HomeMy WebLinkAbout04/02/2014 Special Council minutes SPECIAL COUNCIL MEETING
APRIL 2, 2014
J..
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 Wednesday, April 2, 2014 at 9:47 a.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
Excused: Honorable Tim Bynum
Chair Furfaro: I would also like to ask if I could get an
approval of the agenda, but I would like to make a comment on ES-711 since we had
the briefing earlier. I may want to handle this request for the additional money
upfront before we go into Executive Session. On that note, can I get an approval of
the agenda?
APPROVAL OF AGENDA.
Mr. Chock moved for approval of the agenda as circulated, seconded by
Mr. Rapozo, and carried by a vote of 6:0:0:1 (Mr. Bynum was excused).
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: Is there anyone in the public who wants to
take three (3) minutes now? Seeing no one, let us go to the first item of the day.
COMMUNICATION:
C 2014-77 Communication (03/13/2014) from the County Attorney,
requesting authorization to expend funds up to $45,000 for Special Counsel's
continued services provided for the County of Kaua`i in Lynell Tokuda, et al. vs.
Chris Calio, et al., Civil No. CV13-00202 DKW-BMK (U.S. District Court), and
related matters.
SPECIAL COUNCIL MEETING 2 APRIL 2, 2014
Chair Furfaro: Thank you. On that note, Mauna Kea, may I
ask you to come up on this communication here?
There being no objections, the rules were suspended.
MAUNA KEA TRASK, Second Deputy County Attorney: Aloha Chair and
members of the Council. Mauna Kea Trask, County Attorney's Office.
Chair Furfaro: Mauna Kea, since we had a briefing with
Jennifer Winn on this item requesting forty-five thousand dollars ($45,000), as well
as we have had a review from the Police Commission, I would like to take action on
the request for the forty-five thousand dollars ($45,000) before we go into Executive
Session since it is not necessary for us to go in Executive Session again. Would you
have any problem if we took that action now?
Mr. Trask: No, Chair. It is your prerogative.
Chair Furfaro: Is there any questions for Mauna Kea?
Ms. Yukimura: I just have a procedural question, Chair. I
have no problem with voting on the moneys now, but does that mean that we would
not go into Executive Session for ES-711?
Chair Furfaro: Yes.
Ms. Yukimura: I think you folks may have been briefed
when I was gone, so I do not know if I had the briefing. I will try to get it
separately.
Chair Furfaro: Okay.
Mr. Rapozo: Chair, the reason for the deferral from the
last posting was the fact that it had to go through the Police Commission and I
would like to assume that process was completed.
Mr. Trask: I would have to go and check myself
independently. Like Chair said, Jennifer Winn was tracking that case and was the
lead counsel on it. In order to answer that question, I would feel more comfortable
if I actually affirmatively did that. In speaking with the Chair, my understanding
is that it has gone before the Police Commission before, but I would like to
double-check.
Chair Furfaro: Okay, we will come back to that at the end of
the day.
Mr. Rapozo: That was the whole purpose of the deferral,
so I am just assuming that because it is showing up here that it did go through. I
am sure we could probably make a phone call.
Mr. Trask: I can go to Boards & Commissions and check.
It will not be a problem.
Chair Furfaro: Okay. We will move that item to the end. I
just thought that for the purpose of getting us another briefing in Executive
SPECIAL COUNCIL MEETING 3 APRIL 2, 2014
Session, unless there is anything absolutely new to share— the request is for the
money.
Mr. Trask: Perhaps what I can do is go check now and I
can tell you during one of the recesses what the response was and then you can take
action when you see fit.
Chair Furfaro: Okay.
Mr. Rapozo: Or we can take two (2) minutes and call
Boards & Commissions.
Chair Furfaro: Okay. Let us take five (5) minutes and see if
you can get that answer for us.
There being no objections, the meeting was recessed at 9:51 a.m.
The meeting reconvened at 9:58 a.m., and proceeded as follows:
Chair Furfaro: Thank you, Mauna Kea. Were you able to
call Boards & Commissions?
Mr. Trask: Yes, Chair. Thanks to the Council Staff,
they showed me an E-mail that was sent earlier by Jennifer Winn confirming that
the Police Commission, on or about February 8th, approved related matters to this.
Chair Furfaro: Okay. I am going to give the floor back to
Mr. Rapozo. Did you have a follow-up question?
Mr. Rapozo: Yes. It was not March 28th because the
E-mail that came over from your office was on March 5th, and that E-mail, although
it does not state a date, did say that the Police Commission voted last Friday to
provide the Council...
Mr. Trask: I am sorry—that was February 28th.
Mr. Rapozo: You said February? Okay, I heard wrong.
Sorry. Okay. It appears that has been completed, so I am okay. Thank you.
Chair Furfaro: You are satisfied?
Mr. Rapozo: I just have one question and I do not know if
Mauna Kea is the right person to answer, but I know that this is a Federal case.
Mr. Trask: Yes.
Mr. Rapozo: I am assuming the Defendants in this case...
there is only one name listed in the posting and I do not know if it is proper because
there have been Defendants added. Does that require a posting with the names of
the added Defendants?
Mr. Trask: I am not sure. I can check with the Office of
Information Practices (OIP), but I know that when you reference a case generally,
SPECIAL COUNCIL MEETING 4 APRIL 2, 2014
even legal briefings and documents; if there are a lot of Defendants, you just put "et
al." and refer to the case number, which can be referenced in the future.
Mr. Rapozo: Okay. The other question is— I am going to
be asking these questions up front because I want it on the record. Because it is a
Federal case, and in prior cases we have been informed that in Federal cases, one
attorney can represent all of the County Defendants because of some Federal Court
rule, but are we going to pursue that rule that we are... I am just looking at it for
costs reasons, obviously. I do not want to triple or quadruple the legal expense
when we do not have to.
