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HomeMy WebLinkAbout04/13/2015 Office of the County Attorney 4/13/2015 I)EPARTMENTAL BUDGET REVIEWS 2015-16 OFFICE OF THE COUNTY ATTORNEY Office of the County Attorney Honorable Mason K. Chock Honorable Gary L. Hooser Honorable KipuKai Kuali`i Honorable Mel Rapozo Honorable JoAnn A. Yukimura Honorable Arryl Kaneshiro Excused: Honorable Ross Kagawa The Committee reconvened at 10:31 a.m, and proceeded as follows: Committee Chair Kaneshiro: Welcome back. We have the Office of the County Attorney. They are going to have a quick presentation, we will hold our questions until the end of the presentation, and then we will get into the budget. MAUNA KEA TRASK, County Attorney: Aloha and thank you. Good morning, for the record my name is Mauna Kea Trask, County Attorney. To my far right, Steve Hall, First Deputy County Attorney, and joining us is Teresa Tamura who together with Barbara Montemayor, and Allison Hiranaka who were instrumental in crafting the budget proposal that has been submitted to you today. Before I start with our PowerPoint presentation today, I would like to provide you with a brief overview of what we are going to discuss and present the general theme of our budget proposal this year. Starting off, I will go over the mission of the County Attorney's Office, review the Office's Fiscal Year (FY) 2014-2015 goals and objectives, successes and achievements, as well as challenges. I will then advance the offices FY 2016 goals and objectives and discuss performance measures. Steve will follow with our budget overview which will layout the specific facts, figures, and percentages relevant to our budget proposal. I will then close the presentation by (inaudible-703 01:20) on matters related to personnel and future needs for planning and the vision of the County Attorney's Office. Before I begin, I want to clearly state that this is a bold budget proposal. Beyond the fiscal policy statement is a call for leadership to all of our County officers and employees to make well reason and pragmatic decisions for and on behalf of the people of Kaua`i and Niihau. The County Attorney's Office's budget requires that we all cooperate and work with each other instead of against each other for the greater good. The County Attorney's Office was asked to cut approximately 7% of its budget and we achieved this cost-savings by reducing our Special Counsel line item. The effect in this cut necessitated a reorganization of our Office in order to take more litigation in-house. In order to do so, Deputies who prefer to do litigation were combined to form a litigation unit, and those who preferred to provide advice and counsel were combine to a advice and counsel unit. The utilization of these separate teams allows the County Attorney's Office to utilize more modern, management theory specifically described as the participated management style. This reorganization also allows Deputy County Attorney's to focus their practice in areas that they are interested in and comfortable with. The idea of being that they will be more productive and have higher morale doing what they want to do best. Although this move allows us to realize large savings in our Special Counsel spending and although it was done without any budget increases, it does not come without a cost. Time has now become the most resource we have and time and resource management is now at the forefront of our Office's concerns. Thank you again for this opportunity and now we will start with the presentation. We have before you the Office of the County Attorney, County of Kauai budget presentation. Pursuant to your request, it is numbered and has a light background. The color green is psychologically soothing and so we hope that works. April 13, 2015 Office of the County Attorney (dmc) Page 2 Council Chair Rapozo: We have black and white. Mr. Trask: Okay, alright. The mission of the County Attorney is, "To diligently render proficient legal services ethically and honorably; an to act as an advisor and advocate to the various county entities which comprise the County of Kauai on behalf of the people." This is done by fulfilling our chartered duty under Section 8.04 to act as the County's Attorney. The Attorney has many different roles in the Attorney/Client relationship, they act as advisors, advocates, negotiators, intermediaries, and evaluators. Along these lines, we provide the client with an informed understanding of their legal rights and obligations and explain the practical implications. A lawyer zealously asserts the client's position under the rules of the adversarial system. A lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. Between clients which we are faced with daily, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extend, as a spokesperson for each client. Lastly, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others. I will go over our FY 2014-2015 goals and objectives. Our goal last year was to provide timely competent legal advice and representation to the Mayor, County Council, and to all Departments, Commissions, Boards and Agencies. The Objectives has stated last year was to create a litigation unit; to advice, guide, and educate clients to minimize legal action against the County; to seek and provide training for our attorney's so that they can successfully, responsible, and brilliantly meet the demands placed upon them; to maintain and practice positivity; and focus on the prime legal needs of our clients and the County. Our main achievement was the reorganization. Again, it was implemented via the creative strategic shift to better utilize existing funded positions and resources to meet all operational needs. Litigation and Advice and Counsel units at no extra cost and anticipated to result in a large savings to the budget. Also, a re-described Position 121 from a Legal Clerk III which is civil service to a Private Secretary which is appointed. Ms. Tamura filled that spot and we are very happy with the professionalism and expertise that she brings. Our successes and achievements with Special Counsel Contract Management, within the past FY we were able to reduce our need of Special Counsel via the reorganization and also we cancelled some special contracts in order to better our fiscal management. Positive Outcomes again, excellent legal work the resulted in positive outcomes either via motions, dismissal, and/or settlement potentially saving hundreds of thousands in special counsel costs. Some of our challenges for