking about May. I've always been supportive of the Prosecutor's Office because public safety is the big key out here within our community. So if our Prosecutor that knows a lot more than I know about what's coming down the pipe as far as the agenda is concerned and if they're going to need some help in organization, they're going to need that to move forward. I'm going to be supporting this decision. I also would like to say that there are concerns about staffing in my opinion but that's not the agenda item, we can go through that but I would like the Prosecutor to keep us updated with the individual that is hopefully being back somewhere along April 19, just to get a status of that report so we know where we're standing. I just want to say that if there's a need for a Law Office Assistant which is extremely important then so be it. We need to be organized and moved over because if we're talking about this big case that's going to be coming up around the corner, we need to be organized before we start that case and get the ducks in the row. I believe because it's the agenda item about a Law Office Assistant, I'll be supporting that position. Thank you. Mr. Kuali`i: I too want to m express support for this and P my pp I would not support a deferral at this time. I think it's a very simple request that has come before us, and the Prosecutor has J iven us the justification. She has the g workload, she's expressing the need to cover that workload in order to serve the 33 SPECIAL COUNCIL MEETING MARCH 21, 2012 public in the interest of public safety. I don't understand why we've had to go and ask so many specific questions that go way beyond what our scope is in making the decision to approve or not approve. I think we have more than the information that we need. Not only by what the Prosecutor has said today and two (2) weeks ago, but over the last six (6) months or the time I've been on the Council, I've been able to understand to a certain degree their workload and their ability and their fine accomplishments. I just hope that during the budget process that this Council would put the same kind of scrutiny on high level Administrative appointments that are new positions that we have today done on a low level operational need for getting the work done in a department. We should move forward, thank you. Ms. Yukimura moved to defer C 2012-76, seconded by Mr. Bynum, and failed by the following vote: FOR DEFERRAL: Bynum, Yukimura TOTAL — 2, AGAINST DEFERRAL: Chang, Kuali`i, Nakamura, Rapozo Furfaro TOTAL— 5, EXCUSED & NOT VOTING: None TOTAL— 0. Chair Furfaro: We're back to discussion on the motion to approve. Mr. Bynum, you have the floor. Mr. Bynum: On the first term on the County Council I had the pleasure of serving with Ms. Iseri-Carvalho on the Council and during that g g time Craig DeCosta was the Prosecuting Attorney. The public record will show that Ms. Iseri-Carvalho repeatedly asked very detailed and exacting questions about the staffing of the Prosecutor's Office, about every element and aspect of the Office, and also voted to deny positions that were requested. Positions are a serious matter as I stated. The Mayor did not include this position in his budget. If we approve it today then we're going to hire this person who I can't imagine can get on board before April 19 when the Victim/Witness Counselor comes back. Why are we talking about Victim/Witness Counselor? Because the justification for this position in writing said that the absence of Victim/Witness Counselors was one of the rationale for the hiring of this position, so I think those questions were appropriate and germane. I don't know how one (1) Victim/Witness Counselor can provide the level of service that is required to protect victims and witnesses from further trauma that can occur and does occur during the course of prosecution. I'd like to revisit this at the budget and I'm not going to vote to approve this position today. Chair Furfaro: Before I make comment, any further discussion? You have the floor, Vice Chair. Ms. Yukimura: As I said and backed up by my motion to defer, I think that there's a lot more information that needs to be provided before there's justification for this position that is being requested. I also think that better use, and as it's stated in the letter by Ms. Iseri-Carvalho referring to the Victim/Witness positions, I think there is a lot better use that can be made of the Victim/Witness positions to cover both the need to protect and support victims and witnesses, as well as to do the kind of trial work and prep that's needed. I'm not convinced that is being done and so I'm not going to be voting for this position. Chair Furfaro: Obvious the morning started off with questions referencing ethical pieces, rules of professional conduct, assigning various 34 SPECIAL COUNCIL MEETING MARCH 21, 2012 County Attorneys to interpretations and representations, queries about the agenda topic breaching other questions, but at the end of the day, the scope of the Council is about funding, that is the Council's business. At the same time, within that financial oversight of the Council, I