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Home My WebLink AboutCOM 0603.001 1996-1998 w~..~,,..~r ~•.1 ~ 7 ,~~O~Y Working Together LOCAL 152. AFL-CIO iri'/~// for Hawaii O ~5ms Hawaii Govemment Employees Association 495 Manono Straet, Hilo, Hawaii 96720. Phone (808) 935-6841, FAX (808) 961-?437 T ~ R~ December 17, 1997 y1 By Golitlly Covrlcsi r~-_~y Testimony of Garv Yoshivama. Hawaii Division Chief in suoaort of Resolution No 195-98 and 205-98 relating to funding cost items for bargaining units 02. and 12 Good morning. My name is Gary Yoshiyama. I serve as the Hawaii Division Chief for the Hawaii Government Employees' Association. I am speaking in favor of and seek your support of Resolution No. 195-98 and 205-98 relating to funding cost items for bargaining units 02, and 12. Our uniformed fellow union members in SHOPO and the public employers recently went through the arbitration process of final and binding arbitration. As a result the arbitration panel after considering numerous factors in accordance with our collective bazgaining law, decided on a salary increase of approximately 5.19% over a two year period. You have approved similar increases for our members working along side of police officers and we request your favorable consideration of Resolution No. 195-98 relating to cost items for bargaining unit 12 employees. As to Resolution No. 205-98, I have the following comments which I submitted but did not read . to the Council on December 17, 1997. The comments are applicable to Unit 12 in part and HGEA's Unit 02. Our Union has for more than a quarter of a century honored the public policy on settling our collective bargaining contracts. That public policy is outlined in Chapter 89 of the Hawaii Revised Statutes. Time and again we reached mutual agreement with the public employers. The public employers have submitted the cost items to the appropriate legislative bodies and those legislative bodies have funded our mutual agreements. We have once again negotiated in good faith with the public employers and reached a mutual agreement. However at this late juncture in this process a new concern has been raised and threatens funding for all pending contracts. Several council members have raised the concern that the County Council has not been provided timely information while the negotiations process was ongoing and the possibility that the negotiations process is in need of change. Prior to 1970, Hawaii's Territorial and State public policy was to discuss and approve pay related matters at the legislative level, be it the Territorial or State legislature, be it the Board of Supervisors or Council at the County level. There were exceptions whereby a legislative body authorized the governor or a mayor to study the issue and establish a fair and equitable pay rate or ~a 0 3- o~ - nuo its S yr„~~ea F c ~t.t, ars .lul 6 X96 level. A major shift happened in 1970, the Hawaii Public Sector Collective Bargaining Law (Chapter 89, Hawaii Revised Statute) was enacted by the State Legislature. From that time to the present day, discussion, negotiations, and agreements (and sometime final and binding arbitration) took place between and at the level of the public employers and employees (through the employees' exclusive representatives). It is regrettable that you weren't in possession of timely information. The Unions are not able to explain why you weren't included, why you didn't obtain information or why you weren't provided information. HGEA has fulfilled its responsibilities in obtaining input from our members prior to the negotiations process, and providing our membership status reports as negotiations progressed. HGEA has fulfilled its legal responsibilities in meeting with union members and members have ratified the mutual agreements. While the negotiations process may be in need of review and possibly change, this is not the time and place. There has been continuous review of and changes to the public sector collective bargaining law over its twenty-seven (27) year history. The latest significant change came when final and binding arbitration was substituted for the right to strike in the 1995 State Legislative Session for eight (8) collective bargaining units. There are appropriate times and places for discussion and change. One is during the State Legislative session. An inappropriate time for making a change