HomeMy WebLinkAboutCounty Attorney, DEPARTMENTAL BUDGET CALL-BACKS, FY 2014-15 4/21/2014
DEPARTMENTAL BUDGET CALL-BACKS FY 2014-15
OFFICE OF THE COUNTY ATTORNEY
COMMITTEE OF THE WHOLE
FY 2014-2015 Departmental Budget Call-Backs
MINUTES
The FY 2014-2015 Departmental Budget Call-Backs of the Committee of the Whole
of the Council of the County of Kaua`i, was called to order by Jay Furfaro, Chair, at the
Council Chambers 4396 Rice Street, Suite 201, Lihu`e, Kaua`i, on Monday, April 21, 2014 at
9:06 a.m., after which the following members answered the call of the roll:
Honorable Mason K. Chock, Sr.
Honorable Gary L. Hooser
Honorable Mel Rapozo
Honorable JoAnn A. Yukimura
Honorable Jay Furfaro, Council Chair
Excused: Honorable Tim Bynum
Honorable Ross Kagawa
Chair Furfaro: Okay, I am going to call into session the April
21st call-backs that deal with the 2014-2015 budget session. I also want to remind
individuals, that during the call-backs, the call-back was for specific areas of concern. The
only exception to that is the actual operating budget for the County Attorney as we did not
allocate enough time. Part of this was challenges that we had with the need to do
Executive Session business on the day that they were scheduled, and we shortened their
presentation by 1.5 hours and we shortened Economic Development from three hours to two
hours. But they will be coming back on specific items. The opportunity given to us this
morning will be from 9:00 a.m. to 11:00 a.m. for the Office of the County Attorney for them
to do a continuation of their presentation. I do have a quorum to start. I would like to call
up the County Attorney.
There being no objections, the rules were suspended.
Office of the County Attorney
ALFRED B. CASTILLO, JR., County Attorney: Good morning Council
Chair, Councilmembers, Al Castillo, County Attorney. Council Chair, if I may, I do have
Marc Guyot and Steve Hall and I would like to call them up before I come up.
Chair Furfaro: Go right ahead. This is a continuation to
introduce certain Attorneys not present at the opening comments.
MARC E. GUYOT, Deputy County Attorney: Good morning Chair.
Chair Furfaro: Good morning, Marc.
Mr. Guyot: Councilmembers, many of you know me. I am
Deputy County Attorney Marc Guyot, but I do not think we really had the opportunity to
talk a little bit about my background. Some of you know bits and pieces of it. I have been
in Hawai`i for over 24 years. I graduated with my undergraduate degree in Justice
Administration from Hawai`i Pacific University and went to California Western School of
Law, San Diego. I received a Human Resource Management Certification from the
University of Hawai`i, and I have a Senior Professional in Human Resource designation
from the Society of Human Resource Managers, which is an international organization for
human resources management. I have been licensed in Hawai`i since 2003. I have worked
for the County for well almost nine years. Four years I worked as a Deputy Prosecuting
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 2
Attorney under Craig DeCosta and for the last five years, I have worked as a Deputy
County Attorney. As a Deputy County Attorney I work in the areas of human resources,
labor employment, EEOC, Hawai`i Civil Rights Commission, ADA, workers compensation,
wage and hour, and with all of our unions. I work with all of our Departments, all of our
Divisions, all of our Agencies and I work especially close with the Department of Personnel
Services, as well as our EEOC/ADA Coordinator. I am also the Attorney assigned to the
Civil Service Commission and the Mayor's Advisory Commission on Equal Access. I am
currently the Director for Government Lawyers Section for the County of Kaua`i for the
Hawai`i Bar Association and I have been doing that for the last three years. The majority of
my work within the County is to advise and counsel all of the County's Agencies dealing
with the approximately 1,400 employees we have in the County. I also represent the
County in various administrative agencies such as before the EEOC, Hawaii Civil Rights
Commission, the Labor Relations Board, and so on. As you have heard from many of our
Attorneys who have spoken to you, many of us specialize in our areas of responsibility,
much like doctors, lawyers now end up having to specialize. Yes, we do learn all areas of
law in law school or at least a majority of them, but yet as you go through your professional
career you end up focusing in certain areas and that is a necessity much like doctors today.
The time now has come for the County to have a specialized team for litigation as well. A
specialized litigation team will allow the County to reduce its need for outside counsel,
which as you know can be a costly undertaking by taking on more in-house representation.
But more importantly it will allow the litigation team to focus on litigation and those of us
who work in the advice and counsel area to focus on our responsibilities as well, of guiding
the County and its Departments and preventing legal issues from arising unnecessarily or
at least minimizing them when they do. So this combination of advice and counsel and a
litigation team should serve the County of Kaua`i very well should you folks agree to fund
it. Thank you very much. I will now turn it over to Steve Hall, one of our other Attorneys.
Chair Furfaro: Thank you. Steve, you have the floor.
STEPHEN F. HALL, Deputy County Attorney: Good morning Council Chair,
Councilmembers, Steve Hall Deputy County Attorney for the record. I have had the
opportunity to meet many of you but I do not think we have ever really discussed my
background. I did have a chance to watch the budget presentations while I was out of town.
I was not born on O`ahu or Kauai. I was born in Kansas City, Kansas. I moved to Chicago
sometime after that. I attended University Illinois for my degree in History and then I
went to John Marshall Law School in down town Chicago for my law degree. At the time
that I was pursuing my law degree, I had family on O`ahu. My sister is a Marine Biologist
and she was working for the University of Hawai`i and also NOAA. That prompted me to
move to Hawai`i right after law school. It was the first of several bars that I took and
passed. I lived on O`ahu for about a year pursuing a legal job and never finding a full-time
job. I had one waiting for me back in Chicago and with the legal market being what it was
in 2009-2010, it would be foolish for me not to pursue that. So I returned to Chicago and
began working for a criminal defense attorney mostly in the area of Federal and criminal
defense. I eventually branched off from him and started my own law firm also focusing on
Federal and criminal defense but also Federal civil litigation and State civil litigation.
Through those experiences I have done numerous Federal jury trials, numerous State trials
and have gotten quite a bit of experience in that area. After several years I had the
opportunity to return back to Hawai`i, specifically to the County Attorney's Office and I did
so. It has been a wonderful move. Upon returning I took over the Housing area, and also
tax, and have been picking up litigation cases as we go. So just as a brief overview, that is
my background. I can tell you that we are doing great work in litigation and we are greatly
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 3
reducing the amount of money that you will spend on Special Counsel and given the proper
resources we will be able to expand those services.
Chair Furfaro: Thank you. The only question you left for us,
Steve, are you a Cubs fan or White Sox fan?
Mr. Hall: I am neither, I am a Kansas City Royals fan, but
I am a Bears fan. I am all over the place with that.
Chair Furfaro: Thank you very much for the introduction. Al,
you have the floor.
Mr. Castillo: Thank you, Chair. Councilmembers. Thank you,
Steve. Just a little bit about myself, since I hardly have the opportunity and for the people
that are watching out there, that always see me on the marketplace, they ask me to talk
and now this is my chance. In 2008 and I am speaking a little bit louder for my mom,
because she said I can hardly hear you. In 2008, I was asked by the Bernard Carvalho
Administration if I was interested in being County Attorney. It was a major decision for
me. My litigation practice was very successful. Until this very day, I have a Circuit Court
Judge telling me how successful it was when I left private practice to join the County. I had
flexibility of time. I had to consult with many people, in fact, one of the judges basically
said well if it is a decision about finances, I guess you will stay in private practice. But if it
is a decision that has an active participation in serving our community, well it is about time
you do that. So my choice. There were material factors in deciding to join the County as
County Attorney. I had almost 15 years' as a Deputy Prosecuting Attorney, ten years of
which I was the First Deputy and then 12 years at that time in private practice. Yes, I
have been practicing law here on the island of Kaua`i for 32 years and have done over 75
jury trials some of which right now I cannot even remember, but in my decision to
participate in County government again, one of the things that I drew on was I remember
in the mid-1990s as First Deputy Prosecutor, I prosecuted a prostitution case Carl Richie
that involved Monica Alves. This case was significant because all of Hawai`i was curious as
far as whether or not this lap-dancing case would go through and whether or not I as a
Prosecutor would be able to gain a conviction and, in fact on the morning of the trial,
against Tom Medeiros and David Klein, I got a call from one of the judges saying that the
defense bar is betting against you that there will be an acquittal, because no way you will
be able to convict Carl Richie on a lap dancing case. Well, I got a conviction. The reason I
mentioned this case is because I always wondered back then why the County settled the
case with Monica Alves for $250,000? I was curious about the decision-making process
that the County goes through and this was somewhat of an intriguing factor in me wanting
to join the County again. Another reason why I decided to join the County was, I remember
standing on the second tee off at the Kiahuna Plantation and looking at grading and
grubbing below my feet, going from the Kiahuna Plantation all the way to Kukuiolono Golf
Course and I remember seeing the strip of red dirt and I said wow, how can this be. What
processes has the County gone through to allow for this to happen. SO those were major
factors in my wanting to become County Attorney. Other factors are my foundation as who
I am and who is Alfred Castillo Jr. in terms of being a local boy. My grandparents came
from the Philippines both on my mom's side and dad's side. My grandfather Modesto was a
crane operator for the sugar company. My dad was the head of the ILWU union and my
mom was a range controller at the Pacific Missile Range Facility. I grew up here on the
island of Kaua`i with a sense of community from swimming at the Wand Swimming Pool,
playing Pop Warner Football on the Kekaha football field, catching Halalu at Camp One in
New Mill, catching Aweoweo at Port Allen, going and participating in the moili run at
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 4
Mahaulepu, catching oopu at the Hanalei Bridge, swimming at Fore Bay at Wainiha. Some
of you know what I am talking about when I say Fore Bay. Based on all of these factors
and who I was at the time, I said, it will be a good time to participate and help out and
serve this community. I accepted the position. I was confirmed by the Council, and I am a
very fortunate person. I appreciate everything that I have, all of the wonderful memories
that I have in my five years thus far. I have a wonderful support staff. Well, it started
with Joy Goto, Pam Cox, now Barbara Montemayor, Allison Hiranaka, Shayne Ventura,
Michelle Vierra, and Owen Tango, the longest person working there. From 2009 to the
present I have always asked our Office to provide legal services with dignity and respect.