Mr. Trask: In this case, currently, the Office of the
County Attorney is representing the County, including all named individuals in
their official capacity. Jennifer Winn was the lead. I am now getting caught up to
speed in that case and taking her place. The Special Counsel that we have hired
represents Mr. Calio in his individual capacity. I believe we have hired the most
recent Special Counsel to represent both Mr. Perez and Mr. Barriga in their official
capacity. At this time, it does not appear to be any issue with that; however, there
may be an issue later as discovery proceeds and we will make you known of that.
Mr. Rapozo: Right. So at this time, the County Attorney's
Office is representing all of the County Defendants in their official capacities
in-house?
Mr. Trask: That is correct. I believe that is the County
of Kaua`i Police Department (KPD) and the official capacity officers.
Mr. Rapozo: Okay. Thank you, Mr. Chair.
Chair Furfaro: Mr. Kagawa.
Mr. Kagawa: I guess to clarify, if the County is
representing Mr. Perez and Mr. Barriga, then why do we need...
Mr. Trask: No, they are being represented in their
individual capacity by outside Special Counsel.
Mr. Kagawa: Okay. Only in their capacity as a County
employee?
Mr. Trask: Official capacity.
Mr. Kagawa: Okay. One of the things that come up to me
are the exorbitant amounts of attorneys' fees that we have expended and continue
to expend. I think sometimes they read the names and they are not sure what the
case is about. I do not know if it is okay for you to just give a brief summary of what
year this incident happened. Is that general description for the public something
that we do not want to do and why Mr. Calio is being accused of wrongdoing? Why
are Mr. Perez and Mr. Barriga also being dragged into this?
Mr. Trask: Real briefly...
Mr. Kagawa: Yes, just so that the public knows.
SPECIAL COUNCIL MEETING 5 APRIL 2, 2014
Mr. Trask: This is a matter in public records. It is
covered in the complaints and various motions that have been filed with Federal
Court. I actually was the Prosecutor on this case at the time when the original case
came up. The Plaintiff in this case, Richard E. Louis— he is deceased now. He and
his son Kevin Louis were involved in a criminal complaint where they were found to
have drugs, drug paraphernalia, and guns in their possession. They were also
cutting koa trees in Koke`e late at night. It was a Department of Land and Natural
Resources (DLNR) enforcement action. They came up in response and caught them.
I believe there were a couple Defendants in that case... I forget the others... some
plead. I believe Mr. Louis went to trial. He was found guilty and he failed to show
up for his sentencing date, so there was an arrest warrant for him. KPD went to go
effectuate the arrest warrant in conjunction with the Hawai`i Fugitive Safety Task
Force, which is statewide, and I think Federal Officials were there as well. The
Plaintiff barricaded himself within his house, refused to come out, proceeded to
assault the officers that were there, and in order to protect himself, Officer Calio
had to use force, which resulted in the Plaintiff in this case passing away.
Mr. Kagawa: Thank you. I really appreciate that, Mauna
Kea, because a lot of people in the public do not have the documents necessary. I
think this one time really does service to those who are really questioning what we
are spending it for. I thank you for that.
Mr. Trask: Okay.
Chair Furfaro: Do you have a question?
Mr. Rapozo: It is not a question, but as people watch this
they will question why the County is paying for attorneys for officers in their
personal capacity because the Police Department is treated differently. When they
are sued in their official capacity— that was the whole reason for the deferral
because there is a process that they go through the Police Commission and the
Police Commission determines whether or not they qualify for representation in
their personal capacity based on their actions if it was within the scope or outside of
the scope.
Mr. Trask: Correct. The investigation showed that
everyone, the County and the individual officers, all acted appropriately under the
law and we believe that we should win the case, essentially.
Mr. Rapozo: Right. I just wanted to make that
clarification because it would be very difficult in their line of work. They could be
sued quite often and having to defend themselves would just not be practical.
Thank you, Mr. Chair.
Chair Furfaro: Okay. Going back to the very beginning,
these officers can be covered, as long as it is reviewed by the Police Commission, of
which we referenced the February 28th date. Now the request for the money is in
front of us and I would like to see if we can get ourselves to a vote on this, Jade.
Mr. Kagawa moved to approve C 2014-77, seconded by Mr. Rapozo.
Chair Furfaro: Okay. We have a motion and a second here.
I am going to excuse Mauna Kea from the stand. Is there anyone who would like to
SPECIAL COUNCIL MEETING 6 APRIL 2, 2014
give public testimony on this before I call the meeting back to order? Shay, come
right up.
SHAYLENE ISERI: Good morning, Council Chair, Council Vice
Chair Chock, and members. I was the Prosecutor when this incident occurred and I
am happy to see that the County is fully immersed in protecting the officers. The
Defendants in this case— unfortunately, one of them was killed during the attempt
to get him into custody and arrest him, but the officers, Chris Calio who is a
Sergeant now, as well as Captain Sherwin Perez, are excellent officers. They have
been a pride to the Department, as well as a pride to the community. As I had
stated in my testimony two (2) weeks ago, it is very important for the public to
understand what the circumstances and facts surrounding these Special Counsel
cases are. I brought up, as Councilmember Kagawa said, that there are a lot of
things that are public and a lot of the information can be shared from the
complaints from the answers to the complaints. Unfortunately for Federal cases,
there is a particular system where you need to pay in order to access the
information. For the Hawai`i State Court system, you do not have to because it is
free for the public. For the community to see that the Councilmembers are very
concerned about the impression to the public and in bringing light to the cases, I
think, is really important and I would like to commend Councilmember Kagawa for
asking those questions and also Mauna Kea, who was also working at the
Prosecutor's Office when I first started at the Prosecutor's Office, in bringing to
light to the community these kinds of cases. Clearly, the officers were in serious
danger. I actually attended the scene of the defense and it was a very chaotic
situation, but these Defendants had (inaudible) terror on their community, as well
as innocent people. For the officers to unfortunately go through this kind of trauma
and be sued is quite unfortunate. I would like to bring to the attention that on
Maui, they just had two (2) officers that were sued in a shooting and the County
Corporation had defended the officers and they just won summary judgments,
which just happened last week. That was a serious victory for the officers because
their careers are actually put on hold. They suffer a lot of circumstances and a lot
of consequences, even though they may be innocent because it involves a death in
an execution of a warrant. I commend the Council for bringing forth this
information to the public and this openness and transparency that Councilmember
Kagawa has brought is definitely going to be a welcome to the community. Thank
you.
