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HAWAII COUNTY CHARTER COMMISSIONPage 8 of 42
<br />WURDEMAN: Yeah, right. The Charter presently requires that when my office hires special Counsel
<br />that we get the two-thirds approval of the Council, and I think this is perfectly appropriate when we go
<br />out to hire someone to do the things we normally do. However, there are occasions where we are
<br />obligated by either collective bargaining agreement or by law to provide individual counsel for
<br />employees who get into some kind of a difficulty. And although it has not happened yet, I could foresee
<br />a situation where the Police Commission is given the authority to direct that counsel be retained for a
<br />police officer, and I could see the possibility that they would so direct, we would go to the Council, the
<br />Council would turn us down, and there would be an impasse that would lead to crisis.
<br />So, my recommendation is that the present language be retained for the normal situation where Counsel
<br />is hired to represent the County for doing County business, but that those instances where we’re required
<br />to hire counsel to represent individual employees be exempted from this requirement.
<br />RAY: Okay. Any questions on that?
<br />IRVINE: Do County Council -, not County Councils but Corporation Counsels usually represent just the
<br />County or do they also represent individuals the way -?
<br />WURDEMAN: It’s -, well -.
<br />IRVINE: We do here?
<br />WURDEMAN: You take -. It depends. You take the normal situation, a police officer gets in some kind
<br />of a fight, somebody gets hurt. We could represent both the County and the officer, but it has been
<br />determined by the Office of Disciplinary Counsel of the Supreme Court that if we do so, the County has
<br />to agree to fully indemnify the officer for all damages, including punitive damages, that might result.
<br />Now, normally, counties or cities are not liable for punitive damages which are in excess of other kinds
<br />of damages and are designed to penalize the wrongdoer. The conflict exists when if you got one attorney
<br />representing both the County and the officer, conceivably, that attorney could argue to the jury, well,
<br />you know, if you think it was really bad conduct, I agree with you, it was horrible. You know, this
<br />person had his skull fractured, and you should punish the officer by assigning punitive damages and not
<br />special or general damages, which would be you’re arguing against your own client. So the
<br />determination was made that because of that potential, that unless the County agrees to fully indemnify
<br />the officer, we got to have both -, normally, the Corp. Counsel represents the County and an outside
<br />person representing the officer. Now, we have, in the past, fully indemnified officers when we fully
<br />believe that they were within the scope of their duties, and our preliminary investigation leads us to
<br />believe that there was -, that there is a small likelihood of punitive damages, and we go to the Council
<br />and they approve that, and we represent both.
<br />But, however, when we do have a situation -, if we had a Rodney King situation in this County, I don’t
<br />think we would want to agree to fully indemnify all the officers. I think we would argue that they had
<br />stepped outside their -, the bounds of their duties and that the taxpayers should not be punished for what
<br />they did, and that Rodney King should be compensated by punitive damages, which would create the
<br />conflict, which means you have to have separate counsel.
<br />IRVINE: Would it be clearer if the Corporation Counsel’s office just took care of the County and we
<br />mandated private counsel -?
<br />WURDEMAN: It would be clear, but it would be more expensive.
<br />file://\\coh01\cohweb\council\charter_commission\minutes\minutes 5-26-99.html7/1/2011
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