That is where we start and that is where we end. I have the...I am so lucky to have
Attorneys such as Ian Jung, our land use professor. You know you can ask people like
Miles Hironaka, Director Michael Dahilig on what kind of work does Ian Jung produce?
What about Mona Clark? She worked for the County Attorney's Office, I worked with her
for a few years and then she retired. Just recently she asked to return. That is fortunate
for all of us because she is a contract specialist and as humble as can be, because she
battled in her past...she battled a major oil company for us and protected us from being
taken advantage of. What about Andrea Suzuki and Jodi Sayegusa? They have become
our endangered species experts. I do not know if all of you know, but there are at least 48
endangered species here on the island of Kaua`i. Well, they are important enough for us to
have two Deputies assigned to endangered species. Andrea is assigned to the Water
Department. How is she doing? You ask the Manager Kirk Saiki, what about past
Directors Roy Oyama and Randy Nishimura? I know that they have relied heavily on
Andrea, because she really has a background of a Water person. As I always told her water
is king. I believe that. What about Jodi? Jodi Sayegusa, I know for a fact that a litigation
unit will help her immensely. Two years ago I came here asking for another position and
we did not get one, but it would have definitely helped in the area of the Building Division,
Automotive repair, Engineering, Highways and Road Construction, Solid Waste
management, Wastewater management. Marc Guyot came up here and told you of all the
things he does for the County and his background and his expertise and I did mention a
couple of weeks ago that we had an avalanche of employment cases. What about Nick
Courson? Nick Courson, he is assigned to the Police Department and he went to Kalaheo
Elementary School and when I interviewed him, he said one of his favorite teachers was
Mr. Hashimoto, and so I asked Mr. Hashimoto, how was this kid back in elementary school?
And well Mr. Hashimoto is a surf buddy of mine and said, Nick Courson was a wonderful
kid. Actually Nick Courson has grown to be an outstanding legal mind for the Kaua`i Police
Department. We would not have had the armored car if not for his hard work and
creativity. What about Steve Hall? He would be one of the persons that would be
appointed to the litigation unit. He is intelligent, bright, hard-working, and most of all,
humble. He has been assigned to very important cases, even if he has been here for less
than a year. He will be able to provide to you or for you later the amount of work that he
has done and show you in terms of how much cost-savings that he has done for our County.
And last, but not least First Deputy Mauna Kea Trask, who sits beside me. Well, his dad
and I went to law school together. I still remember him, Mauna Kea running around the
classroom when I was still taller than him. Mauna Kea, I had the opportunity and the
pleasure of doing three cases against Mauna Kea when I was in private practice and when
he was the chief litigator for the Prosecutor's Office at the time. As we went through the
three cases, I gained a huge respect for his abilities. He was professional, intelligent,
extremely prepared, and humble. I was really honored, a few or several months later after
I started with the County Attorney's Office, when he asked to join the team. From 2009
until the present he has come a long way. We have a lot more to go, but we have a great
team. Mauna Kea has been involved with major projects, like Kaneiolouma, the Black Pot
condemnation, and landfill. One of the things that he does not talk about is his starring
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 5
role in Fishing Pono, living in harmony with the sea, and if you watch that clip, to me it
summarizes all that I know about Mauna Kea Trask. All of the good things that I know
about Mauna Kea Trask, First Deputy. You know I am the chief legal advisor for this
County, and the way that I look at my role as County Attorney, because according to the
Charter, I am the chief legal advisor. I am the legal representative of all Agencies,
including the Council. All officers and employees. The representation that I provide comes
with blindfolds on, like the lady that lifts the scale of justice, the lady of justice, she is
blindfolded. The scales measure the strength of the case, the sword is a double-edged sword
that symbolizes power of reason and justice and the blindfold is for objectivity and
impartiality. Five years have gone by really fast. It has been a privilege and an honor. I
take seriously the recommendation given to me by this Council. The Litigation Plan that
the Council Chair has suggested that we utilize. We are working on it and already have a
draft and we have been changing our contract wording with all of the Special Counsel and
our contract team headed by Mona Clark, Andrea, and Jodi. We will be done with that
soon. All I have to say is that a litigation unit will give us more tools to help protect the
County of Kaua`i. I thank you for your time.
Chair Furfaro: Thank you, Al. Al, I have a couple of quick
questions for you and then I will turn it over to others and I believe both of you gentlemen
will be ready to answer any of our questions. As you are responding to my litigation cost-
management forecast, do you have a tentative date you will be able to send us your counter
proposal that we can look forward to? Are we 30 days away? 60 days away? Can we say by
the first of the new year?
MAUNA KEA TRASK, First Deputy County Attorney: Chair, for the record
First Deputy County Attorney, Mauna Kea Trask. In respect to the evaluation and costing
tracking form sent to the County Attorney, I have combined your proposed form with the
form commonly requested to us to be filled out by our insurance company. I have run it by
your legal analyst, Peter Morimoto. He says it looks to him like everything is covered and
he had some suggestions and I incorporated those into the form and Al is reviewing them. I
am using them in cases we have been served with in past week and a half and transitioning
current cases into that format. So when that is done, Al looks at it and maybe in about two
weeks, we hope.
Chair Furfaro: So let me restate. If I gave you by the Pt of June,
you will be using this format to keep us posted? That seems to be fair and reasonable time?
Mr. Castillo: Yes.
Chair Furfaro: Okay. I understand that whatever cases are
active, you are summarizing so that they would be included in the new format?
Mr. Trask: That is correct.
Chair Furfaro: Thank you. Next question I have, Al, did your
Department have...and I will use your own descriptive terms here, any recommendations
at this point to help reduce the avalanche of employment disputes that we currently have
and how are you working closely with Department Heads and HR?
Mr. Castillo: We have...Council Chair, to that effort that is
where the ounce of prevention is worth a lot. We have been doing a lot of training for the
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 6
Departments. Marc Guyot would be able to answer more. We have been doing a lot of
training. That is what we have been doing. I do not know if that answers your question.
Chair Furfaro: Let me say this, do we have or should we expect
a kind of employment code of conduct in the form of rules that could be posted throughout
the County that indicates if there are certain discrepancies about supervisors and their
performance and so forth that they can be called out on that and it is documented by the
individual Department Heads? It seems we often find ourselves in a situation where
discrepancies are occurring in Departments, but we do not leave ourselves any
documentation as to the previous consultation, a reprimand, and so forth? Are we moving
in those steps with some kind of County code of conduct?
Mr. Castillo: We are, Council Chair. We are in the process of
establishing policies and procedures. Yes, we are.
Chair Furfaro: Do you have a target for that? How does that
compare to what we currently have?
Mr. Castillo: I will defer to Marc Guyot.
Mr. Guyot: With the implementation last year of the HR
Department, we are working with HR to incorporate those into a more formalized plan.
Currently as we are dealing with the Departments, but in terms of a formalized set of
management guidance tools, if you will, and specialized training that is on our agenda of
things to be working on this coming up year.