Chair Furfaro: Thank you for your comments, Shay. Glenn,
did you want to speak?
GLENN MICKENS: Thank you, Jay. For the record, Glenn
Mickens. I also want to compliment Ross for bringing this up. The public, a good
part of the time, by the agenda, there is not enough information and we do not even
know what is going on and why we are being asked to give away forty-five thousand
dollars ($45,000) more. If Ross did not bring this up and Mauna Kea was not good
enough to come up here and answer, the public is still kind of in the dark. Maybe
there are people who know like Shaylene, who has been involved in it, and Mauna
Kea is involved in it, but the public is not so I think you have to have more
information. I think they have done a good job like with the Bynum case and
Sheilah Miyake case. I think they have a done a better job now of telling us what
the money that we are being asked to give is for. Thank you, Ross.
Chair Furfaro: Ken?
•
SPECIAL COUNCIL MEETING 7 APRIL 2, 2014
KEN TAYLOR: Chair and members of the Council, my name
is Ken Taylor. I also agree that this agenda item is a little short in informing the
public as to what exactly the issues are. When you are asking for moneys, I think it
is really important to make it very clear for the public to understand why we are
looking for forty-five thousand dollars ($45,000). It sounds like a very unfortunate
situation from what we have heard this morning, but again, the announcement on
the agenda is very short of really informing the public. I also had a concern from a
comment that was made earlier that you all have been briefed on this issue and
that somewhat troubles me again because although I know that it is important to be
briefed and understand, but it is supposed to happen in either an announced closed
session or in a discussion here at the table. I hope that as we move forward in the
future, we pay attention to the Sunshine Law. Thank you.
Chair Furfaro: Anymore? As you can see as I call up Mauna
Kea, the reference was made to the Executive Session, which was posted
accordingly, on February 28th.
There being no objections, the meeting was called back to order, and
proceeded as follows:
The motion to approve C 2014-77 was then put, and carried by the following
vote:
FOR APPROVAL: Chock, Hooser, Kagawa, Rapozo, Yukimura,
Furfaro TOTAL— 6,
AGAINST APPROVAL: None TOTAL— 0,
EXCUSED & NOT VOTING: Bynum TOTAL— 1,
RECUSED & NOT VOTING: None TOTAL— 0.
Chair Furfaro: Thank you very much. Can we go to the next
item please?
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 Kaua`i, 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: For the Clerk's Office, I want to make sure
that since this is the second appearance here, I will give the opportunity for
testimony in three (3) minute increments. If someone wants to go on for another
three (3) minutes, I will give it to them. Please set the timer in three (3) minute
increments.
JADE K. FOUNTAIN-TANIGAWA, Deputy County Clerk: We have
three (3) registered speakers for this item.
Chair Furfaro: Okay. I will take their testimony now.
SPECIAL COUNCIL MEETING 8 APRIL 2, 2014
Ms. Fountain-Tanigawa: The first speaker is Glenn Mickens.
There being no objections, the rules were suspended.
Mr. Mickens: Thank you, Jay. For the record, Glenn
Mickens. The biggest problem I have regarding the Bynum settlement in ES-703 is
that this County, who Bynum sued, as an employee of the County, he was actually
suing himself and should not have been given a settlement of any kind. In fact, I
heard that the County did not settle as it was the insurance company that did it
and was done by a wrongly worded that gave the Council no say in the settlement,
which was never before done like this if I understand correctly. Bynum said up
front that he could win this case in a civil court hearing, but decided to call it quits
in the middle of the river. By doing this, would it have not been a positive sign for
the County or the insurance company to take this case all the way to Court, and
very probably win the case and not pay any settlement at all and the taxpayers
would not obligated. This whole sorted issue needs further scrutiny and
investigation. It is wrong for the taxpayers who keep picking up the outrageous tab
for what is going on. Thank you, Jay.
Chair Furfaro: Thank you. Next speaker.
Ms. Fountain-Tanigawa: The next speaker is Joe Rosa, followed by
Ken Taylor.
JOE ROSA: Good morning members of the Council. For
the record, Joe Rosa. Again, this is something that should not have ever got
started. Any public official, including the President of the United States—
ignorance to the law is not excused. On top of that, he has his attorney... I am
pretty sure in his capacity... in the public you have an attorney or lawyer. What
started supposed to have been stopped before it ever got started. Yet, he was
represented by Counsel from the County probably. The details of the thing involved
was just took upon personally to the effect that I have heard so many things, such
as words that "shall" and "may be" come about. I worked with specifications and I
had to do interpretations. If I had any doubt of anything, I would see somebody
that could clarify. A lot of these things should not have ever been started. Like I
say, any person that is in public office or whatever should not think that they are
above the law. This, I feel, was a case that came about in that manner. It should
not have ever got started, like I said. It was nearly election time and then a
"(inaudible) tactics" thing came about. That is why this all came about. Maybe like
it was mentioned before if he had a settlement with the County if he was not going
to be in pursue of the case that is now going on. If it was stopped and somebody
took the "bull by the horns" and say "the buck stops here," this would not have gone
this far, so you would have to get the proper authorities that can come up and help
the County in their problems as far as laws being civil or criminal law. In turn, I
think that this should end where it is and Ms. Carvalho (inaudible) because it
involved personalities and nothing with just cause. Personalities do not hold up in
law. I think that the matter should have stopped before it ever got started because
I am pretty sure that no one is above the law. That includes our President of the
United States; he was impeached. I thank you.
Chair Furfaro: Thank you, Joe.
Ms. Fountain-Tanigawa: The next speaker is Ken Taylor.
