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Home My WebLink AboutCOM 0084.001 2002-2004 ~}?MtV M y w Harry Kim Lincoln S.T. Aehlda Mayrn ~ • CorpraNnn Cwuue( ~1,v. CiEiaidTelnse ~.M'r Arsi~(an! G~rpnraruin Corwef (i~uuz~fg >a~ ~ttfuttii OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720.4262 • (808) 961-8251 • FAX (808) 96]-6622 January 8, 2003 MEMORANDUM TO: MEMBERS OF THE HAWAI-I COUNTY COUNCIL FROM: LINCOLN S. T. ASHIDA~ Corporation Counsel RE: City and County of Honolulu Resolution No. 02-292 Our Entry No.: WRK 03-3346 Hawaii County Council Vice Chair J. Curtis Tyler, III, requested our office review the attached documents, and sought comment on City and County of Honolulu Resolution No. 02-292, and further legislation within the spirit of the resolution. After collective review and discussion of this resolution, the Hawaii County Office of the Corporation Counsel opposes any such County or state legislation similar to City and County of Honolulu Resolution No. 02-292. The attorneys in our office unanimously and emphatically agree that such legislation may be detrimental to the interests of our County, creates conflicts of interest, and unnecessarily financially obliges our taxpayers to fund expensive court battles where there may be limited benefit to our County. The present practice Presently, where there are lawsuits brought against the counties, each county examines the merits of the claim, including any applicable defenses. Although the counties may have similar defenses, there are cases where the State may avail themselves of a defense not available to the counties. In cases where a county has initiated a lawsuit, court rule normally requires permission by the court prior to another county intervening. This includes situations where a county wishes to join the action as a party, or as an amicus. In cases where special counsel may be employed to represent a county, discussions are normally had, and agreements normally reached in the sharing of special counsel fees and costs. An example is our County's involvement in the Comm. No. File No. r ef~d • Refs Ret. Date JAN 0 8 2003 Springer FLSA lawsuit, wherein our County shares the cost of special counsel with Kauai County. However, these decisions are made after significant and necessary examination of the legal issues, evaluation of any potential conflict of interest, examination of potential exposure of the county, and evaluation of special counsel. The present practice is working for our County. Since December 2000, our office has employed special counsel in limited situations. With the exception of the hiring of special counsel in "conflict" cases (where we are obliged to hire special counsel, and virtually have no choice), our office has hired special counsel in only two cases. One case involved aquick-set arbitration in a labor dispute over golf course staging duties at the Hilo Municipal Golf Course. The other case was the Springer FLSA claim, which required significant expertise. Note, however, that in both these cases, attorneys from our office maintained a co-counsel role, thereby minimizing cost to our taxpayers as well as developing expertise. Proposed I_gislation to mandate our County to pay The proposed legislation and body of City and County of Honolulu Resolution No. 02-292 essentially mandates all counties to share costs (note that "costs" is ambiguous and not specifically defined) in lawsuits "that may benefit all counties" (this is further ambiguous language as to who makes this determination). Such legislation would deprive our office and our County Council of its vested authority in determining the best course