HomeMy WebLinkAboutCOM 0272.021 1998-2000 E~CUTIVE SESSIOx
Hilo, Hawaii RR.iIVED
Wedttesday, August 24, 1994: nms 8
7~ / r c Y...--------+.w
0Ofe----=- -
County Council
The Executive 6ession of the Hawaii County Council was called
to order at 7:02 p.m. in the Couacilroom, Hawaii County Huilding by
Mz. Spencer R. Schutte, Chairman and Presiding Officer.
PRESENT: Couacilmember Reiko Bonk
Abramson (arrived 7:07 p.:a.)
CounciImemher Rc;o18 Childs -
Councilmensber Brian J. De Lime
Councilmamber Takashi Domingo
Councilmember Helene H. Hale (arrived 7:06 p.m.)
Councilmember Jim Rath (azzived 7:08 p.m.)
Councilmember Hob Rosehill (arrived 7:05 p.m.)
Council Chairman 6pencer R. 6chutte
ASSENT & ERCQSED:
COUncilmember James Y_ Arakaki
ALSO P~~sRxT w~R~:
&ichard Wurdeman, Corporation Counsel
Gerald Taka§e, Deputy Corporation Counsel
Glenn H. Shiigi, Deputy Corporation Counsel
Harry Takahashi, Finance Director
Robin Yahiku, County Clerk
Bobby Jean Leithead-Todd, Legislative Auditor
Haulili Dickson, Executive Assistant to the
Council Chairman
- xansrenda K.M. Dutro,:Council Services
Reporter
CF3R. SCHiTT'I'E: Ali right, Mr. S¢urdeman-
~Ii(?R~
N: We've got two; which one do you want
to hear first?
a - ?'!"t'F: Your discretion.
Comm. No. 272.02
File No.
Ref. To: Q ~Cpu~JC~L
Kef. Uate SAN 0 5 20~~
Executive session August 24, 1994
J ~',OMM. 1254: From Deput} Corporation Counsel Joseph R, xamelamela,
dated August 12, 1994, requesting an executive
session to discuss Nobriga v. Victor, Civil loo.
93-32b.
PRESENTATION; MR, WURDEMAN: _Okap, I'd like t0 d0 Nobrig8 v. Victor
first. I don't believe this case has been brought up
heze before---might have. This 3s a case in the
Hamakua District, between mile post 44 and 41 on the
Helt Highwap, where Auto Repair had a truck which-
, was transporting corn taward•Hilo, and they had a
major spill. So, there was corn all over the road.
The plaintiff, Mr. Nobriga, was a friend of
Leonard---so, he lives in the neighborhood somewhere.
jam. DE T.IMa: What's the bottom line? Rnly five of
us here, Mss. Hale not here. What's the bottom line? -
MR. WQRDEMAN; W9I1, I'll just give you the whole
review. Nobriga and his other friends are nut
sweeping the road. Two Of our policemen are on the
scene. However, instead o£ directing traffic,
putting out flares, or assisting the sweel?ers is any
way, they were sitting in their cars off to the side
dunking coffee.
Victor, who was a 70-something-year old man with no
drivers license for the last 2D years, who was half
blind, came on the scene and dzove into the pile of
people sweeping the corn, and struck Mr. Nobriga.
Mr, xobriga suffered very serious injuries to the
knee and Shauldex; had three separate operations;
pest medicals of 348,000:;-lost wages of $86,000;
permanent disability. He walks with a very
pronounced limp.
Our analysis is that the total damages are about
$300,000. We feel the County is somewhere in the
range of 20k to 3og responsible.
We've been in negotiation with Mr. Carlyle of the Tam
firm. Mr. Garlyle is willing to accept $75,000 to
get the County out, and we recommend that that be
authorized that we can accept that offer.
- C'H'R. SCH~]T2'E: Okay, any quastioas?
MR. AF. LIMA: xow much was that again?
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Executive Session August 24, 1994
~D~~3: $75,000.
Pit. DE Z,ZMA: Sounds like a lot.
t~t6. HAZE: Escuse me, yeah, why are we liable at
sll?