is when a contract has been negotiated and ratified in accordance with law. Do not hold up our contracts because you believe a change in the negotiating process may be needed. We do not believe that the legislators role in the negotiations process is a rubber stamp. Formulating and balancing our County and State budget is not a rubber stamp process. Honoring commitments, that is living up to and fulfilling negotiated agreements is not a rubber stamp. Thank you for your attention and consideration. GARY~S Y~ Hawaii Division hief NEGOAGRI W'PD 2 N~W~e ~ Y STATE OF HAWAII ORGANIZATION OF POLICE OFFICERS ~ Qy 1717 Hoe Street. Horwlulu. Hawaii 96619-3125 n Telephone 1809) 9474676, FAX (908) 841-4918 QCK,`E Or Hawaii County Council Finance Committee Aaron Chung, Chair Written Tectimony sn_ favor of Resolution 1V ~ 195-97 Chairman Chung and Councilmemhers~ My name is Emory Springer. I am the Chairman of the Hawaii Chapter of the State of Hawaii Organization of Police Officers (SHOPO). SHOPO supports the approval of cost items for BU l2 for the Contract Period July 1, 1997, through lone 30, 1999, as decided by an arbitration panel. Under Hawaii's Collective Bargaining Law, Chapter R9, Hawaii Revised Statutes (H.R.S.), specifically, H.K.S. § 89-11(d), "ltJhe decision of the arbitration panel shall be final and binding upon the parties on all provisions submitted to the arbitration panel." This same section also provides, "[a]ll items requiring any moneys for implementation shall be subject to appropriations by the appropriate legislative bodies However, this language does not give legislative bodies the power to "adept or reject" cost items resulting from a final and binding arbitration. In an unpublished 1996 decision, then Circuit Iudge Dan Heely, in his Decision and Order Granting Hawaii Fire Fighters Association, Local 1463's Motion to Confirm Arbitration Award, concluded as a matter of law that under H.R.S. § 89-11(d), "...cost items are made subject to the appropriations process, but no reference to the possibility of rejection exists. The lack of [such) comports with legislative intention to defer to the arbitration panel and achieve finality in an expeditious marvrer once negotiable issues proceed to dispute resolution, resulting in a final and binding arbitration decision and award, pursuant to [he patties' mutually agreed upon arbitration procedures and H.R.S- § 89-11(d)." In his decision, Judge lieeley had considered H.R.S. § 89-10ib), which allows legislative bodies to accept or reject cost items negotiated by the parties, with H.R.S. § $9-11(d). Judge Heeley stated, the words 'final and binding' should be given their plain and literal meaning. Any other construction leads to an absurd result." SHOPO is mindful of the Council's concern regarding Hawaii's economy being perceived as "flat" when compared to the mainland economy. However, SHOPO believes Hawaii County has nevertheless performed admirably, This may be due in part to the expended runway at Kona, which has resulted in an increase in Japan Airline and United Airline flights directly to Kona, therefore providing a significant economic boos[ to the County- furthermore, unfunded reserve balances are realized by the County every year. SHOPO believes that the wage increases resulting fmm the Arbitration decision are reasonable, and will not have a disastrous impart on the Employers' ability to provide essential services and functions to the public. SHOPO urges the Council [o pass Resolution No. 195-97. K~- III I rl~/o 17 O~ y,~ n p`~: ~ _ \i. DONALD IREDA ' ALAN S. KONISHf C°unrv Clrrk i^-°~^ . • Deputy County Clrrk a + e_ r"r~ CONSTANCE R. KIRIU OFFICE OF `THE COIIl~(`TY CLERK ~`g"`°"'~'"`'"°' County of Huuaii Haunii County Buil,ling 25 Aupuni Stntt ~ Hilo. [-Ltuuii 96720 January 1998 TO: Honorable James Y. Arakaki, Chair Hawaii County Council FROM: Liana Cos. Legislative Assistant RE: Work Request Regarding Driver's Licensing In response to your request to revise the driver's license renewal process to cut down on the time it takes to re-license, I am transmitting the following information: As of July_ 1, 1997, the State began to be implement new procedures in the area of driver's licensing. For example, the renewal exam requirement was deleted, instead, now you will need to fill out an application, take an eve exam-anew picture, and have your driver's record