of action in a lawsuit. Further, such legislation may result in our County being brought into a lawsuit unnecessarily, thereby exposing our taxpayers to unwarranted expense (the present ERS lawsuit is an example where our County was brought into a case litigated exclusively between the union and State). Many unresolved (and potentially detrimental) issues involving our County are presented by this overbroad legislation: • A true "cost sharing" between the counties at one-fourth apiece would not benefit our County, since the City and County of Honolulu is significant larger. The various counties may have different interests and defenses, thereby creating a conflict of interest that would preclude a single attorney (or law association) from representing both. The proposed resolution may illegally divest our County Council and administration from making decisions which are in the best interests of our taxpayers. Our County may be legally obliged (by such legislation) to participate and fund litigation where our County Council and/or administration has expressed a desire to not participate. Who chooses special counsel? Also, who chooses to initiate a lawsuit? The fact the Honolulu resolution cannot answer these questions alone illustrates the dubious wisdom of such legislation, and invites further questions 2 regarding the illegal divestiture of authority of the respective county legislative bodies and administrations, as well as the potential conflicts of interest. We consulted our counterparts at the Maui Corporation Counsel and Kauai County Attorney offices. Both counties agree with us that the sharing of costs and fees should be on a case-by-case basis, and the counties ought retain their autonomy and discretion in deciding matters involving litigation. The bottom line is the counties presently have an excellent working relationship with one another with respect to participating in various lawsuits, and sharing special counsel and fees and costs. There is no need for a legislative mandate requiring us to do so. The danger of such legislation is that it ignores the need for the respective counties to examine their relative legal positions, defenses, and the burden upon its budget and taxpayers. Based on the foregoing, the Office of the Corporation Counsel unqualifiedly opposes any such legislation which may illegally dilute or displace the authority of our County administration and County Council in matters involving litigation. Encls. cc: Mayor Harry Kim (w/ encl.) Andrew Levin, Executive Director (w/encl.) Deputies Corporation Counsel (w/ encl.) S: Departments/Corporation Counsel/LSA Misc. Corresp./Memo to Council re C&C Reso 92-292 1-&03/LSAmr 3 _.N 4.. l ~ ,4 CURTIS TYLER 111 Bus: (808) 326-5684 Dwvuv 8 MaiM Kn~J aylcr~i~uwpec.rwt . t~•. a tfAWAI`[ CUUNTY COUNCI 1. ' Kona CauncU OV~t. •77-6397 Natant Strttt ~51dce 10~ •Kaltaa-Kona •flnun!'i ~967J0-R9R0 ' G'iu Fucrtmtle: 961-Btf2Z Pages: 8 January 2, 2003 MHMORANDUM: T0: Martha Rodillas, Secretary to Lincoln S. T. Aslude, Corporation Counsel ~ FROM: J. Curtis Tyler IlI -C`~ Via Chair SUBJECT: Request for Your A ce and Opinion pt the Janunr~8, 2003 Hnwaii County Council Meeltin¢ Per our telephone cnnveraatinn this mominE, attaahrd please find a copy of the City aced County of Honolulu's Resolution No. 02-292, as well as a copy of a December 20, 2002 memorandum from James K. Tokioka relating to the resolution and the 2003 HSAC Legislative Package Proposal. These items will be heard as the first item on the Council agenda of ]enuary 8, and I would like to ask Mr. Ashida to attend the subJect meeting to answer questions. There has been some question