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HomeMy WebLinkAboutCounty Attorney's Office, FY 2014-15 DEPARTMENTAL BUDGET REVIEWS 4/11/2014 DEPARTMENTAL BUDGET REVIEWS 2014-15 OFFICE OF THE COUNTY ATTORNEY April 11, 2014 Office of the County Attorney (ss) Page 1 There being no objections, the Committee was called back to order at 11:32 a.m., and proceeded as follows: Office of the County Attorney Honorable Mason K. Chock, Sr. Honorable Gary L. Hooser Honorable Jay Furfaro, Council Chair Honorable Ross Kagawa Honorable Mel Rapozo Honorable JoAnn A. Yukimura Excused: Honorable Tim Bynum Chair Furfaro: We are calling the meeting back from recess and starting with our presentation on the County Attorney's Office, but before we go any further I have asked Scott to make an overhead presentation. No real commentary, but Al, this is the follow-up on my first September 6th memorandum, regarding managing Special Counsel funds. Then followed by my February memorandum, but since you have all of your staff in the audience, I wanted to have my presentation made along with Mr. Barreira here, so that we have all seen the presentation together, and you can give me some feedback. Because what Scott is going to present to you is exactly like I said in my September 6th memorandum, a system I would like to make sure that we do not go through what we did on Wednesday with coming to a very narrow vote on giving you additional money. We need to have a system in place and this is my recommendation. Scott, thank you. I hate to put you in the spot, but I would like you to present the plan on replenishment of Special Counsel funds. SCOTT K. SATO, Council Services Review Officer: Council Chair, Councilmembers, Scott Sato, Council Services Staff. As Chair has shown you previously for Fiscal Year 2011-2014 the budget for the Special Counsel account in the Office of the County Attorney has been reduced. He clarified that there are two separate processes and that we should not confuse these two processes. First is that the Council's approval to authorize Special Counsel, which is usually done via a communication with an Executive Session briefing. The second is the actual payment of Special Counsel invoices from the Special Counsel budget and this is handled by the Office of the County Attorney via the Special Counsel account within their Office. This flow chart, pretty much highlights the process. In the beginning of every fiscal year we approve the operating budget ordinance, which pretty much fills up their pot to pay Special Counsel invoices. Once they go through these funds from this account, the pot becomes empty. The only way that they can replenish that is via a supplemental money bill to pay these invoices. This is the first process that is highlighted. The Council approves Special Counsel and the County Attorney is able to pay their invoices via the approval process. This is the second process which we just recently went through with Bill No. 2531, which is the replenishment of the Special Counsel account. So if the pot becomes empty, you need a supplemental money bill to replenish that account so that the Office of the County Attorney is able to pay invoices that come in from the various Special Counsel. In simplistic accounting terms, in the beginning of the year you have your budget appropriation. You subtract the invoices as they come in and as they are approved. If you run out, if you get down to the zero total they need had a supplemental money bill to replenish that account, which yesterday the $500,000 was approved by the Council. This is the Special Counsel contract, which is being used by the April 11, 2014 Office of the County Attorney (ss) Page 2 County of Kaua`i. Section D states that in no event shall the County pay Special Counsel more than the total of"X" number of dollars. This is the legal part of it. I guess from the Council, or from Council Chair Furfaro he is asking moving forward that the Office of the County Attorney accurately budget their Special Counsel needs via this process. The Council is requesting that the Office of the County Attorney actively manage Special Counsel contracts and obtain approval for additional Special Counsel funding as soon as possible, I believe there was a 65% threshold that was thrown out and lastly, that the Council is aware that halting contracts mid-case puts the County under additional risk. However, Office of the County Attorney should ask for funding as early as possible to prevent exceeding established contract amounts. This is the form that Council Chair Furfaro and the Council has sent over to the Office of the County Attorney. It is a Litigation Plan and Budget that was recommended by Peter Morimoto, Legal Analyst with our Office. It is just a recommendation and I know that First Deputy County Attorney Mauna Kea Trask has already indicated that he is planning on utilizing a version of this form integrated with some other recommendations from the insurance company. That is pretty much it. Thanks. Chair Furfaro: Al, I do not plan to have a lot of discussion about this right now. I want to make sure that after Wednesday and I do not know if you know or not, but I had to plead with one Councilmember for replenishment and all the Councilmembers made very good points. But the Litigation Plan and Budget is outlined in a format that Mr. Morimoto went through with me and I would like to get some comments on it and the cash flow happens to come from understanding business and then having a very fine financial guy available on our Staff with Scott and some of the things that I wanted to accomplish. This does not need to be finalized right now, but I want something agreed upon. I felt very badly, I sent it over in September. I got no responses. Sent it over again in February, we ran out of money and then we had a very challenging Special Counsel meeting. We need to come to an understanding on policy. Money, let me tell you, I understand. If I could get some buy-in. Or if I can get some commitment, it would really help us, but it starts, as I said, from making sure that we do not undercut our budget knowing that we cannot accomplish that. I think that was part of the problem this year. We were told we were going to reduce some amounts. We were told we were going to handle possibly some with a special litigation team that was going to save us money, but it worked against us in this case. So if I could just get some acknowledgment on what I am doing here, that I could hear back from you folks, I would sincerely appreciate it. ALFRED B. CASTILLO, JR., County Attorney: Good morning Council Chair, Councilmembers. Council Chair, for the most part, I certainly agree, but can I please reserve my comments and my answers to what you have just said during my presentation? Chair Furfaro: I am not expecting you to comment on it in your presentation. I want to make sure this is the third time that I am visiting this, I want to make sure that someone is going to take me seriously. Never fool with Mother Nature. Mr. Castillo: We always take you seriously, Council Chair. Chair Furfaro: Thank you. Mr. Castillo: Thank you. April 11, 2014 Office of the County Attorney (ss) Page 3 Chair Furfaro: It was distributed to all members, but we will wait to hear commentary from you. Thank you, Scott. This will be for you to make your presentation. I do not know who is doing your presenting. IAN K. JUNG, Deputy County Attorney: Good morning Council Chair, members of the Council, Deputy County Attorney Ian Jung for the record. I think what we want to do here is just give you a perspective of what our budget synopsis is this year. You guys have the facts and figures before you, but we kind of want to look as specific terms in what we are looking at and bring up the Deputies assigned to various Departments. Chair