MR. WURDEMAN: Two policemen were on the scene. They
Were in their cars. Thep were drinking coffee and
talking start', parked in, you know, as policemen do,
' in opposite directions so they can talk out their
driver's side windows.
MR. DE ~.TMA: They admit that? These police officers
admit that?
MR. wQRb Yeah. Well, X don't know i! they
admit to drinking coffee. They claim thep were
trying to radio for help.
MR, DE LIMA; S0, why are we calling these guys liars?
~P~4I: They were there. They were in their
cars.
k2RS• HALE: And they hsd Coffee cups?
Mx• 07QRDb7~,N: Oh, we don't know. That's alleged by
soma of the witnesses.
MR ~E L2MA: And the police officers want to settle?
MR. WVRDEMAIG: These two? We'I1 talk to them. I
don't think Ramelamela talked to them.
DE L2MA; you know---, I don't know. 50, we've
got to give X75,000 because two police officers were,
at waret, sitting in the car--
MR. R4SFArLL,; Radioiaq far help.
Zgt~ HALE: Talking, gossiping.
MS. wDRDEMAN; They had been there for 15 to
30 minutes.
MR. DE LIS~[A: Sitting itt the car for 15 to
30 iniautca. Z dvn•t knvv,
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Ezeeutive &ession August 24, 1994
i-QRS. HATE: Di4 they get disciplined?
Wf~pg~N: I Qon't knoor.
~6t. DE LIMA: bo you think-we should settle this far
x,75 , 000?
MR. WfTRDEMAN: Our analysis is that that cPOUld be,
should it qo to trial, that that would be a likely
exposure. _
MR. DE LIMA: The thing want to arbitration?
MR. E'iliXPr~g+x: This one, I don't believe so.
HR. DE LIMA; Well, what's going to arbitration then?
MR. W[ri2DEMAx: I don't think it was put is the
program. It's up for trial nezt month.
MR. DE LTMA: D1e=t month. And who's going to do the
trial.
~
tom. ~,~EMAN• Joe.
~4'R. DE LIMA; Joe Ramelamela?
~FiR. 6CH01"TE: He doesn't even kaaw iE it was an
accident.
DE-LIMA: Why don't we just give our money away.
GtiIT~.~ Well, we do.
•MRy W[IRDEMAN: That's what T'm here for.
MR. DE LIMA: We should let Joe qo trial. When was
the last time you want trial?
j2Ft. wLTRDL~'Sf~N: Last year.
kitt_ DE LIMA.: And how much we last in that trial?
MR. WURj1ffi8N: I believe it was $147,000 something.
It was the Kaiwiki Bridge case where the railing was
defective.
- CHF2. SCHUTTE: Where the guy leaned against the
railiaa and it foll down.
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Eseeutive Session August 24, 1994
MR. wCt~tnEMnx• Yeah.
Maybe we Should get him to go to trial.
MR. WiSRDE.*3AN: That Was a hard one to win.
DE LXMA: Yeah, yeah: I`m not for Settling this
case.
CHR. 6CH(~TE; Okay, nezt. _
M.R. R06EHILL: No, wait. What are we going to do
about this?
• CAR, SCHIITTE; He said ha wants to settle for
$75,000; we're saying to have Joe take it to trial
because Joe is not even sure if there was an accident.
MR. WORDEMP.N: No, Joe knows there was 3n accident.
CHR. SCFT[JTTE: Oh, all right.
M8. DE LIMA: We should make Joe qo to trial.
Something like this---
WQRDEMAR: This guy Victor, no doubt shout it,
he's at fault, but he's got $100,000 insurance. So,
you're not going to get any mor2 out him than that.
Leonard, the trucker that spilled, he's partially at
fault. That leaves our two policemen who were
5ittinq In their Car.
CHR, 5.~: That's the question that Y would
have. Why were they sitting on their ass in the car,
doing what for 30 minutes, and we have an accident---2
M8. WU'RDE!'SBN: They saY, 'Frantically Calling for
help.' Now I tend to disbelieve that.
