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HomeMy WebLinkAboutCOM 0708.000 2018-2020 Marry Kim Joseph K.Kainelamela o��T�0.h.�* Corporation Counsel Mayor `O Renee N. C. Schoen Assistant Corporation Counsel r�•oF.µ',ft COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street,Suite 325 • Hilo, Hawaii 96720 . (808)961-8251 • Fax(808)961-8622 January 10, 2020 h- Aaron S. Y. Chung, Chairman and Council Members Hawaii County Council _; 25 Aupuni Street - Hilo, Hawaii 96720 Dear Chair Chung and Council Members: Re: Leong Kunihiro Benton & Brooke Agreement for Special Counsel (Workers Compensation) dated December 3, 2015 The Office of the Corporation Counsel respectfully requests that the above- entitled matter be waived past committee meetings and be placed on the Council's January 22, 2020 agenda. Thank you for your assistance and consideration. Sincerely, Jos K. Kamelamela Corporation Counsel J KK:clf Comm. No. d Ref. To: CWN-A Hawaii County is an Equal Opportunity Employer and Provider Ref. Date JAN I J 2029 AARON S.Y.CHUNG ° `• • MAIZE MEDEIROS DAVID �: l�y�?•. KAREN EOFF Chairperson MATT KANEALI<I-KLEINFELDER *� �* ASHLEY L.KIERKIEWICZ HERBERT M."TIM"RICHARDS,III SUSAN L.K.LEE LOY Vice Chair sy•. :P`� VALERIE T.POINDEXTER �r `oF•0 REBECCA VILLEGAS HAWAII COUNTY COUNCIL County of Hawai`i Hawai`i County Building 25 Aupuni Street Hilo,Hawaii 96720 January 13, 2020 Aaron S.Y. Chung, Council Chair Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 RE: COMMUNICATION NO. 708 LEONG KUNIHIRO BENTON& BROOKE AGREEMENT FOR SPCECIAL COUNSEL (WORKERS COMPENSATION) DATED DECEMBER 3, 2015. Pursuant to Section 2(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 be placed onto the next Council agenda for review. However, in the event this request is denied, for whatever reason, I understand the matter shall be referred to the Committee on Finance for placement on its future agenda. Sincerely, Maile David, Chairperson Committee on Finance raveDatelWaive to Council: Disapproved/Date/Refer to FC: IV Aaron S.Y. Chung, Council Chair Aaron S.Y. Chung, Council Chair Hawaii County Council i1r31ZO Hawaii County Council MD/lm Hawai`i County is an Equal Opportunity Provider and Employer 3 Harr Kim ��,,€ti Joseph K.Katnelamela Y P:'••� ". ' ,,� Corporation Counsel Mayor Renee N. C. Schoen Assistant Corporation Counsel E rE aF•N►'a 3 3 3 t COUNTY OF HAWAII �.._ 3 OFFICE OF THE CORPORATION COUNSEL 3 101 Aupuni Street,Suite 325 • Hilo, Hawaii 96720 • (808)961-8251 Fax(808)961-8622 January 13, 2020 3 i Chair Aaron Chung and Council Members Hawai'i County Council 25 Aupuni Street Hilo, HI 96720 Dear Chair Chung and Council Members: RE: Request to Increase the Compensation Amount to Leong Kunihiro Benton & Brooke as Special Counsel for Department of Human Resources, Health & Safety Division, Workers' Compensation Branch 3 We request authorization to amend the Agreement with Leong Kunihiro Benton & Brooke as Special Counsel ("Special Counsel") for the Department of Human Resources, Health & Safety Division, Workers' Compensation Branch, ("DHR") by 3 increasing the compensation amount from $300,000 to $350,000, that is, an additional $50,000 for this fiscal year. See attached "Agreement for Special Counsel" ("Agreement"). i ii On November 3, 2015, Council authorized the hiring of Special Counsel at the maximum compensation amount of$300,000. See attached t excerpts of the "Minutes of the November 3, 2015 Council Session." Section E of the Agreement provides as follows: That in no event shall the County pay Special Counsel more than a total of THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000) for professional legal services rendered to the County, unless this agreement is amended by the parties hereto, in writing. See page 5 of the Agreement. As of January 10, 2020, Special Counsel has invoiced and received a total payment for their legal services of approximately $298,000.00. Hawaii County is an Equal Opportunity Employer and Provider Chair Chung and Council Members Hawai'i County Council January 13, 2020 Page 2of2 Special Counsel has provided effective, efficient and reasonable legal services for the County and we recommend that we increase the compensation cap by an additional $50,000, so that, Special Counsel may continue to provide legal services to the end of this fiscal year. The new compensation cap will be $350,000. Should you have any questions or concerns, please contact me. Respectfully submitted, .v Joseph K. Kamelamela Corporation Counsel JKK:cf Attachments c: William Brilhante, Human Resources Director Deanna Sako, Finance Director AGREEMENT FOR SPECIAL COUNSEL THIS AGREEMENT FOR SPECIAL COUNSEL, made this day of � 2015, by and between the COUNTY OF HAWAII, a municipal corporation duly organized under the laws of the State of Hawaii, whose principal place of business is 25 Aupuni Street, Hilo, Hawaii 96720, hereinafter called the "County" and LEONG KUNIHIRO BENTON & BROOKE, by and through its undersigned counsel, GARY N. KUNIHIRO, attorney at law, whose business address is 1212 Davies Pacific Center, 841 Bishop Street, Honolulu, HI 96813, hereinafter called "Special Counsel." WITNESSETH: WHEREAS, the Department of Human Resources, Health & Safety Division, Workers' Compensation Branch, requires the assistance of counsel for the purpose of evaluating and advising the Division on various workers' compensation cases; and WHEREAS, pursuant to Section 103D-304, Hawaii Revised Statues, as amended, the Office of the Corporation Counsel caused to be published a Notice to Providers of Legal Professional Services, and received timely responses; and WHEREAS, the law firm of LEONG KUNIHIRO BENTON & BROOKE was one of the providers who responded to the Office of the Corporation Counsel's request; and WHEREAS, pursuant to the Hawaii Procurement Code, a committee of three was formed to review and rate all qualified providers of workers' compensation services; and, WHEREAS, LEONG KUNIHIRO BENTON & BROOKE was selected by the committee as the provider who could best serve the County, based on their experience and professional qualifications, past performance on projects of similar scope for public agencies or private industry, capacity to accomplish the work in the required time, their projected fair and reasonable fees and costs, and the non-existence of any possible conflicts of interest; and WHEREAS, the law association of LEONG KUNIHIRO BENTON & BROOKE was contacted, and agreed to perform said services for the County, consistent with the terms and conditions as stated herein; and WHEREAS, pursuant to Section 6-5.5 of the Hawaii County Charter (2014), the County may, upon authorization by the County Council, employ Special Counsel for any special matter presenting a real necessity for such employment; and WHEREAS, on November 3, 2015, the County Council approved the hiring of LEONG KUNIHIRO BENTON & BROOK for the purpose of providing legal services to the Department of Human Resources. Health & Safety Division, Workers' Compensation Branch; NOW, THEREFORE, the parties agree as follows: 1. That Special Counsel will render such legal services to and on behalf of the Department of Human Resources, Health & Safety Division, Workers' -2- Compensation Branch, in current and future workers' compensation cases involving the County, 2. That the County agrees to compensate Special Counsel in accordance with the following rate schedule: A. Special Counsel shall be compensated at the rate of ONE HUNDRED AND TWENTY AND NO/100 DOLLARS ($120.00) per hour for any and all legal professional services, including pre-hearing, hearing, pre-trial, trial and post-hearing and appeals work in assigned cases. Attorney travel time is chargeable to the County only to the extent that work for other clients is not performed during travel and subject to other limitations as set forth herein. Paralegal time shall be compensated at the rate of FORTY-FIVE AND NOM 00 DOLLARS ($45.00) per hour. B. Special Counsel shall bill the County for all reasonable out-of-pocket expenses, including filing and service fees, witness fees, deposition fees and deposition transcripts, telephone and telegraph communications, courier or messenger services, private investigators, copying or printing of all records and briefs, and travel expenses. Special Counsel shall, as a condition of such reimbursement, present copies of all invoices and/or receipts for such out-of-pocket expenses. Reimbursement or payment for any "out-of-pocket" expenses shall be deducted from the amount of funds set aside for this agreement. For any out of state travel, the County will only reimburse Special Counsel the cost of an "economy" or"coach" class airline ticket. Special Counsel agrees to first obtain approval from the County in the event out of state travel is required. The County is not obligated to pay any "per diem" expenses of Special Counsel. The County shall not reimburse Special Counsel for any meals or other personal expenses. For any hotel or off island accommodations, the County is only obligated to pay the room rate for single occupancy at the most inexpensive rate available. The County will not reimburse Special Counsel for any expenses associated with his or her family members. For any car rental costs, Special Counsel shall bill the County for no more than a compact, four-door, sized car at the lowest available price. Special Counsel shall verify that any car rental costs meet the above requirement. The County is not obligated to reimburse Special Counsel for any car rented for Special Counsel's convenience. Any rental car shall only be used by the above named Special Counsel and NOT by any family members, friends, acquaintances or employees of Special Counsel's business or law firm. Special Counsel is personally responsible for any fines, sanctions, violations