this FY, again, it all pertains to Special Counsel. We are a professional service department. We have no projects, we build no roads, we do no construction. We assist both the Council, the Mayor, and all the Departments in achieving their goals. Our largest liability is Special Counsel. If we are able to manage that we can effectuate a budget reduction. Control — this is always a challenge and by "control" I mean the County...and this is for as you know the public's edification as well. The County is not able to control who sues us or directly how much litigation we are brought in to but nonetheless we must endeavor to act according to strategies that avoid litigation or minimize exposure. This is not to say that some decisions are more likely to result in litigation than others or some decisions...although correct, need to be borne out through litigation to ultimately win in the end. However, we can get sued at any time. We can always be named and it is dealing with that, that we have to acknowledge. Of course time management; this involves prioritizing the task requested to the County Attorney's Office. Again, money is always scarce, but time is even more finite. That is what we are dealing with. No matter how much you could pay us, you cannot give us more hours in a day. To reframe this year, admittedly our goals and objectives last year were difficult to April 13, 2015 Office of the County Attorney (dmc) Page 3 measure so we looked to do more measurably and achievable goals for this upcoming FY. Again, number one will always be to decrease the use of Special Counsel and the objective to doing that is creating the Litigation Unit the office will stay within this FY proposed budget. We want to increase specialized attorney training to allow for each deputy to attend at least one specialized attorney training program by end of FY. Training is an investment for all of your Deputy County Attorney's. The professionalism and the knowledge that we see as a result of training is measurable and they are beneficial to the County. Also, educational opportunities for the public in the form of legal informational pieces. This is an initiative that I am very excited about. A lot of times the County Attorney's Office because of its nature and circumstances is not fully understood and appreciated by the larger members of the public. We are often seen and described as more in the back, type of like a shadow organization and so in order to deal with the misconception, and also assist people and participate in more effectively and democratic process, we would like to look at the opportunity of presenting informational pieces to the public. This is not advise but it would be general descriptions about the County and State processes, civic type of information like what you see on a governmental website. One of the things I am thinking about offering first is a piece of the newly created environmental court which is a Hawaii State Judiciary initiative which I think both you and the community will enjoy. Of course the goal is to inform and provide a better understanding of the County government process. Again, for the public. Now performance measures are difficult in evaluating performance of a lawyer as either an advisor or an advocate. Our laws and regulations are increasing and are getting increasingly complex. In effect, a really good attorney can lose a case nonetheless and it is difficult too when you are advising an organization like the County with a lot of different facets and departments goals and objectives, it is increasingly difficult to measure success when individually the departments may feel like they did not win or their side was not carried but nonetheless, the appropriate client did...they were able to prosecute their specific goals and objectives. The American adversarial system is always expensive, win or lose you pay, but if you lose, you pay more. The existence of litigation does not in and of itself indicate a bad call. Often correct calls create litigation because they are correct but because law on the subject is novel and especially in Hawai`i, department satisfaction is also again as I said earlier, the paradox of shifting client interests and identifying who the client is and when. I am going now to our budget overview slide and Steve will go over the numbers with you. STEPHEN F. HALL, First Deputy County Attorney: Good morning Council Chair and Members. Stephen Hall, First Deputy County Attorney. Obviously, you see the slide presentation up there but I kind of wanted to talk about a few of the numbers that really illustrate what we are doing here. From a global perspective we are ask to make some budget cuts roughly about 6.9% to help the Administration present a balanced budget. As Mauna Kea stated, we are a professional service based office so when we were looking at how we can make cuts, it is either generally we cut people or we cut some sort of large expenditure. We certainly do not want to cut people, so the large expenditure that we attempted to cut here was Special Counsel. I will touch on that in a moment. Running through a handful of other reductions quickly, we cut certain internet cable and data, subscriptions by 10.1%, copier, advertiser, expenses, and different per diem accounts. Although we made nine cuts in different areas, those only totaled $22,761, so even though the percentages sounds impressive, it is not going to get us to that 6.9% overall cut that we need to made. Mauna Kea, along with the office came to the conclusion that Special Counsel was the cut that we could make by brining litigation in-house. The cut was over three hundred thousand dollars ($300,000), that is 47.9% and that was done, again, by April 13, 2015 Office of the County Attorney (dmc) Page 4 making two units within the County Attorney's Office; the advice and counsel unit, and litigation unit. While we will not be able to handle every case in-house, the goal was to handle the majority of them by preventing conflicts within our office and having more resources dedicated towards litigation. Along the thought of dedicating more resources towards litigation, we had to make some increases. For the budget that we are presenting to you, we have three (3) increases based on our cut of Special Counsel; consulting services, litigation costs, and investigators. Those three (3) areas total $60,499 in increases and it will enable us to better litigate our cases in-house. There were also six (6) increases based on social security, retirement