verified. Also, a new six yeaz license was approved for drivers ages 18-71. The new license is proposed to cost $18 which is equivalent to the two and four year licenses of $3 per year. These changes were necessary to ease internal processing, make renewals less time consuming. reduce the frequency of renewals. and to conform with procedures practiced in other states. [n addition. you referenced Mr. Dave Leamed's letter which recommended eliminating unnecessary employees or decrease the price of a renewal. As with numerous other County agencies, the Driver's Licensing Division barely has sufficient staff to cover its increasing workload. According to statistics filed for 1996, the Hawaii County Drivel s Licensing Division was responsible for conducting a total of 97,197 transactions of which only 34,414 were license renewals. As these figures are expected to increase, there are no unnecessary employees to consider eliminating. Furthermore, as I stated ealier the price of a renewal for a six yeaz license is equivalent to the rivo and four year licenses at $3 per tear, and therefore not an increase in fees. In addition to the aforementioned information, you requested looking into transfemng the driver's licensing function to the Department of Finance. Currently, the Police Department and Department of Finance are finalizing the details of such a transfer. The transfer is planned to begin when facilities become available at the old JC Pennev's site. Should you have an}' questions, please feel free to call. APPROVED. ~ Constance R. Kiriu Lcgislativc Auditor December l6, 1997 Dear Councilman: Recently, I renewed my Hawaii driver's license. I was pleased to find out it would be valid for six years. The additional two year extension from the prior term of licenses makes sense. This State, and particularly this County, is suffering from too many govern- ment employees. By increasing the number of years before we need to re-license, the County could reduce the number of employces necessary to license drivers. Recent news announced the County's plan to increase the foes 100%. Theirjustification is the in- crease in Fees amounts to the same price for a license since the term was extended. In faa, the unnecessary employees should be terminated or the price of a renewal should be de- creased proportionately. The answer to solving this State's and County's bankrupt situation will only be aggravated by added costs to the residents. I ask that you vote against this unnecessaryincreasein fees. Please advise me of your intentions. Sinceaely, Dave Learned (808)325-7495 FAX (808)325-0745 E-Mail Leaz@aloha.net I~~~ 1 QITkt O~ DIKI?Ilnary COYnNI Sv remc Goun ~ Sutc or Hawr~i • Utktyonary lard pv y 116.1 Blahop Stmt 9uiu 600 h.t~uw.e Honolulu, Ha~ai196111 Dw'tlht M Rush Rlephonc (101) 111391 . . J , 1 f 'lama A. Kawac~M? cAk(p~+prw c...... ~ ~ sttw+ary Ocrrld N.1~iEe ~ _ &.n1a Uttman M.twaw Dta.ylt..y ce.e«1 ChrAenc M. NoMa - Ellen OoeaYCanen Crtvh R. R1chtUcu q,[) Faith E~ana EArn C. Mena - - - RorsmaryT, Fraio tern C. lepaoe Cartand Seotd~G ONed Ma0eleitta Goodtnrn, ?h,p, Ran 9ancMt Gcrrtdinc N. Hraepara Swan 4 Vi11aUa TTomaa K Kauluk~kul Jr. tit ~.rta,a• RoEcn P. Mourrot MarJork L Muryhr CHffoed L Nakaa Onpry O.O11n Slephanlr A 1te:enu EeptemDer 1?, 1993 COHpIDENTIAL Arotyn4uau.Yh.D. Manucl R SyyLeatteC.?A S.Y. Tin. M.DJ D. - DCDonh K Wrtlht Duene N.H. DAA9, Lrq. Deputy corporation Counsel Depaztmvnt of the Corporation Couneel City end County Ott Honolulu Honolulu, NI 96113 Rt,a R•quert for 6thios Oplnlon Dtar kr. Pangs Thlr rerpondr to your loiter dntecl Augurt 21, 1993 (received August ]0, 1993) requesting ethlor quidence. lour letter vnr supplemented p7 subsequent teirphone convrreetionr with out peralegrl, xarge Autrpby. 