as to who takes the lead and we need his advice as our Corporation Counsel. Thank you for your assistance. If you have any questions, please call me at my office at 327-3666 before the Council meeting. Attachments (2) t0 39Vd tSJN L6959ZE LL~60 E00Z/Z0/t0 DEC ~ '0Z 12~28PM P.2 ;F CITY COUNCIL ' ~HONOw~u swan Noww No. ~2'~9i2 RESOLUTION SUPPORTINQ A POLICY UNYOER WHZGii ALL COlR4TI86 BHARB IN THE Ct75T OF A LAf49UIT BlGOUGHT BY A COUNTY AOAIN9T THE STATE OR OTHER GOVSRNMBNTAL ENTITY THAT MAY BSNSF'IT ALL COdNTIES. wHLRSAS, at times, a county mny bring a lawsuit again®t thn State or other govezzlmesztal entity tv seek as ineerp~tation, abeyance, or iuv'alidatiort o! law or administrative action that may benefit all eountiaa, even those sot parties to the lawauit~ slid SAC, a lawsuit may entail aa~penses such as the eagagon,ont of apeaiai eouaaal to re8reaeat the interests of the county that brings the lawsuits sad WHSRSAS, the Council balfe've6 that in lawsuit¦ that may benefit all countiar o! the state o! Flawaii, the counties should make a commitment to share appsropristely in the aoatC of the lawsuitas sow, therefore, 8& IT RBSGLV$D by the Couaeil o! the City and County of Ronolulu that it aupporCa n policy under which all counties share in the roat v! a lawsuit brought by a county against the state or other governmental entity that mazy benalit all nnuntiaa; ntld B8 IT I'URTHER R89oLVSD that under this policy, ail counties will enter Saco poet-sharing agseemencs for suCtl lawsuits on a ease-by-caaa basics sad HS IT FURTHP~R RSBOLVED Chat the couatiaa Ot Rdwaii, Kauai, tad ,Maui era urged to adopt aoeaauraa in support o! the policy stated in this Reaolution~ sad WC5 OC600613.802 Z0 39gd ODN L69S9LE LL~68 EBBL/ZB/SB DEC 30 '02 12:?9PM P.3 RESt~LUTION Bg lzN7?I~LY D:SBOLViA that copies of this Rerolution be transmitted to the council chairs of the oounties of Hawais, ICAUKi, and Maui, and the 8reaidrnt oY the Hawaii State Aarociation of Coutitiea. xxrrao s~rj Dn~ or xt~rRODUCrxorr: ocT ~ a 8onvlulu, lsawa3i Cotuscilmaaiberr Coca/lolooa/at) CITY COUNCIL crtYA?~COUNTYOFHONO~uw 11/t9 02 HpNOLULU. HAWAII ~ I herby pAily Mrt ReeoltmoN wog ItapoANa IACS-#el ppyy tltr COUNCIL OF 1hE Cm' AND COUNTY OFHONOiUw an ~ dies .nd by tl» tiered b the dph~ .gArr~sr: ~ N Resolution No. e~v~awoNCCI~ a.eoro ~ 02-292 ova tt/131a2 I E0 39Vd 07N L69S9LE LL :60 E00L/L0/ZB DEC-30-2002 NON 0633 AM COK CLERK OFFICE FAX N0. 8082416349 P. 01/05 Hawaii State Association o~ Counties ' Counties of Kauai, Maui anti Hawitii.City B.Counry-of Honolulu Dcccttdxr 2U, 2002 ~ldtSORANAUM + . w./~ To: Mernbets oC dw Iiawaii Slate Association o[ Counties ' Executlvo Aoard Members & Respxtivc Staf(Mcmhuc ~ f~ ~ ~ G ~ ~ Aun: Curtis Tyler III, President, County of Hawall x ` Daly Kane, Vice 1'rccident, Co[uuy of Maui o : ~ uay Oktao, Secrotary, qty & County of tlo,wlulu ~ 4 ~ ~ 5ta[L• Rory >•lynn, County o[ Hawait { ~ co Ricbelk ICawakattd, C~ttmy oCMaui Andrew Sekine, Cjty~& County of Honolulu ~ c, From: Tattles KunaraTok~y~fll. JCrc~surer, County aCKaudi RE: 2003 NSAC Legkladve Packare Proposol from Cbunciimembcr Romy M. QtehOla RclaUna to Rrsolullon No. 02-292 SuppotilttC a 1'olky Undo Whklt All Coumiw fi(mra In Tim Oocl Ot A Lawsuit Brought By A Cowry Against Tl+c Stale Or Otlter dovemmenlal Entity That May Aetmfit Af l Coonttea At Ote IiSAC Bxeotttivo Koard MecOng wltkh was held on Novcirtbcr zz, 2002 gnuncimcna+ar gory Oklta dreulated a menwraadum from Couttcilmembc[ 1Zotrty M. Carhola dated September ti. 7I1(fl. roUtinO to the ahave~tenlioned tetoluGoa f« possible Inelustun In tiro 2003 FtSAC Legialativc Packa;e. At Oust limo. Qas IiSAC