contributions, and other post-employment benefits among other things, which totaled $68,109. Those are things that we do not have much say in. Overall, we were able to cut the expenses of our office by 6.81%, just shy of our 6.9%, at a total of a $172,000 and change. Mr. Trask: Again, personnel and future needs for future planning, the County Attorney's Office has one current vacant Deputy County Attorney position for the advice and counsel unit. We had tenure an offer to an applicant a couple weeks ago but they declined so now we are going out to advertise in the newspaper to find somebody, who is a good fit and who would be excited to work on Kauai for the public's interest, for all of you watching today, please look for the ad in the newspaper. The County Attorney's Office also must appreciate the fact that there is a need and sophisticated attorney's office to meet its need as it evolves. A strong County Attorney's Office do nothing but benefit the County. A lot of our Departments especially those with regulatory duties, tax, planning, public works, you can do all the work you want in a legislative capacity to create opportunities to better protect the health, safety, and welfare of the people of County of Kaua`i and Ni`ihau. However, in order to effectuate that and create those enforcement opportunities, you need an attorney to bring it to Court and assist you. The more we get into and the more the County begins to regulate and enforce, the more necessary attorney work you will need. Also, positions with impending retirements and departure, we have identified...and this is just the normal attrition, a Legal Clerk III position, we are anticipating within two or three years to fill. We will potentially promote from within the department, and also this will create an opening to bring someone in either from another department of the County or from the public to fill the Legal Clerk position. Finally just to close up, our vision is to render excellent, comprehensive legal services to the County and in doing so, render advise...and this is pursuant to Hawai`i Rules of Professional Conduct, Rule 2.1, a lawyer may refer not only to the law, but other considerations. Such as moral, economic, social, and political factors that may be relevant to the client's situation. Our vision is to increase the community's confidence in the County Attorney's Office, their advice and services. And ultimately, provide accurate legal information to the community in order to educate them in the law so that they may better understand and participate in the County governmental process. Any democracy is only as strong as its constituents and those who participate in a sophisticate intelligent community will lead to better decisions. It is a matter of fact. Finally, this is a theme for this year's budget proposal, "It is through cooperation, rather than conflict, that your greatest successes will be derived." I wanted to take credit for that but it is anonymous off of the internet. With that, I would like to thank you very much for this opportunity and welcome any questions you may have. Committee Chair Kaneshiro: Thank you. I can say that I really appreciated the breakdown of cost, your increases and decreases. It really shows how little wiggle room we really have. We will take questions from Councilmembers. Councilmember Kuali`i. Councilmember Kuali`i: On the positions, did you say that one of the Legal Clerk III positions was vacant? April 13, 2015 Office of the County Attorney (dmc) Page 5 Mr. Trask: No, it is currently filled but we anticipate that it will be vacated via a retirement in either... Councilmember Kuali`i: Retirement. Mr. Trask: Yes. Councilmember Kuali`i: There was a vacancy of the position 120. Mr. Trask: Correct. Councilmember Kuali`i: And it was vacant since September 8th but it is showing on the new hire report from the Department of Human Resources as of March 16, 2015. Mr. Trask: Correct. Councilmember Kuali`i: Was that SR-14 hired at what step? Because I show the vacancy, the new hire showed the vacancy at a $33,720 level but the budget shows it at a $44,388 level. Does that mean that that position was hired at the top step? What was that hired at? Mr. Trask: I have been informed for position 120, she was hired at $33,000. Councilmember Kuali`i: The budget shows $44,388, and it would be corrected to $33,720 or it would allow for one-step increase? Mr. Trask: Yes, we would like to allow for one-step increase, if possible, and I would be happy to discuss the management theory behind it, if you would like. Councilmember Kuali`i: That is fine. The only other thing is the question of the E-16 Deputy County Attorney. They had shown on the vacancy that there was an offer made, so you had just said that it turned out that that offer was declined. Mr. Trask: Correct. Councilmember Kuali`i: And now you are going back to recruitment. Mr. Trask: Correct. Councilmember Kuali`i: Was the offer made...I see the $94,454, which step was that made at? Mr. Trask: It depends on when you hire. You look at somebody's history, qualifications, and experience, but we tend to bring in deputies at an amount that allows them to get step increases and go up to the maximum. As you know our salaries are dictated by the Salary Commission and adopted by you via resolution. April 13, 2015 Office of the County Attorney (dmc) Page 6 Councilmember Kuali`i: Yes. I like hearing that because I think it is important that we have room for growth, promotion, and those salary increases. It is one thing attracting people to the job in the first place but then how do you keep them, so that is good to hear. So, now we are back to recruitment. Do you have any anticipation of how long that will take? Mr. Trask: We do not. It is difficult. There is a new crop of law students graduating in a couple of months. Their licensure, the quickest they will come in is November. They take the bar in August. We are always looking for somebody, but it is tough to bring people to Kauai. Young attorney's want...if you are single, you can afford the active life, you like to stay on Oahu. To bring someone here...it is tough. Councilmember Kuali`i: Thank you. Committee Chair Kaneshiro: Councilmember Yukimura. Councilmember Yukimura: You show all the deputies at the same level, is this reflecting actual salaries? Mr. Trask: No, the $94,454 is the maximum of the salaries which is dictated by ordinance. Councilmember Yukimura: Okay. So you do hire and set salaries based on some kind of achievement levels so people