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Home My WebLink AboutCOM 0719.001 2006-2008 „M?'.." ~ Lincoln S.T. Ashida Harry Kim ~~%w; Corporation Counsel Mayor Gerald Takase ~ Assistant Corporation x"i' of ~M~~• Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suire 325 Hilo, Hawaii 96720-4262 (808) 961-8251 . Fax (808) 961-8622 October 10, 2007 Sent via email to all Council Members; no hard copv will follow Honorable Pete Hoffmann and Members of the Hawaii County Council County of Hawaii 333 Kilauea Ave., 2"d Floor Hilo, HI 96720 Dear Chairman Hoffmann and Council Members: RE: United Public Workers v. County of Hawaii, et. al. Civil No. 98-244 (Third Circuit Court) Resolution 364-07 Resolution creating a Park Caretaker I (3/5T) Position and Park Caretaker I (1/2T) Position for the Department of Parks and Recreation The Office of the Corporation Counsel thanks Finance Committee Chair Dominic Yagong and Council Chair Pete Hoffmann for waiving the above- referenced resolution through Committee to the full Council for its review on October 17, 2007. As the Council recalls, after the executive session held on September 6, 2007, the Council authorized the settlement of the above case, UPW v. County of Hawaii, Civil No. 98-244. We are pleased to report the parties have settled the above case in the Hawaii Supreme Court's Appellate Conference Program, consistent with the terms authorized by the Council. Enclosed is a copy of a fully executed Memorandum of Agreement that will be forwarded to the Third Circuit Court upon remand from the Supreme Court, and entered as a consent judgment by the trial Court. Pursuant to the terms of the settlement, new civil service positions are necessitated due to the need for the County to transition janitorial and ground maintenance work from private "for profit" contractors to civil servants. / p Comm. No. ~ ! f Hawaii County is an Equal Opportunity Employer and Provider Ref. To: t'lesedel Rof. Data OCT 17 21113f Honorable Pete Hoffmann and Members of the Hawaii County Council October 10, 2007 Page 2 The above resolution reflects the first of the departmental requests that will be processed in order to comply with the terms of the court-ordered settlement in this case. Your favorable action on the above resolution is humbly requested. I will be at our Council meeting on October 17, 2007, to answer any questions the Council may have. Very truly yours, LINCOLN S. T. ASHIDA Corporation Counsel Encl. c: Honorable Patricia Engelhard, Director, Department of Parks and Recreation (w/ encl.) Honorable Pamela Mizuno, Deputy Director, Department of Parks and Recreation (w/ encl.) Honorable Michael R. Ben, Director of Human Resources (w/ encl.) Honorable Casey Jarman, County Clerk (w/ encl.) S LitigationlUPW v. COH 98Q44ICorresp.ILetter to Council re Parks positions 10-10-07ILSAmr f~ SL (9} 1 .yp,13yR 16t ,L ~a ~ ~ ~0 ~~1' "o G~I~C o C~P~r °~rSK" 5 t , r~=^ Herberc R. Takahashi (A Lew co~po,alm„I I Danny J. Vasconcellos l Rebecca 1. Covert A T T O R N E Y S A T L A W September 19, 2007 Lincoln S.T. Ashida, Esq. Corporation Counsel County of Hawaii 101 Aupuni. Street, Suite 325 Hilo, Hawaii 96720 RE: UPW L. 696 v. County of Hawaii (contracting out of janitorial and ground maintenance services - mediation); Our file no: 97-127, 97-128 Dear Six: Enclosed is a fully executed copy of the September 11, 2007 memorandum of agreement signed by Harry Kim (fox the County of Hawaii), and Dayton Nakanelua (for the United Public Workers, AFSCME, Local 696, AFL-CIO). A copy is being transmitted to Walter Ikeda so he can enter an order in accordance with Rule 6 (b) of the Appellate Conference Program Rules. Please sign and return the stipulation to withdraw and dismiss appeal, and to remand case to the Third Circuit Court as soon as possible so we can proceed promptly with an appropriate motion for a consent judgment in the Third Circuit Court in accordance with paragraph 6 of the agreement. Thank you for your cooperation. Very truly yours, Herb~E R: i'akahashi HRT:11 Enclosure cc: Walter Ikeda, Mediator Dayton M. Nakanelua (w/enclosure) 345 QUEEN STREET ~ ROOM 506 ~ HONOLULU HAWAII 96813 TELEPHONE 808.526.3003 MEMORANDIIM OF AGREEMENT This Memorandum of Agreement is made and entered this 11th day of September 2007 by and between the County of Hawaii (County or Employer) and the United Public Workers, AFSCME, Local 696, AFL-CIO (Union or UPW) pursuant to a court ordered mediation process conducted in accordance with the Hawaii Appellate Conference Program Rules before court appointed mediator Walter H. Ikeda in connection with Case No. 28250 before the Intermediate Court of Appeals of the State of Hawaii. 