CHR. 6CHUTTE: I Can't believe that.
MRS. HALE: Mr. Chairman, we did request at one time
that department heads--because we don't know who's
the head of the Police Department right now, do
we--we difl request that they he here because, you
know, to me, this is more than just a case of
settling it.
• r think they need to knnw what their Deople ar8
doing, and Y want to know what they're doing about it.
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_i
Executive Session August ?4, 1944
I4#t. DE ~jM~j: Mr. Chairman_
CHR, SCHLTT'PE: Mr. De Lima.
MR. bs LIMA: Heing very serious about this, I think
that as a Counoilperson,• not a lnwyer, that I think
all Councilpersons should understand bow the lead
attorney has analyzed our liability. What is the
standard of proof, what is the test, anti hou are we _
liable. What duty did the police officers breach?
What is the standard that the plaintiffs have to
meet, and what are the facts that 4o into their
analysisT no we have anything like that on this case?
MR. WORAEMAt7: Well, the duty was---
MR. b~' LIMA: No, but bas Mr_ Ramelamela briefed yon
and wrote something to you? Because as this trial---
MR. WQRPEMAN: Yeah, he briefed me.
MR. DE LTMA: Okay, ghat did---no, briefed you
orally. Now, did he-? when is the trial happening.
Wt7RDEMAN: Trial, September 6th.
Mir ps LIMA: pkwy, now, he must have a trial book
together already, right? In that trial hook, he
should have what standard does the plaintiffs have to
meet to find the County liable. It should be spelled
out, and we should be able to see that in black &
white, and then there should be a recitation of what
facts the plaintiff alleges that he Can prove with
.what witnesses, so that.we•can understand the
strength of the ease.
See, if he comes and talks to you, and you guys talk
about it in the hall-
MR, W7J.RDEMAN: Well, I talked to Carlyle, too.
MR. DE LIMA; Okay, well, it's good to talk to the
?ppasinq attorney. And so, I think the 575,000 map
be viewed as very reasonable--if we kneu more. Sut,
you know, the way I look at it is, I think the boys
got to gat to trial a couple more times.
s think, as Cnuncilpeople, we've not to net a little
bit batter facts. I'll give you en example.
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Ezeeutive Session .4uqust 24, 1994
i
Arakawa, he gave us atuE~--we got it. Now, we got
no material from anybody-~--aad Raraelamela is
representing us on that one, too, right?
MR, wC'RDEMAN• YUp. -
MR. AE TINA: okay--from anybody telling us what our
.position is going to be.
M&. y~~: Hell, we're going to come to that. _
MA. DE_Is_ITdA: Okay, but we haven't got nothing in
writing, that's all I'm saying. Everything in
writing we got was from the other side.
j+tR. AOSEAILL: No, no, we got something that says,
'County Council reject it.' That's what we got from
him.
MR. AE LZMA: Yeah, but we never get any analysis
like they---they provided us an analysis.
MR. wC7AnEMAN: Ho, I believe he sent you a--
MR.~~$phi~: No, .this is what he sent us.
Everything is from Aavid Arakawa in here, and this is
Mr. Kamelamala's---
MR. D,p' LTMA: That's our frustration, and you're one
good attorney, Ted Hoag is a good attorney. I think
these other guys have got to be better attorneys than
they are, but that ie another point.
MA. WURpEMAN: Okay, well, S'll leave it up to you.
This case can settle for $75,000. We think that if
Carlyle can prove up 5300,000, he's got $48,000 in
hard medicals, $86,000 in provable lost income, and
he's got a guy with a permanent disability,
MR, ps z.zSKA: So, the Wreath is the guys were sitting
in their cars; they didn't get out of their cars; and
they didn't direct traffic---
M&. WfIAbEMAN: They saw these guys sweeping; they
failed to take any steps to do something about
traffic. These guys were on the read.
2SA. DE LIMA: And Carlyle has an ezpert that's going
to env, "when a Dolice officer arrives at a scene and
be sees debris on the road, he has a duty to get out
of his car,"---
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Execu+;ive Session August 24, 1994
MR. WfJRDEMA27: At the very least, set flairs.