can move into higher level of salaries? Mr. Trask: Correct. I have filled out and discussed job performance reviews with a few deputies and we are looking to institute that regularly. I believe it is quarterly is the policy but I am not quite sure. We want to do that and also to build a record in order to take...to build a case from the Salary Commission this coming year to see if we were able to get more for next year. Councilmember Yukimura: Yes. In your interviews of potential deputies, do you get a sense of what...I mean you said deputies preferably like to stay in Honolulu. Is the level of salary a problem in recruiting? Mr. Trask: It depends. I think we do need to be competitive. It is difficult to attract the real top-tiered talent and also getting the word out to that this idea...I think there is an older idea that government attorney's, you show up to go to lunch. It is kind of like a cruise job, but it is kind of like softball, but it really is not. If anybody watching out there, working in government allows you the opportunity to go right to court, if you want to go to court. It gives you the opportunity to work with what is essentially a corporate client to do contracts, procurement, and deal with money. It is a great opportunity and learning experience. To allow people to ultimately to uphold things like public trust, take about the environment, giving that opportunity to do greater good type things, that is as attractive, I think, and we just need to communicate that. The cost of living is tough in Kaua`i too. You are not going to be able to buy a house and a down unless you have money already and that is just a fact. Councilmember Yukimura: Did you want to say something, Steve? Mr. Hall: No, I think Mauna Kea covered it. April 13, 2015 Office of the County Attorney (dmc) Page 7 Councilmember Yukimura: Okay. I love that we are looking for really high quality attorneys. You are right that given all the other parameters like cost of living, et cetera, it takes a higher salary to attract that kind of experienced attorney. I am glad that you are building a case for the Salary Commission. I guess the other thing would be to communicate to potential employees that that is the nature of the work and why it is important and could be very interesting as well. Mr. Trask: Correct. Councilmember Yukimura: Thank you. Committee Chair Kaneshiro: Council Chair Rapozo. Council Chair Rapozo: What is the average salary of an attorney coming out of law school? Whether they are going to clerk at the court, or they are going to work for some firm, associate... Mr. Trask: It can range. Court Clerks, you are looking at $50,000 to $60,000, if I recall what my salary was at the time or maybe a little less. Public service starting...it really depends. Public Defenders (PDs) make around the same or a little more. Private firms, it is really up to how much you are worth to them and how valuable you can be. It is very diverse, it is difficult to get an average, and firms often do not... it is difficult to get quotes in the private sector because they are so competitive. They do not want anyone else to know what they are offering. We saw recently...we loss one...we had an opportunity to get somebody and they chose to stay on O`ahu and get paid what they are going to get paid there. We can try to find out though. Council Chair Rapozo: No, no, I am just saying that we have to...when we are looking for candidates and recruiting, I think entry level government now, government comes with a little bit more security then the private sector, as far as attorney, unless you get hired by a big firm. If you go small firm, you would never know. When the work load slows down, you leave...in the government, you are pretty much assured for the term of the attorney that you would be there. I think entry level $40,000, $50,000, or $60,000 is probably what they get. Granted if we cannot get them for that then better for them that they will find a better paying job but I guess what I am saying is just because we offer them a $100,000 does not mean we are going to get a good attorney for a $100,000, especially an entry level. Try to get somebody at the lower level and then you can train them, as Councilmember Kuali`i said earlier they have this ability to get more pay based on merit, and obviously experience, knowledge, and all of that. I think when we add them all up, we pay quite a bit. I mean your office actually has done a great job with litigation and we are getting away with a very reasonable price but that is just what it is for working for government, and we appreciate that. How many attorneys typically come out of a class once they pass the bar? How many attorneys actually become available around the market? Mr. Trask: It depends. University of Hawai`i they graduate between 60 and 80. Council Chair Rapozo: Oh, that many? Mr. Trask: You are right. You spoke about something...presenting opportunities for longevity, longitude, and in a government April 13, 2015 Office of the County Attorney (dmc) Page 8 attorney's office will never be able to offer an opportunity to make partner. We are appointees. The deputies are hired at the pleasure of the County Attorney, and the County Attorney of course is appointed by the Mayor and confirmed by yourself, that is a lot of political possibilities out there regarding job stability. It is like you said, trying to best identify how to sell it—it is a sales pitch. Council Chair Rapozo: Thank you. Committee Chair Kaneshiro: Follow-up questions? Councilmember Yukimura. Councilmember Yukimura: If we want to have a lot of experience we are not going to get people fresh out of college, I mean out of law school. Unless we are really able to train them well and one of my questions would be, "What kind of training?" And even if they are not fresh out of law school, the nature of government work may be different than what they have done in the past. Training is really important, so what kind of training are you offering them? You did say in your goals that you want to have everyone participate in a training program every year, is that what I understood? Mr. Trask: Correct. What we are looking to do is create training opportunities...of course if we find something that is cost effective that necessitates travel and going out-of-state, and it is worth it, we will do it. But we were looking more along the lines of creative training alternatives which actually bringing someone over off our special counsel list. We have very good experienced