Furfaro: Can I ask you one thing? Mr. Jung: Sure. Chair Furfaro: Please do not refer to the Council as you guys. I have shared this with you before. Years ago we had two ladies that made up the Council. We have a lady at the table now. Please do not refer to us as you guys. Refer to us as members. Mr. Jung: Sure. I apologize for that. I will try to turn off my generational issue here and look at you as members. My apologies Council Chair. As a way of an outline what we want to take a look at first the budget projections in the overview for this Fiscal Year 2015 and the role of the County Attorney as well as the Deputies that are assigned to various Departments. Then take a look at the picture of what the competitive legal structuring and examples are in terms of how other municipalities will look at structuring their legal team. Lastly, why we want to formalize a litigation team respective in our County. Looking at the budget projection, you see where there "salaries and wages" what we propose is for a new litigation Deputy and the 9.3% increase looks at those additional salaries and wages attributed to that particular Deputy. The benefits are compounded only in a 1.2% increase this year. Utilities and I think when the Office of Economic Development comes up they will explain why the utility rate is increasing to a point of almost 22% this year. Then obviously we do not have the vehicle equipment issue and for "operations" there seems to be a significant jump of 31.5%. But inclusive of that is a jump of $115,000 for Special Counsel funds which is the reason that jumped significantly to 31.5%. As compared to FY 2014, which was set at a little over $500,000. So looking...rounding out the numbers and looking at what the percentage increase is going to be in total is going to be 13.1% from FY 2014 to FY 2015. So the content of our discussion before you today is essentially going to be a way to propose the reorganization of the Office, as well as the creation of a litigation unit. The budget increase is primarily centered on how to create this litigation unit. The support that our Office has gotten to look at how we are going identify and create a litigation unit came from not just from our requests, but also from a review by the Cost Control Commission, which recognized the importance, as well as the financial benefits and advantages to why a litigation unit is critical so just to bring us aligned with the other Counties throughout the State of Hawai`i. So the role of the County Attorney and his Deputies, we have some stats here which are also presented in our budget presentation. We have appearances in court, a total of 304 cases and our Deputies staff Boards and Commissions and draft legal opinions from not only the Council, but various Departments. We review all contracts and you can see the figures there. Review all legal documents, which are certain memorandum of April 11, 2014 Office of the County Attorney (ss) Page 4 understanding and things like that. Review all conveyances, which are land conveyances, such as easements or sales of land. Review of miscellaneous documents such as legislation, permits, entitlements, conditions to entitlements, and things of that nature. Our Deputies are on-call for Departmental inquiries, of various Departments or the staff members that have pressing questions that need addressing. Then we also provide training to the County employees and officers with regard to Sunshine Law and parliamentary procedure. I think what we want to do know is introduce the various Deputies and who they are assigned to. I will start. As I informed you guys my name is Deputy County Attorney Ian Jung. I was born and raised on Kaua`i. I went to Kapa'a School. I have three children, friends and family throughout the island. My role in the Office is to deal with land use matters and to assist with Public Works. So in dealing with land use matters I staff three commissions, the Open Space Commission, Historic Preservation Commission, as well as the Planning Commission and obviously come before the members to deal with various land use issues, conveyances, and legislative bills that affect the CZO and Subdivision Ordinances. I also provide training now through the Boards and Commissions to educate our Commission members on Sunshine Law issues, parliamentary procedure and looking at how to effectively run meetings, to a point where we can have effective decision-making by our Boards and Commissions. I know you see a lot of me on the controversial issues that come before you because the land use issues get quite controversial, but we are people behind the doors here that do work other than appearances before you. So all of these things here listed are the other things that we do than appear before you. I will call up Mona. Chair Furfaro: Will this slide continue to change or should I permanently move myself? It is not going to change? Mr. Jung: They will follow-up. MONA W. CLARK, Deputy County Attorney: Hi I am Mona Clark, Deputy County Attorney. I just wanted to start with giving you a brief background on me. I started out as a legal services attorney because I have a firm commitment to social justice and that was, in fact, the only reason I went to law school. I then went into oil and gas, both working for major oil and gas companies, Standard Oil, and then into private practice. I was heavily involved in contract negotiations and drafting. I subsequently got my MBA in Finance and went back to work for a major Fortune 500 company where I was involved in drafting $50 million acquisitions, as well as the divesture of $250 million divisions. So I have a very strong background in contracts and negotiations and that area. I then went into my own business. I had an audio book business both online and bricks and mortar. But it gives me an understanding for how small business owners feel and their concerns. I then moved to Kauai. I took the Bar again 30 years after I took it the first time. Passed and came to work for the County. I have really enjoyed working for the County because I think the County provides some amazing services for the population. I am particularly pleased to have worked with the Housing Department, in the acquisition of property in `Ele`ele and also I worked on the Rice Camp before I left. I have also been involved with the bike path and those are all things that I think have provided me the opportunity to support our Department in very important ways. I think I have strong feelings that the public trust that is given to us as officials of the County needs to be supported and I am very committed to that. I think as you can tell from my background, the efficient use of my time is in drafting negotiations contracts. Those sorts of areas. If I go into court, which I have done and can do, I do not provide the same level of expertise that somebody who is devoted their career to that so I think that the litigation division is something that is very April 11, 2014 Office of the County Attorney (ss) Page 5 important for the County in order to effectively utilize the resources that we have in our Office. That is very much it. I am pleased to be back here and being able to provide services to you all. Chair Furfaro: Thank you very much, and Mona, let me just say, we are very pleased you are back. Ms. Clark: Thank you. Chair Furfaro: Did you have something, JoAnn? Ms. Yukimura: I just wanted to ask procedurally...not to Mona, but if we could have two attorneys at a time to cut down on the walkup and walk-down, Chair. Chair Furfaro: Excellent recommendation. NICHOLAS COURSON, Deputy County Attorney: Good morning Council Chair, Vice Chair Chock, Councilmembers, Nick Courson, Deputy County Attorney for the record. I was born here in Waimea. I lived on Kaua`i until I was 10. My mom remarried and I was