SPECIAL COUNCIL MEETING 9 APRIL 2, 2014
Mr. Taylor: Chair and members of the Council, my name
is Ken Taylor. When a Councilmember who is elected makes a strong, negative
allegation against another public official who is elected and both are serving at the
same time, the people deserve to know the truth, especially because the people are
paying for this litigation debt. Would it not have been a positive sign for our
County insurance company to take the case all the way to Court and very probably
win the case and not pay any settlement at all? I think it is sneaky that one day
before the Motion to Dismiss was going to be heard, the insurance company settles
the case. That same day, I sat here and heard JoAnn, Gary, and Ross even say that
the Motion to Dismiss should be heard before any settlement. I have asked a
number of times to see the settlement agreement because I believe it is public
information, yet Shay said that even she has not seen the completed signed
settlement document and does not know what the exact terms are because it was
never finalized. How can this be? It is over one (1) month since the motion to
dismiss was withdrawn and no sign of the agreement. Did Bynum get the one
million six hundred fifty thousand dollars ($1,650,000) that he was requesting?
Why then was the motion to dismiss withdrawn? It sounds suspicious. Another
problem that I have is that it seems like this was a preconceived plan all along. It
seems as though Bynum was using his inside knowledge as Councilmember
learning about insurance deductibles and settling all of these small frivolous
lawsuits in Executive Session with Al Castillo, and then seeing Al hire not one (1),
but five (5) attorneys and using it as ammunition to set Bynum up for a big payoff
for his vote on the Transient Vacation Rentals (TVR) Bill. Surprisingly, Bynum
claimed that this tape recording was hidden from him, but the truth is that the tape
was given to the Federal Bureau of Investigation (FBI) as soon as the FBI was
available to meet. Written documents confirm this. Did not even Bynum's attorney
confirmed that he was the big one in the March demand letter. Read the demand
letter. Read the E-mails. Why is Bynum's attorney not willing to discuss the case
unless the insurance company is present? If it is clear to me, it must be even clear
to you because you are more privy to the information that we get and this was a
scam from the beginning. We rely on you all to speak for the people, ask the hard
questions, and provide us answers as to what went on.
Chair Furfaro: Ken, that was your three (3) minutes.
Mr. Taylor: I just have a couple of sentences. The more I
look at the history of this case, the same thought that was stated by Councilmember
Kagawa keeps running through my mind, "If it smells like a rat, it is a rat." This
whole cruddy, grubby, mucky, nasty, unclean, greasy, and shameful issue... and I
will repeat that...
Chair Furfaro: I am giving you an extended amount of time.
You do not need to repeat your testimony.
Mr. Taylor: Okay. This issue needs further scrutiny and
investigation as it is ethically and financially wrong for the taxpayers to keep
picking up outrageous tabs for what is going on. Thank you.
Chair Furfaro: Is there anymore testimony?
Ms. Fountain-Tanigawa: No other members from the public have
signed up.
SPECIAL COUNCIL MEETING 10 APRIL 2, 2014
Chair Furfaro: Okay. Shay, you can use your first three (3)
minutes and your additional three (3) minutes, but I have extended you once before
as an extra courtesy and I will not extend you anymore time today.
Mr. Kagawa: Chair, before she starts, I have a procedural
question.
Chair Furfaro: Yes.
Mr. Kagawa: This is the first item of two? The next one is
ES-709? Do the speakers have another opportunity at that time?
Chair Furfaro: Yes, for each agenda item they do.
Mr. Kagawa: I was thinking that we may have taken both
at the same time. It is the same matter, right?
Chair Furfaro: No, it is not the same matter.
Mr. Kagawa: Okay. Thank you.
Chair Furfaro: Shay, we will start your time now.
Ms. Iseri: Thank you. What I wanted to bring to light
to the County Council are the actions of the County Attorney involved in this matter
and it still my position that the County Attorney, Al Castillo, violated his fiduciary
duty to the County and our people by acting against the County's best interest. All
attorneys are governed by the Hawai`i Rules of Professional Conduct. These rules
became effective on January 1, 2014. In the preamble, it explains a lawyer's
responsibility. A lawyer as a member of the legal profession has to provide that
quality of justice that is demanded. It also, as representative of clients, a lawyer
performs various functions. As an advisor, the lawyer provides the client with an
informed understanding of the client's legal rights, and in this instance, the client is
the County; an obligation and explain their practical implications. A lawyer also
zealously asserts the client's position and as we have seen, this did not occur. As
negotiator, a lawyer seeks the result advantageous to the client, which is the
County, but consistent with requirements of honest dealings with others. In its
scope, the Rules of Professional Conduct— they explain the difference between
"may" and "shall." Most of these rules are in the imperative as it indicates. There
is a difference, unlike what our County Attorney said, between "shall" and "may."
"Shall" (inaudible) proper conduct for professional discipline. There are others in
the Rules of Professional Conduct that refer to "may" or "should," which are simply
permissive and are up to the discretion of the attorney in exercising professional
judgment. Rule 1.1 and 1.3 deals generally with competence and diligence of the
attorneys, "A lawyer shall provide competent representation. A lawyer shall also be
diligent," meaning acting with promptness in representing a client and providing all
of the information ongoing in the case." Under Rule 1.4, it specifically deals with
communications of the attorney. Again, it is in the mandatory language of a lawyer
"shall." "A lawyer shall promptly inform the client of any decision or circumstances.
It shall reasonably consult with the client. It shall keep the client informed about
the status of the matter. It shall promptly comply with reasonable request for
information. It shall consult with the client about any relevant limitation. It shall
also promptly inform the client," which is the County, "of a written offer of
settlement in a civil controversy and it shall explain the matter to the extent
•
SPECIAL COUNCIL MEETING 11 APRIL 2, 2014
reasonably necessary to permit the client to make informed decisions regarding the
representation of the County." Clearly, in all of these actions, he failed to follow
these Rules of Professional Conduct and they were irrational actions. He failed to
communicate, made statements against his own client, failed to answer the
complaint timely, subjected the County to potential default judgment, failed to
allow cost of travel to assist with preparation of the case, failed to save attorneys'
fees, failed to allow the Special Counsel independence to contest the insurer and
determine strategy in the case, failed to protect the County by allowing
continuances adverse to the County's interest...
