HomeMy WebLinkAbout02/20/2014 Special Council minutes (ES-703) SPECIAL COUNCIL MEETING
FEBRUARY 20, 2014
The Special Council Meeting of the Council of the County of Kaua`i was called
to order by Council Chair Jay Furfaro at the Council Chambers, 4396 Rice Street,
Room 201, Lihu`e, Kaua`i, on Thursday, February 20, 2014 at 2:07 p.m., after which
the following members answered the call of the roll:
Honorable Mason K. Chock, Sr.
Honorable Gary L. Hooser
Honorable Ross Kagawa
Honorable Mel Rapozo
Honorable JoAnn A. Yukimura
Honorable Jay Furfaro
Recused: Honorable Tim Bynum
Chair Furfaro: We have one item on the agenda today for
this Special Council Meeting. Before we continue, may I ask for an approval of the
agenda?
APPROVAL OF AGENDA.
Mr. Rapozo moved for approval of the agenda, as circulated, seconded by
Ms. Yukimura, and carried by a vote of 6:0:0:1 (Mr. Bynum was recused).
PUBLIC COMMENT.
Pursuant to Council Rule 13(e), members of the public shall be allowed a total of
eighteen (18) minutes on a first come, first served basis to speak on any agenda
item. Each speaker shall be limited to three (3) minutes at the discretion of the
Chair to discuss the agenda item and shall not be allowed additional time to speak
during the meeting. This rule is designed to accommodate those who cannot be
present throughout the meeting to speak when the agenda items are heard. After
the conclusion of the eighteen (18) minutes, other members of the public shall be
allowed to speak pursuant to Council Rule 12(e).
Chair Furfaro: I understand that we have four (4) people
signed up to speak today, but since there is only one item today, I do not think they
would like to speak under the public comment portion. Under our regular rules,
they will be allowed to speak for a total of six (6) minutes instead of only three (3)
minutes if they were to speak under the public comment portion. Let us go to the
agenda item and take public comment.
SCOTT K. SATO, Council Services Review Officer: Chair, our first registered
speaker is Glenn Mickens, followed by Joe Rosa.
There being no objections, the rules were suspended.
GLENN MICKENS: For the record, Glenn Mickens. Thank you,
Jay. I have a short testimony. I also testified on February 7. You also have a copy
SPECIAL COUNCIL MEETING 2 FEBRUARY 20, 2014
of that testimony. I hope you refer to it because there are some things that I think
are very important and I hope you do too.
Chair Furfaro: Excuse me, Glenn. You are referring to your
attachment on ES-700?
Mr. Mickens: Yes.
Chair Furfaro: Okay, got it.
Mr. Mickens: Thank you. Along with my testimony today,
I have included a copy of my last testimony regarding ES-700; the same subject
matter as today's ES-703. I will not repeat all of the positives as I applauded
Ms. Carvalho for when she served with honesty and integrity on our Council, and
then represented the people with a ninety-seven percent (97%) conviction rate as
our County Prosecutor. I do ask all of you to look carefully at how this pattern of
people at the top of our government goes after anyone who exposes wrongdoing in
the system; Ms. Carvalho, the Chief of Police, and our County Auditor to name a
few. The amount of taxpayer money being spent on lawsuits, Executive Sessions,
outside and inside Legal Counsel, Court costs, et cetera, is probably in the millions
of dollars and must be stopped. You have ES-703 before you and the check of the
records will show that Mr. Bynum had previously said that he looked forward to a
Court hearing in his suit against the County. Now in ES-703, we have the County
Attorney requesting this ES to provide the Council with a briefing regarding the
settlement in Tim Bynum v. County of Kaua`i, et al. One must wonder if this total
issue that has now changed direction from a "slam dunk" for Mr. Bynum to a
wanting to settle it could have been totally eliminated by a mediation process with a
lot of money being saved. You remember somebody sitting here and talking about
mediation and how much money we could save by doing this. I believe you said you
were going to check into it. I think it was going to be put on the agenda or
something, which I think is a great idea. I have no legal background, but it appears
that those on the offensive side of this case are trying to cut their losses and get this
issue over. With more research before this battle began, could this whole issue not
have been avoided? Too many politics and in fighting goes on with many of these
cases and no matter who wins or loses, the taxpayers always ends up paying for it.
