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HomeMy WebLinkAboutCOM 0637.003 1996-1998 Ntv or ny~ Stephen K. Yamashiro Richard Wurdeman Mayor Corpor¢tion Counsel •~r~0i~Nt~~'` ~OLtIC~~I II~ ~2i~lT2lit C OFFICE OF THE CORPORATION COUNSEL IOI Aupuni Street, Suite 325 • Hilo, Hawaii 96720-4262 • (808) 961-8251 • Fax (808) 961-8622 March 4, 1998 The Honorable James Arakaki Chairman, Hawaii County Council County of Hawaii 25 Aupuni Street Hilo, Hawaii 96720 Dear Chairman Arakaki: Re: Resolutions Concemin Henrv A. Ross v. Count~ofHawaii. et al .Civil No 97-452 and Dean E. Beaumont v. Richard Carter. Jr.. et al. Civil No 97-187K We respectfully request that the following resolutions be assigned to the appropriate Council member and committee, if necessary, so that, they may be taken up at the next regularly scheduled County Council meeting: 1. Resolution authorizing the Corporation Counsel, and his authorized representatives, to enter into an agreement with the individually named defendants, who are officials and employees of the County of Hawaii, to represent them in the civil action entitled Henry A. Ross vs. County of Hawaii, et al., Civil No. 97-452. 2. Resolution authorizing the Corporation Counsel, and his authorized representatives, to enter into an agreement with the individually named defendant, who is an employee of the County of Hawaii, to represent him in the civil action entitled Dean E. Beaumont vs. Richard Carter, Jr., et al., Civil No. 97-187K. We further request that the resolutions be waived past committee meetings. On January 16, 1998, this County Council approved similar resolutions. Because of an objection by the Mayor, the resolutions now include a provision requiring a signature from the Chairperson of the County Council or his designated representative from the (:ounty Council. The subject ~y t..._ MAR ~ o roca ~r Ate- The Honorable James Arakaki Page 2 March 4, 1998 matter of these resolutions were discussed with the County Council during the executive session held on Wednesday, December 3, 1997, and in open session at the Finance Committee meeting on January 6, 1998. If you have any questions or concerns, please call me. Sincerely, RICHARD D. WLJRDEMAN Corporation Counsel , i' _ ~3`- ' - JOSEPH K. KAMELAMELA Deputy Corporation Counsel JKK:mo Enclosures cc/enc: Mayor Stephen K. Yamashiro Chief of Police Wayne Carvalho arakaki.jkk ~Mt+ ~ M~ 4; ~ ` III Stephen K. Yamashiro Richard Wurdeman Mayor ~ Corporation Counsel ~•Oi~N['~ ~c1.II1tTI~~1 D~ ~2if1T~Yt OFFICE OF THE CORPORATION COUNSEL r 101 Aupuni Stree4 Suite 325 • Hilo, Hawaii 96720.4262 • (808) %1-8251 • Fax (608) 961.8622 TO Ms. Liana Cox DATE: March 18, 1998 County Council FROM: Joseph K. Kamelamela Deputy Corporation Counsel RE Beaumont. Civil No. 97-187K/Ross. Civil No. 97-452 COPIES/ITEMS DATE DESCRIPTION 2 originals Agreement Providing Representation by the Office of the Corporation Counsel (tor Jay Kimura & Richard Carter, Jn) TRANSMITTED FOR: [ ]Information and Files [ ]Approval [ ]Signature and Return [ ]Review and Comments [ ]Signature and Forwarding As Noted Below [x] See Remarks Below [ ]Pursuant to Your Request [ ]Filing and Return (Envelope Enclosed) REMARKS: For the County v. Ross case, we only provided the agreement concerning Jay Kimura because the other agreements will be the same for the other defendants. /mo Enclosures cox.jkk 400~YY Oi y,K,' a AARON S.Y. CHUNG ~,IJ~, Phone: (808) 961-8396 Couneilmember FAX: (808) 969-3291 d'8 " 7TF oF~N'~ COUNTY COUNCIL ~ , County of Hawaii Hawaii County Building 25 Aupuni Street Hilo, Hawaii 96720 March 16, 1998 Council Chair James Y. Arakaki Hawaii County Council Hilo, Hawaii 96720 RE: Attached Resolutions Pursuant to Section 1(e) of Rule 4 of the Rules of Procedure of the Council of the County of Hawaii, this written approval is submitted in regazd to Resolution Nos.2 48 and 2 49 , concerning Henry A. Ross v. County of Hawaii, et al., Civil No. 97-452 and Dean E. Beaumont v. Richard Carter, Jr., et al., Civil No. 97-187K,waiving said referral from the Committee on Finance in order that appropriate action can be taken by the Council. In reviewing the contents of the referral, it is deemed advisable that such a waiver be granted. ~ r t)d 'i- ~ Aaron S.Y. Chung, Chairman Committee on Finance Approved: James Y. Arakaki, Chai an Hawaii County Council u AGREEMENT PROVIDING REPRESENTATION BY THE OFFICE OF THE CORPORATION COUNSEL THIS AGREEMENT, made this day of , 1998, by