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Home My WebLink AboutCOM 0197.001 2004-2006 +!Y.•`"+y~ Lincoln S.T. Ashida Har Kim . Vii Corporation Counsel rY Mayor Gerald Takase ;r,,: Assistant Corporation o:'~~'" Counsel i ~ ~ ~ i~, ~ COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720-4262 (808) 961-6251 Fax (808) 961-8622 May 23, 2005 Honorable Stacy Higa and Council Members Hawaii County Council County of Hawaii 25 Aupuni St. Hilo, HI 96720 Dear Chairman Higa and Council Members: RE: Threat of lawsuit by Hokuli'a lot owners Request for authorization to hire Special Counsel Pursuant to Article VI, Chapter 2, Section 6-2.5, Hawaii County Charter (2000), the Corporation Counsel seeks authorization for the hiring of Special Counsel to assist our Litigation Division in the defense of any claims and/or lawsuits filed against the County of Hawaii by the Hokuli'a lot owners. Background Through their counsel, a number of lot owners of the Hokuli'a development in Kona have indicated they will file a claim against and sue the County of Hawaii for damages incurred by them as a result of alleged detrimental reliance on the development agreement. They allege, inter alia, that they have suffered monetary damage as a result of the Third Circuit Court order halting further development of this project and the individual properties. These potential plaintiffs have indicated their alleged damages to be in excess of $200 million. No doubt that this case will generate a tremendous amount of pleadings which will require the immediate attention of the County in order to properly respond. Present caseload of our Litigation Division As of March 24, 2005, there were 395 requests for legal representation made with our Litigation Division. We are on pace to exceed the 500+ case mark of the past three fiscal years. Our Litigation Division supervisor, Joseph Kamelamela, has indicated that it may be wise to employ special counsel to assist their division in properly defending any claims and/or lawsuits brought against the County by the Hokuli'a Gomm. No. Hawaii County is an Equal Opportunity Employer and Provider Ref. To: _ j~G1 Rcf. Cate Honorable Stacy Higa and Council Members May 23, 2005 Page 2 lot owners. Hiring special counsel also means added clerical support from the vendor, to support the legal clerical staff in our office. We envision hiring special counsel to assist in this anticipated litigation, working together with our Litigation Division (headed by Joseph Kamelamela), and Deputy Corporation Counsel Ivan M. Torigoe, who has been representing the County in the ongoing litigation in Kona and appellate matters before the Hawaii Supreme Court. This is a similar arrangement our office setup in defending the Fair Labor Standards Act lawsuit, where Deputy Corporation Counsel Katherine A. Garson assisted Special Counsel Ted Hong. This FLSA lawsuit was brought to a favorable conclusion for our County by our attorneys.' Cost to the County of Hawaii We may expect to pay Special Counsel approximately $200 per hour. At this point, it is difficult to estimate the number of total hours which will be necessary.2 However, we are seeking an initial monetary cap of $50,000.3 Keeping our attorneys involved in this anticipated litigation will ensure that we will be kept abreast of any significant developments, ensure proper expenditure of government funds, and allow the County to assume or complete the legal representation of this matter, in the event Special Counsel may not complete this case.° The present budget balance in our Special Counsel account is $193,800.51. Please note that there is a possibility that Special Counsel may not be needed at all. In the event no claim or lawsuit is filed, there will be no need for Special Counsel. Similarly, if at the time any lawsuit is filed our Litigation Division is able to properly respond on behalf of the County, there may not be a need for Special Counsel. Obtaining the present authorization from the Hawaii County Council simply prepares our office to promptly and effectively respond with the needed legal firepower, if circumstances require it. We are simply preparing for the worst. Benefits of hiring Special Counsel In sum, here are the reasons and benefits in hiring Special Counsel to assist the County of Hawaii: Other counties in our State continue to litigate their FLSA lawsuits. Our County has concluded its litigation of this case and payment of special counsel fees. z If the County is fortunate enough to prevail on a Motion for Summary Judgment early in the case, we expect fees and costs to be relatively small. On the other hand, if this matter is fully litigated, the fees and costs may be significant. s We are required by law to state the cost of Special Counsel. The Hawaii County Charter (2000) requires Hawaii County Council approval for the hiring and paying of Special Counsel. In the event the Council does not continue to fund Special Counsel, the Corporation Counsel, absent a conflict of interest, will be required to represent the County. Honorable Stacy Higa and Council Members May 23, 2005 Page 3 The County needs an experienced civil litigator to defend this lawsuit. This is not to suggest the attorneys in our office could not represent the County in this case. Our dedicated and talented attorneys in our office could take on this Hokuli'a case, but they would then not be able to tend to their current cases, which are equally as important to our County (we would need multiple attorneys to properly defend the County in Hokuli'a, given the anticipated "paper war" that complex litigation generates). Hiring Special Counsel means you also hire the attorney's associates, support staff, and law firm. In other words, we receive the benefit of not only their "attorney time," but the work and effort of their secretaries, paralegals, and other attorneys in their law association. Conclusion Although no claims or lawsuits have been filed against the County, and although we believe the County is in a defensible position, we do not want to treat these threats lightly. In sum, we need to be prepared for the paper war, and to properly defend the County. Given present caseload levels in both the Litigation and Counseling and Drafting Divisions, the important daily work output of our attorneys would be compromised in the event they are deployed to work exclusively on the Hokuli'a litigation. This is why our laws recognize the ability of our office to employ Special Counsel, when extraordinary circumstances arise. Mayor Harry Kim has been consulted on this matter, and concurs with the recommendation of our office that Special Counsel be retained and utilized. Based on the foregoing, we seek your approval for the hiring of Special Counsel to assist our Litigation Division in properly defending the County against these anticipated claims and lawsuits. I will appear at your next Council meeting to address any concerns you may have. Very truly yours, LINCOLN S. T. ASHIDA Corporation Counsel c: Honorable Mayor Harry Kim S: Litigation/Oceanside/Corresp.ILetter to Council re Special Counsel 5-23-05(LSAmr rev er VIRGINIA [SBELL ~ ~w~ Phone: (808) 326-5684 Councilmemher FAX: (808) 329-4786 rr Ol~M~~' HAWAII COLINTYCOUNCIL Caun(ti~ of Hawaii Hawaii Coun[v Building 25 Aupuni Slree~ Hilo, Hmrair 96720 May 23,2005 Stacy K. Higa, Chair Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 RE: Communication No.197.1 transmitting a communication to nominate Mr. David B. Gomel of Council District 9 to the County of Hawaii Pension Board. Pursuant to Section 1 (g) of Rule 4 of the Rules of Procedure of the Council of the County of Hawaii, this written request is submitted with my approval that the above-referenced matter be waived from the committee on Finance to the full Council for immediate action. In reviewing this matter, timely approval is crucial It is therefore advantageous that approval is granted and the matter placed onto the next Council agenda for review. However, in the event this request is denied, for whatever reason, [understand the matter shall be referred to the Committee on Finance for placement on its future agenda. Sin rely, Virginia Isbell Chair Committee on Finance Approved/Date/Waive to Council: Disapproved/Date/Refer to FC: Stacy K. iga, Chair Stacy K. Riga, Chair Hawaii County Council Hawaii County Council