They get the short-end of the stick and I think the people watching these sessions
really realize it and want something done about it. Thank you very much.
Chair Furfaro: Glenn, one small correction. In fairness to
the County Attorney, today's Executive Session is a briefing which was requested by
certain members of the Council. I did not come from the County Attorney; it came
from the Council. I just wanted to point that out to you.
Mr. Sato: Our next speaker is Joe Rosa, followed by
Shaylene Iseri.
JOE ROSA: Good afternoon, members of the Council. For
the record, Joe Rosa. Again, we are here to hear another Executive Session. Again,
from the start of this thing, it was confined strictly to personalities; not by just
cause. It was something that was involving people not looking up the rules and
regulations of the County Ordinances, went ahead, and did things and felt that they
were immune to the laws of the County, et cetera. Look at one of our presidents.
President Nixon was impeached on the Watergate Scandal. Nobody is immune to
the law. Laws are made to be followed, but not to be used at a person's advantage;
SPECIAL COUNCIL MEETING 3 FEBRUARY 20, 2014
more so, in a position that people elect those people to be public servants. I
emphasize that. They are supposed to be representing the public voters and not
trying to do things to benefit themselves. They got caught for the irregularities and
then the personalities had to come out, mudslinging, and all of these things came up
prior to an election. They talk about dirty politics, but I do not know what that was.
It was not something that was done with soap and water. It was dirty; it was really
mudslinging. You could see it all over. In this case here, the Council should not
seek a settlement in a way because it was something that was done personally by
someone who thought they could overlook the law because of a position that they
had. It is just something that has been around. It was in the papers and a so-called
"controversial case" about the rentals and all of that. There is nothing to hide about
it. The only way you can stop this kind of thing with a County who is always caught
in liabilities is to get the thing in the courts and let the people know the truth
because there is Charter rules and rules of the County and the State that need to be
followed. No one is above the law. A law is a law, so you just have the follow it. If
you commit a crime, the old saying when I was growing up was, "If you commit a
crime, you serve your time."
Chair Furfaro: Joe, that was your first three (3) minutes. If
you want to continue, then I will give you your second three (3) minutes.
Mr. Rosa: Yes, I will wrap it up in a few minutes. As I
was saying, I do not think there should be a settlement. A settlement would not
prove anything. The County will be faced by liability suits after suits, after suits.
The taxpayers are paying it. Remember like I said, you were elected by the public
and you are public servants. When I worked with the State of Hawai`i, I had to
respect that. It came down from our bosses that you are in the eyes of the public
and you should set an example. Those are the things from the old days and those
rules were good rules. Like I say, I do not think there needs to be a settlement. I do
not think it has been fair in this case because it was involved in dealing with
personalities. Time and time again, you need just cause. Take it from there and let
your conscious be your guide. Remember, you are public servants to serve the
public; not individualists. Thank you.
Chair Furfaro: Thank you, Joe.
Mr. Sato: Our next speaker is Shaylene Iseri, followed
by Rich Wilson representing Shaylene Iseri.
Chair Furfaro: Shay, I am going to give you all six (6)
minutes up front, but at three (3) minutes, I will give you a heads up.
SHAYLENE ISERI: Good afternoon, Council Chair, Council Vice
Chair, and the rest of the members of the Council. Council Chair, I would like to
ask for permission if I could just put up a couple of slides and explain those slides
during my time to speak. It will be a lot quicker if that is done.
Chair Furfaro: It is your six (6) minutes, so if you want to go
ahead, you can go ahead. Let us get her set-up here. I am going to move my seat so
I can view your slides.
Ms. Iseri: In this matter, it was very clear from the
beginning that all of the attorneys that were hired in this matter, and there were
several, made statements to me and to others that the claims that Mr. Bynum had
SPECIAL COUNCIL MEETING 4 FEBRUARY 20, 2014
filed were baseless and without merit, and that in fact, we had looked forward to
suing Mr. Bynum to pay for the attorneys' fees for filing a frivolous lawsuit. What
is interesting to know is that from the very beginning, Mr. Castillo has sabotaged
this case. Way back in 2010, he had assigned Ian Jung to review actions taken in
the Bynum zoning violations and specifically assigned it to the attorney who had
just come from the attorneys that were handling Mr. Bynum's case, which was Ian
Jung. Jung had worked for Mr. Bynum's attorney's firm right before going to the
County Attorney's Office and Jung later wrote an opinion disparaging the actions of
Sheilah Miyake.