firms, excellent litigators, and best in Hawai`i that can go over a day, eight hours, and provide us a workshop on discovery, how to answer a complaint, motion practice, and jury exhibits. For advice and counsel bring in State Procurement Officer over and doing procurement training because as you know 103(d) in the State Procurement Code is interpreted by the Finance Director and we are used as a resource, but it is an accountant call most of the time. Looking for those opportunities. Also, if and when we contract for special counsel making it clear in the contract that we want special counsel to utilize a deputy as if an associate, and have the deputy be at the direction of special counsel, I want you to look at this issue and research that issue. That way, it is almost like you are in that firm for that period of time and getting that valuable experience from that partner. We are very open to those types of opportunities. Councilmember Yukimura: We did see some of that in this past year, and I think Steve, you were involved in a case representing a County employee and then we had a private special counsel and you worked together. Did you find that to be a good learning experience? Mr. Hall: It was enormously helpful and I learned quite a bit from that experience that I am utilizing in my cases now. Councilmember Yukimura: Right. Mr. Hall: Yes, it was wonderful. Councilmember Yukimura: So that is kind of a new paradigm for using special counsel not eliminating them entirely but partnering them to offset the costs of special counsel but also providing training grounds for our attorneys. Okay. April 13, 2015 Office of the County Attorney (dmc) Page 9 Mr. Trask: With the idea that Council Chair said, a deputy of$45 an hour is much more cost effective then a firm associate at a $150 an hour. Councilmember Yukimura: Okay, excellent. Thank you. Committee Chair Kaneshiro: Councilmember Chock. Councilmember Chock: The specialized training that you mentioned in your presentation, you started to talk about it and I am wondering if you have more information to share in terms of the types of training that you foresee. It sounded like you said that you wanted specific lawyers trained and specialized in certain areas. You mentioned procurement, are there other areas that you can share with us that you folks are looking into, specifically for training? I did notice that the training budget did increase over the years, so is that enough to get us where we need to? Mr. Trask: I will let Stephen Hall discuss that. Mr. Hall: As far as whether it is enough to get us to where we need to be, I think, right now we are in a very "transitionary" phase, if that is even a word. We are in transition right now between the way we used to do it which was a lot of special counsel and forming things out to bringing a lot of stuff in-house. As we go down this new path, we will consistently re-evaluate and along that line we are even developing policies within our office to better monitor whether these things are helpful or not. To give you specifics I can tell you that we contracted the services of a group called, "Lorman" which provide webinars, all sorts of manuals, tens of thousands of materials that span litigation, HR, government attorneys, and it has been very useful. We have been very useful. We are looking at other sort of webinars as well that will also be able to help us learn some different areas so that we do not necessary have to leave the island to get our training. Although there are certain things that we have identified that would be helpful off-island for certain attorneys in certain areas. Again, there is kind of a divide in what is helpful between the litigation unit and the advice and counsel unit because some of the attorneys in advice and counsel are also starting to kind of specialize in certain areas whether it be matters involving public works, for instance, construction law, contracts, or civil defense and police work. It will be some trial-and-error, but we have definitely identified some particulars. Councilmember Chock: Are there any specific gaps that we need to focus on in terms of building capacity currently in the County Attorney's Office? Mr. Hall: I think Mauna Kea is going to take this one. Mr. Trask: Specifically what you are looking at is Kaua`i is at a fulcrum as far as the larger public works projects. Waste is a huge one. With the level of complexity of regulations that we have to deal with living on a small island with numerous endangered species with a very sensitive environment, the is definitely a big issue plus the cost of the regulation that goes into it. A big waste Public Works project, Transportation project, and Water projects, when you deliver to the people, to have us best- trained to facilitate that is very important. That is where you see a penny of prevention in those areas worth a pound of...exactly. Steve said, "Utilizing technology— technology is the frontier of law offices." Our subscriptions we are cutting down, we do not need hard books anymore because everything is on west law and identifying those strategies that can best April 13, 2015 Office of the County Attorney (dmc) Page 10 support us, it is easier to bring to control (f) a thousand page document than it is to flip through it. Councilmember Chock: In your presentation the direction that I see us moving it seems to me like trying to fill the positions that are coming forth are needed to be filled. It is unique in terms of us being able to identify people, we want to serve a specific role in government and public service but also the opportunity to build their capacity as a lawyer. Training to me is a real great opportunity, I was wondering do we write any grants that we can increase our capacity in training. Mr. Trask: That is definitely what we want to look at into doing that. The Prosecuting Attorney's Office as you know gets federal money to do certain kinds of work, and we look to hope for grant opportunities. I anticipated there has to be environmental types of causes and all those areas that would provide funding. We are committed to looking for that and would like to identify those opportunities within the next year and hopefully achieve that kind of funding in the next couple years. Councilmember Chock: Perfect, thank you. Committee Chair Kaneshiro: Councilmember Yukimura. Councilmember Yukimura: On page 5 of your PowerPoint, you talk about, "We must endeavor to act according to strategies that avoid litigation or minimize exposure," can you tell