and between the COUNTY OF HAWAII, a municipal corporation duly organized under the laws of the State of Hawaii, whose principal place of business is 25 Aupuni Street, Hilo, Hawaii 96720, hereinafter called the "County," and JAY KIMURA, whose business address is 34 Rainbow Drive, Hilo, Hawaii 96720, hereinafter called "Kimura," WITNESSETH: WHEREAS, Kimura has been sued via a complaint in Henry A. Ross vs. County of Hawaii, et al., Civil No. 97-452; and WHEREAS, the Hawaii County Council has found that Kimura was acting in the scope of his employment when the alleged acts complained of in that lawsuit occurred; and WHEREAS, the Hawaii County Council on ,approved Resolution No. -98, a copy of which is attached as Exhibit "A," and agreed therein to indemnify Kimura for al] damages that may be awarded, including punitive damages, so that the Corporation Counsel, or his authorized representatives, may represent Kimura and the County in the above-mentioned lawsuit; and -1- ATTACH. C-637.03 (RES. 248-98 & 249-98) WHEREAS, Kimura received and reviewed a letter dated , from the Office of the Corporation Counsel (hereinafter "letter"), a copy of which is attached as Exhibit "B"; and WHEREAS, Kimura had an opportunity to discuss and ask questions as to the contents of the letter with the Corporation Counsel or his assigned deputy in Civil No. 97-452; and WHEREAS, Kimura understands that there may be potential conflicts of interests, which were recited in the letter; and WHEREAS, Kimura understands that the Office of the Corporation Counsel of the County, through its deputies (hereinafter "Corporation Counsel"), will represent him prior to and subsequent to any answer filed on his behalf in Civil No. 97-452; NOW, THEREFORE, the parties agree as follows: l . That the Corporation Counsel will render such legal services to and on behalf of Kimura by preparing a defense to the allegations in the civil case styled and entitled Henry A. Ross vs. County of Hawaii, e[ al., Civil No. 97-452. 2. That the Corporation Counsel will not file a counterclaim against the plaintiff in Civil No. 97-452. This is not a waiver of Kimura's right to hire his own private attorney to file a counterclaim against the plaintiff in Civil No. 97-452. 3. That the County will indemnify Kimura for all damages that may be awarded, including punitive damages. -2- 4. That Kimura waives any potential conflicts of interest, which were recited in the letter. 5. That Kimura agrees to have the Corporation Counsel represent him prior to and subsequent to any answer filed on his behalf in Civi] No. 97-452. 6. That Kimura agrees to fully cooperate, including but not limited to the disclosure of all facts in a truthful manner, with the Corporation Counsel. The above constitutes the whole Agreement between the County and Kimura. Both parties agree to put their best faith efforts into resolving the case in the County's best interests. IN WITNESS WHEREFORE, the parties hereto have executed this agreement the day and year first above written. COUNTY OF HAWAII By STEPHEN K. YAMASHIRO Its Mayor By JAMES Y. ARAKAKI Its Chairman, Hawaii County Council JAY KIMURA -3- AGREEMENT PROVIDING REPRESENTATION BY THE OFFICE OF THE CORPORATION COUNSEL-COUNTY OF HAWAII AND JAY KIMURA APPROVED AS TO FORM AND LEGALITY: JOSEPH K. KAMELAMELA Deputy Corporation Counsel Date: RECOMMEND APPROVAL: RICHARD D. WURDEMAN Corporation Counsel Date: agrm[jay.jkk -4- STATE OF HAWAII ) SS. COUNTY OF HAWAII ) On this day of , 1998, before me personally appeared STEPHEN K. YAMASHIRO, to me personally known, who, being by me duly sworn, did say that he is the Mayor of the County of Hawaii, a municipal corporation of the State of Hawaii; that the seal affixed to the foregoing instrument is the corporate seal of the said County of Hawaii; that the foregoing instrument was signed and sealed in behalf of the County of Hawaii by authority given to said Mayor of the County of Hawaii by Section 5-1.3(g) of the County CharCer, County of Hawaii (1991), as amended; and said STEPHEN K. YAMASHIRO acknowledged said instrument to be the free act and deed of said County of Hawaii. Notary Public, State of Hawaii My commission expires: STATE OF HAWAII ) SS. COUNTY OF HAWAII ) On this day of , 1998, before me personally appeared JAMES Y. ARAKAKI, to me personally known, who, being by me duly sworn, did say that he is the Chairperson of the County Council of the County of Hawaii, a municipal corporation of the