Back in 2012, while the County Attorney represented myself or claimed to,
and also Mr. Bynum; in the Executive Chambers, he testified, "Be very cautious
because the Prosecutor is out to get you." This is sworn testimony under oath taken
on April 23. Those pages are made available to you and to the public. It is very
clear, the direction of the County Attorney, and how he manipulated this case from
the very beginning in 2012.
There were most definitely, very irrational actions that were taken by this
County Attorney. He failed to communicate with me that he had been served with a
complaint from the very beginning and in fact, had aligned himself with the
Plaintiff from the very beginning. He, at no time, told me when he was served with
the complaint or who my Special Counsel was going to be. He also made statements
against me to the Plaintiff. He failed to answer my complaint in a timely manner,
subjecting me to potential default judgment. He failed to allow the cost of travel to
assist with preparation of the case. He failed to save this County's attorneys' fees
by hiring numerous attorneys. He also failed to initiate the County's payments of
attorneys' fees. He also allowed Special Counsel to defer to his judgment and not to
the independent judgment of the Special Counsel and specifically put in his contract
that he did not have the authority to override the insurance company's decision or
determine strategy in the case. He failed to protect this County by allowing
continuances on the motions to dismiss, which was adverse to the County's
interests. This County Attorney also failed to inform the Council of its rights loss
and insurance contract. He also failed to protect the County's interest by giving the
insurer total decision making power without meeting the threshold. These actions
are totally contrary and adverse the actions of the County.
Back when the case was first initiated in September of 2012, he himself,
made himself available to the Plaintiff, not to the Defendant. Like I said, he never
contacted me that he was served with a complaint and that I was a party to the
complaint. In fact, the press release, which was published in numerous media
outlets, I spoken to the County Attorney and he seems to understand the gravity of
the situation. Mr. Castillo has offered to make himself available to the media. This
is totally contrary to the County's position because normally in a regular case, they
would have no comment pending any lawsuit. He failed to file my answer. The
complaint was served on September 21. I learned this from my own private
attorney. The answer was due twenty-one (21) days later. The County Attorney
made no request for an extension. He did not appoint until almost two (2) months
later, Special Counsel, where my Special Counsel came in and rushed to get the
permission to file the answer late, again, subjecting me to a default judgment... or
the County because this was in my official capacity. We finally filed the answer on
December 17, 2012, but this was after I had incurred my own costs to fly up because
the County Attorney failed to authorize costs for me to meet with the attorney to
answer the complaint. I put out my own money. There were numerous times that I
have E-mails that we have sent requests via Robert Katz to ask the County
SPECIAL COUNCIL MEETING 5 FEBRUARY 20, 2014
Attorney for funding for one hundred fifty dollars ($150) to two hundred dollars
($200) for me to fly up and meet with the attorneys and be present at the
depositions of Tim Bynum's and Jake Delaplane's on those days; January 28 and
April 23. Again, on April 23, he sent a letter refusing for the County to pay for any
of my costs of travel to meet with the attorney to provide assistance on this matter.
It was clear from the very beginning that it was the County Attorney's intention to
have the insurer settle. In fact back in November 23, 2012, Robert Katz, who is my
Special Counsel; in his contract, the County Attorney did a contract that provided
that Katz had absolutely no authority to override the insurer. It was very
interesting that this was way back in the beginning of 2012 when that insurance
company was never, ever considered. He also hired and tried to rack up attorneys'
fees by hiring three (3) Special Counsels when only one (1) would have sufficed. In
fact in another matter, he only hired one (1) Special Counsel to represent the
County and other employees in their official capacity.
It was clear from the very beginning of what this County Attorney's intention
was. On March 25, there was a demand letter from Margery Bronster and it was
clear again that he had made himself available to the media for Ms. Bronster, Tim
Bynum's attorney. Throughout this demand letter, which the Council has a copy
of— first of all, it is not addressed to my Special Counsel; it is addressed to the
County of Kaua`i's attorney. It also says to give this to Al Castillo and the insurer.
Again, you question, "Why is the insurer continually being mentioned way in the
beginning of the case back in March 25, 2013?" The attorney mentions that they
expect the attorneys' fees to run to five hundred thousand dollars ($500,000), the
magic number to get to the insurer. They also say that the insurer should expect to
budget that amount...