Chair Furfaro: So this is a goal that is documented for both
training and implementation for this upcoming calendar year?
Mr. Guyot: I believe so. I have been in discussions with
Janine and her Department on that and to get the formalized idea, because it requires their
Department. They now have a variety of new people in that area. When employees get
trained, I think you have seen them come through the Council, new employees come to a
meet-and-greet and get to see everyone. They are given packets of information. If they have
any questions they have a place that they can go to ask. So not just kind of left out in the
cold as it were in the past. I know when I got hired nine years ago I was shown around my
Office and shown my desk and that was about it.
Chair Furfaro: That is one of the things that I think the Legal
Department can assist HR in as they set up. Because I know County orientation has grown
and I know HR is going through kind of a new development process here. But the
orientation, I believe is a full day now rather than half a day. I guess what I am looking for
something in an orientation that talks about this understood code of conduct upfront.
Mr. Guyot: I believe it comes through in at least two current
documents that we have.
Chair Furfaro: And those are?
Mr. Guyot: First being the employee handbook.
Chair Furfaro: Okay.
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 7
Mr. Guyot: And the second is the County's policy against
discrimination and harassment. That lists what is expected of the employees, what is
expected of the employer in the event that something happens. It contains a complaint
form. They are told how to use it and what they can do and in the event that they cannot
report directly to their supervisor...there are two alternative reporting locations for
employees and that was something that was lacking a while back.
Chair Furfaro: Okay.
Mr. Guyot: So we have taken some steps. They are small
steps. I do want to address briefly the discussion of employment-related lawsuits against
the County. Some of these are from years past that are now finally coming to fruition.
These are long-term operations. People have two years, many times in which to sue. And
very close to that time is when they may do it.
Chair Furfaro: How about do we see any specialized training for
our supervisors? So that the action taken by supervisors from Department to Department
is consistent? Is there any new training coming up that you can contribute to with the HR
Department?
Mr. Guyot: That is an issue that we have been looking at for
some time. In the County, many times, and I will use it in my trainings with employees
and I hate to pick on truck drivers, but it is a very visual thing. Many times when we
promote a truck driver to a truck driver supervisor, he is given a title, maybe an office, a
little bit of a different job description and that is it. So here we have taken someone who is
an excellent truck driver. He is now put into a management position with, absolutely no
training. Where now 90% of his job is no longer driving a truck. So he relies on how he was
treated and how he thinks things should be or could be done. So we are looking at
providing management training on the basis of legal responsibilities of an employer in
2014. So that is on our horizon, Chair.
Chair Furfaro: Thank you very much. I am going to go around
the table for other Councilmembers questions as it relates to all areas of the County
Attorney's Office. Members? JoAnn, would you like the floor first?
Ms. Yukimura: Thank you. Thank you very much for your
presentation this morning. I feel like there is an echo. In your organizational chart, which
you have attached to your presentation, you have two litigation Deputies, and I just
wondered, is there not a whole necessary support that is needed in terms of paralegals and
office help and so forth? That is not shown here. Maybe I do not know if you want Mr. Hall
to come up.
Mr. Castillo: In terms of the organizational chart that I
provided...that we provided you, I know it basically...if you look there, there is an addition
of two additional Attorneys, who will support that is there is a Personal Secretary there
that will do 50% support of the litigation unit and then we will have Allison Hironaka with
whatever litigation needs to be done. We will actually have right now, the way that I look
at it, 2.5-3 clerks working on litigation.
Ms. Yukimura: You can spare them with the needs of your other
Attorneys?
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 8
Mr. Castillo: Spare them? Well, we have our Office Manager,
who is Barbara and we do have Michelle and Owen. So they all know that they will need to
pick up where we need help.
Ms. Yukimura: Well, first of all, you want to make sure that all
the other parts of your Office can work well and that is what I am asking about. Secondly,
when you look at the overall cost of a litigation unit, these are costs as well.
Mr. Castillo: Yes.
Ms. Yukimura: So to me they have to be calculated as part of the
litigation unit cost when he you compare them to Special Counsel. Because one of the
benefits from Special Counsel you get the whole support from a Special Counsel unit. That
is why I am asking how you are counting the apples and oranges.
Mr. Castillo: Ideally what the Cost Control Commission came
out with as a result of my testifying before the Cost Control Commission, ideally we had
two members, two Attorneys and one legal clerk.
Ms. Yukimura: Well, so if it is such that you are starting with
two Deputies and then you are going to add a legal clerk and so forth, we kind of need to
know the long-range plan. Because that is part of the costs that we weigh against the cost
of Special Counsel. So that is why I am asking these questions. My other question is how
are you going to determine what goes to the litigation...what cases the litigation special
unit will take and you are not thinking of abandoning Special Counsel entirely, right? So
you are still going to be using these two different forms of addressing complex legal
problems that often go to court. So how are you going to determine which goes where?
Mr. Castillo: Well, first of all, the way that we would do it is
number one whether or not we have a legal conflict? And if we have a legal conflict and our
Office would not be able to do it, but the first thing we need to do in regards to this
specialized unit is to create a legal barrier that separates the legal unit from litigation from
counseling and drafting. I already have had guidance from the ODC on how to do that and
we would have to do that first.
Mr. Trask: If I could add too, it is true, Special Counsel is a
tool and it is a good tool. It can be a very good tool sometimes and, in fact sometimes even
at a high-billing rate, Special Counsel can actually save you money if it is a complex case,
etc. So our Office did some research in looking at what is the best time to hire? What are
common areas throughout the country? We found this article regarding Community Chiefs
Legal Officers stating that from time to time a community may find it necessary or
beneficial to hire Special Counsel or outside counsel. This may arise in any number of
situations though typically for one or more of the following you have a conflict of interest,
precluding the regular counsel, which is one. A need for local counsel to testify in the
proceedings. Again, municipal law offices are treated differently than private law firms.
There is not a complete bar or conflict out of the office. If you have a private firm and one
Attorney was involved in a matter and he or she is conflicted out, the entire firm is
conflicted out. That is not how the AG's or the County Attorney's Office in Hawai`i are
treated. Under a case you can separate the Attorneys and still be involved because of the
nature. However, sometimes we are involved in our Department's processes, and their day-
to-day operations. Like I myself, if a case arises from some programs that I have been part
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 9
of in the last couple of years I would have to testify and could not be the Attorney. We
would have Special Counsel in that case. A desire to have no possible appearance of
conflict. Often times conflicts do not exist, but there is an appearance of impropriety and
sometime it is appropriate to step down. Workload demands will always be an issue and
finally the need for very special specialized training and expertise in any area. Bond
Counsel, for example, and the recent National Pollutant Discharge Elimination System
(NPDES) issue. Those will always be there and the potential to be there. All we can say is
that we are going to have to take each case on a case-by-case basis and be cognizant of our
workload demands because Attorneys themselves have our own professional duties to say
that we have so much work that we cannot handle it right now and then can discuss the
need for Special Counsel at that time.
Ms. Yukimura: Thank you, I appreciate that. So how much of
the workload of Special Counsel do you see the litigation division taking on?
Mr. Trask: Well, currently, we calculated our Special
Counsel to be about 4% of all the cases that we handle. We have approximately 304 cases.
If I can remember correctly, and Special Counsel was about 13-14 of those cases. Some of
these cases throughout this process we have found appropriate to close the case files or they
are in a position right now, if needed, absolutely necessary, we could probably take over the
workload if they are at the appellate level, but we are seeing new cases every day and that
is going to have to be a balance. We cannot estimate how many we are going to take over,
given that some of them are close to being ended themselves and we would like to see at the
end of the fiscal year how many of these Special Counsel cases are still active and if we
need to take them over at that time.
Ms. Yukimura: I am glad you are doing that because as my
perception as a client is that a good...a significant portion of Special Counsel cost could be
avoided by better management of Special Counsel by the County Attorney's Office. So if
you are reviewing the Special Counsel cases, I am trusting that that is going to include a
review of how you are managing them. I mean, I feel like the Council in a couple of cases
where we were...it was before us many, many times, we really lacked good management on
the part of the County Attorney's Office. Some of this I am seeing in retrospect, but I think
there could be have been much better...for example, we were not even aware of this
$500,000 limit in our insurance policy and that we needed to be looking at the accumulation
of costs, because there was going to be a radical shift in who was making decisions about it.
So those kinds of things I think could have been really addressed better by management of
Special Counsel. This is the case that you decide the Special Counsel is the best way to go
and how you manage them affect how the Special Counsel fees accumulate and how you
direct them based on good case management and strategy is really important. I hope...I do
not believe that just having a litigation unit is the only way to lower Special Counsel costs
is what I am saying. That is all I have about the litigation unit. I have other questions, but
I am thinking maybe other Councilmembers might have questions on this subject.