dragged to the Midwest where I froze for 20 years. Always wanted to live back on Kaua`i. Right out of law school, I took the bar in Illinois and Hawai`i. I passed it in both places and sought a job here. I am very pleased to say that I have been here the past year and really enjoying myself. I am assigned primarily to the Kaua`i Police Department but also to Civil Defense and the Board of Ethics. Board of Ethics is pretty basic for me. By in large, I pretty much research outside law to help them interpret what our Code of Ethics mean. They do not need much help there but they do sometimes need Constitutional questions or State law questions. Civil Defense is also pretty basic. They are great to work with and bring a lot of grant money to the County. My hats off to them on that. I help them with their contracts and MOUs with other Agencies like the Civil Air Patrol, our leases for our emergency communications equipment, radios, etc. Civil Defense is one of my better victories this year. Working with Civil Defense and IT, we did a ten year maintenance where we saved the $850,000 over the next ten years. That was great, I do not get the recognition they deserve for all of that. That was a lot of hard work on their part. I came in at the end to hammer out the agreement. The majority of my time is spent at KPD. I am basically counseling and drafting for them. I really love working with them. There is a lot of energy over there and they are really trying to bring the Department up to speed. Chief Perry is doing an amazing job. Deputy Chief Contrades is a pleasure to work with every day. I work mostly with the Administrative Bureau so a lot with Acting Assistant Chief Gausepohl. For KPD I do contracts which is everything from their cars to drug testing, the psychological screening that they put applicants through, and all of that. MOUs which can be for our armories that we use as substations or with sister agencies like the Sherrifs or DLNR to delineate who is going to do what. Employment is a huge thing, particularly dealing with powerful unions like SHOPO, they are also great to work with. It is definitely something that keeps you on your feet. Policies as the members know we are moving towards getting accredited for CALEA Accreditation that takes a lot of revamping of all of the policies and creating many new ones. It is a big ticket item and take a lot of energy. It is safe to say that KPD gets the most UIPA requests and the public is very interested in Police records and they are subpoenaed...we get evidence issues, and firearms is a bigger issue than I ever thought it would be before I started. So I spend the majority of my time doing that. I also pick up random assignments that do not fit into any particular Deputy's categories. So we all take our fair share. So it is my goal to be diligent, courteous, April 11, 2014 Office of the County Attorney (ss) Page 6 amenable, and I really enjoy working with KPD and all of my other Departments. In terms of the litigation team as a counseling and drafting Deputy, it would not directly benefit me, but I think from working with KPD that I can safely say that it will benefit them. We do have at least one major lawsuit against KPD right now. We have others on the horizon. Having in-house attorneys that can deal with them would only be a benefit and I am very helpful in the discovery process because I know exactly who to go to, to get stuff. It is easier to do stuff in-house and that would be my take on litigation team. Jodi is up next. Chair Furfaro: Thank you and welcome home. JODI A. HIGUCHI SAYEGUSA, Deputy County Attorney: Hi my name is Jodi Higuchi Sayegusa. I have been a Deputy County Attorney here for about three years. Originally from Oahu. I moved here with my husband, who is born and raised on Kaua`i. His family...my understanding goes pretty well way back from plantation days, came over to Kaua`i and settled. His parents are both teachers on the west side. Travis' dad was Patrick Sayegusa, was a teacher at Waimea High School for 30+ years and his mom was a teacher at `Ele`ele School for 30+ years and still volunteers her time over there. So I guess it was always a priority and dream for Travis to move back here and so we moved back here to start a family and really growing roots here for me personally. I went to law school with a strong interest in public interest law. I worked at Legal Aid previously and prior to applying to law school. You know, I became interested in municipal government work just because of the variety of issues that we may face and it is really a challenge. It is also a way to serve the public. So I am very happy to have an opportunity to come here and serve as a Deputy County Attorney. I represent the Department of Public Works, which is probably the biggest Department here within the County. They have seven Divisions including the Administration. There is the Administration, the Auto Shop, Building, Engineering, Highway, Roads, Solid Waste, and Wastewater. Each Division has specific projects and needs and various legal issues that come up on a day to day basis. Any one of their projects involve contracts or issues that come up, that really take up all of my time on a daily basis. That is through E-mails, formal assignments, conversations outside. For instance, I know Public Works came on Wednesday and talked about the Piikoi renovation project that involves a lot of professional services contracts and procurement issues and those types of things that I do, as well as Resolutions for roadway parking changes, conveyances. We face a lot of claims of course, Public Works is such a large Department so there are a lot of claims that come in, like our tort cases, potholes, trees and those types of things. Collections. I will have to deal with a lot of the sewer collections and wastewater for wastewater, tipping fees, and those are actively going into court and collect and enforce on delinquent accounts. Of course, this past Wednesday, we talked about things like our permitting and NPDES permits that unfortunately issues come up with that. So Public Works alone there is a whole host of...a whole range of topics and law specialties that I have to study up and learn and deal with anywhere from Admin procurement, torts, environmental and transactional law. It is a lot. I like the challenge, and it is a great experience, but unfortunately, my time is very limited and compiling that with having to do a lot of these bigger litigation cases would really be difficult and take away from a lot of the attention that I would like to spend with each of the Divisions and to service them most effectively. So really the litigation team would be invaluable, especially for me and the rest of us to be able to service Public Works and the rest of our Departments most efficiently and well. That is all I have to say. Thank you. ANDREA A. SUZUKI, Deputy County Attorney: My name is Andrea Suzuki, born and raised in Kailua, Oahu. Went away to Iowa for undergrad. Came back to UH for my masters. I went back to Iowa for law school and upon graduating my husband informed April 11, 2014 Office of the County Attorney (ss) Page 7 me that were going to move to Kaua`i. We have been here since 2008. I always had an interest in public service when it related to my law degree and externed for the Native Hawaiian Legal Corporation and for the Federal District Magistrate Kevin Chang. When I was informed that we were moving to Kauai I got an clerkship with the Honorable Kathleen Watanabe. Upon the ending of that clerkship, I took the job here at the County. I have been here now, almost going on five years. The main Department I serve is the Department of Water and Board of Water, which is its own little entity in itself that has a breadth of issues because they do their own financing and what