MR. DE LZMA: And sat flairs. They have an ezpert
that's going to say that? .And our police officers
are going to say that they just got to~the scene,
they were radioing for help, they didn't have an
opportunity to get out of their car and set flairs.
And then they're going to have other witneS52s that _
are going to say, 'Nah, those guys were just drinking
coffee.`
~j(jRDEMAN: They're going to have a guy that
says---but he is a relative of Idr. Nobriga. He waS
one of the sweepers who will say, `Not only were the
guys drinking CO££ee, but I yelled at them aad said,
'Get off your fat ass and get out there ana direct
traffic'."
MRS. HALE: Our Police Department is a farce.
MR. CH .D4: I don't think we should send an attorney
into that meat grinder. Let's settle it and save our
powder for a better fight.
MR. DE LIMA: Okay, but you understand what I'm
saying though?
MR. CHTLDS: I understand.
~,IMA: We're just getting crapped on--not
from you, WurHeman, though. I think very highly of
you.
l+g~. CHILAS: have we ever gotten what you asked for?
Have we ever gotten a report like that?
$~t5. HALE: We have, once in a while.
}ZR. WpRnEMAN: Okay, well, I'll leave it up to you.
I mean, you turn them down, turn him dawn and he goes
to trial.
Mlt~ D£ S~IMA: Okay.
~tR. WLTRDEM82i: xe doesn't really want to settle it
anyway.
M8. DE LZMA: Oh, that's good to hear. That's good
to hear he doesn't want to settle it.
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Executive Session August 2d, 1994
I+~. WURDEMAN: Well, I thick it's in the best
interest of the Caunty tO d0 so. That's why I'm
here, not him.
CHR. SC}j~g : Is that the end o£ the representation,
or what is this? '
wUS~D._~~H: I'm here for two reasons--oae, because
he doesn't want to settle it; and, two, because it•s _
past 4:30 p.m. anyway.
~}2__~ IDS: Have we ever gotten that kind of report,
other than the one that our special counsel gav4 us
in the 97aikoloa Road?
MR. DE LIM7+; go, but that's what we need more of.
MR. CAILP~: So, how do we set that standard?
MR. D~IMA: Mr. Wurdeman is the boss.
WARDEMAN: Well, you get reports. Maybe you
didn't get one on this case.
MR. DE j`IImL: We get some reports.
MR. ROSEHILL: We never even got this one.
MR. DE LIMA: And Joe has done same reports like
that. He has done. But that's the kind of stuff we
need, especially when most of these guys are lay
people..
2~z. WIIRDEMAN: Well, the experience has been that a
lat of times not everybody gets. For some reason
they get lost in the mail; and when we Come to
session, not everybody has seen them or has them.
MB. DE T,SMA: That's not a good excuse.
WURDEMAN: Well, it'6 happened.
~i__,RATH: All he can think of at 7:15 p.m.'
SHR. SCHUTTE: All right, do yp12 want t0 q0 to the
nett one.
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Executive Session AuQttst 24, 1994
COMM. 383.01 Bro:e Deputy Corporation Couasal Joseph K_ Kamelarela,
dated August 3, 1994, requesting aA ezecutivn session
to discuss De Sa v. Paul, Civil Ho, 92-002b7DAE (and
eight other related police asses).
PRE6ENTA2'TON: pgt. SyC1RD~,jQ: Okay, the next one, I'm going to
recommend that we hold over and defer until the nett
meeting. I've been made aware just tonight that
Mr. Arakawa's memo to us--he sent to you
also--apparetttly, he seat it to the Mayor also. This.
guy is is a full court press to settle this case.
I think-well, Mr. De Lima can tell you about
whether or not he's exceeded the hounds of
gropriety. Hut T think he has.
DE LIMA: Communicated with the Mayor---
t4R•
w[~7~Ertax: And with the Council.
2~2. DE_~LMA: And Sending direct correspondence to
the Council is an ethical breach.
t'~• ~nEMAN: But anyway, he, I believe, is his
letter says that he will settle all these Cases for
X480,000.