Chair Furfaro: We will come back to you after we go around the
table. Other members?
Mr. Rapozo: I have one question, and maybe I did not get it
when it was explained. How is the litigation team going to work again with the addition of
one Attorney? That is where I am battling with? With one additional Attorney, with one
additional Attorney that is going to create a litigation team? And I understand there are
two in the budget and one is dollar-funded. But I just am not seeing how the one additional
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 10
Attorney is going to create a litigation team? So maybe you can help me understand what
your plan is and I think maybe Jay asked that earlier.
Mr. Trask: What we hope to do with litigation unit is to free
up my time and Mr. Hall's time to focus exclusively on litigation. One of the things...I have
been lucky in my legal career having experience with working at the courts and State and
County litigation offices, working at the Public Defender's Office and Prosecutor's Office
that is all you do. One thing I learned in looking back at retrospect, at the PD's Office, I
could take 30 cases a day to Honolulu criminal traffic, District Court, Honolulu cases and I
wondered how I could turn so much work out of so many cases and it became because I was
a specialist and that is all I did. If you look at your typical District Court docket, you are
dealing with a lot driving without licenses, reckless driving, no insurance type of cases.
After a while, you get Akamai to the issues and they really start to get reduced. So we have
a lot of our cases, a lot of them are foreclosures, which we have primary lien on them and
we do not show up a lot to court and do not engage in motion practice, but maintain our lien
on the property and move through. Working at the County what you see a lot as far as
litigation type cases are personnel disputes after a prolonged administrative process,
through CBAs and Hawai`i State Statutes that deal with workers' compensation, etc. There
is already a record on those and the work still needs to be done, but we see a lot of those
cases on negligence and premises liabilities cases. Those are our main cases that we see as
far as litigation and well as post-administrative litigation, which is permit review,
contesting issues, and stuff like that. The hope is that if you put myself and Mr. Hall
working exclusively on these type of cases, it is going to start off slow, but after a while as
we get used to the type of motion work that needs to be done, the types of issues that need
to be done, cognizant of the fact that new laws get passed every year, new cases get decided
every year. Nonetheless we become more and more familiar with these issues and these
cases and how the courts work and who the judges are, etc. We will be able to the work
faster and more efficiently, just as with Special Counsel, they are able to specialize in a
field and for them it is almost rout. One of the problems that we have in our Office, in
prepping for a trial that we have shortly, there are no pre- trial litigation documents in the
Office. Apparently, the County Attorney's Office has never gone to jury trial. Things like
jury instruction forms, trial briefs, motions in limiting, etc. None of them exists. Those
have all been done Special Counsel. Mr. Hall and I have done our best to do that and Steve
is really good at using internet and West Law and Federal case load PACER system to find
templates of trial briefs, find templates of jury instructions. Computers are a beautiful
thing. In the practice of law, I do so much copy and pasting and you read the case and copy
and paste it and cut down on drafting time. So we look to use the best technology available
at the most efficient costs and use the internet for forms and hopefully show within the
next fiscal year progress and money-saving by taking these cases that you will see fit to
give us more Deputies. We would like more Deputies, of course. If money was no object,
we would like to set up an entire litigation unit, but that is a pie in the sky, but we think by
focusing our time and expertise on what we really want to do and not every Attorney wants
to do litigation. We want to do litigation. We think we can do it. Being cognizant of the
fact sometime it is too heavy and we will need Special Counsel, but that will only be done
when we have made that decision and you guys have understood why we need it.
Mr. Castillo: I think Steve wanted to say something.
Mr. Hall: To piggy-back on what Mauna Kea said,
litigation is an art and like any good artist we need to practice our craft and while I am
being pulled towards Housing and tax appeals I am pulled from doing my art. For us to
really excel at what we are doing, we need to fully dedicate ourselves to this pursuit. At
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 11
present we each have a handful of litigation cases and to be illustrative of what we are
talking about here, I have one case. It is Dustin Moises vs. County of Kaua`i which I am
handling on my own. It is a State case, it has some employment issues and some other
issues. It is a case that is simple enough, not necessarily simple but simple enough that I
can handle it on my own based on my previous experience in litigation. I have gone
through the numbers of what I have done and what our support staff have done and
breaking it down in terms of how a law firm or Special Counsel would break that work
down, I have calculated that the value of the work that I have done so far is approximately
$27,077.50. With more than 300 hours in costs. That is for one case, while I am pursuing
and helping with Housing issues and while time taking care of tax issues and sitting on the
Board of Review for taxes and the Board or Commission for the Police. In the Pasion case
which I know you are all familiar with, that is a situation that we have Special Counsel in,
but I am helping with other issues and I have gone through their billings from January,
February, and March with great detail and gone through it same way. What a partner
does? What an associate? What the paralegal does and based on that I can say with
confidence that I have saved at least $31,570 in those three months from what we would
otherwise spend with Special Counsel. Those two cases alone we are talking $60,000 and
one of those is only three months and I say that I can say those numbers with confidence,
because I know they are actually too low. If we properly document the time we spent on
communications, E-mails, phone calls, the substantive work we do in pleadings, I can say
with confidence those numbers would actually be higher. Those are two cases and we have
a third that Mauna Kea referenced that we are going to trial on. Almost any Special
Counsel will tell you going to trial on a case, especially one that is relatively complex, will
last a week, and all the pre-trial motions, $100,000 easy and we are spending no money for
Special Counsel for this case. It is solely Mauna Kea and I. As Mauna Kea said, it is a
slow-build, but over time you will realize the savings and see them. If we are able to prove
that to you, hopefully we can build this team into more than just one Deputy and one
dollar-funded Deputy.
Mr. Rapozo: How many cases have we in the last five years
actually gone to trial in the County Attorney's Office?
Mr. Trask: In the past five years we have been lucky and
had a lot of cases dismissed. The motion work prior to trial, we have gotten pretty good at
our 12B6 practice, which is we can get cases dismissed before we even answer the
complaint. We have gotten motions for summary judgment that have kicked cases out that
are currently on appeal, but actually going to trial...and of course we have settled cases at
the claims stage, that is when we would like to settle them best after identifying fault and
liability. We have not gone any jury trials through this Office and I think the only one
through Special Counsel was the Sheehan condemnation.
Mr. Rapozo: Is there any way you can put together a recap of
the last five years of the amount of cases settled, dismissed?
Mr. Trask: I am sure we can.
Mr. Rapozo: Okay. I guess my only other comment is even
within Council Services here, that if we were to get a number of what our staff does and
just compare it...this thing is really loud today...I do not know why.
Chair Furfaro: I am going to have it checked at the break.
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 12
Mr. Rapozo: It is fine, but it echoes. What our staff on Kaua`i
does, you count the work flow that comes to our staff in comparison to the other Counties on
the island, I can honestly sit here and say that we saved the County a ton of money too.
Honolulu, and Maui, each Councilmember hires personal staff. $100,000, $200,000 per
Councilmember and we do not do that here. We do not have the funds and we do not have
the budget and I would like to have that, but I guess what I am saying is that unfortunately
on Kaua`i, we just are forced to do more with less. If you could get that for me, I would
really like to see the breakdown for the last five years.
Chair Furfaro: Before we go there, I would like to make a
housekeeping announcement. The audio people came last week to adjust our mics basically
because we have a number of complaints that the public could not hear Councilmembers
and we are trying to get them back, but Scott also informed me that today they are working
at the courts. So we do have this on the radar screen, and I am really sorry that we have a
problem, but we are going to have to wait our turn for the adjustment. JoAnn, you wanted
to follow-up?
Ms. Yukimura: I love that litigation is an art and I do believe
that is true. If we can use the skills and passion of our Attorneys in a way that is going to
be cost effective, then I think that is a good thing to do. I think that is what you are saying.
I think it works only if and so we are all clear. The goal is not to give you an opportunity to
practice your art, but is to do service the County needs in a more cost-effective way right?
So Steve, you were saying that, I think we all know how quickly Special Counsel fees and
costs can accumulate. I do think there is a real chance to do things cost effectively but it
has to be with such fine management of the system. That is why I am asking questions
about and if you have more to clarify how we are going to do that.
Mr. Hall: Just initially, to clarify, yes, you are absolutely
correct. I do not want to encumber budget funds simply to practice my art. The whole goal
is to reduce the amount of money we are spending on Special Counsel and of course that
will not happen immediately where we are taking over every Special Counsel case, but I
believe by allowing us to take on more cases or split them with one Special Counsel and one
County Attorney it will really realize a savings.
