1999-08-11 Charter Commission Minutes

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HAWAII COUNTY CHARTER COMMISSIONPage 5 of 33 ahead and go through the Corporation Counsel section of the Charter, so page 8, CHAPTER 2 CORPORATION COUNSEL. Mr. Wurdeman was here during the initial Department Review and he furnished us with suggestions for Charter changes so there were a number of them, just a couple that are applicable to this section, so I’d like to ask Mr. Wurdeman to go over those. Mr. Wurdeman. WURDEMAN: The first is sort of a housekeeping matter. We suggest that language be added that "The Corporation Counsel could delegate any professional legal duties of his office to his Assistant or Deputies." That’s the practice and that’s never been challenged but we feel it might be appropriate to put it in so we won’t be challenged. Special Counsel Second item is somewhat difficult to explain and it relates to . In this case, it’s when, as often happens, we are required to provide representation both for the County, as an entity, and an employee or sometimes more than one employee. For example, Police Department. Under State law, the Police Commission is given the authority to decide whether in a given case, a police officer is operating within the course of scope of his employment so as to warrant government paid counsel and they do this. Sometimes they do it in strange ways. There was a case that occurred about five years ago where they found that an officer who got into a fight in a cocktail lounge and broke somebody’s jaw off duty, was in the course of scope of his employment. So in cases like that, we feel that’s it’s in the County’s interest, and we should argue that this person was acting on his own and not as an employee to protect the County. Obviously at that point, we have a conflict. We are required to provide counsel but on the other hand, we feel that to protect the public treasury, we have to disclaim the employee’s actions. In that case, it’s been mandated by the Office of Disciplinary Counsel, we must hire an outside counsel so we go to the County Council and we ask for "special counsel" to represent the employee so that we can represent the County. The County Council has, in the past, been very cooperative and has generally approved such requests. Just a month or so ago, we went in on a request for an employee who was being sued for having allegedly indecently exposed himself to a young girl. We felt, as the County, that we were obligated to say that whatever he did or didn’t do was not done as an employee. In this case, it was not a policeman but it was a person covered by Union Contract and Union Contracts have much the same language as the law relating to policemen. The Council turned us down. I don’t know what the end result of that is going to be. The Union will probably have something to say about that, but the point is that I think it’s a good idea that we have Council approval when we hire "special counsel" to represent the County. But that’s a good control on just willy-nilly hiring lawyers out but when we do, in these, not all that common but is somewhat common, cases where we are forced by law or Union Contract to provide a lawyer for an individual who may not have been loyally serving the County at the time, that we should do so without having to go to Council for they might turn us down. For example, if the Police Commission required that counsel be provided in a certain case and the Council turned us down, which has never happened although they threatened to, we’d be in a real fix. I mean, we wouldn’t know where to turn next. There’d be a dilemma there so our request is that "special counsel" be defined as "counsel retained to represent the County" and not include in the definition those cases where we have to hire people to represent individuals. That’s pretty complex stuff and I’m sure there’s questions and I’ll be glad to answer them. RAY: Ms. Irvine. IRVINE: I wonder why should it take two-thirds a vote of the County Council for you to hire an outside person in the first place, for any reason? WURDEMAN: I don’t know. That’s what it currently reads. HERKES: So if you’re caught in between the Union and the Council - file://\\coh01\cohweb\council\charter_commission\minutes\minutes 8-11-99.html7/1/2011