not. I also fill in the spaces that the County needs me to fill into. So you have seen me up here for birds, a really big project and then new pet project is updating all of the things in the County that have not been updated for the past several decades. So right now we have put together a contract team. We are going to try to streamline contracts, make them Adobe fills and then our main goal is to revise our general provisions for all our contracts that have not been done since the 1970s. It is one of the major projects that I did at the Water Department and took a year and a half for the general provision construction contracts. So any typical day I can sit down on a telephone conference with people across the nation, and I have to know my biology on endangered species, hang up the phone, review procurement processes, and contracts and at the end of the day find out how we are going to fund our water infrastructure expanse? So we are required to be experts in everything and when litigation comes along, it is a challenge to have to be expected from our clients to have that expertise in all of these things, and then do something as time-consuming as litigation. So I think that our boss has a really good idea going forward that could be beneficial for our clients. Chair Furfaro: I have a question for you? Ms. Suzuki: Yes. Chair Furfaro: I am sorry, first of all to both ladies that have recently been up, soon you will be taking time away from us with your new families congratulations. Ms. Suzuki: It is just a really good brunch meal that we had. We will be fine. Chair Furfaro: Over in the Department of Water, how much experience do you have with bond counsel? Ms. Suzuki: Actually the Department of Water cost shares with the County's bond counsel. So we pay a proportionate share of that amount. Chair Furfaro: I understand what you pay. For the Council, I was on the visits with the Bond Counsel, I want to know how much experience you have with bond consultation as the County Council even though it is ad hoc division over at Water, we are the underwriters of the bonds for the Water Department. Ms. Suzuki: Right. Chair Furfaro: So do you follow much of that financing and project management that is going on right now over at the Water Department? Ms. Suzuki: Yes. So we have certain requirements under the bond issuance, in fact, on our next agenda we have an amendment to a resolution for bond April 11, 2014 Office of the County Attorney (ss) Page 8 projects. When projects come through, I do participate in all of the conversations on whether the projects meet the requirements of the bond issuance and what not. So I was there during that $40 million spend-down that the Department did in two years and that was a big task to make sure we were in compliance with the bond and to make sure we were in compliance with procurement and all that other stuff. Chair Furfaro: I might visit when you have that on your agenda. Ms. Suzuki: You are welcome to, next Thursday. Chair Furfaro: Thank you. MAUNA KEA TRASK, First Deputy County Attorney: Aloha honorable County Council, Chair, Councilmembers, my name is Mauna Kea Trask and I am the recent First Deputy County Attorney. Many of you know me already, known me since childhood and I have been in carpools with you. I have hung out all over the place. Those who do not know me, I was born in Oahu, while my father was in law school and I moved to Kaua`i when I was 3 years old. Although I was not born on Kaua`i, my family did originate from the Koolau area of Kaua`i, specifically Moloa`a and Waipake. I graduated from Kamehameha Schools in 1997, I received a Bachelor of Science in Anthropology from Oregon State University in 2001 with honors, and I graduated from the University of Hawai`i William S. Richardson School of Law in 2004. Not with honors but I did pass. I have been a licensed attorney since 2005. Throughout my career I have been a law clerk in both the First and Fifth Circuits serving the Honorable Judges Richard Perkins and the Honorable Kathleen Watanabe. I was her first law clerk when she was appointed to the Fifth Circuit. I worked at the Office of the Public Defender on O`ahu and the County of Kaua`i's Prosecuting Attorney's Office. For the past five years I have been a Deputy County Attorney. I am proud fourth generation Native Hawaiian attorney and I have chosen to come back to Kaua`i because of my strong sense of kuleana to this place and its people. Growing up in a legal family, my professional goal has always been to be amongst the elite litigators in the State. I have tried countless bench trials both as a criminal defense attorney and a prosecutor. I have tried ten jury trials both as a criminal defense attorney and again as a prosecutor. Working with the County over the past five years has been an enlightening experience, allowing me to diversify my practice and I have been very thankful for the opportunity, because being a County Attorney really allows you to help the most people at the same time and touches on so much things of just daily life in Kaua`i that I never really appreciated before. Although I am assigned formally to the Kaua`i Fire Department and the Kaua`i Liquor Department, as well as attending commissions and litigation, I really have become kind of a pinch hitter for anything that needs to be done in the Office. I review contracts of various Departments and I do legislative review for yourselves at Council, I do legal research and I also do litigation and I have been able to carve out a niche for myself to deal with any and all Hawaiian issues in the County which I very much appreciate. Some of those that I have been very fortunate to be a part of is the Kaneiolouma Project in Koloa. Although not a Hawaiian project, the Black Pot expansion is something that I am very proud to be a part of. Also helping lineal descendants of original kuleana property tax and landowners to get their minimum kuleana tax bills, $25.00 in order to keep them on their lands is something that I am particularly fond of. Also something I was able to do and to be creative and utilize Native Hawaiian traditional processes in modern-day legal regulatory action was a Section 106 process for the Lydgate to Kapa'a bike path Phase C and D. Really briefly what you have to do when using Federal funds as you all know you have to go through a consultation process pursuant to Section 106 of the National Historic Preservation Act. State and County Agencies have had a April 11, 2014 Office of the County Attorney (ss) Page 9 notoriously difficult time, as well as consultants trying to accomplish that. It is really undefined as far as it pertains to Native Hawaiians and it will take months if not years to go through. Recently we went through Phases C and D consultation in six to eight months, and that is including two instances where two very prominent members of the Hawaiian community either got sick and one passed away. We were able to finish our 106 process at that time and about a month later, the State of Hawai`i DOT finished theirs and it took them six years . What we did was utilize Mary Kawena Pukui's hoo pono pono process as described in her book Nana I Ke Kumu and applied it to Federal regulatory law, which absolutely worked. Moving forward my focus has been on litigation. That is what I have always wanted to be. I looked up to my father growing up and that is what he did and my grandfather and great grandfather and came to the County Attorney's Office specifically for civil litigation experience. I will present to you what the litigation unit will look like, can I get lights, please? In trying best to explain the litigation unit to you and begin with competitively legally structuring and giving you an idea what private law firms and large municipalities and medium and smaller