Chair Furfaro: That is three (3) minutes.
Ms. Iseri: He failed to inform the Council of its rights
lost in the insurance contract and he failed to protect the County's interest by giving
the insurer total decision-making power without meeting the threshold of five
hundred thousand dollars ($500,000) deductible. There were additional failures by
this County Attorney. He failed to promptly notify the County that the insurer was
engaged in decision-making. The Council was informed of a decision to settle until
February 7th at the Special Council Meeting. This was two (2) week's presentation,
but it has been almost two (2) months now. I still have not, and I assumed the
Council still has not received any settlement documents after numerous requests,
despite Mr. Bynum going to the media to announce the settlement. This is really "a
disaster for the County" as described by another Councilmember. It is a travesty of
justice for all. Failures had occurred in the past and failures continue to occur. We
are still unclear about all of the circumstances. I had inquired about the
decision-making and about the insurance contracts with the Chair as well as other
members of the Council and I am informed that they are also in the dark as to what
happened. There have been numerous continuances in this matter because of
attorneys not being prepared or not being available. We have spent millions, it
appears in the end, and not only in societal costs and immediate costs, but perhaps
even in insurance costs that will go up as a result of this settlement. It is not
enough that I feel that the County has been financially ripped off, but that the
integrity of the public government has toppled. I would encourage this Council to
open up an investigation into the conduct of the County Attorney and the actions,
especially as we have seen that it is not only the representation of clients, but also
the financial mechanisms that are used in order to pay these high-priced attorneys.
I think this is important, and I would again, ask this County to take a proactive role
in stopping the bleeding of the amount of millions of dollars that this County
Attorney has wasted at the expense of taxpayers. Thank you.
Chair Furfaro: Thank you.
Ms. Yukimura: Chair, I have a question.
Chair Furfaro: Can we put the lights on first?
Councilmember Yukimura, you have the floor.
Ms. Yukimura: Thank you. Can you make that PowerPoint
available to us please?
Ms. Iseri: Sure.
Ms. Yukimura: Thank you.
SPECIAL COUNCIL MEETING 12 APRIL 2, 2014
Ms. Iseri: Councilmember Yukimura, I have a copy so I
will provide that to your Staff.
Ms. Yukimura: Okay. Thank you.
Chair Furfaro: Thank you, Shay. On this item, are there
any other speakers? Is there any written testimony?
Ms. Fountain-Tanigawa: We have one.
Chair Furfaro: Okay.
Ms. Fountain-Tanigawa: We have one piece of written testimony from
Lani Kawahara.
Chair Furfaro: Okay. Councilmember Yukimura.
Ms. Yukimura: Chair, in the interest of transparency and to
inform the public, I think it would be helpful to the public's understanding of the
case if we could have Ms. Kawahara's testimony read by the Clerk. It mainly
consists of Judge's rulings. I just want to say that "Carvalho" in the testimony is
referring to Ms. Iseri and "Plaintiff' is Mr. Bynum.
Chair Furfaro: Okay. The request has been made.
Mr. Kagawa.
Mr. Kagawa: I do not want to start a practice of reading
testimony that comes through our E-mail and what have you. If we went through
that consistent practice, I think our Council Meetings would never end on some
important issues. Again, are we being fair and just reading one person's testimony
or reading everybody's testimony? I think that precedent needs to be set. Thank
you.
Chair Furfaro: Councilmember Yukimura.
Ms. Yukimura: I agree that it would be unwieldy to read
every testimony, but I think in this case, it is actually very important to have this
read out loud in terms of balance. It is mainly a Court ruling.
Chair Furfaro: Okay. Is there any further comments?
Mr. Hooser: I also would support having the Clerk read
the testimony into the record. We spent a lot of time for a lot of things here and
each of us go on and on sometimes and I think it is important that this be read into
the record. Thank you.
Chair Furfaro: I do want to point out to the group that I
have been more than fair over the three (3) postings of this item. I have allowed up
to six (6) minutes several times on the same items. I have a request from two (2)
Councilmembers that I think I will honor. On that note, it seems mostly that this is
actually related to the Judge's ruling, so I am going to go ahead and allow that. I do
not want anybody but the Clerk to read it into the record.
Mr. Rapozo: Mr. Chair?
SPECIAL COUNCIL MEETING 13 APRIL 2, 2014
Chair Furfaro: Yes.
Mr. Rapozo: I do want to preface because I have read the
order. I do want to state, so that the community is well aware, that this order was
done prior to the motion to dismiss and prior to the facts of the matter being
brought up to the Judge. This was based on the Plaintiffs motion to dismiss. I just
want the public to be aware of that because what this does not include are the
arguments, I believe, that would have made us victorious in the case had we gone to
the motion to dismiss, which was cancelled one (1) working day before the hearing
date. I just want to make sure that the people understand that the Judge worked
with information that was not provided in a motion to dismiss.
Chair Furfaro: Your point is well-taken. Any further
comments before I ask the Clerk to read this testimony? I am sorry— do you have a
question? The three (3) minute rule will work. If you come up, I will answer you.
Your question was, "Will the three (3) minute rule will work for this?" Ken, I want
to tell you that I have been in my five (5) years, probably the most balanced
Chairman in this County. As I have given everybody an opportunity, not even after
one or two times to read, I will allow the reading. We will set the buzzer for three
(3) minutes. We will allow the testimony that is going beyond that three (3)
minutes a second three (3) minutes, just as I have allowed others. Then, in fact, if
we get to the six (6) minute mark and it is not complete, it will be cut-off. I hope I
answered your question.
Mr. Taylor: Thank you.
Chair Furfaro: Please set the buzzer for three (3) minutes
first.