2. bTA2LHENT O1! t!ACTC iov represent Detendrnir (four police officers, the Chief of Police, and the City end County of Nonoluly) in a levsuit filed it the United 6tates District Court, Dietsice o! Sawali, alleging civil rlghcr vloletlons under 11 USC ff1961, 1917, end 19BS, as yell ar oosanon lav torts of aeesult, battesy, and negllgence. The rust xes filed by a woman arsr•ted for bararsmsnt of a pollen officer. The xotaan alleger Chet vAlle she was in custody at the Ronolulu Police 6iatlon, ehe vas bestsn by three officers and a police tmetron. The elal.m for zalief includes (as !r alvpys the ease in litigetlon rlleging a violation of civil rights) a request for punitive damages against the individual officers. Although Defsndnnte agree that ibe woman vne ta~ured when the tzied to charge one of the officers and attempted to gat out of the holding cell, they o?tegoritelly 4eAy that any eseavlt occurred or that eny officer intsntiona]ly inured the women. Defendants ell agree thnt if an in~vey did occur, their actions vote jvetifiedr a . pane K.H. Penq, Enq. gaytamber 17, 1993 page 2 One of the Dslandants previously filed a xbrkers' compensation c1elA with the City ea a result of the incidsat in Question. On the advice of en attorney in youz Department, the claim was denied by the City. The Defsndant (thsvugh an attorney) has requested independent counsel for trial in the civil rights action, which is presently srt !or eeptesober 28, 1993. Your Department down not wish to present the oeae o! any ono Deiendent in a manner which will be detrimental to the interests of any other Defendant. I1. I NOQ.lA! You ask whether (1)~.Detendente are entieled to independent counsel solely due to thha fact that a claim for punitive damages has bean made agsinnt theme and (2) n conflict of interest exirts as to one of the Defendant/Officern because an attorney in your Department denied the workers' compensation claim of that Defendant/Officer and will defend the City agsinet that claim. III. QISCUBSIOM. p iti{~, ve Dnm~9ce Clsim. The majority of oourte which have considered a governmental lax office's Concurrent representntioA of the government end of publio employees, and whether any contlicte o1 interest may arise therefrom, have ra~eoted s ~ !A disquelifieetion rule in favor of cane-by-case raviax, ~4.! pglitign for Aaviex o~lon SS2, 102 N.J. 19s, S07 A.2d 233 (1986) $2?yiZ d v. 9orrr, 89 l.Supp. X33 (N.D.I11. 198~)~ Qenth v. 8a em, 111 A.0.2Q°778, X90 N.Y.S.2d S26 (1985). , In 4~inion SS2, 8yore, the oourt examined "whether a municipal attorney may repronont both the munioipality and individusl officials or smployaes of that municipality when all have been sued ae oo-detandenes in a civil rights eotion under II.S.C. f198~.• 102 N.J. nt 195, S07 A.2d at 231. Tbo court concluded that point representation would be permissible it the defenses to De raised by the government sad its employeen ere consistent p~ ii there aso no divergent claiau for eompeneator~ relief against each close o! detondants. I~ at S09 x.2d at 239. Tho court in (fin on SS2 made clear that whore a civil complaint could be constxved as alleging personal liability on the part of a gpovernment emplolroo, a conflict o! interest would not erieo if, for exemplo, oniy injunctive relief, injunctive relief coupled with compensatory de,mages, or compensatory damages alone were sought ,;pQ responsibility for providing that relief rested with the governmental body. Kowavar, "whenever the claims nesertsd i ~ \J i Dunne N.N. Pnnq, 8sq. September 17, 1993 Page 3 oould aub~scc the lndivianal deiendane to personal liability for which indemnification is unavailable, conflicts of interact would erica. et 197, S07 1?.2d at 236 (footnote and ritations omitted). Ths vourt in onin on SS2 identified a claim for punitive damages agninet a governmental officer or employee as as example of n situation in which indemnification might be unavailable. The count in 4oinion SS2 gave cup r't to the views of the New Jersey 6upseaa Court's Advisory Co~tee on Profeaeional Ethics, which haA determined ae follows In the event the Section 1983 -actia~ is suoceeaful and involves punitive damagee~-the matter of indemnification for wets and punitive damages la put in issue between the official and the munielpality. Since the municipal attorney moat be free to axerotae hie independent the~in ndemtllfi n ioa claim,dthat mungicipal counsel ctannoe properly repreaont the municipal official against whom the notion .rat brought. In New Jareey, state lax dictates that municlpelities are specifically immune from punitive damages under 61983. The potontiel punitive damages liability of public Ofticiale in 51983 actions prompted the New Jezaey Committee on vrofeaeional 8chies to rule that each official moat De represented Dy independent counsel. The Committee ezpreeeed the view tLet consent of the individual oo- dafeadante would not bs sufflolant to overcome the actual conflict. The court in Qplnion SS2 supported that conclusion. 