municipalities structure their law firms. As was described to you by our Deputies we look to efficiently and effectively and if you look at private law firms they structure...they have numerous departments. They do tax, procurement, infrastructure, environmental, labor and employment, public utilities, land use, real estate and litigation. Like much of the modern economy, specialization is where it is at. This is particularly true in the legal field where you think of common-law going back thousands of years and every year you get innumerable cases that further define and redefine how the law is interpreted and, as well as more laws every year as you know. At the macro level you look at the largest corporation counsel office in the country which is New York City and they have an extensive amount of different departments all of which they focus primarily, if not exclusively on what they do. New York City's litigation is divided into affirmative litigation, which is civil regulatory regulate going after people for violation, etc. and general litigation, general defense. No Attorney's Office controls when and what kind of litigation their clients are exposed to, but what we do is deal with problems as they arise. This is looking within the State. The Third Circuit, Big Island's Corporation Counsel. We looked at this as the most comparable County to us in the State it is divided in half, counseling and drafting and litigation. Each of which, as you can see, they have either 7 or 8 Deputies, which is pretty much the size of our current Office. They have supervisors and Deputies. Looking at Maui Corporation Counsel they have Divisions, a Counseling and Drafting Division and Litigation Division, as well as Risk Management and to each are further divided with tasks as described. I have read my eyes out throughout the years. On the Counseling Drafting they do Planning, land use and public infrastructure. Finance, generally. In the Litigation Division, they represent the County Offices and employees, labor-related, tort, etc. It also should be noted with all of these municipalities they all employ Special Counsel. The County of Kaua`i's litigation unit as you all know we are a small office, we are the smallest Office in the County. All of our attorneys currently we have nine. That includes administration, all counseling, drafting and all advice to Council and all litigation. We are the only County without a litigation unit. Litigation as you all know it is a reality. We are living in an increasingly litigious society and it is very expensive. Our Office, throughout the nine attorneys, referencing an earlier slide, we do approximately 3,500 assignments. 304 which are filed cases. Litigation generally can be described in the following six tasks. Just to give both yourselves and the public an idea of what it entails...you have case initiation, discovery, settlement discussion, pre-trial motions, trial and post-trial disposition and within the case initiation portion you conduct client intake, with us it is usually when a complaint is filed and we received it. We are served with it. We do initial fact investigations and we can answer in good faith and have April 11, 2014 Office of the County Attorney (ss) Page 10 to affirmatively admit, deny or state that we are without information to answer allegation at that time, and therefore, we deny it. We have to do legal research, draft complaint and answer, do any cross or counter claims as necessary or third-party claims. We do 12 B 6 motions, which are motions to dismiss prior to answering any complaints. Defenses, map out defenses to procedural motions, meet and confer with each other regarding case scheduling. Discovery Phase. Draft and file mandatory disclosures and draft and answer interrogatories to questions. Respond to request for production of documents which can be difficult. In any municipality when you have to go to the depths to look for documents that may or may not exist and locate people who are retired from County that may or may not have information from the County. All of this must be done in good faith, balancing our responsibilities as a lawyer and own rules of professional conduct and the need of the client, the needs of the public given that the County is supposed to be an open and accessible corporation. As well as providing the best defense and not losing any strategic position doing so. Going to depositions, witnesses, etc. Settlement. After doing these processes, you look at what kind of settlement discussions are necessary, if any. Present those to you. Pre-trial motions, legal research, motions for summary judgment, etc. Motions in lemony jury instructions, trial briefs, voir dire questions. If you are going to jury trial, there are hundreds of rules that dictate what you need to do. Finally trial, which is the big show. The most time-consuming and costly portion of litigation. Then post disposition including appeals, etc. Trying to juggle all of this as someone who does both counseling and drafting litigation is very, very difficult. Not only do you not have enough time during the day to do this, but it can affect all portions of your life. In order to provide the best service for you, I can personally attest that our Deputies take time away from their families and own personal interests, coming in on weekends and coming in early and staying later in order to provide the best service that we can. With these shortfalls it is going to be a difficult issue. One attorney or two attorneys cannot do it all. During the transition and moving towards the creation of an independent self-functioning litigation unit...the short term litigation unit will work with other Deputies to bring cases to trial if necessary. Not every case can go to trial or goes to trial. Again, as I said, one attorney cannot do it all. So litigation unit attorneys will be the lead counsel on cases and non-litigation attorneys will support litigation unit attorneys as they are familiar with the underlying fact as Deputy County Attorney Nick Courson stated he can do the discovery runs and he knows who to talk to and the witnesses and who is most important, and what is going on. That can cut my time in doing the actual litigation prep and process in half, because I can rely on him to do it and I can focus on the rules and the documentation that needs to be done. The creation of litigation unit we hope that the litigation unit will achieve the answers and service that you all have very clearly stated this year that you want to do. We want to realize cost-savings with it. We want to benefit from the training and real world experience encountered in litigation units. I think it can be judiciously noticed that County Attorneys do not last very long. So it is good that you train people born and raised here and have a vested interest in the County to be strong attorney because they are the very ones that go out in the private sector and continue to help the people and this place in their own personal matters. We want to demonstrate the value of a strong in-house litigation team in order to get more litigation positions in the future and hopefully maintain that so that even after we are all long gone, the County of Kaua`i has a strong standing litigation unit that can continue to defend this County and provide the best service after our sons and daughters and grandchildren are sitting in positions of leadership. Again we cannot ever stop utilizing Special Counsel. That is a reality. But we can decrease or more creatively utilize their services with a strong litigation unit working in concert with them and having them do portions of trial prep and discovery process and use it as necessary and pick it back up. This is what the new organization would look like. County Attorney is on top, First Deputy