Ms. Fountain-Tanigawa: This is ES-703 testimony from Lani
Kawahara. "Aloha Chair Furfaro and County Councilmembers. As you prepare to
go into Executive Session on Tim Bynum vs. County of Kaua`i, et al., I would like to
submit for the public record the United States District Court for Hawai`i, Court
Order Dismissing with Prejudice Defendant Shaylene Iseri-Carvalho, in her
individual capacity. I urge you to read the Order dated February 24, 2014 put forth
by J. Michael Seabright, United States District Judge. I hope you will give the
Judge's order, rulings and the evidence provided the weight that they should be
accorded in your deliberations. Highlights include the following: "Applying these
principles, the court finds that Carvalho has utterly failed to establish legal
prejudice...." "Further, Carvalho's arguments in opposition of the Motion to
Dismiss do not establish legal prejudice." "Finally, Carvalho argues that if the
court grants Plaintiffs Motion to Dismiss, the court should make an express finding
that Plaintiffs claims were frivolous, such that she is entitled attorneys' fees
pursuant to 42 U.S.C. 1988. The court rejects this argument as well." "No has
Carvalho established that she entitled to her fees pursuant to 42 U.S.C. 1988, which
provides that a prevailing civil rights defendant may recover fees only in
exceptional circumstances when the Plaintiffs claims are frivolous, unreasonable,
or groundless."
On the assertion that Bynum's claims were frivolous, the court clearly
outlines evidence Bynum presented in the case: "Plaintiff presented evidence that
(1) Carvalho was openly hostile to Plaintiff, Doc. No. 116-1, Pl.'s Decl. 4; (2)
Carvalho investigated an anonymous complaint of a zoning violation on Plaintiffs
SPECIAL COUNCIL MEETING 14 APRIL 2, 2014
property by reviewing a police report concerning Plaintiffs property and contacting
the Director of the County Planning Department to determine whether Plaintiff had
committed any zoning violations (even though misdemeanors were handled by
junior prosecutors), Doc No. 67-2, Carvalho Dcel. 4,6; Doc. No. 116-14, Pl.'s Ex. 12;
(3) Carvalho's office filed criminal charges against Plaintiff regarding these zoning
violations, even though two of the charges were the result of a possible violation of
Plaintiffs Fourth Amendment rights (Miyake informing deputy prosecutor of the
manner of her investigation; (4) the criminal charges were dismissed against...
Chair Furfaro: That was three (3) minutes.
Ms. Fountain-Tanigawa: ...Plantiff after Carvalho's office was
removed from the case for a conflict of interest; and (5) Carvalho sought Plaintiffs
recusal from Council matters regarding her office in light of the criminal charges
against him, and further released a letter to the media seeking Plaintiffs recusal
and outlining several alleged incidents with the Plaintiff." The Court concluded:
"Whether or not this evidence establishes Plaintiffs claims (an issue the court need
not decide), it shows that Plaintiff had at least some factual basis for his claims, and
that they do not appear to be frivolous, unreasonable, or groundless. The court
therefore finds that Carvalho would not be entitled to her attorneys' fees even if she
prevailed at trial. As a result, proceeding in this action, where Plaintiff has been
compensated and seeks dismissal with prejudice, would serve no purpose other than
to feed the fire of Plaintiffs and Carvalho's public feud. Needless to say, such
purpose does not justify the expenditure of the parties' or the court's resources. The
court will not be drawn into this continuing political feud. In conclusion, based on
the above, the court dismisses with prejudice Defendant Shaylene Iseri-Carvalho in
her individual capacity. The parties shall bear their own fees and costs." Thank
you for the opportunity to present this testimony. I ask that the order be entered
along with testimony in the public record. Sincerely, Lani Kawahara."
Chair Furfaro: Thank you. Our meeting is called back to
order. Mr. Kagawa, you have the floor.
There being no objections, the meeting was called back to order, and
proceeded as follows:
Mr. Kagawa: I have a question for Ms. Iseri-Carvalho.
Chair Furfaro: Shay, can you come up please? Before you
introduce yourself again, let me suspend the rules for Mr. Kagawa. Mr. Kagawa,
you have the floor.
There being no objections, the rules were suspended.
Mr. Kagawa: I just feel that in being fair, that since
former Councilmember Kawahara was such a close ally of Mr. Bynum, I feel that it
was really an opportunity to present one side of the story in favor of Mr. Bynum.
Shay, I am going to ask you, what is your response to this testimony?
Ms. Iseri: There was a motion that was filed by the
Plaintiffs attorney— and this is highly unusual. In fact, the Judge had said that it
was the first time actually that the case had been disposed of right before the
Motions to Dismiss, and then have a Plaintiff come in and file a case to dismiss with
prejudice against myself. What the Court found— and it granted that motion. We
SPECIAL COUNCIL MEETING 15 APRIL 2, 2014
were opposed to it because we wanted the public to hear the truth. In this motion,
there were no hearings. There was no evidence that was presented, so these were
allegations that were made. There was not any evidence where people could be
crossed-examined in front of a jury. That is what I wanted to make clear, number
one. What the Court in the standard of giving the legal fees, they explain what is
legal prejudice and the Court did not find "legal" prejudice. It does not mean that it
did not find any prejudice; it did not find "legal" prejudice. As explained in the
decision, which I have a copy of, a person does not suffer legal prejudice under the
Court when a case will be dismissed with prejudice against a Defendant. There are
two ways that a case can be dismissed; one is if a case is dismissed without
prejudice, then claims can be brought forward. In this matter, initially Bynum had
sent over a plea offer for us to dismiss without prejudice, meaning that he could still
continue his claims, which is why we contested the matter until finally, they filed a
Motion to Dismiss with prejudice, which means that Bynum is prohibited from
filing any kind of claims against myself; however, I am not barred from filing any
kind of claims against Bynum. I can file a malicious prosecution against Bynum. I
can file a defamation suit against Bynum. I am free to file whatever lawsuits I can.
I am not barred; the Defendant is barred from bringing up any kinds of claims
against myself. In the decision, the Court found that because Bynum is prohibited
from filing any kind of additional claims or bringing up any kind of actions
involving this matter against me, that there was not this legal prejudice. Had he
been able to with a dismissal without prejudice, which is why they changed from a
dismissal without to dismissal with... had he been with it, then I would be
subjective to legal prejudice, so there is a difference in that. There was also a
mention about a conflict of interest involving our office. The conflict arose because
my attorney, Jake Delaplane, who was doing the hearing on the Motion to Dismiss
became a witness in the case. It had nothing to do with the conflict that involved
myself and Mr. Bynum. In the order itself, it clearly says that it was not any kind
of conflict that involved my office in seeking any kind of prosecution against Bynum.