Mr. Sato: Six (6) minutes.
Ms. Iseri: She says, "This is an opportunity to settle
within the County's insurance limits under its Public Entity Excess Liability
Clause." It is obvious that this attorney is well-aware of what is in the insurance,
even though I was not aware of that and was never told of that until after the case
had been settled. She mentions, "If the County does not settle now, we do not
anticipate providing County and insurer another opportunity." Again, throughout
all of this, the insurance company is a major player in how this case is being
handled.
Mr. Chock: Shay, that was your six (6) minutes.
Ms. Iseri: Okay.
Mr. Chock: Do you have much more in this presentation?
Ms. Iseri: I can go through it real quickly. I will just go
to my last slide and conclude there.
Chair Furfaro: Set the clock for one (1) more minute please.
Ms. Iseri: Okay. On April 29, there was a request for
mediation. Again, Margery Bronster requests here, "We will not do mediation
because there is one additional non-scheduling-related caveat. We are willing to
mediate only if the County's insurer will participate in person." Again, clearly
discussions with the Council. Again here, with the insurance company. It was very
SPECIAL COUNCIL MEETING 6 FEBRUARY 20, 2014
clear that in this matter, I do not know how the insurance company was even able
to get on this matter because we never went to five hundred thousand dollars
($500,000). The only amount that was authorized in this case was four hundred
eighty-six thousand dollars ($486,000). The October 23 dates where it says that it
were approved, there were not sufficient votes to approve that. Yet, the County
Attorney was present and never advised the Council that you never reached the
threshold limit and again, went ahead and signed a contract with the insurer that
took away the rights from this Council to have final decision making authority. You
can refer back to these Court dates where the insurance presence... whenever we
had a motion to dismiss, it got continued until after the funding was appropriated to
get to the five hundred thousand dollars ($500,000). There was a mistake
calculated by the County Attorney because he thought we had reached the five
hundred thousand dollars ($500,000) on May 8 when there was a request for
seventy-five thousand dollars ($75,000) by the County Attorney; however, I came
and testified and asked him why he was asking for seventy-five thousand dollars
($75,000) when my Counsel was only asking for twenty-five thousand dollars
($25,000). That is why you see later on, on October 23, that he came back and
asked for the fifty thousand dollars ($50,000) to get it up to the limit. It is clear
that this was a manipulation dump on the County Attorney that he used his
position, power, and trust to deceive the Council and the people, and reward his
allies with taxpayers' moneys, high-paying jobs, and deviated from this duties and
past practices to achieve his own political and personal agenda. I ask that this
Council look into the actions of the County Attorney because clearly, this Council,
as well as the people of Kaua`i, have suffered as a result of his egregious actions.
Chair Furfaro: Okay. I have to cut you off there, Shay. Will
you be having someone else continue this presentation?
Ms. Iseri: That was the last slide.
Chair Furfaro: That was the last slide?
Ms. Iseri: Yes.
Chair Furfaro: Thank you.
Mr. Sato: Our last speaker is Rich Wilson representing
Shaylene Iseri.
RICH WILSON: Mr. Chair, Vice Chair, and members of the
Council. It is always a pleasure. Thank you again. Since Shay went over seven (7)
minutes, I will be real brief. She has covered the majority of the points. Really in
this situation, you have a County Attorney who has got two (2) hats; one is he is
your Counsel, as well as he is Ms. Iseri's Counsel. He has to zealously advocate for
you. Clearly, what the County Attorney has omitted to do throughout this litigation
in terms of not advising about limits of insurance and not disclosing that there were
issues with respect to your control once those limits were hit. Hiring three (3)
attorneys when you only need one (1)— you can draw your own conclusions as to
why that occurred, but the net affect was that you hit your five hundred thousand
dollar ($500,000) deductible when you should not have. Being essentially bullied by
a carrier— a carrier is not a party; you folks on behalf of the County is the party.
You have a full right to say, "No, we are going to go forward with a motion for
summary judgment. If in that point in time there is a change and it is negative to
you, we will accept the consequences. We have been advised by all of our Counsel to
SPECIAL COUNCIL MEETING 7 FEBRUARY 20, 2014
go forward. We plan to go forward. Too bad, carrier, but you did not get any sort of
that advocacy, which you would otherwise expect." I have been a commercial civil
litigator for twenty-three (23) years. This is absolutely unheard of. I have one last
big point on the relationship between the County Attorney's Office and you folks.