of law, court rules or orders incurred during the performance of this agreement for the County. C. The parties agree that the Office of the Corporation Counsel, County of Hawaii shall make its legal research resources available to Special Counsel, at no cost. D. The parties agree and acknowledge that Special Counsel is an Independent Contractor while providing professional legal services for the County. This -4- ti I I 3 agreement is for special and temporary professional services and the law applicable to s 3 regular and permanent employees, such as those relating to vacations, worker's compensation, sick leave, retirement, civil service and classification, shall not apply to Special Counsel, E. That in no event shall the County pay Special Counsel more than a total of THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000.00) for professional legal services rendered to the County, unless this agreement is amended by the parties hereto, in writing. F. That Special Counsel will keep an accurate account of all time devoted to and spent in connection with such matters as may be or may have been assigned to Special Counsel by the Department of Human Resources, Health & Safety Division, Worker's Compensation Branch and will submit the same on the last day of each month hereafter to the Department of Human Resources, Health & Safety Division, Workers' Compensation Branch together with the Special Counsel's bill for such services rendered, with the proper certification, until such time as the Special Counsel's services are terminated. On the last page of each billing, Special Counsel shall verify by notarized statement that all expenses, charges and hours listed are a true and an accurate reflection of time and resources spent in providing professional legal services to the County. G. That Special Counsel shall evaluate, recommend and pursue any overpayments, attorney's fees and costs from opposing parties, or other parties, under I . I I I the appropriate federal or state law, if deemed appropriate by the County. Any funds recovered or awarded shall be reimbursed to the County. H. That in accordance with Sections 103-53 and 237-45 of the Hawaii Revised Statutes, the final payment on this agreement shall not be settled until Special Counsel obtains receipt of a tax clearance from the tax commissioner of the State of Hawai'i to the effect that all delinquent taxes levied or accrued under State statutes against Special Counsel have been paid. I. That upon the giving of thirty (30) days notice, in writing, Special Counsel may terminate this agreement if the County does not compensate Special Counsel for services rendered. The County may terminate this agreement at any time for good cause. J. That any and all payments shall be made to the law association of LEONG KUNIHIRO BENTON & BROOKE. K. The County reserves the right to reduce any and all fees and costs requested billed by Special Counsel. Any unresolved dispute over the amount of fees charged and services rendered shall be mediated and arbitrated in Hilo, Hawaii. The parties shall mutually decide upon a mediator within five (5) days after formal notification of any dispute over fees and services. If unable to agree upon a mediator, the parties shall seek the assistance of the Third Circuit Court, State of Hawaii for the name of a mediator. The parties shall bear their own costs of mediation and bear an equal share of the fees and costs of the mediator. The mediation shall be completed no later than thirty (30) days after the notification of the selection of the mediator. The -6- mediator shall render a decision no later than two (2) weeks after the last mediation session. The parties shall participate in the mediation in good faith at all times. If mediation is unsuccessful, the parties shall proceed to arbitration. The arbitration shall take place in Hilo, Hawaii. The parties shall mutually decide upon an arbitrator within five (5) days after formal notification of the termination of mediation. If unable to agree upon an arbitrator, the parties shall seek the assistance of the Third Circuit Court, State of Hawaii for the name of an arbitrator. The parties shall bear their own costs of arbitration and bear an equal share of the fees and costs of the arbitrator. The arbitration shall be completed no later than thirty (30) days after the notification of the selection of the arbitrator. The arbitrator shall render a decision no later than two (2) weeks after the last arbitration session. The parties shall participate in the arbitration in good faith at all times. If Arbitration is unsuccessful, the parties are entitled to pursue any appropriate remedy under the laws of the State of Hawaii, in the appropriate state court. The mediation and arbitration requirement is NOT APPLICABLE where the County seeks reimbursement from Special Counsel for any and all fees and expenses tendered or