State of Hawaii; that the foregoing instrument was signed and sealed in behalf of the County of Hawaii by authority given to said Chairperson of the County of Hawaii by Resolution -98; and said JAMES Y. ARAKAKI acknowledged said instrument to be the free act and deed of said County of Hawaii. Notary Public, State of Hawaii My commission expires: STATE OF HAWAII ) SS. COUNTY OF HAWAII ) On this _ day of , 1998, before me personally appeared JAY KIMURA, to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same as his free act and deed. Notary Public, State of Hawaii My commission expires: COUNTY OF HAWAII STATE OF HAWAII RESOLUTION N0. RESOLUTION AUTHORIZING THE CORPORATION COUNSEL, AND HIS AUTHORIZED REPRESENTATIVES, TO ENTER INTO AN AGREEMENT WITH THE INDIVIDUALLY NAMED DEFENDANTS, PARTIES, WHO ARE OFFICIALS AND EMPLOYEES OF THE COUNTY OF HAWAII, TO REPRESENT THEM IN THE CIVIL ACTION ENTITLED HENRYA. ROSS VS. COUNTY OF HAWAII, ETAL., CIVIL NO. 97-451 WHEREAS, the County of Hawaii, Mayor Stephen K. Yamashiro, Chief of Police Wayne G. Carvalho, Police Officer Steven S. Clark, Police Officer Joseph T. Lally, Police Lt. Henry W. Hickman, Police Officer Joseph Kealoha, Police Officer Alan M. Kimura, Prosecutor Jay Kimura, Deputy Prosecuting Attomey William Smith and Deputy Prosecuting Attorney Janet Garcia are being sued by Henry A. Ross in Civil No. 97-452; and WHEREAS, the Hawaii County Police Commission has found that the concerned officers, i.e., Chief of Police Carvalho, Officer Clark, Officer Lally, Lt. Hickman, Officer Kealoha and Officer Kimura, were acting in the performance of their duty when the alleged acts of the complaint in that suit occurred; and WHEREAS, the Council of the County of Hawaii finds that whatever involvement Mayor Yamashiro, Prosecuting Kimura, Deputy Prosecuting Attorney Smith and Deputy Prosecuting Attomey Garcia might have in this matter were also done in the scope of their employment; and EXHIBIT WHERE,4S, the Office of the Disciplinary Counsel of the Supreme Court of the State of Hawaii has rendered the opinion that representation by one attorney of multiple parties in such actions is improper unless those parties waive the potential conflicts involved or unless the governmental entity agrees to indemnify all the individual parties for all damages, including punitive damages; and WHEREAS, the Counci] of the County of Hawaii finds that the acts alleged in the complaint, if occurred, were done in good faith and the probability of punitive damages being adjudged is small; and WHEREAS, the Council of the County of Hawaii finds that the payment of punitive damages serves a public purpose because it encourages public service, minimizes the costs of hiring a cadre of attorneys by the County of Hawaii and assures that a plaintiff can collect on his judgment, if any; and WHEREAS, the Council of the County of Hawaii further finds that for this reason, it is in the public interest to indemnify the individually named defendants in this action for all damages that may be assessed, including punitive damages, so that the Corporation Counsel, and his authorized representatives, can represent all the named parties who are officials and employees of the County of Hawaii; and WHEREAS, the representation by the Corporation Counsel, and his authorized representatives, of such individually named parties is not an admission of liability by the Council of the County of Hawaii. -2- NOW. THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII, that the Corporation Counsel, and his authorized representatives, is authorized to enter into an agreement with the individually named parties, who are officials and employees of the County of Hawaii, to carry out the purpose of this resolution, to be executed and provided by law. BE IT FURTHER RESOLVED that the Mayor of the County of Hawaii and Chairman of the County Council, and their authorized representatives, are authorized to sign the above-noted agreement on behalf of the County of Hawaii pursuant to the Hawaii County Charter. Dated: Hilo, Hawaii, this day of , 1998. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII reso2.jkk COUNTY COUNCII. ROLL CALL VOTE County of Hawaii AYES NOES ABS EX Hilo, Hawaii ARAKAKI CHUNC 16ereby certify tbat the fo~sgoing RESOLUTION was by the LEI7HEAD-TODD vok iadiuted to tht right hereof adopted by the COUNCQ, of the ~y Cousq d Hawaiioo REYNOLDS ATTEST: SANTANGELo snnTH TYLER YAGONG Reference COUNTY CLERK CHAIRMAN & PRESIDING OFFIC)~R RESOLUTION NO. w.e Stephen K. Yamuhiro Ric}utd Wurdnean Ate3or Csrpore~ien Ceeerf M'~i~~• ~II1tItfL1 IIf ~?lfUIItT OFFICE OF THE CORPORATION COUNSEL 101 Aupuel greet, Suite lIS • Hilo, Hawi'i %730.363 • (!0!1 %11351 • Fas 1!!08) %I-1633 Jay ICimur~ Esq. Prosecuting Attorney 34 Rainbow Drive Hilo, HI 96720 Dear 1 ay: Re: Hire Cy A. Ross vs. Counri of Hawaii. et al.. Civil No. 97-452 We enclose an Agreement Providing Representation by the Office of the Corporation Counsel ("Agreement") and a copy of the resolution authorizing the Corporation Counsel, and his authorized reprexntatives, to enter into an agreement to represent you in the above-referenced matter. After reviewing the Agreement, sign and return it to our office. A. County Council Resolution. We obtained the approval of the County Council to represent you. Because of potential conflicts of interests between the County of Hawaii ("County") and you, the County Council has agreed to indemnify you for any and all damages, if any, awarded by a court orjury against you. There aze several potential conflicts of interests between the County and you. First, the complaint xeks punitive damages against you; hence, the County generally has no legal duty to pay punitive damages should they be awarded. Second, there may be significant differences of opinion bttweea the County and you as to whether this case should be settled or tried. Third, it is possible, although we doubt it, that with sepazate counxl you may pursue counterclaims against the plaintiff or third-party claims against others orcross-claims against other defendants which possibilities the County itself has little or no interest or concern. Indeed, it could not represent you as to cross-claims, since those would lie against other defendants we represent also. Finally, there is always the possibility of differing recollections of past events and testimonial differences and nuances which aze not discernible at this time. EXHIBIT Jay Kimura, Esq. Page 2 In addition, the County has liabilities and immunities which differ from yours. In the context of the federal civil rights claim, there is no County liability in the absence of a County "custom" or "policy" which underlies the alleged violation of plaintiff's constitutional rights. As to you personally, there is no such doctrinal immunity. Conversely, you enjoy, as prosecuting attorney, absolute immunity from liability in the federal civil rights context, provided your conduct arises from your court activities and events incident thereto. Alternatively, "qualified immunity" is routinely granted individuals employed by governmental entities regardless of their governmental role. The County has neither absolute nor qualified immunity. To avoid these conflicts of interests, the County Council agreed to indemnify you Cor all damages, including punitive damages, and to have our office represent you. We find the probability ofpunitive damages to be remote. We believe that you acted in good faith and in the performance of your duty. You have, however, every right to be represented by counsel of your own choosing and at your own expense. If you choose your own separate counsel, the County will not appropriate funds for separate counsel, since the County Council agreed to indemnify you for all damages, including punitive damages. B. Unitary Rgpresentation Necessary. The advantages in unitary representation outweigh the speculative conflicts of interests. In our review of all pertinent reports and discussions with witnesses to date, we have yet to discern any material differences between you and the County. The advantages of unitary representation are the ease of communicating among you, us and other County officials and personnel, a coordinated and coherent defense, savings in time and expense, and the appearance of solidarity and harmony, all of which can be very important to a successful defense. We have already filed an answer to the complaint, and we are prepared to defend you with entire loyalty and vigor. a lay Kimura, Esq. Page 3 C. Conclusion. Please study the contents of this letter carefully. In addition, please telephone or come in to the office at any convenient time to discuss any or all of the matters herein recited. After signing and returning the Agreement to our office, you should prepare a prolix narrative statement recounting in detail the events underlying the lawsuit. Such a chronicle often proves to