When you bring an outside independent Counsel, it does not get filtered to the
County Attorney. Outside independent Counsel is directly to you folks. You folks
are the client. It seems that there is a pattern in practice that when there is
independent Counsel, it is always filtered through the County Attorney's Office,
which means that the County Attorney, who is supposed to be distant and
independent, is still pulling the strings of Counsel. That is just not right. There
should be an investigation. That should be cleared up. With respect to Ms. Iseri, if
you connect the dots, when the lawsuit was filed, Mr. Castillo— I have the pictures
and I can give them to you... but Mr. Castillo was a big advocate for Justin Kollar,
her opponent. He held signs and took out an advertisement in The Garden Island.
He is represented to have spoken to Mr. Bynum's Counsels even before there has
been service and that he understands there are problems and he is making himself
available to the press. That is unheard of... absolutely unheard of. That totally
undercuts not only her position, but yours as well when you have the County
Attorney making any sort of a statement. That is not done... just not done. Really,
if you look at it, it is all about insurance. The first request for mediation was April
of last year and the quote was... I have the specific E-mails... "We are not doing
anything unless the insurance carrier is there." It was repeated and repeated. In
fact, one of Mr. Bynum's Counsel sent me a letter saying... please bear with me one
second. This is April 30 after I basically advised Mr. Bynum's Counsel that we are
going to go to trial. If you want to dismiss Shay with prejudice, do it; other than, we
are going to trial. "Rich, I would be happy to speak with you separately about
settling with Shay. We are not so much interested in her money." Am I done,
Mr. Chair?
Mr. Sato: Three minutes.
Chair Furfaro: You have another three (3) minutes.
Mr. Wilson: Thank you. "We are not so much interested
in her money as other potential things she could provide us." This is all "where is
the insurer" and "it is not really about Shay." You have a County Attorney whose
Deputy worked for Mr. Hempey's firm and Mr. Hempey represents Mr. Bynum.
Connect the dots. I am not going to speculate as to what conversations were going
on. I think that is inappropriate, but you folks have the power to do an
investigation. This is just absolutely unheard of. Councilmember Yukimura, when
I was here last, you had a couple of questions about the expense and if we did not
settle, what the expense would be. It really troubled me. I thought about that a lot.
I guess my response is, "Is the truth not worth any expense?" That is where I will
leave it at. Unless there are any questions, Mr. Chair, thank you for allowing me to
speak.
Chair Furfaro: Any comment here? I do want to make a
comment. The question about the October 23 date for the billing cycle that was
brought up on the PowerPoint slide, I want you to know that we did receive the
complaint to the Clerk and the Deputy Clerk and I have instructed them within the
time allowed to get some clarification from the County Attorney. That is just for
your information. I wanted to share that with you at this point.
Mr. Wilson: Thank you, Chair.
SPECIAL COUNCIL MEETING 8 FEBRUARY 20, 2014
Chair Furfaro: Mr. Kagawa has a question for you.
Mr. Kagawa: Hi Rich. Thank you for your testimony.
What are the advantages of getting the truth, compared to settling? I will help you
out. If we get the truth out, then future actions by County employees will probably
not reoccur. On the other hand, if it is a frivolous lawsuit, the people will not be as
anxious to file frivolous lawsuits because they will find out that on that past case,
he filed a lawsuit and lost a lot of his money because he lost. When you bring a
frivolous lawsuit that loses, the County does not pay for your attorney fees; you
have to put up your money and take your shot. If you lose, you will have to pay for
your own attorney fees, right?
Mr. Wilson: Councilmember Kagawa, you are exactly
right. What happens when you settle frivolous lawsuits on the eve of motions which
you could win on, it just makes you look like a target and you have a big bull's eye
on your back because people... I am generally a Plaintiffs lawyer and Plaintiffs
lawyers will see that the County will always have its tail between its legs and
settle. No matter if the case is frivolous, there is always that carrot out there.
Sometimes, it does not make intuitive sense, but you need to defend cases to defend.
I am not saying that if there is a case with merit, those are cases that you resolve or
those are cases that you mediate. We have talked about that a few times. Settling
a case on the eve of dispositive motions when your lawyers have all said, "This is a
case that is defensible. It is frivolous and shibai," that makes you look like a target.