position, which is myself, and I would supervise the two litigation Deputies to the right of April 11, 2014 Office of the County Attorney (ss) Page 11 that box. Then Ian Jung as a Senior Deputy County Attorney would supervise the advice and counsel...counseling and drafting section of the Deputies that you have heard from today. The litigation team currently is me and Steven Hall, who is unfortunately not present today, but is an excellent attorney with his career in Chicago and it has been a pleasure working with him in a trial prep coming up. With that, that is all I have to add for now. I will turn it over to my boss, County Attorney Alfred B. Castillo, Jr. Chair Furfaro: Before you turn it over, we may have a few questions for you. Can we turn on the lights, please? First I want to say young man that you went to Kamehameha Schools with some of my daughters and nephews and so forth. I hope they treated you well. Mr. Trask: Kailua Harmon was very nice to me. Chair Furfaro: Let me also say that kuleana on the tax bill, that was my bill and I was very impressed with the research, and the work, the sincerity and trying to do the right thing for the right people there. It was much appreciated and I think this elevation for you is well-deserved. But as we get to the litigation team here, will this... do you have an idea to share with us the slide that says we can never end outside counsel, but we hope to realize a savings? Do you have an idea of what the net results will be here? Will it save us 25% of our Special Counsel? I mean, do we have a target? These kinds of things have to be measurable. Mr. Trask: Unfortunately, we have done the research to look at how you measure litigation costs. We have done the research. Deputy County Attorney Andrea Suzuki pulled off a courts statistic project publication 2013 caseload highlights, which is entitled "SMA and the cost of civil litigation." We looked at it and essentially the first three pages tell you you cannot...you cannot...to the degree of precision that anyone wants to, estimate affirmatively how much it could cost you in a given day. The reason why is because corporations do not control when they are sued. You could do, as much as you can to prevent it, but it will inevitably happen. So we have done the research and we have ways to look at it that we are trying to identify to appropriately...specifically quantify that we know how you want to. As you know Special Counsel can come up in a variety of ways. The first being simple conflict of interest, precluding the regular counsel to participate, which on an island like Kaua`i is a reality. If a case comes up involving a cousin of mine or close family friend I am advised not to participate in it. Another need for local counsel to testify in proceedings and desire to have no possible appearance of conflict. The need of an attorney who is particularly skilled in a specific area. Chair, you mentioned bond counsel that show a very specific area of law. Finally workload demands, this is also a real issue that needs to be dealt with in a smaller Office with only nine attorneys that services the County. On a basic level generally when you look at the cost of Special Counsel, Special Counsel generally runs you anywhere between $200-$400 an hour. As Deputy County Attorneys we make between $35-45 an hour. So if you have us working a case, versus Special Counsel working a case, the hourly rate is self-explanatory. Chair Furfaro: Let me drill-down on this a little bit, because I cannot buy into that explanation. You might buy into that as an attorney, but when you go to business school, you do things by measurement. There are some things like, like I heard that you are going to do investigations internally, that will probably save us some money. You have rates to measure against for Special Counsel. You have prep services, all to me are measurable, rather than having those kind of fees come over for Special Counsel. So I do not want to drag this on, but it is contrary to the principle of key result areas and key April 11, 2014 Office of the County Attorney (ss) Page 12 result areas are measured in what kind of exposure we have and what kind of savings it might be in and targeted goals. So I am not asking you to say that you are going to forecast to the penny, but what is the net benefit? A rough idea of what we might save? Let me ask you, and how many attorneys would we be adding to staff to have a Special Counsel Division? Mr. Trask: Thank you, Chair. Mr. Castillo does have the answers to those questions. If he can take the seat now, I am sure he will be able to provide the answers that you request. Chair Furfaro: I have no problem with you passing the football over. They were not tough questions, but I tell you what, I have a very different view of legal support in many ways, and it comes from corporate attorneys that work for the hotel companies, Special Counsel, litigation with hospitality issues, inn keeper law, and the borrowing power here. This Council is a lot smaller Council than the other Counties. Most Counties have nine members. We have seven. You have a smaller staff. Well, we are a smaller County and we have to do more with less in many ways. But I will save that for Mr. Castillo. Your presentation was very well-received though, I might say. Mr. Rapozo? Mr. Rapozo: Just a couple of questions. Did we solicit the Cost Control Commission for this recommendation or did they come up with this themselves? Do they have an attorney on the Cost Control Commission? Mr. Trask: They do have an assigned Deputy. Mr. Rapozo: As a Commissioner? Mr. Trask: To my knowledge, no, I am not sure. Mr. Rapozo: So they came up with this on their own? Mr. Trask: I am not sure the process of the Cost Control Commission. Chair Furfaro: Let me frame that question a little differently and I will give the floor back to Mr. Rapozo. Are we expecting a written position statement to come to the Council based on what the recommendations are being made by the Cost Control Commission? Rather than just put a line item up there that has their approval? Well, the people they have to convince are us and the people that get authorized to be on the Cost Control Commission come from us interviewing them. So to expand Mr. Rapozo's question and I will give the floor back to him, are we expecting a written position statement from the Cost Control Commission that says what they studied and why this is a good reason? Mr. Castillo: I am wondering if I can answer that in my presentation or I can answer that question outside of my presentation? Mr. Rapozo: Can you answer it now? Mr. Castillo: I can answer it now. In terms of whether or not it was solicited, no. The Cost Control Commission did that on their own, and one of the things that they did, they did fact-finding. In their fact finding, I was asked to...I went April 11, 2014 Office of the County Attorney (ss) Page 13 before the Cost Control Commission, if my memory serves me right, maybe three times. The difficulty was how to quantify in terms of how much dollars a litigation unit would save the County? I believe that the Cost Control Commission sent over a communication to the Council with the recommendation. I can, Council Chair, I can go back and ask the Cost Control Commission to comply with your request. Chair Furfaro: Again, Mr. Rapozo...I thought I saw that come over from the Mayor in the evaluation of the Cost Control Commission and I asked staff to get it and boy, are they proficient, but it did not give us a lot of narrative. Have you seen this? Mr. Castillo: I have seen the Mayor's communication and I have not...I do not have a copy of the Cost Control communication. However, in one of the meetings that I attended, in front of the Cost Control Commission and at that time it was by coincidence as far as I