hued was lniol~J Ly Cou+u:llmemlxr Caeh~la's staff tnsrnber. The flSAC Board tequesled I?lal Infotrnatbn on the intent and IeglslaUve history on gilts Issue be wbmittotl f« revkw and co[uide[atloe !n order to ,cfer thin matl« to tiro tote (a) County Councils. To dare, I have not rocelved that Inlbnnatkn. I would like to know witctha the Qly er County oCHatolulu's Council has aetad on RautuGoa Na. 02-292 alai its pours. I would ciao Ilke to requen that this mattes be sclttxlulal f« the troxt FISAC FxauUve Board Mating lobe Acid on faneary IS, 2003 and that lbc buekgrouttd infattttatioa on Reaotudwt No. 02-292 De submltred to ail NSAC Board tnembets prf« w this mtxling dun to dt[u ca+stnJaw. It 16 Important to cattier all the lnfotmatim etecespry ut a timely ettautter io order to facilitate this ptomts tx the itstte may not be acted upm. I woaW ako like rd be abk W present Oro backSround InfomsaGon to our County Allornay and ll+c memhora oC tha Kauai County tbunctl as soon as poniblo for Ihoir input prior to tha NSAC meeting on lantwy l3°i. . Thank you very much f« your attention a Iltlr maUcr. 7flees oc. l/l3l03 NSAC Fseculive Qumtaittsa Matl[gt Agaeda Aa. PoaHP Fax Note 76n r pgas? ~ ro &f , [+vm v Oo c .L r-r rr Ca. b8 ~7t1d OJN L69S9LE LL :6B EBBL/lB/TB DEC-30-2002 t10N 08133 AM COK CLERK OFFICE FAX H0. 6082418349 P. 02/05 ',~~',r... fit; ~ •`'~plt;~zS~ C I T Y AND COUNTY O P H O N O L U L U 110 NOWLU, NAWAtI aaet7-70GG / TES 649. w,; EI'NONE 7000 w +n RUMY M. CAC1tULA couNCttantµont taoa) i~7aoo7 puN)sa»720(Wa) ~yaWl: eadwlnQw.hanalula.hl.m Scplember G, 2002 ~Vlmnurandunt '1'O: COUNCILMEMllLR GARY O1ClN0 FROM: COUNCiLMliMBPsK ROMY M. CACIIOLA SUf31lCT: 2003 IISAC LI:GISLA'fIVLt NACKAGI' '111<tnk you for your mental uudum dated August Z9, 2002 roquostiug icgislativc proposals for cottsidcnltott turd inclusion in llw 2003 HSAC Lcgislalivc Packago. I stn interested in HSAC'e support of a measure which would rrquke eadt cowtly to pay Cor Oteir t+t:asonable share of txpcnses in lawsulls Otat nffoct rho various counlies. As you may te•.ctdl at a recet.t 13xecutive Session, thls Couucil was asked to approve funditta to him a iaw turn to lnlcrvett0 in a c:°tse Utat nf1'ce(s llte State G+ nplayas ltctirentent Syslenl. !t [s my belief that ota maller~ rlwr have statewide ilnpliw6otur nil counties should snake n cottunitmettt to share in tltn ratputses. I also eelleve I~LSAC should add to lls package kQlslation urging the State Legislaturo to ¢rant all of tho counties hnntunily from lots liability arising from Just skate park aclivilic on City.nwnrd or City-aontrollcd propc~tics, As you know, tits City Coutuil consldcrnd, but did not adopt,ltcsolutioa 02.123 wltidt urged tl[c Clty Adtninislrndou to temporarily auspottd plannlttg, construction and futon: dovclopmwtt of skate pork fnciiitica uutf(tlto Stato I,egiatature ~ranLs Utc city immwtlty es suggested about, [ continue to believe it !sin rite best interost of Ute all counties to be protcc.Ked ftvm potrnl[al liability given rho itiltcrertlly hvardous nature of aicatlug and akateboarding. T'11a11k y6p fOl' y0lff slfrnfion la Utis matter. SB 3JVd (7JN L6959LE LL ~60 E00L/LB/T0 pEC-30-2002 MON 08 33 At1 COK CLERR OFFICE FA1S N0, 8082418349 P, 03/05 ~ CITY COUNCIL. ~ Clrr Iwo COVNTY Or lIONOLULU ~ ~ ~ ~ '.,,~,1 HONOI.I li 11- FIA WA11 N~- tee- RESOLUTION 6Ut'pORTINO A POLICY UNDER WNIWi ALL COUNTIIiS SHARE ITT THE COST OI' A LJ1W8C1IT BROUGHT BY A COUNTX AGAINST' THE STATE OR OTHER GOVERNMfiNTAC, RN'TITY THAT MAY DBNRFIT ALL COUNTIFJR. ' wlt~RSns, at times, a county may bzing a lawsuit against the State or other governmanCal sntiky to seek an interpretation, abvyanco, or