Ms. Yukimura: You know somebody else is going to do the Tax
Review Board and the Police Commission. So that may mean more positions, Deputy
positions, not just for the legal litigation team, but for the advice and counsel portion. I do
not know how all of this balances out. I still think that County Attorney salaries...I am not
really sure, but they are certainly less than the big, high-powered Special Counsel. But
again, if we do not have the specialization and we are trying to do litigation that does not
make sense either. So how do you make that balance?
Mr. Trask: I guess one of the ways it can be looked at and I
think Abraham Lincoln said that a lawyer's time is stock and trade. Something to that
effect. So everything that we do, it just comes down to time. Any private attorney will tell
you six minutes is the billable increment at 1/10th of an hour. That is what your whole
career is on. Every six minutes you bill 10% of your hourly rate. We do not have that, but
for example, this past year, and what Councilmember Rapozo said was correct, we all do, as
much as we can with what we have got and going for instance thorough the 2491 issue
when it passed through Council, I was here with you every meeting day. Whether it was an
hour hearing or when it went to 3:30 a.m., we were always there with Council staff, sitting
there and throughout that time, not only was I working on my opinion to you, looking at all
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 13
of the laws that were in play, learning everything that I could, I was also simultaneously
working on in these very chambers, the litigation case that is going to trial right now. The
difficulty is that I understand other Counties are different. We are a small County, with
the smallest population, but every other County in this State has a litigation division and
at least a few Attorneys that can focus on their cases. They are extremely important. So
the hope is again, and what Steve says when you say "litigation is an art" you really enjoy
that and enjoy the nuances and play in the game and you learn a lot about it. It is that
ability to focus all our time on these cases and also you learn a lot when you are doing
litigation as far as County issues that are pervasive. Our document retention. The way
things are setup. The way things are dealt with. When you go through a litigation case you
learn better how to prevent cases from even beginning. So you can have discussions with
the Department. Although we are in this issue now, I think we can avoid it in the future if
you do this or do that.
Ms. Yukimura: Especially when you have those feedback loops
that is very important, same thing in Planning. There has got to be the feedback loops from
the Enforcement Division back to the Planners, so that you can take advantage of what you
have learned.
Mr. Trask: the benefit, too, we look to do is to reorganize the
Office not only to have the litigation Deputies focus on the litigation cases, but also have
the advice and counsel Deputies focus on their areas. Currently like myself, I am assigned
to the Fire Department, Fire Commission, Liquor Department, and Liquor Commission.
And litigation and various catch-all things. If something comes up, I will pick it up in order
to assist. What we are able to do, if we can have better organized advice and counsel
Attorneys who consistently deal with the same issues. If one Deputy or two Deputies
handled Police, Fire, Liquor, and Civil Defense those are all public safety-related. You
generally do the same things. These Departments generally work with each other. The
helicopter, for instance. It is a lot of similar issues. Public Works and Planning. They
circulate permits between each other. You can be involved.
Chair Furfaro: I just want to remind you Mauna Kea, you do not
need our approval to do that. Your Office can structure something like that without our
approval. Mr. Hooser, you have the floor.
Mr. Hooser: Good morning. I wanted to thank Mr. Castillo
for your opening remarks. You did not have the opportunity last time and it made me think
what we all have in common and Mauna Kea's father was...I was his client at one point and
I knew his grandfather when he was alive and when Mauna Kea was a young boy. We have
many friends and interests in common, I am sure. That is why really it makes it difficult
sometimes from this side of the table to have these conversations, because it is no secret
that I am not a happy camper with the management of the County Attorney's Office. Your
team, I have not had any issues at all, I do not think with your team. My issues have been
with the leadership of the team and it is no secret and you both know that and I have been
vocal and I do not need to get into specific issues...actually Mr. Trask brought up 2491, but
there are many other issues that make me question the judgment and the management
ability of the leadership of the County Attorney's Office, quite frankly. On the surface,
having a litigation team sounds like a great idea. But I do not know...I do not have the
confidence that things are going to change in terms of management. Just as I believe our
Special Counsel various cases have not been managed properly. I do not have confidence
that the litigation team will be managed properly and I am not quite sure what to do about
that in terms...we all have strengths and weaknesses. Okay? You obviously have
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 14
strengths to be there and sometimes the strength is not a good match. I think there is a
problem with the working relationship between the Council and certainly many members if
not a majority of the Council and the County Attorney's Office. It goes through various
issues. It goes through your questions of judgment, certainly differences of opinion in
judgment, I will acknowledge that. It goes to sometimes taking weeks, if not months to get
responses from your Office. It comes from the settlements and the discussions that we have
had in Executive Session, and I do not know the answer to this question. It is like if you
are the coach of a team, you cannot just add more members. You need a new kicker, you
are losing. If the owners of the team do not have confidence I do not know at some point the
coach, if you would or the manager, would have to make a decision. So I just wanted to lay
it out there from my perspective with regards to the litigation team. Again, on the surface
it sounds like a great idea, but I am not willing to spend more money and investing more
bodies without the confidence in the County Attorney's Office. You are welcome to respond,
if you want.
Mr. Castillo: Thank you, Councilmember Hooser. I guess, let
me head to what I think is really important. What I think is really important is fair play
and substantial justice. When I hear about you County Attorney should have better
management, there are problems with relationships; those are conclusions and it may be
with some members of the Council, it may be with entire Council. But when I talk about
fair play and substantial justice, it is in the employment arena. If there is a problem with
better management well, I welcome any one of you and all of you to talk to me about it and
what I will do...because no one has called me and told me I am concerned about this. What
I hear is from this side of this railing and what I will do to address that is I will ask to meet
with all of you to give you an opportunity to tell me where you think better management
lies there. Where you think the problems are. To give me an opportunity to talk to you
about it and to make adjustments, where adjustments are necessary. I hear...I hear I am
not confident with the County Attorney's Office. That is your statement and as far as I am
concerned, in the five years I have put together a legal team that Kauai is to be proud of.
In the five years I have operated with dignity and respect and humbleness. What we have
done in these five years in terms of protecting this community, in terms of the projects that
we have done, the incredible legal creativity that we have been able to produce to me it is
tremendous. Thank goodness I have a wonderful Mayor. Mayor Bernard Carvalho is the
person who appointed me and I was confirmed by all, but one of you. In all fairness, if there
is a lack of confidence, if there is a true lack of confidence that you have with me, then
please share that with me. I will make an appointment to come over here, meet with you
anywhere and let us discuss it. Because to me, that is the fairest way of you telling me
where you lack confidence and why? If I need to fix it, I will fix it. I am open for discussion.
Mr. Hooser: Thank you and to be clear, I am one of seven
Councilmembers and speaking on my own behalf. My lack of confidence is not in your
team, it is in the leadership of the team. It is about the history and the results and the
action and I believe myself, as well as this Council has repeatedly over the last year asked
over and over for improvements and changes to be made, but I would be happy to sit down
with you and talk about it in more detail. Thank you. Thank you, Chair.
Chair Furfaro: So Al, I am going to remind all of the members
that you have made an offer to meet with them, and set up the appropriate appointments to
revisit discussion about the County Attorney's organizational structure and performance
and leadership issues. We will make a note of that.
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 15
Mr. Castillo: Thank you. I will have Barbara call Council
Services today to try to set up those meetings. I look forward to them, so I can understand
where the Council is coming from. Thank you.
Chair Furfaro: Vice Chair Chock, you have the floor.
Mr. Chock: Thank you, Mr. Castillo. I would like to repeat
what Councilmember Hooser said in terms of getting to know the people behind the work is
really important and a good first step towards building more of the relationships and team-
capacity. I have not been around for very long, but in my short time I have seen some of
what is being talked about around the table in terms of concerns and along the lines of that,
I am looking forward to being able to increase our capacity and increase our efficiency. So I
like what I am hearing. I do not think the solution to trying to get to solve some of these
issues in terms of spending too much money or some of the management is to cut this
Agency's legs out from under them. However, I do think there is a lot of work that could
happen from now until things start to roll forward in terms of putting together a better
management plan. I have a few questions. The first question is can you outline the cost of
the litigation team? I see different costs in this budget and you might have shared it
previously the last time we met. Just so I can get a better understanding of the costs. I see
$20,000 here and other costs, what is the total cost of the litigation team?
Mr. Castillo: The total cost of the litigation unit will
basically...we have asked for our original request which was for two Attorneys and the
Legal Clerk. Two Attorneys at about...if I am not mistaken $94,000. Actually that is
$94,000 plus everything that comes with employment. Plus the fringes is like 47%. So we
are looking at about if my math serves me correctly, $350,000 if we are looking at two
Attorneys and a Legal Clerk in that neighborhood.