The County will continued to be sued again and again until it stands up and says,
"Enough. We will defend ourselves. We have done nothing wrong."
Mr. Kagawa: I will just reiterate by saying that when
Mr. Bynum first filed his lawsuit, the first thing Ms. Bronster said was, "We are
waiting for our day in Court. We want to get the truth out. My client has been
tormented and severely hurt financially," and this and that. Now, we are hearing
about a settlement? It seems like the truth is no longer important. I guess I am
very confused as to what was said when he first filed it until now.
Mr. Wilson: I am also a little confused because if I recall,
the Council's position as the client was that this was a case that they were going to
defend. When the decision was made, it was made without any input from the
six (6) of you. If you came up with that and that was your decision to do, that is
fine, but the decision was made without any... as far as I can understand from the
attorneys that I have spoken to, it was, "We settle because that was told to me."
Mr. Chair, in terms of all these settlement negotiations and discussions, not once
did Mr. Bynum's Counsel contact me about, "Let us resolve and settle this."
Mr. Kagawa: Okay. I am done with my question. Thank
you.
Mr. Wilson: Thank you.
Mr. Rapozo: I have a question.
Chair Furfaro: Mr. Rapozo, you have the floor.
Mr. Rapozo: It is more of a request, Mr. Wilson, because
you have made some comments that are very interesting to me. One of the slides
SPECIAL COUNCIL MEETING 9 FEBRUARY 20, 2014
show the reference to Mr. Castillo being available for comments for the Plaintiff and
that is disturbing; I do not think that has ever been heard. I am assuming that
came out of the press release that was done by Ms. Bronster.
Mr. Wilson: The first press release was
September 19, 2012, and that was in the first press release right at the bottom.
Mr. Rapozo: A couple of other references you make— we
are only privy to what we are told in Executive Session by our attorneys and Special
Counsel. We are not privy to communications between our attorneys and the other
defendants, meaning Ms. Miyake and Ms. Iseri. We are not privy to those
documents, but you reference some documents and E-mails which are of concern to
me. I think some may have been stated in the PowerPoint, but some directives that
they are not authorized to speak or make determinations over the insurance. Are
you able to provide us at a later time, the documentation— a lot of these things, we
are hearing for the first time. I think it is concerning. One of the E-mails that you
reference from... I am not sure who you said it was from about "We are not
interested in the money." I think those things raise some concerns for me. Overall,
I think the timeline that was presented is of concern to me. I think you mentioned
some photos. Is that something you can provide to us as well?
Mr. Wilson: I have a lot of what you just referenced. I
can provide the Council with any of the other E-mails.
Chair Furfaro: I have already asked a member of our Staff
to see you after this for some of those exhibits that you just referenced so we can
confirm what we got from you.
Mr. Wilson: Certainly, Mr. Chair.
Chair Furfaro: That would be Aida.
Mr. Wilson: Thank you, Mr. Chair. Just one comment
about this being a concern; this is concerning for me. I am coming here on my own
dime. It is that important and that is why I am here. Thank you very much,
Mr. Chair.
Mr. Rapozo: I have a process question. It is not really for
Mr. Wilson, but I intend to ask a lot of questions in Executive Session. I know we
have brought in resource people in the past, but I would ask that if we get to a point
in Executive Session and need some clarification from Mr. Wilson, that he would be
available as a resource person. I do not know if that is appropriate. Maybe not...
Chair Furfaro: I would like you to leave your cell phone
number with the Staff.
Mr. Wilson: Certainly.
Chair Furfaro: If we get that clarified, then we will reach
out to you.
Mr. Wilson: Thank you very much.
SPECIAL COUNCIL MEETING 10 FEBRUARY 20, 2014
Mr. Kagawa: I have a process question as well. Is one of
the purposes of going into the Executive Session to find out why the Council did not
have the settlement authority rather than the insurance company? Is that a
question?
Chair Furfaro: I will clarify this for everyone again. As I
pointed out with Mr. Mickens, the request to go into this session today came from
the Council, not from the County Attorney. Clearly, it is for a briefing so we will not
be coming back because we will not be voting on anything. At this point, I think
any questions that you have that deal with contractual arrangements with the
insurance company are open for discussion.
Mr. Kagawa: Okay. Thank you.