be invaluable as time passes and memories fade. In addition, if other writings exist, such as personal notes, logs, diaries, required records or the like which you possess or know of, please let us know. Moreover, please search your memory as to the identities and probable knowledge of percipient witnesses so that they might be interviewed by us promptly. [f you have any questions or concerns, please call me. Sincerely, RICHARD D. WURDEMAN Corporation Counsel sy - JOSEPH K. KAMELAMELA Deputy Corporation Counsel JKK:mo Enclosures kunura4.jkk ~ r AGREEMENT PROVIDING REPRESENTATION BY THE OFFICE OF THE CORPORATION COUNSEL THIS AGREEMENT, made this day of , 1998, by and between the COUNTY OF HAWAII, a municipal corporation duly organized under the laws of the State of Hawaii, whose principal place of business is 25 Aupuni Street, Hilo, Hawaii 96720, hereinafter called the "County," and RICHARD CARTER, JR., whose residence is 76-6351 Kupuena Street, Kailua-Kona, Hawaii 96740, hereinafter called "Carter," WITNESSETH: WHEREAS, Carter has been sued via a complaint in Dean E. Beaumont vs. Richard Carter, Jr., et al., Civil No. 97-187K; and WHEREAS, the Hawaii County Police Commission has found that Carter was acting in the performance of his duties as a Hawaii County police officer when the alleged acts complained of in that lawsuit occurred; and WHEREAS, pursuant to Sections 52D-8 and 52D-9, Hawaii Revised Statutes, Carter shall be represented and defended by the Hawaii County Corporation Counsel, or his authorized representatives; and WHEREAS, the Hawaii County Council on ,approved Resolution No. -98, a copy of which is attached as Exhibit "A," and agreed therein to indemnify Carter for all damages that may be awarded, including punitive damages, so -1- that the Corporation Counsel, or his authorized representatives, may represent Carter and the County in the above-mentioned lawsuit; and WHEREAS, Carter received and reviewed a letter dated ,from the Office of the Corporation Counsel (hereinafter "letter"), a copy of which is attached as Exhibit "B"; and WHEREAS, Carter had an opportunity to discuss and ask questions as to the contents of the letter with the Corporation Counsel or his assigned deputy in Civil No. 97-187K; and WHEREAS, Carter understands that there may be potential conflicts of interests, which were recited in the letter; and WHEREAS, Carter understands that the Office of the Corporation Counsel of the County, through its deputies (hereinafter "Corporation Counsel"), will represent him prior to and subsequent to any answer filed on his behalf in Civil No. 97-187K; NOW, THEREFORE, the parties agree as follows: 1. That the Corporation Counsel will render such legal services to and on behalf of Carter by preparing a defense to the allegations in the civil case styled and entitled Dean D. Beaumont vs. Richard Carter, Jr., et al., Civil No. 97-187K. 2. That the Corporation Counsel will not file a counterclaim against the plaintiff in Civil No. 97-187K. This is not a a waiver of Carter's right to hire his own private attorney to file a counterclaim against the plaintiff in Civil No. 97-187K. -2- 3. That the County will indemnify Carter for all damages that may be awarded, including punitive damages. 4. That Carter waives any potential conflicts of interest, which were recited in the letter. 5. That Carter agrees to have the Corporation Counsel represent him prior to and subsequent to any answer filed on his behalf in Civil No. 47-187K. 6. That Carter agrees to fully cooperate, including but not limited to the disclosure of all facts in a truthful manner, with the Corporation Counsel. The above constitutes the whole Agreement between the County and Carter. Both parties agree to put their best faith efforts into resolving the case in the County's best interests. IN WITNESS WHEREFORE, the parties hereto have executed this agreement the day and year first above written. COUNTY OF HAWAII By STEPHEN K. YAMASHIRO Its Mayor By JAMES Y. ARAKAKI Its Chairman, Hawaii County Council RICHARD CARTER, JR. -3- • AGREEMENT PROVIDING REPRESENTATION BY THE OFFICE OF THE CORPORATION COUNSEL--COCINTYOFHAWAIIANDRICHARD CARTER, JR. APPROVED AS TO FORM AND LEGALITY: JOSEPH K. KAMELAMELA Deputy Corporation Counsel Date: RECOMMEND APPROVAL: RICHARD D. WURDEMAN Corporation Counsel Date: agrmGjkk -4- STATE OF HAWAII ) SS. COUNTY OF HAWAII ) On this day of , 1998, before me personally appeared STEPHEN K. YAMASHIRO, to me