That needs to be utterly clear. The letter seems to point out certain things. The
entire decision is ten (10) pages long, so it is unfortunate— again, because the case
arose in Federal Court, the public does not have access to the actual decision
because you need to pay for it and be a party to the Public Access to Court
Electronic Records (PACER) system. However, the Councilmembers have a copy
and Mr. Bynum, I believe, has made it available to the public. Let it be clear that
Bynum's case was dismissed with prejudice on his motion against me.
Chair Furfaro: Does that satisfy your question?
Mr. Kagawa: That more than satisfies my question.
Thank you.
Chair Furfaro: Thank you, Shay. Did you have a question?
Ms. Yukimura: I wanted to have discussion.
Chair Furfaro: Okay. I am going to go to discussion. I will
call the meeting back to order. Is there any further discussion?
There being no objections, the meeting was called back to order, and
proceeded as follows:
Ms. Yukimura: I just want to reiterate the conclusion of the
Court. This is not Ms. Kawahara's opinion; this is the conclusion of the Court. It
SPECIAL COUNCIL MEETING 16 APRIL 2, 2014
shows that the Plaintiff had at least some factual basis for his claim and that those
claims do not appear to be frivolous, unreasonable, or groundless. I, too, wish that
we could have pushed forward in this case because I believe that there would have
been shown and proved some of Mr. Bynum's concerns; however, that would have
probably costs both sides of the parties another five hundred thousand dollars
($500,000). With all of this concern about additional expenses and attorneys' fees,
we all have to be concerned about that. Those are the things we had to weigh. I do
not think anybody conclude that there would have been no grounds. You also
cannot conclude that Mr. Bynum would have prevailed. We do not know the final
outcome, but as the Judge has said, it was not, as some people have said, that
Mr. Bynum claim's were unreasonable, groundless, or frivolous. The Judge says
clearly that is not the case. There were just other considerations about whether
they could proceed, one of them being that the insurance company took under the
terms of insuring the County and was allowed to make the decision.
Chair Furfaro: I would like to continue to go on to the other
Executive Session items. Is there anything that is left to be said with
Councilmembers here before we go on to the next item?
Mr. Kagawa: Before this item came up, I individually
talked to other Councilmembers and told them that I really want to get past this
item because I am tired of it. But it keeps coming up and sometimes I think that we
need to serve the public. As I am going out into the community, I have not talked to
one person who is happy with how this case has gone and they are not happy that it
ended up where it came to a settlement. I understand money caused it to be settled,
but the management of the moneys did not allow it to be settled. I think we went in
the worst fashion that we could by just hiring three (3) attorneys with no
coordination whatsoever. We went in that direction almost forcefully and it
disappoints me that the public needs to be so troubled by what transpired in the
end because I think what really would be the best outcome is that if some
wrongdoing was done, then the Court will decide what went wrong and people can
be assured that whoever made wrong decisions be clear, known, and never happen
again. With a settlement, it leaves everything open to happen again and to reoccur
with no consequences. That is why my frustration is with this case. Moneywise, I
am glad it is over. I am ready to turn the page. Like Councilmember Hooser and
yourself said, I am ready to move on. We have a lot of big issues in front of us, but
it is hard to move on. The public is bewildered about how this case transpired. It is
really frustrating. Thank you, Chair.
Chair Furfaro: Understood Mr. Kagawa. Gentlemen, I want
to share with you that we have attorneys waiting for us, but I will let you speak.
Mr. Rapozo, and then I will go to Mr. Hooser.
Mr. Rapozo: Thank you, Mr. Chair. I really appreciate
Councilmember Yukimura saying that she felt all of us wanted to see this thing
through, and that is true. We were one (1) day away from first base and it was
taken away from us. I think that, like Mr. Kagawa said, as we go in the
community, it is very difficult to explain what happened because we do not know
what happened. I do not know what happened. A lot of the stuff that we talked
about, I cannot discuss here, hoping today we are told that there was a settlement
so we can release some of the stuff. I have made a request that we release the
Executive Session minutes. That has been made, but I have not heard back yet. I
think I read the County Attorney's opinion regarding that, but I am hoping that will
be on the agenda soon because I think it is important that the public get to read
SPECIAL COUNCIL MEETING 17 APRIL 2, 2014
what we were told by our attorneys. That is as far as I can go with that. I also
prepared a Resolution to pursue a 3.17 Investigation in this matter. That has been
submitted for review, which is in process, and the Chair has some valid questions
regarding what can and cannot be discussed, what can and cannot be in the
Resolution, and I am sure that is being vetted out through OIP as we speak. I am
hoping to see that on the agenda shortly. As Councilmember Yukimura talked
about wanting to see this go forward— this is one opportunity that we can at least
find out what happened. How can a settlement be reached that affects County
taxpayers without this body having a say? I am flabbergasted. If that is allowed,
then we need to change that; either by Charter Amendment or whatever... I do not
know because we do not know. I am hoping to have that discussion today in
Executive Session. If the settlement did occur like I just said, it happened without
our approval— that I can tell you. I have never seen a case go down this road and I
will tell you that as Mr. Kagawa said, the people in the public are asking me, "What
happened? Is it because he is a Councilmember? Did he get special treatment?" I
cannot answer that until we do a 3.17 Investigation to find out at what point did
this County, whether it is through the attorneys or through whomever, transferred
the authority from this body to the insurance company? When did that happen and
how? Why as the slide showed earlier on the Rules of Professional Conduct where
the client is supposed to be kept abreast of every settlement opportunity. We were
never. We were told something completely different, but apparently this was going
on while we were being told something different. Did we treat this case different
because it was involving a Councilmember? We need to find out. This body, for
some reason— I happen to be absent that day as well as the Chair, but this body
approved Special Counsel moneys with only four (4) votes, which is against the
Charter. How did that happen? Were we assured that it was okay? Did the County
Attorney not stop us and say, "Hey, you guys need five (5) votes?" How did that
happen? That has not been rectified. I have asked that question and the answer
that I got from the County Attorney's Office was, "I need more time." The fact of the
matter is in public record. The Council voted to approve Special Counsel funds with
only four (4) votes and it got approved; yet the Rules and the Charter requires five
(5). I have not gotten that response and that is not an Executive Session question;
that is public session. That is just a rule question. How did that happen? I believe
that the only way, as Mr. Kagawa said, turn that page and move on, is by this
Council supporting an investigation, a 3.17 Investigation; one that this Council, for
some reason, is reluctant to do, but that is our right and our authority under the
Charter. I think in this case, it is warranted. Find out exactly where it went
wrong, because number one, we cannot afford to have these mistakes occur over and
over again. This is more of a plea to the body and the Chair that we get that
Resolution on the agenda as soon as possible and have that discussion. My
suggestion is that we hire a retired Judge that can do the investigation and come up
with recommendations to us on exactly what they found, what went wrong, and how
we can prevent this from happening again. Thank you, Mr. Chair.