want to say to the County Prosecutor's Office that there was some good questions asked today about informational pieces, budget review, job descriptions, staffing issues and that will be coming up again when we get into the budgeting session. Queries about creating a position doesn't necessarily mean that the same Council that created the position cannot review cost control efforts in reducing staffing. The Mayor's budget came over and eighteen (18) new positions, yes this request was not in that scope, but we have an opportunity in the supplemental budget to have a better understanding of the needs of the Prosecutor's pP g g Office based on the reforecast and further dialog with the Administration. I believe as a manager myself, I want to provide tools for people to do the job that they need to do within their realm, but at the same time I want to make sure that we all understand, I will hold you accountable for that. Therefore I will be supporting this bill and look forward to further dialog about the skill levels required of certain individuals when we get into budget time. The motion to approve C 2012-76 was then put, and carried by the following vote: FOR APPROVAL: Chang, Kuali`i, Nakamura, Rapozo, Furfaro TOTAL— 5 AGAINST APPROVAL: Bynum, Yukimura TOTAL— 2, EXCUSED & NOT VOTING: None TOTAL— 0. There being no objections, the Council recessed at 10:18 a.m. The Council reconvened at 10:38 a.m., and proceeded as follows: C 2012-81 Communication (03/15/2012) from the Office of the County Attorney, requesting Council approval to expend up to $75,000.00 to engage special counsel to assist with the County of Kaua`i's General Obligation Refunding Bonds Series 2012. Chair Furfaro: When we get to a vote, it is my understanding that we need to get five (5) votes on this? Thank you. Amy. There being no objections, the rules were suspended. Ms. Esaki: Amy Esaki, First Deputy County Attorney. We're here today to request Special Counsel funding to hire Counsel to assist us with the 2012 General Obligation Refunding Bonds. Typically we have hired outside Counsel because it requires a certain kind of expertise in handling the GO q p g bonds issuance. Chair Furfaro: Is Mr. Rezentes and our Treasurer going to come up? Ms. Esaki: Yes, they are here. DAVID SPANSKI, TREASURER: Dave Spanski, Treasurer. 35 SPECIAL COUNCIL MEETING MARCH 21, 2012 Chair Furfaro: Members, questions for Mr. Spanski on the funding of Special Counsel as it relates to the General Obligation Bond? Mr. Rapozo: Dave, is this regarding new bond? Mr. Spanski: No sir. Right now as of March 14 if we match maturities, now keep in mind they're non-accountable for the first ten (10) years, so we're matching maturities from 2016-2029. In doing so, we're reducing interest rate from 4.53 to 2.9 with the average present savings per year of a hundred twenty-nine thousand or overall 1.5 million for those remaining fifteen (15) years. Mr. Rapozo: So it's a cost savings? It's like basically refinancing your house? Mr. Spanski: Exactly. Just think of it that way, you're refinancing your house. Mr. Rapozo: Okay. I think that's important for the public to understand, because you see Executive Session, they will wonder are we in trouble? Mr. Spanski: It's in the money right now to refund, the interest rates are going to go from the current interest rates, and the 2005 bonds are 4.53, we can now refinance them at 2.93 as of March 14. Now the market changes every day but as we are right now, we have gone out to the Professional Service contract, we have selected the underwriter, and so we kind of started the process and that's what triggered Amy to start her portion also. Chair Furfaro: So we spend seventy-five thousand, we save long term 1.149 million? Mr. Spanski: That is correct. Ms. Yukimura: The per year savings is what on the average? Mr. Spanski: On the average, a hundred and twenty-nine thousand. So overall the present value savings would be 1.5 million. Chair Furfaro: It's one million five? Mr. Spanski: Yes, one million five hundred twenty-two thousand. Chair Furfaro: Any other questions? Councilmember Nakamura. Ms. Nakamura: What is the length of the bond or the term of the bond? Mr. Spanski: So we match in maturities, so it end up being like fourteen (14) years, but there's a calculation they do as far as bond years and it averages out to eleven point four (11.4) for the payout. 36 SPECIAL COUNCIL MEETING MARCH 21, 2012 Chair Furfaro: Any other questions? Dave, thank you very much for being here. I'll see if there's any public testimony on the item. Is there anyone in the public who wishes to speak on this refinancing of the bond in the new interest rates? There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Rapozo moved to approve C 2012-81, seconded by Ms. Yukimura, and carried by the following vote: FOR APPROVAL: B num, Chang, Kuali`i, Nakamura, Y Rapozo, Yukimura, Furfaro TOTAL— 7, AGAINST APPROVAL: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL— 0. ADJOURNMENT. There being no further business, the meeting was adjourned at 10:43 a.m. 'espectfu -u itted, 1.t 4 V JADE K. FOUNTAIN-TANIGAWA Deputy County Clerk /ds