Mr. Chock: Just to confirm, an additional $350,000 per
annual budget is what it would cost us to move forward with this plan to have a litigation
unit?
Mr. Castillo: If we have the unit that consists of two plus one.
That is two Attorneys plus one Legal Clerk.
Mr. Chock: I think the Chair has a follow-up.
Chair Furfaro: Al, for us, this is your first...so if you showed
something to the Administration that referenced two Attorneys and clerical support...we
never saw it.
Mr. Castillo: I am sorry.
Chair Furfaro: What we see is one full-time Attorney for
litigation and one dollar-funded.
Mr. Castillo: Council Chair, I realize what you see there, but I
am referring to the Cost Control Commission's communication to the Council that was done
a few months ago.
Chair Furfaro: I read through that, but what came through in
our budget was not the same as this organizational sheet.
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 16
Mr. Castillo: I understand that.
Chair Furfaro: Within the organizational sheet, there are
critical errors because you do not have two different Attorneys unless they are reporting
to...I believe this is Mr. Jung is not a Division unto himself. If they are the legal team, to
fight litigation, they should be stacked on top of each other and whenever there are more
than two people together, one of them has to be in charge. So are they acting
independently, which is not reflected in your budget? And are they reporting to Mr. Jung
or Mr. Mauna Kea Trask? The organizational chart is not that clear.
Mr. Castillo: We will revise the organizational chart.
Chair Furfaro: You have the floor.
Mr. Castillo: I am sorry, Council Chair, from the time we
submitted the organizational chart to now we have had some changes in our Office. So we
will correct that.
Chair Furfaro: Thank you for acknowledging that. But I am
telling you any good organization, when you have two people together, one of them has to be
in charge. You cannot have two people operating independent of one another, which is
reflected in this organizational chart. I am just pointing out that to you. I am not telling
you, Mr. Jung is not capable, because I know he is more than capable. But I keep hearing
that Mauna Kea is the person leading this, but yet your organizational chart says they go
through Mr. Jung. So the numbers do not match with what we have got with the chart. I
just needed to clarify that. Vice Chair, you have the floor. I just wanted to get that
clarified.
Mr. Chock: It reminds me of some stories of leadership,
where you can bring together amazing people, talented, gifted people and still not be able to
get things done as efficiently as possible. It really takes the kind of leadership, where we
are bringing all of the pieces together. I think from the County's perspective, this is unique
and not like a regular law firm. You need this communication piece, which is what we are
asking for and I hope to look forward to. I am thankful for the opportunity to continue to
meet. My request would be that prior to meeting that we do have something a little more
comprehensive. We have had a lot of discussion across the railing questions and coming
back, but to come prepared with management plan that would talk about how we will deal
with specific areas, such as Special Counsel. A step-by-step by process. Because we do not
want to micromanage the things that you folks need to get done, but need to know exactly
what is happening. The communication process is so important for us in order to make
some good decisions. I would expect rather than just having a conversation and meeting
with us, that we have something to look at and we can do work together with you so that it
is more efficient. With that, the questions that I would have is...I feel it would not take
that much and there are grants that would build capacity for a team like yours and ask if
you have looked at any of those to move us forward?
Mr. Castillo: The question, Vice Chair, is that are there any
grants out there?
Mr. Chock: Let me just say, it is not a question. I know
there are many capacity-building grants and I think they would be very helpful to this
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 17
current situation. Again, the only thing I would end with, I think I am looking for
opportunities for us to grow better and more efficiently and more productive. That is all.
Mr. Castillo: Vice Chair, we have...I will be able to meet with
all of you and talk to you about the role of the First Deputy and the role of the Senior
Deputy, which is Ian Jung and how both of them will work out...how the three of us will
work out our new system.
Mr. Chock: Thank you.
Mr. Castillo: Thank you.
Chair Furfaro: Any questions on the litigation team before we
move on? Continue, JoAnn or moving on?
Ms. Yukimura: It is on the litigation team. You are showing an
additional cost of $292,000 or about $300,000 in your budget right now that is before us.
$150,000 is for Special Counsel, although that is off of your $500,000, rather than the $1
million that you are ending with this fiscal year, right? Because we just added another
$500,000?
Mr. Castillo: You added another $500,000 to cover whatever
Special Counsel costs that could run us through the remainder of this fiscal year.
Ms. Yukimura: Right. So an accurate budget of this $292,000 is
the difference between your 2014 Fiscal Year budget and your 2015 Fiscal Year budget, but
your 2014 Fiscal Year budget is minus $500,000. That is how much was actually
eliminated from your budget. We put that back recently. So you are actually projecting
$650,000 as your Special Counsel budget for this coming year, which is down from an actual
of$1 million. Is that right?
Mr. Castillo: Yes, yes.
Ms. Yukimura: So what I am saying, what shows as an increase
is not as much if you consider that there is half a million dollars missing from your 2014
actuals. What I feel like you are showing, you are showing additional litigation costs, but
you are lessening your Special Counsel costs. So you are showing that you think the
litigation team will cost $300,000, but it will save you about $300,000 or more. $350,000.
Do you see?
Mr. Castillo: I see.
Ms. Yukimura: So that is what we need to understand. I think
that makes sense that you are saying we are having this additional cost of a new litigation
team, but we are going to be saving moneys in the Special Counsel account and we hope
that savings to grow as we develop our team.
Mr. Castillo: I agree. Thank you.
Ms. Yukimura: Okay. I just figured it out myself. So I am just
sharing that, so that we can all be kind of on that same page.
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 18
Chair Furfaro: Excuse me, JoAnn. I do want to say that I did
share that last week and I referred to it as a "reforecasted amount in Special Counsel," we
should be comparing $1,035,000 because we allocated that additional $500,000. We should
use one term and let us at say it is at the "reforecasted amount" in Special Counsel.
Ms. Yukimura: I have been calling them actuals because I am
expecting that you will spend that but reforecast is more accurate.
Chair Furfaro: In accounting terms, the year is not over and it is
reforecast. If the year is over, it is actuals.
Ms. Yukimura: I understand, Chair. I am taking the re-
forecasted amount and seeing what that means in terms of the plus / minuses budget that
was calculated based on a budget before the re-forecasted amount. So I just want to ask,
you say you have 304 cases pending per year, approximately. Is that what I heard you say?
I think you said you had Special Counsel of those and they took care of 13-14.
Mr. Trask: Something like that. I am referring to the slide
in our presentation, like the third slide...
Chair Furfaro: Excuse me, may I interrupt? I have to be at a
10:30 a.m. appointment and I will turn the rest of your review over to Councilmember
Rapozo. As soon as Mr. Hooser comes back and Al, I will send you your organizational
chart so we can talk about it again. I want to make sure that we understand, I do not want
to create a proliferation here of bureaucracy. I want this Department you want to be able
to have objectives and the support that they need and the long-term goal is to reduce our
Special Counsel costs. So I will send this back to you when you setup time to meet with me.
Mr. Castillo: I appreciate that.
Chair Furfaro: I will be stepping out when Mr. Hooser gets back.
Thank you. Mel why do not you take it from here? JoAnn has the floor.
Ms. Yukimura: So you were explaining?
Mr. Trask: I was just referencing slide number five of the
presentation, and the role of the County Attorney and Deputies, appears in court cases. I
believe that 304 are the current cases in the aggregate that we have. My recollection
approximately 12-14 of those are Special Counsel. That is per my review of working with
you these past couple of weeks.
Ms. Yukimura: Not percentage, but actual case numbers? 12 to
13 cases?
Mr. Trask: Special Counsel cases, correct.
Ms. Yukimura: Appears in case, 304 cases, and 13 or 14 are
Special Counsel cases.
Mr. Trask: Correct.
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 19
Ms. Yukimura: Okay. So for example the tax review cases,
which often become tax court cases, right? But are more perfunctory, that is not what the
litigation team will do or it is?
Mr. Trask: Again, we are trying to figure out how to best
work it. Like you said, like those cases, they tend to be easier. We want to take everything
into litigation exactly and how quickly we can make that transition is another issue, but we
want to handle all litigation within the litigation team.
Mr. Castillo: However, Councilmember Yukimura, there are
some tax issues that are very complicated.
Ms. Yukimura: Yes. I would imagine the litigation team would
take those.
Mr. Castillo: Yes. The cross training that we are presently
doing in our Office helps us in our litigation efforts in the tax arena.
Mr. Trask: Also regarding working the case, in those cases,
where like the Deputy often handles the real property tax assessment cases if the case is
really complex, the litigation Attorney would be the lead and the Departmental Attorney
would be second Chair and they could assist in getting documents and finding out who
witnesses are and we would work together with them to prosecute the case.