advanced to Special Counsel under the terms and conditions of this agreement and any amended agreement. L. Special Counsel shall not bill or charge the County any fees or costs associated with any discussion, update, briefing, consultation or advice with attorneys from the Office of the Corporation Counsel, personnel from the Department of Human Resources, Health& Safety Division, Workers' Compensation Branch, the Mayor of the -7- County of Hawaii and the Hawai'i County Council, or any of their agents, representatives or employees concerning assigned cases. However, Special Counsel may bill for any work performed at the discretion of the Department of Human Resources, Health & Safety Division; Worker's Compensation Branch, Office of the Corporation Counsel, the Mayor of the County of Hawaii and the Hawaii County Council. M. Special Counsel shall include in all billing a breakdown by category of ail costs. N, The County of Hawaii shall not pay nor shall Special Counsel request any interest on any later or overdue payment of fees for legal services. O. The County reserves the right to exclude, reduce or deduct any item, time or billing contained in Special Counsel's bill, -s- HAWAII COUNTY COUNCIL 25th Session Hawaii County Building 25 Aupuni Street Hilo,Hawaii November 3, 2015 INVOCATION: Pastor Bob Tominaga of Thy Word Ministries gave the morning's invocation. CALL TO The regular meeting of the Hawaii County Council was called to order at ORDER: 9:03 a.m., in the Council Chambers,Hilo,by Mr. Diu Mamo Kanuha, Chair. ROLL CALL: Present: Mr. Dru Mamo Kanuha, Chair Ms. Valerie T. Poindexter, Vice Chair Mr. Aaron S. Y. Chung, Member Ms. Maile"Medeiros"David, Member Ms. Karen Eoff, Member (via videoconference from Kona) Mr. Greggor Ragan, Member Mr. Dennis"Fresh" Onishi,Member Mr. Danny Paleka, Member Ms. Margaret Wille,Member CHR, KANLTHA: Thank you very much. And I also have a memo from Ms. Eoff. She will be in Kona today. She had some previously scheduled meetings and time constrictions, that's why she needed to stay in Kona for this meeting. So,just for the public's information and the rest of the Council Members. PLEDGE OF The Chair directed the Council to the next order of business, Pledge of ALLEGIANCE: Allegiance. (At this time,Mr. Paleka led the Council in the Pledge of Allegiance.) CHR. KANUHA: Ms. Wille. MS. WMLE: Before we begin, I just want to say that I don't have a problem with our combining these two meetings today,but I did have one item of mine scratched and removed— CHR. KANUHA: From Council? 1 I i i i Hawaii County Council-25 November 3, 2015 CHR. KANUHA: We can do it separately if that's the position—if Corporation Counsel is okay with that. MS. WILLE: Could we do the second one first, because I'm not sure we need to go into Executive Session on the second one. CHR. KANUHA: Sure, Mr. Clerk, can you just read in Communication 528? Change Order As directed by the Chair and with no objection from the Council Members,the of Business: following items were taken out of order: Comm. 528: REQUEST TO AUTHORIZE THE HIRING OF LEONG KUNIHIRO BENTON&BROOKE AS SPECIAL COUNSEL FOR DEPARTMENT OF HUMAN RESOURCES, HEALTH& SAFETY DIVISION,WORKERS' COMPENSATION BRANCH From Corporation Counsel Molly A. Stebbins, dated October 14, 2015, requesting an attorney-client confidential discussion to consult with the Council the hiring of special counsel, including pricing information. CHR. KANUHA: Ms. Wille, may I have a motion? MR. HENRICKS: Then the motion,just to be clear,is to authorize the hiring of special counsel,which requires a 213 vote of the Council. CHR. KANUHA: The motion will be to authorize for Council to hire special counsel. Okay, Ms. Wille, go right ahead. Motion to Au rp ove: Ms. Wille moved to authorize the hiring of special counsel. Seconded by Mr. Onishi. MS. WILLS: Yeah so, can—you know, if there's something that you feel needs to go into Executive Session, but otherwise, I see this as a—can we just explain it here to the extent that you feel comfortable? MS. STEBBINS: Sure. Good afternoon, Chair Kanuha, members of the Hawaii County Council, Molly Stebbins, Corporation Counsel. We, for the past several years,had an attorney working for us who handled our workers' compensation matters, and she unexpectedly past away a few weeks ago. So,we thought about our options for handling workers' compensation cases,which is a highly specialized area of the law. Prior to having Nora.Pinnow as a County employee, we contracted out for these services, and that's what we would like to go back to at this point. Hiring somebody with the necessary experience,bringing them in- house, doesn't seem likely possibility at the moment. At least not bringing someone on board as quickly as we need somebody. So we're looking to hire outside Counsel to handle this. Page 68 } 4 i i Hawaii County Council-25 November 3,2015 IVIS. WILLS: Okay,let me just say off the