me what these are that you are talking about? Mr. Trask: Sure. Councilmember Yukimura: I presume that that is in your advice and counsel arena mainly, but I do not know. Mr. Trask: That is correct. So what we are trying to say there diplomatically, again, County government is very unique. I think the nature of it brings up a potential to breed adversity because of the separate branches that the kulena with respect to certain tasks and how you deal with that. And what we are looking to do is assist the various aspects of the County to identify a goal or objective to be achieved and how to best achieve that. Sometimes one way is problematic, so another strategy should be used. Although the effect can still be realized, for instance, there is a contentious piece of legislation that comes before you, it might be better to avoid that and go a different route. You are looking at...and it is inherent in the system of various levels of federalism and state government, and county government. Encouraging clients to work together and this is not to call anybody out or mischaracterized anything but for example a couple years back and currently before the Intermediate Court of Appeals, there is a dispute over personnel actions done regarding the Chief of Police, the Police Commission, and the Mayor's Office. That decision was taken to court to be decided. Ultimately regardless of whether the advice of counsel was right on behalf of the County Attorney's Office, regardless who was wrong, it costs all parties, and ultimately cost the County and necessitated conflicts of interest outside the County Attorney's Office and outside counsel. Ultimately, there is no money to be won there, only money to be spent. We are looking to minimize those occurrences in the future because we are in austere times and that is why the framing of this budget is called, "Leadership," and "Achieving that through cooperation, rather than adversity," is how I would like to characterize it. April 13, 2015 Office of the County Attorney (dmc) Page 11 Councilmember Yukimura: Okay. I understand what you are saying and there are sometimes that legal principles have to be established. For example, the shoreline setback or whatever. Mr. Trask: That is true. Councilmember Yukimura: Where it had to go to court to get the law clarified, right. Mr. Trask: And ultimately that is why we use minimization. You can only be minimized and I think we all can work together whether it is alternative dispute, mediation, et cetera. Councilmember Yukimura: You say in the earlier part of that paragraph that, "The County is not able to control who sues or how much litigation we are brought into," but in fact that is the whole area of risk mitigation, right. We can somewhat influence how much litigation were brought to by whom we hire or appoint as managers which is not County Attorney's role but it is another arm of the County whom we hire or appoint as managers, and how well trained our employees are. Mr. Trask: Correct. Councilmember Yukimura: So how they handle sexual harassment, violence prevention in and amongst our County family. In your goals and objectives where you say the Offices objectives are: decrease the use of special counsel, to allow each deputy to attend at least one specialized attorney training program by end of fiscal year, and educational opportunities for the public in the form of legal informational pieces. What seems to be missing here is what about the departments and commissions and the opportunity to educate them? Is that not a substantial piece of County Attorney's role to educate in terms of ethics principles, educate in terms of proper procedures or even legal theory underline whether it is invasive species or sexual harassment. Mr. Trask: That is correct. I guess I more characterize that as the day-to-day type stuff providing well-reason, conservative advice, and if you look at... Councilmember Yukimura: You see that in the first part of your goals and objectives. Mr. Trask: Correct, as well as stated in the Vision, "Render excellent comprehensive legal services to the County," and in doing that like you said, not only the appropriate legal factors, legal standards, and responsibilities, but also other considerations more economic, social, and political. That is a huge (inaudible) of what the County does and what the public wants at any given time but the pressure is upon you and the Mayor as elected decision-makers. Councilmember Yukimura: Yes, but the County Attorney's is not going to address those pieces; economic, social... Mr. Trask: Under the Rule of Professional Conduct, we do have that ability. We would like to bring that into the discussion because often times if you present a real dry strict legal interpretation in a vacuum, it is not helpful. We are not April 13, 2015 Office of the County Attorney (dine) Page 12 saying that we are trying to drive policy but just to present you with all those facts and circumstances so that you can best make the policy decisions along with the legal. Councilmember Yukimura: Certainly, policy underlying certain practices and procedures is very important. Just for the fact that sexual harassment claims have to be investigated whether they have basis or not, there is a real policy behind that right? I mean how else can you judge whether there was accurately unless the proper procedure was followed. I am saying that in that case, I agree with you, and maybe that is what you are referring too. Mr. Trask: That is. Councilmember Yukimura: Okay. Thank you. Committee Chair Kaneshiro: Any further questions from the members? Councilmember Yukimura. Councilmember Yukimura: The amount you put in for special counsel, given who already is on-board as special counsel that you have not cut from the cases that are pending, is this amount projected to cover at least any expenses for this year? Mr. Trask: We anticipate it will. Recently we came in for a second money bill in late-February/early-March. Councilmember Yukimura: Right. Mr. Trask: Our account right now is approximately $670,000 unencumbered and with that we do not have any current litigation filed against the County that we think would go over this budgeted amount, but it is a bold move. It is a big cut. We hope that our extra capacity in the litigation unit will take on what was giving us the most difficult time to fill, which is not enough bodies dealing with the conflict, but it could get wiped out with a really big case. Especially if it is among County offices. Councilmember Yukimura: Well I hope you at least taken the pending cases, projected them out for the rest of the year, and know that the $338,000 is going to cover at least that because you are not going to be able to carry over the $650,000 that we just appropriated, right, unless I am wrong. Unless you encumber that $650,000...I assume that you are not going to encumber at all before the end of the fiscal year. You should definitely look to see whatever you can use from that $650,000 to cover pending cases, so you do not have something right after the new fiscal year begins that you could have paid for in the past fiscal year. I am assuming that this $338,000 does cover whatever you project of the existing cases, something that you are not predicting is going to happen, you already know that we have this case in front of us. Mr. Trask: We are optimistic, is the best I can say. Councilmember Yukimura: Well I think you better ask the Mayor to address it in the supplement then because to go from 1.2 million to $338,000 is not realistic at all. Mr. Trask: In crafting the budget we looked to the past five years to see if we could identify any trends of special counsel. To see what was the average • April 13, 2015 Office of the County Attorney (dmc) Page 13 and it really we could not identify it at all. If you look at 2012, we only spent $115,000 and so in others...we need to make it work somehow. Councilmember Yukimura: I think you can say that for the existing cases and the projected expenses in those cases not all are predictable, but you know those cases exists. It is not like predicting whether there is going to be a case or not. In fact, I will make that a question, to make sure you calculated approximately whether this covers it. Mr. Hall: Councilmember Yukimura, I can tell you that one of the more expensive cases that we had recently that some of you had some experience with was settled and as you know there are still expenses that continue after settlement but that case is actually been closed in its entirety. We received the final bill and that was actually waived by Special Counsel. At least for that one there will be no...nothing being paid out of next year's funds. Councilmember Yukimura: For that case. Mr. Hall: For that case, and that was one of the larger cases we have seen come through. Councilmember Yukimura: So you are saying you have looked at it and you think you can...at least it covers the ongoing cases. Mr. Hall: As Mauna Kea says, we are optimistic. Committee Chair Kaneshiro: Council Chair Rapozo. Council Chair Rapozo: You said that there were six hundred something thousand unencumbered, so that is gone... Mr. Trask: No, we still have that. Council Chair Rapozo: Now you do but in June 30 you will not. Mr. Trask: Well we are going to... Council Chair Rapozo: You are going to try to encumber... Mr. Trask: We are coming before you...we just transmitted some language late last week to encumber about half of that. Council Chair Rapozo: For existing cases? Mr. Trask: Past cases. One specific past case and with that we will have a balance of approximately three hundred and change. Council Chair Rapozo: But again that just carries us through... Mr. Trask: This fiscal year. When we came for the money bill there was a memorandum delivered to the Council on or about February 9th where we went over our estimates after speaking with Special Counsel about eight cases forecasting what we would need. We are okay, again, we look alright for now. April 13, 2015 Office of the County Attorney (dmc) Page 14 Council Chair Rapozo: I trust that with your plan and I mean you mentioned in your presentation that there were some special counsel contracts that were cancelled. Mr. Trask: Correct. Council Chair Rapozo: And what did that save the County? Mr. Trask: It saved the initial appropriation. We were able to pull that back, I think it was in a tune of $76,000 but also the future savings of those cases by bringing in-house, you could easily save us hundreds of thousands of dollars throughout the life of the case. Council Chair Rapozo: Two hundred, three hundred thousand — maybe more. Mr. Trask: Yes, for those two, yes. Council Chair Rapozo: If we follow the trend, probably five to six hundred thousand dollars. Mr. Trask: Correct. Council Chair Rapozo: Thank you for doing that. Your rate is about $45 bucks an hour. Mr. Trask: Correct. Council Chair Rapozo: In-house, and Special Counsel about ten times that. Mr. Trask: Yes, associates $152 to $200 an hour, I mean partners... Council Chair Rapozo: But they charge you when they think of you. Mr. Trask: When you are... Council Chair Rapozo: If they are thinking about you...as we saw the billings, it was substantial. Mr. Trask: E-mails, communication... Council Chair Rapozo: Everything. Mr. Trask: Correct. Council Chair Rapozo: So we should...because I am as concerned with Councilmember Yukimura as a number because like you said one case and that could be wiped out. I think we have to be cognizant, that is fine to keep the number like that, but as we prepare the budget either move more in there or make sure you have some reserve • April 13, 2015 Office of the County Attorney (dmc) Page 15 funds in the Fund Balance should we need it. Your budget, really, has no fat. It is not like you can transfer money from anywhere in your budget over to special counsel, so we need to make sure that we have enough in there. I just feel more comfortable at about half a million dollars in there; five hundred grand for some reason I am thinking that number. I think one million was way too much and when you have that much it is so much easier to hire special counsel because you have the money. I am comfortable that you folks will be able to handle a lot in-house. We have seen the fruits of your labor in Executive Session, and so I think we are confident that you folks have the ability and the desire to do it in-house. We will have that discussion, I guess, in decision-making. Think about it and for the Administration that is here, because I really do not want to sell you folks short. That is a great goal but I want to make sure you have the resources you need. Mr. Trask: Thank you. Committee Chair Kaneshiro: Councilmember Yukimura. Councilmember Yukimura: I agree that your litigation team thus far has been really great and we look forward to even more that good work, but you alone have said that the number of bodies in your office is an issue. You are in a transition so we do not know what the load will be on the litigation team and we do