personally known, who, being by me duly sworn, did say that he is the Mayor of the County of Hawaii, a municipal corporation of the State of Hawaii; that the seal affixed to the foregoing instrument is the corporate seal of the said County of Hawaii; that the foregoing instrument was signed and sealed in behalf of the County of Hawaii by authority given to said Mayor of the County of Hawaii by Section 5-1.3(g) of the County Charter, County of Hawaii (1991), as amended; and said STEPHEN K. YAMASHIRO acknowledged said instrument to be the free act and deed of said County of Hawaii. Notary Public, State of Hawaii My commission expires: G STATE OF HAWAII ) SS. COUNTY OF HAWAII ) On this day of , 1998, before me personally appeared JAMES Y. ARAKAKI, to me personally known, who, being by me duly sworn, did say that he is the Chairperson of the County Council of the County of Hawaii, a municipal corporation of the State of Hawaii; that the foregoing instrument was signed and sealed in behalf of the County of Hawaii by authority given to said Chairperson of the County of Hawaii by Resolution -98; and said JAMES Y. ARAKAKI acknowledged said instrument to be the free act and deed of said County of Hawaii. Notary Public, State of Hawaii My commission expires: R z STATE OF HAWAII ) SS. COUNTY OF HAWAII ) On this _ day of , 1998, before me personally appeared RICHARD CARTER, JR., to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same as his free act and deed. Notary Public, State of Hawaii My commission expires: ' ~ r. COUNTY OF HAWAII STATE OF HAWAII RESOLUTION N0. RESOLUTION AUTHORIZING THE CORPORATION COUNSEL, AND HIS AUTHORIZED REPRESENTATIVES, TO ENTER INTO AN AGREEMENT WITH THE INDIVIDUALLY NAMED DEFENDANT, WHO IS AN EMPLOYEE OF THE COUNTY OF HAWAII, TO REPRESENT HIM IN THE CIVIL ACTION ENTITLED DEAN E. BEAUMONT US. RICHARD CARTER, JR., ETAL., CIVIL NO. 97-187K WHEREAS, the County of Hawaii and Police Officer Richard Carter, Jr., are being sued by Dean E. Beaumont in Civil No. 97-187K; and WHEREAS, the Hawaii County Police Commission has found that the concerned officer, i.e., Officer Carter, was acting in the performance of his duty when the alleged acts complained of in that lawsuit occurred; and WHEREAS, the Office of the Disciplinary Counsel of the Supreme Court of the State of Hawaii has rendered the opinion that representation by one attorney of multiple parties in such actions is improper unless those parties waive the potential conflicts involved or unless the governmental entity agrees to indemnify the individual party for all damages, including punitive damages; and EXHIBIT ~~A" F WHEREAS, the Council of the County of Hawaii finds that the acts alleged in the complaint, if they occurred, were done in good faith and the probability of punitive damages being awarded is small; and WHEREAS, the Council of the County of Hawaii finds that the payment of punitive damages serves a public purpose because it encourages public service, minimizes the costs of hiring a cadre of attorneys by the County of Hawaii and assures collection of a judgment, if any, by a plaintiff; and WHEREAS, the Council of the County of Hawaii further finds that for this reason, it is in the public interest to indemnify the individually named defendants in this action for all damages that may be assessed, including punitive damages, so that the Corporation Counsel, and his authorized representatives, can represent all the named parties in the above-mentioned lawsuit; and WHEREAS, the representation by the Corporation Counsel, and his authorized representatives, of such individually named party is not an admission of liability by the Council of the County of Hawaii. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII, that the Corporation Counsel, and his authorized representatives, is authorized to enter into an agreement with the individually named party, who is an employee of the County of Hawaii, to carry out the purpose of this resolution, to be executed and provided by law. 2 BE IT FURTHER RESOLVED that the Mayor of the County of Hawaii and Chairman of the County Council, and their authorized representatives, are authorized to sign the above-noted agreement on behalf of the County of Hawaii pursuant to the Hawaii County Charter. Dated: Hilo, Hawaii, this day of , 199 INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII JKK:reso 1 /pc COUNTY COUNCII. ROLL CALL VOTE County of Hawaii AYES NOES ABS EX ' Hilo, Hawaii ~ ARAKAKI CHUNC 16ercby certify tha[ the forcgoios RESOLUTION waf by the LFJTfIEAD-TODD Yote indicated to the right hereof adopted by the COUNCIL, of the ~y County of Ilawao 0o REYNOLDS ATTEST: sANTwNCELo SMITH TYLER YACONG Reference COUNTY CLERK CHAIRMAN & PRESmING OFFICER RESOLUTION NO. Stephrn K. Yamuhiro ~ 1tielurd Waede~n Mopor Gq..ati.w ~•M"~ (~IIUnt~r of ~~fu~ii OFFICE OF THE CORPORATION COUNSEL poi e~w~c x.