Ms. Yukimura: Okay. Well, your person who is assigned to the
Tax Appeals Board will be doing that work of counseling them, right? And sitting in on
those meetings? Taking the perfunctory cases up to tax appeals court? When it is complex,
the litigation team would take over, I would presume something like that?
Mr. Castillo: Yes.
Ms. Yukimura: Alright, I am done with questions on the
litigation team.
Mr. Rapozo: Thank you, any other questions regarding the
litigation team or any other questions for the County Attorney? Go ahead.
Ms. Yukimura: I am very glad if you are advising employees on a
variety of issues and supervisors, whether it is sexual harassment, even endangered species
or whatever, things that we need to know in the course of our work. What about ethics
counsel? Are we advising employees on ethics? Do we have a systematic way of training
them in ethics?
Mr. Trask: We do ethics training. We do general Boards and
Commission trainings and we counsel our clients constantly when they have issues. That is
really when it comes up. I know myself I have advised on ethics issues for various officers
and employees and, in fact, in the past I have sought advisory opinions on behalf of officers.
Ms. Yukimura: I am asking about...I am not asking about one-
on-one counseling. I am asking about training on the general ethics principles?
Mr. Trask: Yes, we do.
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 20
Ms. Yukimura: The use of County property for private purposes.
Doing work in the private sector while you are regulating from the public sector? Those
kinds of issues? Are we training them in those areas?
Mr. Castillo: Yes, we have both training that we have to
comply with either online with the County's training that we receive certificates and we
also have live trainers come periodically?
Ms. Yukimura: That is the one I have never done. In ethics?
Mr. Castillo: We have had ethics also.
Ms. Yukimura: Okay.
Mr. Rapozo: Any other questions? You guys coordinate that
or does HR coordinate that?
Mr. Castillo: HR does.
Mr. Rapozo: I would assume HR does.
Mr. Castillo: HR does.
Mr. Rapozo: I do not recall seeing anything come our way, but
we can ask HR.
Mr. Trask: Regarding our Boards and Commission
members, we work with the Office of Boards and Commissions to do it and that is an
annual training, I believe.
Mr. Rapozo: I think Councilmember Yukimura is more
targeting the general workplace, because we get the invitations for the Boards and
Commission trainings, but as far as employee training in the workplace. Go ahead.
Ms. Yukimura: Thank you. I track the Boards and Commissions
training. I have not seen that many ethics trainings. I have seen parliamentary procedure
and I have seen...
Mr. Trask: Well within the Boards and Commissions
training we have a specific section on ethics that we have been working with.
Ms. Yukimura: Okay. Thank you.
Mr. Rapozo: Maybe we can send over Scott something to HR
or Boards and Commissions and get a breakdown of the trainings? I know I keep getting
reminded about all of the online trainings that I never took one yet and I keep getting the
E-mails saying that you have not done it yet. I did the first one, about how to lift crates. I
did take it, but I never took it after that. I guess because working in the hotel and the hotel
the way they do is so different. Basically you have to go and you go to the training or you
do not work for the hotel any more. I think this County with its track record and not just
this County because every County suffers the same problems. We just do not train, you
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 21
know? We give them a manual and say read it and initial here and they initial it, they do
not read it and we run into problems. We can check with HR and Boards and Commissions
as far as maybe an inventory of the trainings that they have had over the last year or two?
Ms. Yukimura: They may be stricter with the online training of
employees than they are with Councilmembers.
Mr. Rapozo: Yes.
Ms. Yukimura: That may be good, but not for Councilmembers.
Mr. Rapozo: It would be interesting to see how many actually
conclude it, because I know we spend quite a bit for the online tests. It will be interesting
to know how many people are actually taking it.
Ms. Yukimura: Perhaps we should ask for an evaluation of that
to HR? They have already come before us, but a follow-up question.
Mr. Rapozo: Okay. Any more questions? I have one
question. Have we ever given any thought to bringing on a mediator/ arbitrator...what do
they call it now is Alternative Dispute Resolution person? That is an idea I had many years
ago. Many of the cases that come through this County could be resolved early on without
litigation. I bet there are people out there, and, in fact I know KEO offers it. Get a judge, a
former judge or someone that specializes in Alternative Dispute Resolution and using that
avenue prior to denying a claim. In other words, all claims would come through would get
processed through like a mediator, an arbitrator, or staff. Or even outsourced. And
process the claims that way? Have we ever given that any thought, Al?
Mr. Castillo: To me, it would be difficult to just have one
person as a designated mediator, because when you come to that junction of deciding on
mediation, if you have...if you do not have a choice, then it will be hard / difficult to force
one party who objects to the certain mediator. I know for a fact that in all of our cases, that
we talk about settling the case before going to court.
Mr. Trask: If I could just piggy-back on that real fast? A lot
of claims that come in under the County Charter, I believe it is 23.06 is the claims review
process...it goes with the County Clerk and goes to the County Attorney's Office for
damages or injuries to persons or property from negligence. A majority of the attorneys and
the claimants we are able to work this out with. We send letters if they are unrepresented.
We send letters if they are represented and usually we can work it out. In those cases you
are not always able to, for whatever reason. Sometimes it is the Attorneys, you know?
They know what they want. They know what their case is worth and they are not going to
buckle and we do not agree and it has to go to litigation. With the personnel and
administrative processes, they go through their own administrative process. If you have a
Collective Bargaining Agreement in place, that is going to trump it and there are those
steps that are like mediation and ADR and the only times we see them are years, three,
four years that they go to court because they still want to go. If it is appropriate we look to
do mediation and settlement. A lot of times it is difficult to get that at that time because
they have already gone through so many administrative steps to get to that litigation point.
It is difficult to go mediation at that time, but we are always trying to.
Mr. Rapozo: JoAnn?
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 22
Ms. Yukimura: I think Councilmember Rapozo's idea of trying to
solve things before going to court is a really good one. I just want to say that I think
mediation is appropriate. Arbitration is just like a contested case and it is binding and so I
do not know that it has that much advantage over a contested case. But mediation, which
is a voluntary process that explores possibilities and can give the parties a realistic view of
their chances in court is very valuable. I hope if there are opportunities to incorporate that
or convince reluctant counsels to go into mediation, that that would be part of your
management of Special Counsel and educating the County Council.
Mr. Rapozo: Any other questions? No more questions? Okay.
Thank you. Al, I guess I do want to just mention that regarding Mr. Hooser's comments
about the confidence and you made a comment that you have never been informed, but I
have got to tell you that when we are in Executive Session and although we cannot discuss
what we discuss in Executive Session, I think there has been a lot of concerns raised behind
that door. Whether to you or your Deputies, I think that has been quite common. So I
think some of the concerns have been raised. So I just think that needed to be said. The
other thing is and I heard someone say it earlier today...I cannot remember who it
was...about reducing the Special Counsel costs. If we can reduce the Special Counsel costs
through management of the contracts, I think it frees up more money that you can use in
your Office in other places like a litigation team. Because I agree, I think a litigation team
properly run would definitely save this County money. The Police Department in Honolulu
has a white-collar Department with a Captain and two Sergeants and a bunch of Detectives
and Kaua`i has one Detective that is supposed to focus on white-collar, but he has other
demands and cannot just focus on white collars. So I think if we can do it, that is the way
to go, but I think also we have a lot of money laying on the table...or at some point was
laying on the table and goes to Special Counsel. We had the briefing on the 2491 defense,
our Special Counsel defending the County and he showed up with two associate attorneys.
Two associate junior, young attorneys, that aside from I guess wanting to be here and get
experience, I do not think we should be paying for two junior attorneys, their airfare and
their time, because they still get paid. Maybe not, as much as Mr. Minkin, but probably a
couple hundred bucks an hour. Why did they have to be here? Why? To be introduced?
That whole briefing could have been done on the phone. There were no displays or exhibits
or PowerPoints. That is the frustration from the Council, when you look at the Special
Counsel costs that continue to get bigger and bigger and often times it could be done with a
phone call. It bothered me and it is not their fault, they were told to come and they were
here and we paid for it. Just the airfare and things that may by minuscule in each incident,
but added up throughout the year is a lot of money. Do they have to be here? I do not think
so. So I guess my point, as we go forward and we have got to be able to cut some of that
money. I mean, it is just excessive and Mr. Hall will come up and say they were not paid. I
am sure he will come up and say they were not paid.
Mr. Hall: I am not sure if they were paid, but I am
shadowing the bills and there is a lot of it that is for free. So I will pay special attention to
that point and make a point of taking it up with Mr. Minkin in case there were charges
because it is a very valid point.
