HomeMy WebLinkAboutRES 372 Draft 02 2022-2024RESOLUTION NO.
RESOLUTION AUTHORIZING: (1) THE HIRING OF SCHLACK ITO, A LIMITED LIABILITY LAW COMPANY, AS SPECIAL COUNSEL TO REPRESENT THE COUNTY OF HAWAI‘I IN HUI MALĀMA HONOKŌHAU V. COUNTY OF HAWAI‘I,
CIVIL NO. 1:23-CV-00393; AND (2) THE PAYMENT OF FUNDS OF A LATER FISCAL YEAR AND OF MORE THAN ONE FISCAL YEAR FOR A MULTI-YEAR AGREEMENT WITH SPECIAL COUNSEL FOR THE COUNTY’S LEGAL
DEFENSE IN HUI MALĀMA HONOKŌHAU V. COUNTY OF HAWAI‘I, CIVIL NO. 1:23-CV-00393
WHEREAS, Hawai‘i County Charter (“Charter”) § 6-5.5 (Special Counsel) provides the Hawai‘i County Council may approve by two-thirds vote of its entire membership the employment of Special
Counsel, for any special matter presenting a real necessity for such employment; and
WHEREAS, Charter § 6-5.5 states any such authorization for the employment of Special Counsel shall specify the compensation to be paid for services; and
WHEREAS, the County of Hawai‘i (“County”) is named Defendant in the citizens’ Clean Water Act (“CWA”) civil action regarding the County’s Kealakehe Wastewater Treatment Plant titled
Hui Malāma Honokōhau v. County of Hawai‘i, Civil No. 1:23-cv-00393, commenced in the United States District Court for the District of Hawai‘i on September 25, 2023 (“Lawsuit”);
WHEREAS, the Office of the Corporation Counsel (“Corporation Counsel”) does not have the expertise and personnel resources to provide the level of legal services necessary to represent
the County in, and defend the County against, the Lawsuit; and
WHEREAS, there is a real necessity for Special Counsel to represent the County in the Lawsuit; and
WHEREAS, pursuant to Hawai‘i Procurement Code, Hawai‘i Revised Statutes (“Haw. Rev. Stat.”) §103D-304 (2012), Corporation Counsel caused to be published a Notice to Providers of Legal
Professional Services (“Notice”), and received timely responses; and
WHEREAS, Schlack Ito, a Limited Liability Law Company (“Schlack Ito”) was one of the providers that responded to the Notice; and
WHEREAS, pursuant to Haw. Rev. Stat. §103D-304, a selection committee of three people was formed to review and rate all qualified providers (“Selection Committee”); and
WHEREAS, the Selection Committee selected Schlack Ito as the provider who could best serve the County based on the selection criteria set forth in Haw. Rev. Stat. §103D-304(e), including
Schlack Ito’s experience and professional qualifications relevant to the project type; the past performance on projects of similar scope; the capacity to accomplish the work in the
required time; and any additional criteria determined in writing by the Selection Committee to be relevant to the Corporation Counsel’s needs; and
WHEREAS, based upon the estimated value, scope, complexity, and nature of the services rendered, Schlack Ito’s rate of compensation is fair and reasonable; and
WHEREAS, there is $200,000.00 budgeted for legal services to be rendered by Special Counsel;
WHEREAS, pursuant to Charter §10-11, any contract, lease or other obligation requiring payment of funds from the appropriations of a later fiscal year or of more than one fiscal year
shall be approved by resolution; and
WHEREAS, due to the complexity and scope of the issues raised in the Lawsuit, the Lawsuit has the potential to last years; and
WHEREAS, a multi-year agreement will allow the County to employ Special Counsel who can provide services on a continuing and consistent basis; and
WHEREAS, pursuant to Charter § 6-5.5, Corporation Counsel wishes to enter into a multi-year agreement with Schlack Ito to represent the County in the Lawsuit; and
WHEREAS, the Schlack Ito was duly selected in compliance with the procurement of professional services under Haw. Rev. Stat. § 103D-304; and
WHEREAS, the Council supports a negotiated resolution of the Lawsuit and a County commitment and timeline to upgrade the KWWTP to R-1 quality water; and
WHEREAS, the Council urges the County to prioritize alternative dispute resolution to resolve the Lawsuit; and
WHEREAS, the Council understands a negotiated resolution of a dispute requires the willingness of all parties to participate in that process and to reach agreement on settlement terms
and conditions; and
WHEREAS, on November 20, 2023, United States District Court for the District of Hawai‘i (“the Court”), the County, and Hui Malama Honokohau agreed to split the trial into two phases,
the liability phase and the remedies phase;
WHEREAS, the Court entered a Rule 16 Scheduling Order that set dates for the liability phase and Settlement Conferences; and
WHEREAS, the Court set the start date for a non-jury trial for the liability phase on November 5, 2024; and
WHEREAS, the Court will schedule dates for the remedies phase of the Lawsuit if necessary after conclusion of the liability phase; and
WHEREAS, the Council may withhold future funding authorization should it determine alternative dispute resolution was not prioritized by the County and/or the administration fails to
expeditiously move forward on a KWWTP R-1 upgrade; and
WHEREAS, the agreement is anticipated to cover the Lawsuit commencing on or about December 11, 2023; now therefore,
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAI‘I that:
Pursuant to Charter § 6-5.5 (Special Counsel), the County Council authorizes the retention of Schlack Ito as Special Counsel to represent the County in the Lawsuit;
The funds for the Special Counsel shall not exceed $200,000.00.
The Mayor is hereby authorized to enter into a multi-year agreement with Schlack Ito for the legal professional services for the Lawsuit as described above.
That sufficient funds be budgeted in future fiscal years to cover the anticipated obligations of the County for the Lawsuit under the terms of the agreement.
BE IT FINALLY RESOLVED that the County Clerk of the County of Hawai‘i shall transmit copies of this resolution to the Office of the Corporation Counsel.
Dated at ____________, Hawai‘i, this ______ day of _______________, 2023.
INTRODUCED BY:
_______________________________________
COUNCIL MEMBER, COUNTY OF HAWAI‘I
COUNTY COUNCIL
County of Hawai‘i
Hilo, Hawai‘i
ROLL CALL VOTE
AYES
NOES
ABS
EX
EVANS
GALIMBA
I hereby certify that the foregoing RESOLUTION was by
the vote indicated to the right hereof adopted by the COUNCIL of the
County of Hawai‘i on _____________________________________.
INABA
KAGIWADA
KĀNEALI‘I-KLEINFELDER
KIERKIEWICZ
ATTEST:
KIMBALL
LEE LOY
VILLEGAS
Reference:
COUNTY CLERK CHAIRPERSON & PRESIDING OFFICER
RESOLUTION NO.