102 N.J. st f07 A.2d et 23e. Turning to yOnr inquiry, yyoou hove indicated that the police officers, police chief, and tt~i City presently agree that the officers mere acting in their official cnpacltiee at the time o! the inoident. However, you era uncertain whether the Cityy will indemnify ehs officers for say punitive damages awarded 1n the event the pleintiff'e olaiaa are upheld. Mithout a definite anexer as to whether the City will indemnify the individual oo-defendants from all pocentisl monetary damages, ire are unable to find that conllict of interest concerns Den be surmounted. palace the city agrees to indemnify ehs officers, separate couruel Would have to De engaged to represent thee. As indicated in ()ginion 552, where an actual conflict exists in a ;1997 aotlnn, canaent by the pnrcies to the multiple ropre¦entation will Woe satisfy ethical parametora. ~ 1?a1?/BNA T,aavers' llenual on PrQfe~aional Cor,~dyct 511101 (1992) e ~ Duena W,H. Penp, Bsq. September 17, 1993 Peg• t (repr6eentetion of client• whose interests srv adverse pezmissihle when interests ar• pgtontially conflicting). 8. Workers' Como~neaeion Hatter You independently inquire whether a conflict of Snterert mould arise in connection with yyoour Oepartment'e simultaneous defenr• of one of the Defendants in the federal lewsuiL while taking a position adverse to that Defendant on behalf of the City in defending against the individual's workers' componsncion claim, ha stated in Internetiorl•1 ueiness Heohinee Coro v tey~ 579 Y.2Q 271 (3d Cir. 1978), xhere..the selntionehip between an nttorney end his or her c11eAi, ie an active and existing one, edvorse reprvevntation U °rima fad improper. ~g pvno_ re11~ )q~ v. Fona, 60 New. 601, 593 P.2d 386 (1979). Problems initially raised in ouch aieuncions relste eo the deleLerlou• affect upon the ectorney~s independenoe of iiudgment, loyalty, end vigor in hie or her ropresantecion of one client against another. While a lawyer may ethically be able to continue to reppreaene, in unrelated matters, clients who era adverse to each ot?~er in a separate case, the situation changes where the lawyer becomes involved on behalf of one client in direct opposition to the other olient. The conflict et theL point becomes actual rather than potential, end (ea discussed in Section I.A. above) xaiver of the conflict by either or both clients is iaadequete to panels the laxyer'a further involvement on behalf of each client. The adversity betxeen the City end the Defendant on the Defendant's vrorkere~ compensation claim nvgstes the City's ability to •thicnlly continue rimultaneou• reprvrentdtion of that Defendant in the federal lawsuit. Your letter raises, howawr, a !actual issue deserving of further discussion. You slats in yyoour letter that the peputy in your Dvpartmeat who rill be defondinq the City against the Defendant's vorkore' Compenaatiorl C1eLa le housed in s building which i• phyeicslly sepasat• from yours. In your follow-up telephone conversation with Its. l:urphy, you slats that your office consists of tour aepazaLe divisions coneletlnq o! 33 nttorneya, the majority of Nho~m are housed in City Hall. Division etnff meetings include only the attorneys of that particular divieton. You are assigned to the Trials Division o! your Department, while the attoraey handling the underlyiaq xorkera' compensation matter is assigned to a sepnrnte division. In $t ate v. ICletiten f, 71 Hax..S96, 801 P.2d s~8 (1990), the Supreme Court pernittvd the Deportment of tho 1lttorney Genernl to a ~ Duano W.H. Penq, Eeq. September 17, 1993 Page S ei~oultaneouely rspreeent a State employee in • civil mortar end while inveatigatinq end prosecuting him in a criminal matter ae long ne no prejudice resulted in the criminal matWr end the Depeccment's staff vas assigned in ouch a May as to etford the wcployea independent counsel and representation in the c!v!1 mottos. The 6upreane Court eteted in ajattenhofi, pupre, that the Finwaii Code of Proiessionnl Responsibility caanot 'mechanically' De npplled Lo the 1?ttornay General's office due to that office~a •mendeted role in our 2aga1 ayatem•. Ida at 603, Boi P.2d SS1, The Coact in ]clattenhoff went on to eay that •[w]s raaognies, as do the majority of the stereo, that-due to the multiple duties statutorily ls~posed upon.the 11G's office, the ethioal rules for privets law firms are not nacaseerily pppllceDle, in