not want to burn out the litigation team or affect their effectiveness in big cases that they are handling. I have the same concerns as the Chair, in fact, that is where my questions are going. We are coming off a year with nine hundred thousand or a million dollars that we actually spent this year and so three hundred thirty eight thousand is really a huge cut and that is what concerns me when this (inaudible) cut because sometimes we try to comply but it is not realistic. Mr. Trask: Correct. I mean one of the things that we are looking to do is how do you motivate and hopefully train and get your deputies excited to come to work every day and really take time away from their family, work very hard on these cases, and it comes down to time. I am sure you have noticed and members of the public noticed that these budget hearings have not been staffed by myself or the other County Attorneys, I am busy preparing for Supreme Court or oral argument via the Administrative hearing coming up on the 27th for Parks SMA, tomorrow I have to go before the Planning Commission so you have a working County Attorney, I still do cases and write opinions. I am not just doing administration. Councilmember Yukimura: You made the point very clear that we do not want to burn out our attorneys and we want to keep the morale and the level of performance at optimum levels. That is the balance we have to strike somewhere and while this litigation team is good, I mean, to just move over almost everything to that, I do not think is wise. I think what the vision is, is where we need special counsel, we go and get it, and we have to give you the ability to get it. Where we can really do effect work with our litigation team, that is where we do it. I think what is coming out of your leadership, all of you, is a greater discernment as to when we need special counsel and when we do not. The litigation team is not going to be the solution for everything. Mr. Trask: That is correct. Just to comment real briefly, because of the financial situation the County is in, the darling of this budget is really the litigation team. I do not want to undercut or not mention the importance of advice and counsel. To illustrate to the members and the public about this, within the legislative branch in the County there are three separate departments, for a lack of a better word: there is the Council body, the Clerk's Office, and the Auditor's Office. There are seventeen April 13, 2015 Office of the County Attorney (dmc) Page 16 (17) administrative departments from Police, Fire, Mayor, Civil Defense. There are also 17 Boards and Commissions all staffed by an attorney. We have moved to accommodate the cuts for special counsel we had to make more litigators, allow that opportunity for deputies, but that puts the entire advice and counsel or majority of it; currently four people, we are looking for a fifth. These are you day-to-day grinders that the department see every day. They do the Public Works contracts, they do the in depth OIP requests...recently because of this p-card issue, we have been...every media outlet has been sent purchasing request and we are looking over all that. It is definitely...not to mention Ian Jung, Jodi Sayegusa, Andrea Andrade, Nicholas Courson, and all the good work they do because they are definitely are the unsung hero of this budget. They shouldering a lot. Councilmember Yukimura: One last comment, they are the prevention crew. Mr. Trask: Correct. Councilmember Yukimura: They are equally important and that is why I would love to see one objective mentioned about that work that is being done by your office because it is as critical as the litigation group. Mr. Trask: Correct. Councilmember Yukimura: I mean you do make one team and everybody is important. Thank you. Committee Chair Kaneshiro: Any further questions? No further questions. Council Chair Rapozo: I have a comment. I have been through many County Attorney's since I have started here and it is always the same speech at budget or when we get a new County Attorney, they basically say the same thing, "We are going to run this like a private law firm, focus on training, get our deputies trained when we do Special Counsel work, and we are going to take on the brunt of the cases in-house," I just want for the public's knowledge to say that this is the first time in my career that I have seen this actually happen. I know that there are some...I would say skepticism by myself included, about the number for special counsel, but if we can number one limit the number of lawsuits which you cannot do but County-wide we can with more training, education, and all of that things. I know Councilmember Yukimura talked about that and all those better management, yes, training and so forth, I think again HR, County Attorney's Office have to really work together and focus on how we can get our workforce trained. The other thing is the discussion we have had, Mauna Kea, with our staff is that we have some legal analysts here that we as a department need to take on more of the advice and counsel, not so much • the opinion side but the issues that do not require legal opinions, not having you do our work for us. We need to take a more active role in that and we have two legal analysts here and we have already started to do that but it is so easy to send a memorandum over to the County Attorney's because we want to know if it is going to rain tomorrow or not because you folks are supposed to know everything, but we have to focus more on that and leave you to the true advice and counsel so that you can do what you do best. I really appreciate your comment about you are a working County Attorney because I do see that and you do work hard and we want to make sure that you do have the resources as well. You have a great staff. I just wanted to state that for the public because I think often times they do not get to see what you folks really do. The little short comments that you made about what is coming up this week, is a lot of stuff to prepare for and yet still get bombarded by 17 administrative departments bugging you for legal advice. I just wanted to April 13, 2015 Office of the County Attorney (dmc) Page 17 say thank you and keep up the good work. I am looking forward to a really positive year for litigation and this upcoming budget year. Thank you. Mr. Trask: Mahalo, us too. Committee Chair Kaneshiro: Thank you again for coming. We will take a five minute recess. There being no objections, the meeting recessed at 11:32 a.m.