top of my head, I don't like this idea. If it was just temporary, I wouldn't have so much of a problem, but I don't like the idea of where we're basically handing this out for private attorney's to do. I don't consider workers' comp that difficult. I think it's perhaps, one of the— anyway I won't go into that, but I don't see this as a complex area of law that somehow is more difficult than the other areas that you all are handling. And I think that we have vacancies in your department. Why aren't we filling those? And I do want to refer to—there was testimony maybe a month or two ago, someone came here, and I don't recall what it had to do with, I think it was somebody who's in Council Member Chung's—and talking about his,he talked about his experience, and working with that contract attorney, and it was with the police force. It was a case, and just how difficult it was, and the contract attorney said, "Well I can't authorize an extension, here I'd have to get back to the police department, and Mayor Kenai . . . ." and on and on. And it was like just a total—I don't feel the workers' comp is where people are people,us, are heard and need help. And you know,we're farming it out. So, I understand that this person has died, and if somehow you needed to hire somebody quickly to fill in, I think you said there's 79 cases. But, I don't like the idea of where were are, instead of our department, that it's a farmed out. And I in particular don't like it,where it's employees who are hurt, that are the ones on the outside. So, Pil yield. Those are—if you want to respond. Anyway,you understand my concerns, and I see this as one option, but I don't like this option. CHR. KANLTHA: Thank you, Ms. Wille. Mr. Paleka. MR. PALEKA: Hi Molly,how are you? MS. STEBBINS: Good. MR. PALEKA: I just had one question in regards the amount we're looking at for workman's comp attorneys. MS. STEBBINS: The total amount of the contract we're asking for is $300,000. MR. PALEKA: How many employees could that garner if we hired them under the County? If we pay an attorney like say, $50,000 a year,we get two attorneys? MS. STEBBINS: No, that's not—well the $300,000 probably would, maybe Charmaine wants to come up here so she can speak historically. But maybe that would cover about two years. MR. PALEKA: Two years, so $150,000? Page 69 Hawaii County Council-25 November 3, 2015 MS. STEBBINS: Approximately. I mean I can't say for sure. MR. PALEKA: Hi Charmaine, how are you? MS. KAMAKA: I'm fine, thank you. What's the question? MR. PALEKA: Okay. So we're looking at$300,000. That should cover about two years. So, we're giving about $150,000 a year for an attorney? MS. KAMAKA: Possibly. CHR. KANUHA: If you can just restate your name for the record. MS. KAMAKA: My name is Charmaine Kamaka, and I'm the Human Resource Manager for the Health and Safety Division. I based that nurnber—I pulled that number—I looked back at what we spent for the firm of Pinnow and Ono,before she was a County Deputy, and we spent up to, close to$200,000 in one particular year. I don't foresee the hiring of a new attorney that specializes in work comp in the near future. The money doesn't lapse, it carries. So,until such time that the County is able to secure an attorney that would be dedicated to doing workers' compensation, we need the specialty. MR. PALEKA: So, when the case first comes in front of the labor department, the attorney's going to represent them from step one? MS. KAMAKA: No. MR. PALEKA: That's what I'm—okay. MS. KAMAKA: These are complex cases that require the services of an attorney. A lot of them are at the Appellate Board level, where you have to have the services of legal counsel. So—and it is a specialty,it really is. You can't dabble in work comp. If you do, we're going to be throwing away tax payers' money. They're complex cases, controverted cases. They're not—I respect these are our employees, and they're injured, but the claims that we're talking about that get referred to an attorney are very complex and litigated claims. MR. PALEKA: Do I still have the floor? Okay. I understand a little bit about workmans, and I know you know I represented workman's comp cases. MS. KAMAKA: I know. I know you know. MR. PALEKA: So that's why I just wanted the information to be out there for our constituents. So they understand why the money, and what the argument is in terms of hiring attorneys, when it reaches the level where we're going to have a Page 70 Hawaii County Council-25 November 3, 2015 lot of medical information that has to be processed by the attorney, and the attorney's and medical doctors on both sides. That's the way it works. But, I'm pretty comfortable with the amount, $350,000. Charmaine, did we ever have our own attorneys, too to do workman's comp cases before? MS. KAMAKA: But we had Nora. Way in the past,we had Corporation Counsel, MR. PALEKA: We had our own,yeah? MS. KAMAKA: And, it came over the years,we decided we need someone who specialized in work camp, because the attorneys at Corp Counsel were spread thin, and it wasn't their specialty. And the best way—I explained it in the past to Counsel,is if you had cancer, you could go to a GP (General Practitioner),but you'd be better off going to an oncologist. And that's the principle,basically. It's a special field, and so to ask the attorneys at Corp Counsel,who don't specialize in that field, although they try to represent well, it's not their specialty. So, along the way—well firstly,we decided to hire outside Counsel, and then we were fortunate enough to obtain the set-vices of Nora as a County employee. MR. PALEKA: Well—and I can understand that reasoning, but the law is pretty clear, the 386 workman's comp. I mean it's pretty cut and dry. Once you're ratable—in terms of the decision finding, or arguing a decision, I can see, trying to get the best attorney representation. I'll yield at this time. Thanks Charmaine. MS. KAMAKA: You're welcome. CHR. KANUHA: Thank you, Mr. Paleka. On the first round, any other discussion? Ms. David. MS. DAVID: Aloha Charmaine and Molly. I'm looking at the list of open cases, and I've noticed that there's some that are very old, like `92, and I was just wondering, I know cases can drag on, are these—is this firm pretty much hired to complete all these pending cases as much as possible? MS. KAMAKA: Yes. MS. DAVID: So they will be charged in addressing these cases? So, as new cases come in, will you have you own staff to take them if they're not specialized cases? MS. KAMAKA: If they need legal expertise, they'll be referred to that firm, along with the claims on that list. The expectation is that many of those claims will be brought to closure. Page 71 3 3 i I Hawaii County Council-25 November 3, 2015 MS. DAVID: That's what I was wondering, because if you're hiring a very specialized law firm, and the number of cases that I see on this list, some of them are very old, it would be great. And if that's the goal to close these cases, then I would definitely support this,just to get you folks some help and back on your feet. Okay, mahalo. MS. KAMAKA: Thank you. CHR. KANUHA: Thank you, Ms. David. Ms. Wille. MS. WILLS: How many vacancies are there right now in your department? MS. STEBBINS: Including the position that Nora held, three. M.S. WILLE: Three. And we've got a certain number of cases, but you're saying as more cases get added,it will continue. I mean it seems like this—at first I thought,well is this a temporary situation to get us through this backlog, or are we switching and we want to have an outside counsel handle it? And it seems like it's really a decision, it's not just a temporary arrangement. MS. STEBBINS: I can't speak for years—no, at this point,the intent is to go back to having outside counsel provide this service,which is what we had for years and years. And frankly, we had an opportunity to bring Nora.in-house when she retired and closed her practice, and she worked for the County for maybe two years. MS. WILLS: And, why isn't that better? I mean if, let's just say we can hire another attorney that's specialized, that whatever it is, $125,000, whatever it is with benefits, $150,000. MS. KAMAKA: It's a thousand times better to have them on staff. The chance of that happening—we were very fortunate that Nora was retiring at the time she was retiring. They were closing their firm, and so we were very fortunate to have that happen, and if we had that opportunity again, that would be the best route. MS. WILLE: It is? MS. KAMAKA: Absolutely. MS. WILLE: Okay, and why aren't we pursuing that while we temporarily have--and do this farming out temporary? You just don't—I mean there—are attorneys that hard to come by? MS. KAMAKA: Work comp attorneys are very hard to come by. Page 72 i 3 Hawaii County Council-25 November 3,2015 I t i MS. WILLS: Really? I i MS. KAMAKA: Very hard to come by. MS. WILLS: Okay, the only thing, again, I want to just express my concern,that in terms of talking to people who have been through the workers' comp with one of the contract attorneys,has been very unsettling, and always feeling that there— this person, there's all these extra links out there, and very—that they don't really have full control. They have to check back here with the County, and then those people contacting the Mayor or others. So, I think it's just where you don't have someone that the people that are most affected who have just expressed concern here, including testifying before our Council,has made it much more difficult than not a sense of that there people that are a part of this,really within this system or constellation. So, I just want you to be aware of that. My concern—I mean we could farm out every—right now, we don't have a good tax person. Craig is gone. We don't have Kathy Garson. I'd love to—people have gone,but