Mr. Rapozo: It is a very valid point and I bring it up, because
that is what concerns me. I am not sure when these things happen I am not sure how it
works. Does the Special Counsel have just carte blanche? Bring who you want and we will
pay? Or hey, is it County Attorney's or Mr. Hall or Mr. Castillo, can I bring my two junior
associates to meet the Council and are we giving them approval? I do not know and I am
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 23
not asking for that answer here. I am just saying that we as the managers of that contract
should be watching those things and when he shows up with two junior counsel somebody
should say we are not paying that. I am just airing my concern because I think it is
important. When I look at Special Counsel cost continuing to rise and the $650,000 Special
Counsel costs, Al that is not sufficient going through next year? I know we do not know.
We hope it is sufficient.
Mr. Castillo: For me, if we had $2 million I would ask for $2
million.
Mr. Rapozo: I went through the minutes of several
Department's budgets in preparation for this year's budget and Al has been obviously not
his wishes to have the reductions in the Special Counsel. So I guess it was forced on him.
But I think Al, at this point you have got to tell us what you believe your Office will spend.
You do not have to do that today, but with your team here, sit down and figure out, what do
we expect to spend with the pending cases, because we have a few big ones still continuing
and it is going to get up there and we want to make sure that we on the Council know.
Because you saw my position on the extra money. It was not just for the County Attorney,
but for Solid Waste as well. Budget properly, so we do not run into the problem of three
months, four months before the end of the year looking for money. We have got to make
sure that we get the accurate numbers upfront.
Mr. Castillo: I guess in terms of Special Counsel and the
coordination of...and we used an example of David Minkin coming over with two associates.
There are times that we, the County Attorney's Office, tries to coordinate with the counsel
as...with the Council and the Special Counsel as far as who is going to be here? When?
Can we just do it over the phone? Since I am not privy to anything to do with 2491, that I
can tell you that I do not know, because I am not the only person that is recused from 2491.
On the Council's side is Mona Clark and Mauna Kea and I and the rest of our Office is
conflicted out.
Mr. Rapozo: I just used that because it was recent memory.
Mr. Castillo: I know it was just an example.
Mr. Rapozo: I think David Minkin is a great Attorney and I
think he will defend us well.
Mr. Castillo: Yes. I am very happy that he is charging this
County in quite a reasonable fee. So to me that is outstanding.
Mr. Rapozo: JoAnn?
Ms. Yukimura: I think your point, Councilmember Rapozo, as an
example of how Special Counsel is managed, that point was a really good one with respect
to the 2491 recent briefing. So my question is, is the litigation team going to over manage
all Special Counsel? Is that also going to be part of it? I mean because that is a huge time
burden to me. Yet, I like that people who know litigation are monitoring these big litigation
cases of Special Counsel, because they would know how to manage Special Counsel. I think
there is some...I think there is some training that could go to other Attorneys that are
dealing with Special Counsel. But that is a question in terms of how you are going use your
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 24
litigation team? And how you are going to manage Special Counsel, which is the two
strategies that you are proposing for being effective in your work, cost effectively.
Mr. Castillo: Councilmember Yukimura, for the most part if
the contract with Special Counsel allows the County Attorney's Office to be named as co-
counsel also...the reason I bring this up, there are times where we can manage the Special
Counsel contract where we take an active role. There are times if it is a conflict, we cannot
take an active role except for monitoring the contract. So I do not know...I agree that for us
we can manage Special Counsel in cases where we are able to manage.
Ms. Yukimura: Well, and hopefully that is not only where you
are co-counsel. I mean there would be other cases where you are not co-counsel where you
should be actively managing Special Counsel.
Mr. Castillo: We will actively manage where we can. I agree.
Ms. Yukimura: So where there is a conflict of interest, the
question is how and who manages Special Counsel? Because that is still important. It can
get really out of control if there is nobody first procuring the proper Special Counsel under
the proper terms, and then monitoring it to make sure that they are properly serving as
Special Counsel? To me those are really critical things. I have seen Attorneys, Special
Counsel, who just let the clock tick, make a lot of money off the County without getting us
being strategic and advising us in the way that we need to be advised. So that is an issue
that has to be addressed.
Mr. Castillo: Yes. We look at the billings and there are times
that we question the billing.
Ms. Yukimura: Who is going to do that in your Office?
Mr. Trask: I was planning on doing that. Speaking earlier
to Councilmember Rapozo I would take responsibility for that moving forward and that is
what I would like to do to the maximum extent possible to learn that side of it and track
Special Counsel. It would be part of the litigation unit.
Ms. Yukimura: You know, I think...I do not know if it is...we
are talking about practice. When Special Counsel is advising the Council, there is a County
Attorney usually in the room has to know how things are going and dealing with and has to
know when to step in to advise and manage Special Counsel or advise the County Council
on its rights vis-a-vis Special Counsel or the issues? You know, we have seen that many
times. So that is a lot of time, and I do not know that the two litigation Attorneys are going
to be able to do that. So it may be your other Attorneys who are very competent, especially
if it is in their area, you know? If it is Housing or NPDES or whatever to advise us on the
Special Counsel.
Mr. Castillo: It will be primarily be either myself or Mauna
Kea.
Ms. Yukimura: Okay. Well, then there are things, like if there is
ever...I mean you two should be monitoring if litigation is exceeding our litigation limits
where the insurance company is coming in. We need to be told that upfront at the very
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 25
beginning and that has to be part of the full strategy, our legal strategy, right? That we are
going to figure out how to solve this case before $500,000 or whatever is the limit is.
Mr. Trask: I think your question illustrates a lot of the
issues and what could be construed as difficulties in this area. There are a lot. You said it
yourself and the new tools that we are looking to implement the evaluation sheet and the
litigation cost sheet and the good thing about blending the insurance form with the form
presented by Council Chair is that it addresses those issues, both for plaintiffs and
defendants. If you can best utilize that tool it will help not only that, but we work with our
Office Manager and it is a big job, but again to work together is what we need to do.
Ms. Yukimura: I have not paid a lot of attention to the form that
the Chair sent, but it may give us the structure that we need and the demonstration that
we are learning from our errors and systemizing a process that will give us the red-flags
that we need to be conscious.
Mr. Rapozo: Thank you. Mr. Chock.
Mr. Chock: Just a follow-up on previous conversations that
Councilmember Yukimura was mentioning about...I think Councilmember Rapozo on the
Alternative Dispute Resolutions. We have been working on one, Ashley and I and passed it
to Mauna Kea, but part of the request is to look at training as well. We are trying to figure
out how do we make it a little more substantial? We cannot stop people from moving on
claims that are important to them, but do you know of any kind of specific training or
something we might be able to offer? I was thinking about being able to layout the
importance of deterring these kinds of costs and moving towards mediation rather than
directly into trial?
Mr. Trask: The best thing I can say, I am sure there are
opportunities out there. A lot of the stuff, there are currently implemented processes, like
our trainings, postings, information on the wall. The employees, the interaction with their
unions are a great opportunity for conversation to speak to the unions and speak to us. We
are also facing a cultural shift and I do not want to minimize this. The society is turning
more litigious. So a lot of things that we see, we are able to succeed and dismiss cases once
it gets to litigation. But people want to go. A lot of people have it in their mind, if I sue this
and flex my muscle and the County will throw some money at it and the County of Kaua`i
does not go to trial and we are facing that, too.
Mr. Castillo: An example is if you are involved in a CAP
arbitration program. We just recently participated in a case where I represented the
County. Mauna Kea represented the County and another Deputy County Attorney
represented the County. In this arbitration program, the case was presented to the
arbitration judge. It is almost like some sort of resolution, right? Even if we...to me, we
prevailed soundly. That did not stop the plaintiff from completely disregarding the
arbitrator's ruling and we are back in court again.
Mr. Trask: On that one, it was excessive force case,
allegation of excessive force. The arbitrator found zero liability. Awarded zero damages on
behalf of the County or on behalf of plaintiff. Plaintiffs Attorney proceeded to trial
nonetheless, I mean proceeded to court and we filed our motion for summary judgment and
succeeded on that. It is in the ICA and got our opening brief last week. A lot of times again,
April 21, 2014
Budget Call-Backs (Office of the County Attorney)(ss)
Page 26
we do not direct the litigation and often times do not cause the issues, but have to deal with
them.
Mr. Chock: We are thinking front-end, someone is hired by
the County and gets a briefing and orientation. This is what happens. This is what it is
going to take this and I want to look at that a little bit more with you folks. So thanks for
being open to it.
Mr. Rapozo: Thank you very much. Mr. Chair, we are up for a
caption break right now. I do not know if there are any more questions for the County
Attorney? Do you have any more Mr. Chair? Let us take a 10-minute caption break and be
back with the Kaua`i Police Department and the subsidized vehicles.
There being no objections, the Committee recessed at 11:05 a.m.