was concerned at that time. It gave me an opportunity to give the Cost Control Commission a clear understanding of the savings of a litigation unit. At that time we were into the new Fiscal Year of 2014. I would say two and a half months. Already in the two and a half months we had already expended the $534,000. What I could do at that point in time was look at the cases, and look at the cases and how if we had two Deputy County Attorneys utilized during that time, the County would have only had to expend $70,000. So within these two and a half months, $70,000 would have been attributable to the Special Counsel and the remaining amount would have still been available in our Special Counsel account. Meaning $530,000, minus $70,000 and I could demonstrate to the Cost Control Commission at that time, we would have had a savings of that amount. I do not have a calculator with me, but that is an appreciable amount. Can I proceed with my... Chair Furfaro: I just want to say to you, that if you do the math really quick on what came over to us, there is...without saying it, predicted about an 18% savings. What I am saying is if you are lobbying the Cost Control Commission for support, I need something more substantial. I can accept if it is an 18% savings, but I would like something more substantial. I owe Mr. Rapozo somewhat of an apology because I was to add to his question. So Mr. Rapozo you still have the floor. Mr. Rapozo: Thank you. I got this from the Mayor and I got...I mean like the Chair said, there is no real analysis. The other thing is the Cost Control Commission recommendation is two attorneys. That is what I read. They are recommending two attorneys for the litigation team and yet your budget is showing one attorney and one dollar-funded. So I do not see and this is just from my experience working with attorneys I do not see how one attorney is going to change the dynamics of your Office right now. That is just the reality of it now, I do not care who you hire, $94,000 a year, you are going to get a Deputy attorney, but I do not see that extra attorney creating an 18%....I think they are basing 18% on a two-attorney litigation team, which is not referenced in the budget. I just question the Cost Control Commission how this came up and on the other islands, each Councilmember has personal staff, they have expense accounts, and I really have a rough time when we compare ourselves to the other islands, because it is different. We are different, the other islands are just bigger, they have economies of scale, they have larger budgets. So they can obviously absorb much more. But the Cost Control Commission, the last two big recommendations from the Cost Control Commission, which by Charter they are supposed to be looking for ways to cut government spending, the first one was...they recommended an increase in tax revenue and then this one here, they are recommending expanding a Department and I can see what the intent is. That they want April 11, 2014 Office of the County Attorney (ss) Page 14 to hopefully create a litigation team, but I think we would agree it is more than one attorney for a litigation team. It requires a paralegal and requires clerical support, if you want a litigation team. The fact that you call an attorney the "litigation team" I do not see the impact it would have on the Department. Mr. Castillo: Councilmember Rapozo, I certainly agree with you it would be more logical to have a whole litigation unit with more than one attorney. However, we have to recognize the amount of dollars that we have and the amount of dollars that we do not have. I can tell you for a fact that we are engaged in a lawsuit right now that involves one of the Departments where we put one attorney on it, and that is Steve Hall. Just going through the discovery process alone has saved the County more than enough than to pay his income. So as far as not seeing the benefits, we can take on more cases and we would free that person...we would bring another person in to help in servicing the other Departments. One attorney alone makes a really big difference. Right now I have the fortunate circumstance as far as having Deputies that work hard and are willing to support the litigation unit and work together. I agree with you, but we are taking the baby steps necessary for the creation of a unit. I agree with you, I would prefer a whole bunch of attorneys, but we simply cannot afford it at this time. Chair Furfaro: Before I give the floor to JoAnn, I want to make sure that you do not misunderstand what I am saying here. I think you have a lot of hard- working people in your Department, but I think we have some complicated issues on the horizon, including the bonding in the Water Department. It is not honky dory over there and there are issues coming up on the horizon and the County of Kaua`i has underwritten those. The other piece I want to say, I am looking for something that I can measure. If the savings is projected at 18% and you have $1.1 million Special Counsel fees. I am saying to you, you come back to me and say that the Special Counsel fee drops from $1.1 million to $900,000 and piggy-back on what Mr. Rapozo is saying you need a minimum of two attorneys and support people to form the new group we are going to add $280,000. But we are not saving very much money in, in fact, to do it right, we are adding $80,000 and I am just picking numbers out of the clouds. I do not see that in the presentation and I did not know that you were going to make that today in only the hour that we gave you. So we are going to go to 12:45 p.m. and I will give JoAnn the floor, but I want us back on the 21st at 3:00 p.m. with your Department to have more discussion. Because I sincerely believe this idea is worth pursuing, but you are not sharing all of the moving parts with us inside of one hour. So JoAnn you have the floor. Mr. Rapozo: It goes to what you are saying, if the savings is going to be 18% then the Special Counsel fund would be decreased? Chair Furfaro: Yes. Mr. Rapozo: I think that is what you are trying to say. You cannot keep raising both sides of the axes and keep claiming it is a savings. Chair Furfaro: JoAnn you have the floor and we are going to go to 12:45 p.m. everyone. Ms. Yukimura: Thank you. Whether it is a savings or not, I mean, it looks like a savings in the budget right now, if you use $1 million as the bench mark and you are talking about $650,000 for Special Counsel. Right now, right? I think that is what is in the budget. So it does look like a substantial savings, depending on what April 11, 2014 Office of the County Attorney (ss) Page 15 you use the benchmark as for the last two years whether it has been the first line item or two subsequent line items, like this amendment that we handled recently. It has been $1 million. So to me when I see the budget $650,000, that looks like you are projecting a savings. So I want to ask about the litigation team, but first I want to say that I really appreciated the presentations of all the individual Deputies. It did give us a much better idea and the public as well of the scope of work that you are all having to cover and the diversity and the volume as well. I really commend and thank you for your public service. So then to the question of your legal litigation unit. I also appreciate the research that appears to have been done, and I would trust attorneys more than the Cost Control Commission to tell us the details of a litigation unit. I think they may have indicated the concept was worth looking at. But I do not think they know how to set up a litigation unit and you are trying to tell us that you are beginning to do that. My question is the value of Special Counsel is specialization that occurs and litigation often requires deep specialization. So I want to get a