~. sdu pis . wio, w..i•i vsno-~~u . ieoe) ssiazsi . t;. iaoet ss~-es:: Mr. Richard Carter, Jr. 76-6351 Kupuena Street Kailua-Kona, Hawaii 96740 Deaz Mr. Carter: Re: Beaumont v. Carter. Civ. No. 97-187K We enclose an Agreement Providing Representation by the Office of the Corporation Counsel ("Agreement") and a copy of the resolution authorizing the Corporation Counsel, and his authorized representatives, to enter into an agreement to represent you in the above- referenced matter. After reviewing the Agreement, sign and return it to our office. A. Coun Council Resolution. As you know, we were unable to obtain special counsel to represent you in this lawsuit. However, we obtained the approval of the County Council to represent you. Because of potential conflicts of interests between the County of Hawaii ("County") and you, the County Council has agreed to indemnify you for any and all damages, if any, awazded by a court or jury against you. There are several potential conflicts of interests between the County and you. First, the complaint seeks punitive damages against you; hence, the County generally has no legal duty to pay punitive damages should they be awarded. Second, there may be significant differences of opinion between the County and you as to whether this case should be settled or tried. Third, it is possible, although we doubt it, that with separate counsel you may pursue counterclaims against the plaintiff or third-party claims against others as to both of which possibilities the County itself has little or no interest or concern. And fourth, there is always the possibility of differing recollections of past events and testimonial differences and nuances which aze not EXHIBIT'~6" Mr. Richazd Carter, Jr. Page 2 discernible at this time. To avoid these conflicts of interests, the County Council agreed to indemnify you for all damages, including punitive damages, and to have our office represent you. We find the probability of punitive damages to be remote. We believe that you acted in good faith and in the performance of your duty as a police officer. You have, however, every right to be represented by counsel of your own choosing and at your own expense. If you choose your own separate counsel, the County will not appropriate funds for separate counsel, since the County Council agreed to indemnify you for all damages, including punitive damages. B. Unitary Representation Necessary. The advantages in unitary representation outweigh the speculative conflicts of interests. In our review of all pertinent reports and discussions with witnesses to date, we have yet to discern any material differences between you and the County. The advantages of unitary representation are the ease of communicating among you, us and other County officials and personnel, a coordinated and coherent defense, savings in time and expense, and the appeazance of solidarity and harmony, all of which can be very important to a successful defense. We have already filed an answer to the complaint, and we are prepazed to defend you with entire loyalty and vigor. C. Conclusion. Please study the contents of this letter cazefully. In addition, please telephone or come in to the office at any convenient time to discuss any or all of the matters herein recited. After signing and returning the Agreement to our office, you should prepare a prolix narrative statement recounting in detail the events underlying the lawsuit. Such a chronicle often proves to be invaluable as time passes and memories fade. In addition, if there exist other writings such as personal notes, logs, diaries, required records or the like which you possess or Mr. Richard Carter, Jr. Page 3 know of, please let us know. Moreover, please seazch your memory as to the identities and probable knowledge of percipient witnesses so that they might be interviewed by us promptly. If you have any questions or concerns, please call me. Sincerely, RICHARD D. WURDEMAN Corporation Counsel B - JOSEPH K. KAMELAMELA Deputy Corporation Counsel JKK:mo Enclosures carter.jkk