all these, to the AG's office.' I.S~ et 604, 801 P.2d at 551. The Court further atetedi Hs hold that the 11G may represent a state employee in clvii mettexa while investigatlnq end proaoautinq him in criminal matters, so long as the atelf o! the AO enn be assigned in each a mar?ner ae to afford independent legal counsel sad representation !n the oiril matter, and so long as suoh repsesentation does not result In prejudice in the criminal mottos to ohs person reproaanted. et 605, 801 P.2d at 552. ~battanhoff appears to velidato screeniaq aeasures where a large government agency hen discernable segments. lu long sa these segments operate as nearly eutono~mous paste, the entire agency will not ba diequalifiad provided that the parts continue to operate eeperately end there is no pra~udice to the clients involved. lie are without adequate fectunl information upon which to conclade that your Department has adequate "discernable segments' which oould allow the Trial aivlslon to rspreeent the Defendsnt in the federal lawsuit while a eeparete division opposes that Defendant in the workers' oompensation matter. lour letter states that the ettornay in your Department xho !s handling the workers' ' compensation eleim works in an office building eeparete from yours. However, your telophona conversation with Norge Murphy gave us a different impression (i.e., that ell deputies in your Department, except for those in the Family Support Division, ere housed in City hell), we are, in any event, without information as to the relative physical and organisational separation between your Department's trial division And the division handling the workers' compensation case, ' ~ Duane W.H. Panq~ $aQ. September 17, 1993 page 6 We read 1Clettenhoft as requiring Weer-total separation of duties and responslbilitiac to the poine that the divielon• et leave oporate as quasi-autonomous ant ales which have little or no daily aubetsntive interaetlon. It may not be necessary for divisions to be housed in separate buildings for the conoluetona reached in IClattenhoff to be apDDllcabU . further, while the relative else o! the governmental Iegal department may De a factor under Rlattanhoff, Bice slope would not be detarminatt.ve. 1?gain, however, we do not have euifiCiont infotnetion to alloy ua to conclude that the conditions toured to exist in 1Clgttenhott apply in this situation. Anrrinq the receipt .of more .detailed feCtual information regarding the orgeni:etion..nnd.operation of your office, we ere unable to conclude that the results reached in 1CSattenhoft are applicable to your Department !n this tee®, Moreover, an answer to this Inquiry would be moot unless, as discussed in Section II.A above, full indemnification for the individual Defendants is evnilnble from the City vn the punitive daaages claim. I should add in closing that your Dopartment's continued reprenentation of the City in defending against the Defendant's workers' compensation claim would, upon any withdrawal by your Department from reprvsentatlon of the Dotendant in the federal lawsuit, be conditioned upon full compliance by your Department with DR 1-101. Under DA /-101, any eoniidentiei client information which may have bean obtained fray the peiendent in conneotion with the foderel laMSUit cannot be utilised or revealed in the workers' compensation Case without the informed consent o! the Detendnnt. Iv. ~ It i¦ my office's opinion that your office mould be ethically precluded irws continuing to represent the individual Defendants unless the City can and will indemu?ify thaw for any punitive damage¦ awarded 1n the avant o! art adverse deoision in the federal lawsuit. We are without adeQuate iatoixu flop upon which to conclude that the result reaohed in state v• rlattepj~oft, su ra, oan be applied in this eituntion. Therefore, it is my office's opinion Chet yyour Department would he disquellfled from simultaneously defending ehs City against the workers' compensation claim filed by one of the Defendants Mhile detendiaq that individual in the federal lawsuit. I 5 •r Duane K.H. Penq, 6eq. Septambor 19, 1993 Page 7 Aa usual, tho vlwe exprvs~ed heroin, which are Deeod eol~ly on the facto prasent~d, ero those of this office only end do not necessarily reflect thv conclusions of the entire Dieciplinery 6oerd. Vary truly yours, `,i'~a~'r~i~cc.,~ GEAAI.D H. ICZHB CHZEP DISCIPLINARY COUN36L sm