1. The Employer shall comply with the following public policies relating to the employment of persons who render public services through its various agencies and departments, a. In accordance with Article XVI, Section 1 of the State Constitution as construed in Konno v. County of Hawaii, 85 Hawaii 61, 937 P.2d 397 (1997) services customarily and historically performed by civil servants shall be performed in accordance with the merit principle, and may not be privatized. b. Services provided by private non-profit entities and organizations to promote employment training and placement of disabled persons shall continue to be exempt under Section 76-77 (13), Hawaii Revised Statutes (HRS). c. In accordance with Section 14.01 of the unit 1 agreement the prior rights of employees covered by constitutions, statutes, or rules and regulations shall not be abridged, as construed by Arbitrator Ronald Libkuman in an arbitration decision and award dated- November 20, 2002 which was confirmed by the circuit court in S.P. No. 02-1-0519, and enforced by the Hawaii Labor Relations Board in Decision No. 469, Case No. CE-O1-532 dated June 29, 2007 d. No contract to perform services for any government contracting agency shall be granted or continued, except in full compliance with Section 103-55, HRS. 2. No later than December 31, 2007 the Employer shall terminate and refrain from privatizing all ground and park maintenance, janitorial and custodial services, and building maintenance services in Hawaii County with all private persons and entities, other than non-profit entities and organizations which provide employment training and placement opportunities for disabled persons in accordance with Section 76-77 (13), HRS, and exempt from the requirements of Section 103-55, HRS. a, Employer shall develop and formulate a transition plan no latex than November 1, 2007 to convert from private to public operations, and shall consult with the union over the civil service positions to be created in the various departments and agencies and the applicable procedures for the expeditious implementation of the transition plan. b. In the event the employer fails to fully comply with this paragraph by December 31, 2007 it shall pay to the union damages in an amount equal to the value of services paid to all private persons and entities under contract to provide ground and park maintenance, janitorial and custodial services and building maintenance services from July 1, 2007 to the date of full compliance. 3. Employer and union hereby stipulate and agree that contracts for public services with non-profit entities and organizations which promote employment training and placement opportunities for disabled persons are exempt under Section 76-77 (13), HRS, and Section 103-55, HRS. a. Employer and union agree to jointly confer with non- profit entities and organizations who have exempt contracts to provide ground and park maintenance, janitorial and custodial services, and building maintenance services to formulate long term plans to promote additional employment training and employment opportunities for disabled persons, without diminishing or undermining the merit principles and the basic purpose of Section 103-55 (a) and (b), HRS. b. Except as provided in paragraph 3a no changes in the current level of exempt services by contracts through non-profit entities and organizations shall be made by the Employer. 2 9. Employer shall pay to the union within 30 days from the date of this agreement lost dues from 1998 through 2007 in the amount of $52,576 ($5,257.50 per year x 10 years). 5. The Employer and Union shall stipulate to the withdrawal and dismissal 'of the appeal in Case No. 28250, and to a remand of this matter to the circuit court of the third circuit in Civil No. 9B-294 for an amended consent judgment to be entered consistent with the terms and provisions of this agreement. Each party shall bear its own attorney's fees and costs in connection with the appeal. 6. The terms and provisions of this Memorandum of Agreement shall constitute a final and binding judgment and shall be entered by consent in Civil No. 98-294 upon motion to enforce the settlement agreement to be filed by the union. The consent judgment to be entered by the court shall be enforced as any other judgment in a civil action, provided that the prevailing party shall be entitled to attorney's fees and costs incurred to obtain compliance with the terms and provisions of this Memorandum of Agreement. Dated: Honolulu, Hawaii, September 11, 2007 STIPULATED AND AGREED T0: The County of Hawaii United Public W rkers ~ A S M Loc 6, AFL-CIO B a ry Ki ayor Da on M. Nakanelua St e Director REVIEWED BY: Gl~/~~~ 11r-c'_~~i Date: SP~'F 'Z_00'7 Walter H. Ikeda Mediator 3