Chair Furfaro: I am going to call our County Attorney up
because we need to read the item.
MAUNA KEA TRASK, Second Deputy County Attorney: Good morning,
Chair and members of the Council.
Chair Furfaro: Good morning, young man.
Mr. Trask: Second Deputy County Attorney, Mauna Kea
Trask on behalf of the County Attorney's Office. I will read the Executive Session
item.
EXECUTIVE SESSION:
ES-703 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4,
92-5(a)(4), and Kaua`i County Charter Section 3.07(E), on behalf of the Council, the
Office of the County Attorney requests an Executive Session with the Council to
provide the Council with a briefing regarding the settlement in Tim Bynum vs.
County of Kauai, et al., Civil No. CV12-00523 RLP (United States District Court),
and related matters. This briefing and consultation involves the consideration of
the powers, duties, privileges, immunities and/or liabilities of the Council and the
County as they relate to this agenda item.
Chair Furfaro: Thank you.
Mr. Rapozo: I have a question for Mr. Trask.
Chair Furfaro: Okay.
Mr. Rapozo: Are you going to be taking us in Executive
Session or is Jennifer going to be?
Mr. Trask: Jennifer Winn is on O`ahu. She will be
available to you by phone. I believe she is at one of the other Special Counsel's
office. As you know, I have not had any contact with this case.
Mr. Rapozo: That is why I am asking because we are
going to go in to get briefed and the briefer is not here. She is available via phone?
SPECIAL COUNCIL MEETING 11 FEBRUARY 20, 2014
Mr. Trask: She will be available via phone. I believe I
am here to read it in per the request of the County Clerk.
Mr. Rapozo: Okay.
Chair Furfaro: Let me clarify that. At the request of the
Chair, she is available to us by phone. By the request of the Chair, you are present
to read us into Executive Session. That came from me. Before we posted this, we
already knew she was going to be traveling. This was the window of time we had
with her on the conference call.
Mr. Rapozo: Mr. Chair, the only reason I ask is because
at the last Executive Session, I did ask for some specific documents, spreadsheets,
and analysis of cases, but I do not see that in my folder, so I guess I will assume
that it was not done. If Jennifer is in O`ahu, I do not think we are going to get it.
That is a concern of mine, Mr. Chair.
Chair Furfaro: We will clarify that assumption when we go
into the briefing.
Mr. Rapozo: Okay.
Mr. Kagawa: It just appears to me that physically,
Jennifer is not here. It seems like at the end of the Executive Session, we will have
a lot of questions are still unanswered. I think instead of belaboring it, let us just
find out what all of the questions are and I think posting another date because she
needs to be here. If she is our County Attorney, she should not be on O`ahu on this
issue. Not to say that it is her fault, but it is just that she is the key person and by
her not being here, I do not think it is a good day.
Chair Furfaro: I understood that we would have some
questions for her and she has prepared some answers for us, but if we are not
satisfied with the briefing as we go along, I am open to another posting. Let us see
exactly where we are at when we go in. Mauna Kea, I apologize for referring to you
as "young man" because I know you are the Second Deputy.
Mr. Trask: I guess I have crossed that line.
Chair Furfaro: I have watched you in puka shorts jumping
off the Hanalei Pier. Please accept my apology.
Mr. Trask: Thank you, Chair.
Chair Furfaro: I am going to call the meeting back to order.
The County Attorney has briefed us on the item. As it has been my practice, I
would like a roll call vote to go into Executive Session.
There being no objections, the meeting was called back to order, and
proceeded as follows:
Mr. Rapozo moved to convene in Executive Session for ES-703, seconded by
Mr. Kagawa, and carried by the following vote:
SPECIAL COUNCIL MEETING 12 FEBRUARY 20, 2014
FOR EXECUTIVE SESSION: Chock, Hooser, Kagawa, Rapozo,
Yukimura, Furfaro TOTAL— 6,
AGAINST EXECUTIVE SESSION: None TOTAL — 0,
EXCUSED & NOT VOTING: None TOTAL— 0,
RECUSED & NOT VOTING: Bynum TOTAL— 1.
Chair Furfaro: Let us be in the room within ten (10)
minutes please. Thank you.
ADJOURNMENT:
There being no further business, the meeting was adjourned at 2:46 p.m.
Respectfully submitted,
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Council Services Review Officer
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