better idea of what you would focus your litigation team on? Either you are going to specialize in certain areas, or you are going to take litigation that is required and necessary, but not as specific as condemnation of property and that type of nature or NPDES litigation? You would take the more run-of-the-mill litigation, but you need to kind of give us some idea what you are thinking. Mr. Castillo: What I am thinking and thank you very much, Councilmember Yukimura. Because number one, when you talk about condemnation, at least we are up to par with condemnation now in being able to defend the County and do work for the County regarding condemnation issues. Ms. Yukimura: Without Special Counsel? Mr. Castillo: Without Special Counsel. With Mauna Kea and Mona Clark. In terms of what types of cases? Well, what comes to mind, to my mind is that we have had an avalanche of employment cases EEOC and employment cases are numerous in this County and that is pretty much one of the cases I was talking about where Steve Hall is engaged in an employment matter he is defending and it is true when you talk about Special Counsel, you the Councilmembers know how much a case usually...how much we usually pay Special Counsel. Maybe say $250,000. In this one particular case, Steven Hall is saving that amount of money and it is an employment case. So that is an area right now that is really needed in this County. Ms. Yukimura: That makes sense to me and if there is a way you can document how much you have been saving in this case, that would be illustrative to us. I also understand that you are doing much more preventative work, using our Human Resources, Linda, in some of those cases as well and that is excellent, too. So one area that you expect to use your litigation team is in the area of EEOC. Mr. Castillo: Civil rights. Ms. Yukimura: Yes Civil rights kinds of cases? Mr. Castillo: Yes. Ms. Yukimura: Are you thinking about this in the land use area? Mr. Castillo: Land use right now we have the benefit of Ian Jung. It is hard for him to do litigation, service the Planning Commission and service the April 11, 2014 Office of the County Attorney (ss) Page 16 Department. It would be nice if his expertise, he would be able to work with someone else and that would give us...it is hard when you have only one attorney with one specialty. Ms. Yukimura: I agree with you that there is a...you could create a combination of expertise in your Office, that manages or works with Special Counsel. So that is to me that is an option that should be available to your Office. Mr. Castillo: We have been utilizing that idea since I started. Ms. Yukimura: You know, I will make this my last question for this hour, I think your litigation team by creating litigation expertise and the ability to focus, so that your other attorneys do not have to deal with litigation, but can support it is a really good idea. I think the other area saving money is in the management of Special Counsel and I think the Council has a lot of input on that. But maybe we take that up when you come back. Because it is not exactly litigation. Chair Furfaro: If you were going to bring this topic to the table, we should have allocated a lot more time. When it comes to managing some of the costs was the whole purpose of my September 6th presentation to you. So we are not finished there. I am going to give Mr. Chock a follow-up question and then I want to summarize something here, because you have to come back. Mr. Chock: Real quick, so I understand that Special Counsel budget is $650,000. I am looking at the table and aggregate total amount...I count 22 cases at $855,000 in total. So am I to assume the majority of these cases will be completed within the next fiscal year? This is using a high figure provided. Mr. Castillo: It is. I am just hoping that some of those cases end within the fiscal year. I cannot forecast other lawsuits coming across the horizon. I know for a fact even if we have one and a half people working primarily on litigation, it will save the County money and in the creation of a litigation unit, what we normally do is separate out the unit, so we remain clean in terms of conflict. I can see a majority of those cases ending, but I cannot predict the future. I am sorry. Mr. Chock: Thank you. Chair Furfaro: Al, I want to summarize this and I want to summarize it from a business approach to this, okay? Can I buy into you having a special group of litigators? The answer is yes. Okay. But I have to have some brick-and-mortar here in the numbers. I expressed to you managing the Special Counsel through this format that I gave you in the opening presentation. I want your comments on it. Secondly, I want to let you know that we just added $500,000 to your budget and this year your Special Counsel is $1,050,000 and you come back and budgeted $650,000. I get a letter from the Mayor that reflects that the savings might only be 18%. I get an endorsement from the Cost Control Commission that has no numbers in it. Then you reduce it by 35% but your budget only adds one person and that is not enough. Budgets are supposed to be realistic, obtainable and we get buy-in from everybody. I think the buy-in, if you are giving me a document from the Mayor that says it saves 18%, that the savings is only $200,000 and the litigation bill should have been proposed to us at $800,000, not $650,000. The staffing should have reflected two individuals, and then we begin talking. You know, you are coming in, good negotiations in business, you negotiate from up-down and not from down- up and I cannot buy into it right now. I do not think the numbers work. Does the idea April 11, 2014 Office of the County Attorney (ss) Page 17 work? Yes, I think you bring a very powerful point to the table. That is what I am struggling with, Al. Mr. Castillo: Council Chair, I am fully appreciative of what you have done in terms of offering your help in the beginning of this presentation and I cannot tell you how much it is appreciated, because your help and your help on getting the vote for that other amount...I think it was on Wednesday. For the Councilmembers to vote to approve it was very much appreciated. I understand and maybe I wrack my brains on how to give you numbers when I go back and sharpen my pencil and present to you something that can communicate to you that justifies the needs of the County, I hope we are able to do that. Because this is something that the County needs. Chair Furfaro: First of all, I do not want you to point out myself, because there was a Councilmember who voted silent, okay? He also needs to be thanked. But what I am saying if we are now comparing budget to budget, once we give you that additional half a million, we are starting with $1,050,000 and we are back right at the problem at $650,000 again. I think that was the wrong approach and I would love to meet with you, but I need something that is real tangible and measurable. That is what I do not have right now. So hopefully, we can come up with more on this, between now and the 21st and have you folks back to us on the 21st of April at 3:00 p.m. Mr. Castillo: Council chair, in addition to us coming back with numbers, I still have my presentation that I have not started yet. Chair Furfaro: We did not even get there, but I did not anticipate you were going to make such a hard-sell about the Special Counsel. If that was communicated to me, I would have put more than an hour in today's session. So we are going to give you an hour and a half to come back on the 21st. I need to break this staff for lunch. Mr. Castillo: Thank you. Chair Furfaro: Okay. On that note, we are going to recess the County Attorney to April 21st, 3:00 p.m. and this meeting is in recess for lunch. There being no objections, the Committee recessed at 12:51 p.m.