iAValidation o! inw oz- adminiatrntive aotlon chat may benefit all counties, oven those not parties t0 Che lawsuiCj And P1Afi1tEAS, a lawsuit may entail expenses such as the engagement o;E special v~unael to represent the inL•eresta of Che county that brings the lawsuit] and WHSR&AS, the Council believes that in lawsuits that hay benefit all counties of the state of Hawaii, the counties should make ~ commitment to share appropriately in the coats of the lawsuits; now, Cherofore, BIS ZT RT~30LVEA by Che Council of thq City and County of Honolulu that iC supports a policy under which all oountiQa share in the cost of s~ lawsuit brought by a county against the state or ether governmental entity thaL• may benefit all countiear and 86 IT FURTHER RE80LVED that under this policy, all coi~nr.tes will enter into ooat-aharing agreeroenta foz auoh lawsuits on a ease-by-case basis; and Bl3 ZT FURTHER RESOLVED that kho counties of Hawaii, TCauai, and Maui are urged to adopt measures in rapport oC the policy stated in this Resolution] and OCS00615.&02 90 39Vd OLIN L69S9LE LL~60 E00L/Z0/T0 DEC-30-2002 ImN 08:33 Att COK CLERK OFFICE FAX N0. 8082418348 P. 04/05 RESOLUTION B8 IT FINALLY Rlisor~VF:n that copie9 of this Resolution be Cransmitted to the council chairs of thcocounties of Hawaii, Kauai, And Hnui, and the Preslcieerit of the Hawaii State A3BOClatiOn of COYntlea. INTRO t;D IIYy i~A~/ / ~ AATS OF INTRODUCTION: OCT 102002 Honolulu, Hawaii t'OLlntlilulembeXs (OC$/101002/tlt) 2 CITY COUNCIL N~~nwoH&to clrr Mlo couHty of Honotan.u HoNOwLU, w~wal Heteronce: AVE NO .4E I ~r,.~,~ awry snot a. rone«~w NESOUrraH Report No. adopted•fry the COUNCIL OF THE GTY ANO COUNiY ~ ON ONOLUW on the dau and OY Uu wte~tndieeled b V~ doh Ds6070 ATTG6T: Ffltx e+~~s Resolujtio]n ]No. ~~w~` Q1NN M~1/T~IND ~f{'~CV{ Ori/~~V~~w1 DaIW ce ~d a»+ cese9se ca:ee eeeaiseiie DEC-30-2002 MON 08:34 AN COK CLERK OFFICE FAX N0. 8082416348 P. 05/05 IJEC 23 • fSG 11 ~ 4k3rr9 P, ! P6N~a' Fax Note 7671 ~'0~ „1,? ' w... • ~ • Inarpovemrrrental Alfalfa end , r ' Cttltortler Services Canurdlt•e Minutoe y Ttleeday, Ociaber 22, 2002 papa s ~ BE65}1~8~~~R6I+ORT 48~ SUPPORTING POLICY V bER WHICH ALL COUNTIES SHARE flV '7HE GOST OF A LAWSUIT BROUGHT BY A COUNTY AGAINST YFtt: STATE OR OTHER GOVERNMENTAL ENTITY THAT MAY BENEFIT ALL COUNTIES. CommHlaa Chelf Caohola elated that the kttent of the reachftbn Is fw all countlee fo aharo kl UtlpaUon experues fof tavrstalfs that benafif cep countlee. Reaoltttkn 02282 ropott~d taut far ettnptfon. AYEfS; t:ACHOIA (Chaid, BUNOA, KOBAYASHI - 3, NOES: None. F~CGUSts"D: YOSHINIURA ~ 1. ABSENT: HOLMES-1. 02- 3 GOM E RELA 0 70 A LEOISLAYNE P08AL FOR INCLUSION IN THE 2003 HSAO tEGI3LATNE PACICAt3E TFIAT YWUI.b PROVIDE TttE COUNTfEs AND COUNTY EMPLOYEES IMMUNRY FROM TORT LJA811'~Y ARISINt3 FROM FiAZARDOUtS ACTNITlt:3 IN 8KA't'E PARKS IN COUN?Y~OWNED OR CONTROLLED PROPERTIES. ' CoundlnKfnber Okino tatptafned tfw puryow o1 the ewofutlon and aedltsd tt+e advice of Cemmhtae Chalr Cechola for k bslnp Included to the tiSAC packepe. Commkh. Chalr Caohola s:gplahad that eKate patke are In dalttluxt by oammuhltloe Btatewtde 6aaausa (hey oftir aft~malivee from posslbls penp related addvltlas fOr ttta youth. As the co needs g.t fuHWad - the b4Udkty d nttxe skate parks - ttfefe fs oleo proater of tn(urlee lord laiwsuik, This tveolutlott addroeeea that sihintbn and Qlves the lepklature an oppottunf4y to aaeletthe oouhUas Anm aubh inmaoad NeblWly. Committee Chalr Cadtola Introduced a CDt tMd conatxs Popp 2, Ilne 20, of the b(U aWohad to the ro•autlon by adding the Word •noC to Set:Con (c) (1j(a). B0 3JCd OJN L6959LE LL ~6B EBOL/LB/i0