Chair Furfaro: Thank you, Mr. Rapozo. Mr. Hooser, you
have the floor.
Mr. Hooser: Thank you, Chair. As much as we all say
that we want to move on on this, it seems like we are not able to do so and I
certainly would like to move on. I just have a couple of comments. I agree with
much of what has been said that we really do not know what the situation is. We do
not know whether or not the Planning Department authorized trespassing onto a
Councilmember's property. We do not know if the Prosecutor's Office acted with
political motives against the Councilmember. We do not know a number of things
SPECIAL COUNCIL MEETING 18 APRIL 2, 2014
and the only real way to know ... we can investigate and get some information, but
at the end of the day, only the Court system will judge guilt or innocence. For
whatever reason with the situation as it is with our insurance, we will settle
apparently, without the Court making a final decision, but I believe all sides
deserve fair and equal representation and treatment by this Council. I am very
disturb and somewhat angry at the public's testimony that disparages liable and
slanders individuals, including Councilmember Bynum. What about due process?
What about the findings of a Court or the findings of an investigation. We have
people coming up here on the mic and go on and on, putting things on the record,
slandering people's integrity and character, and I have a problem with that. I do
not know we are allowed to address that in Council Rules or not. I think it is
important for the record or people to know that Councilmember Bynum is not
allowed to be here. He is not allowed to speak on his own behalf during this
proceeding, which is why he is not here today. We have a one-sided punching bag
that goes on and on every other week. I am thankful that former Councilmember
Kawahara submitted her testimony and it was read into the record. It is my
understanding that she would have liked to be here, but had staff issues and was
not able to be here. I would encourage the community to give a little class and
thought into their future testimony and address the issue based on fairness and
equity in allowing everybody that due process and fairness when speaking up.
Thank you.
Chair Furfaro: Thank you. I do want to address some of the
concerns. I want the members to know that I have been in discussion with the
Rules Committee about revisiting some of the rules. It is so unfortunate that we
have conclusions drawn and information shared that is not factual, name-calling,
and insinuations about integrity, trust, and honesty. Quite frankly, we have to
review the Rules to get that under control. It is with great concern and the
perpetuation of a spirit of cooperation to share good information for the right
reasons, for the right people. I think we will be revisiting the rules. I hope I can
satisfy you with that. I, myself, find myself now... many times, I have extended
myself to meet with people to talk about procedures, site inspections, and so forth.
Additional freedoms are taken that are very unfortunate and we will address that
at another time. Thank you very much for your comments and I would like to move
on to the next Executive Session presentation with the County Attorney up for ES-
709.
Mr. Rapozo: Mr. Chair, I know that the first item was
read by our Clerk. Is that sufficient? Those things, for some reason, catch my eye
and I just do not know... I think it is fine. I think anyone can read it, but as long as
we go in with an attorney.
Chair Furfaro: Okay. Jade, why do you not just read it
again?
ES-709 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4,
92-5(a)(4), and Kaua`i County Charter Section 3.07(E), the Office of the County
Attorney requests an Executive Session with the Council to provide the Council
with a briefing to discuss the Council's obligations as it relates to Sheilah Miyake's
request for payment of attorneys' fees in Tim Bynum vs. County of Kaua`i, 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.
SPECIAL COUNCIL MEETING 19 APRIL 2, 2014
Chair Furfaro: Thank you. I am looking for a motion to go
into Executive Session.
Mr. Kagawa moved to convene in Executive Session for ES-703 and ES-709,
seconded by Ms. Yukimura.
Chair Furfaro: Let us take ES-703 first.
Ms. Fountain-Tanigawa: This is a vote to go into Executive Session on
ES-703.
The motion to convene in Executive Session for ES-703 was then put, and
carried by the following vote:
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: Okay. Let us go to ES-709.
The motion to reconvene in Executive Session for ES-709 was then put, and
carried by the following vote:
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.
Ms. Fountain-Tanigawa: Chair, did you want to dispose of ES-711?
Chair Furfaro: Yes. Let us dispose of ES-711.
ES-711 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4,
92-5(a)(4), and Kauai County Charter Section 3.07(E), the purpose of this Executive
Session is to provide the Council with a briefing in Lynell Tokuda, et al. vs. Chris
Calio, et al., Civil No. CV13-00202 DKW-BMK (U.S. 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.
Mr. Rapozo moved to receive ES-711 for the record, seconded by
Ms. Yukimura, and carried by a vote of 6:0:1 (Mr. Bynum was noted as
excused).
Chair Furfaro: We will be going into Executive Session for
approximately an hour.
SPECIAL COUNCIL MEETING 20 APRIL 2, 2014
ADJOURNMENT.
There being no further business, the Special Council Meeting adjourned at
11:01 a.m.
Res• •ctfu y submitted,
ai
JAD :t . UNTAIN-T A IGAWA
Deputy County Clerk
:cy