ILOSEHILL: Po, X400,000.
MFi. W~,pEMAN:, Oh, he's $own to $400,000. He's told
me for 400.
ROSE_
H~TLL: Oh, Z'm Sorry, I'm sorry, I'm sorry.
You meant $480,000--you're right.
MR. W17RDEMAN: Yeah, $480,D00, he said it in
writiriq. HB told ma orally he'll qo foT 400.
p(R. DE LIMA; And what iS the Mayor's position on
thisl
j2R. 1RDEMAN: The Mayor's position on this is that_
if there's any settlement that Chief Paul should
contribute.
t4R. ROS Hg~I,: Yes.
2~_ WT .REt+LAN: And i sent a letter saying that to
Chris Yuen. Chris S[uen has zezponQeQ with a letter
saying he's going to sue me personally for cod knows
crhat.
Page in
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Executive Session August 24, 1994
MR. DE LIMA: hue who personally?
M$. WURDEMAN: Me. ,
MA. p~
LIMA: For whatY
MR. W[JRDEMAN: Malicious breach of contract, I
believe that's what he called it.
jaR. ROSFHTLL: I dan't understand that. What does
that mean?
MR. WURAEM~: Citing a case calledoutrigger Hotels
v, Dodd, 1972," it's a tort-I looked it up. Hut
anyway, the Mayor has taken the position that
punitive damages, should there be punitive damages,
should not be the responsibility of the County.
MR. DE LIMA: Yeah, but we indemnified Guy Paul
alzeady. That's a malicious breach---
MR. WURDEMAN: Okay, 1 did some research on that, aAd
it was sort of a slipshod proceeding that day, There
was na resolution. There was a statement by, I
believe, Mz. Rokubun, yeah, yeah, open ended,
open-ended indemnity for this one, too. Or something
to that effect.
DE LIMA: Well, if Mr. Kokubun was chair, then we
were in the minority at that time.
~_W~RDEMAN: And everybody goes, "Yeah, yeah,
yeah." And so whether that indemnity contract will
hold, you know, my personal view is that this
indemnification stuff has been----the past practise
has been to hand it out too routinely without looking
at the individual case.
MR. DE LL: Oh, Mr. Chzistensen was the ope that
kind of pusked all this stuff.
fit. wyRnEMAN: Yeah, and Z've been trying to curb
that.
MR. pE LLMA: I think it's a serious concern about
this malicious breach of contract. You know,
Mr. Yuen is a smart fellow.
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Executive session August 2a, 1994
I'42. V7(JRDEMAN; Yeah, he wrote me a leL•ter that was
really out of bound6. But anyway, I wrote him 8
letter back.
Mat. RO6EAILL: T don`t un8erstand. You said you
quotes, and he cited. What is malicious whatever it
is?
A!R • W[TRDF.MAN: That when a breach of contract becomes
sa outrageous, so will£nl, et that point, it becomes _
a tort.
M$, ROSEHZLL: Hut why is he suing you?
M$. pE LIMA: $ecause he's saying we're breaching the
cc.ntrect by demanding that he contributes to this
settlement.
tom. RQSEHIr,L• gut he's suing you personally2
M$~ wORDE!•AN: He's threatened to.
D~ LIMA: Because he's the one that wrote the
letter desaandiag cantributions----
wr~D~u: I didn't re8ily detnand_ I said that
we'd like it, and let's enter into negotiation.
tfit. DE j.rMn; So, this thing is much more complex
than meets the eye. Can we just settle tar $400,000
and just---
MR.~Ji7RDEMAN: One other thing Arakawa is bringing
out is, now, apparently, during discovery some other
things have come out. one is the r,aeari ^Y^m~ion
ezam.
That should this information become public, should
those members o~ the Police Department who didn't get
promoted discover thnt---
t~?_~F,~1ilMA: Oh, they probably already know if
Arakawa---
MR, w~DEMAN: niscover that the tests were being
given to favored people so they would pass ahead of
time, that they would sue us.
MR- 7xi~.2H- pYObubly.
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