you know, I really think that hiring, where they're in and part of the County employee is preferable. I do hear you saying that you've tried and that it's not that easy. So, okay. I yield. CHR. KANUHA: Thank you, Ms. Wille. Mr. Chung. MR. CHUNG: Thank you,Mr. Chairman. Charmain or Molly,if you guys can just explain to me, what's going to be the fee arrangement? I see $300,000 over two years, right? They said, estimated. MS. KAMAKA: Correct. MR. CHUNG: But— MS. utMS. KAMAKA: It's an hourly fee. MS. STEBBINS: If you do approve the contract, approve us hiring special counsel, and we enter into the contract, its public record. But at this point, and that's why I asked to go into executive session, or one of the reasons,is the pricing information in the law firm's proposal is not public record at this time. So,we can go into executive session and I can discuss the fees,but— MR. CHUNG: And I have no problem with going into the executive session for that purpose, but why wouldn't it be public if we were—you know, it's the public's money, right? MS. STEBBINS: I just said,if you authorize us to enter into this contract, and we do so, then the contract is public record at this point. We're seeking your Page 73 i Hawaii County Council-25 November 3,2015 authorization to do so. Conceivably,you could say no, and then we're back to square one. MR. CHUNG: Okay. So—but it is on an hourly basis, though,whatever that thing may be? MS. KAMAKA: Correct MR. CHUNG: Okay. So it's possible that it could go over$300,000 for one year? MS. KAMAK.A: Very possible, depending on the number of claims that are referred. Depending on the complexity of the claims, absolutely. MR. CHUNG: So it's not really necessary that we go into executive session to find out what that hourly fee is, right? We just got to know in concept what we're looking at. You know, I share the concerns that Ms. Wille brought up,but at the same time, I agree with Charmaine. I think there is a need for this, and I'm going to be supporting it. But, it's with the understanding that you guys possibly will try to get—you stated,it's better to have someone in-house, right? Which specializes, but it's so difficult, because Nora had all those years of experience, retired, and then agreed to come on board. I mean ironically, you know,twenty-two years ago, I was the work comp attorney for the County, but doing it really part-time. It was really difficult. It's not an easy thing to do,learning on the job and then handling all these other departments as well. And then—so I can see the need for it, no question about it. But you know, I'm hoping that you guys will still keep an eye towards possibly getting someone who specializes within the department. But one thing that I have a concern about, you got three vacancies, right? One of which was for the work comp person. So now, we're going to be spending possibly$300,000 or more a year for work camp, and now we still got three open spots, when actually it should be only two. MS. STEBBINS: Correct. We're not seeking to fill the third vacancy. MR. CHUNG: Okay, alright, good. And my last thing really has nothing to do with this specific matter, but tangentially related to special council. And it—I guess.it could be tied into what Ms. Wille was talking about, you know, the accessibility, accountability of these special council people. Now, I don't know if we have any report, or reports regarding the people we retain as special counsel. I mean, are we given periodic reports on that? MS. STEBBINS: Are you given reports on— Page 74 Hawaii County Council-25 November 3,2015 MR. CHUNG: Yeah,just to tell us who we have retained? There must be a number of people retained. MS. STEBBINS: Well, there's actually not that many. I don't know. To my knowledge,we do not send reports. We come initially when we seek your authorization to hire them., and beyond that, there's no periodic reports. MR. CHUNG: I'm not asking for a periodic report, but maybe just so that we can get a point-in-time picture of where we're at with all of our special council people. Could we get something just to see who we have, how much we've spent, what we possibly maybe spending on them going forward, and just a brief synopsis of their case? Don't take too much time, but I just want to get a picture of where we're at on that. MS. STEBBINS: Sure. MR. CHUNG: And then,if you could just send it to Chairman Kanuha,then we can discuss it at the Council. Thank you,Molly. Thanks, Charmaine. CHR. KANTTHA: Thank you, Mr. Chung. Mr. Paleka, did you have any more discussion? MR. PALEKA: If we are going into executive session anyway—you know,when I did look at the list of attorneys that had cases pending against, that we had pending with the County, some of them are very familiar and some of the attorneys on the other side,having worked with them in the past, and one sits on the Board now. But my—with that in mind also,what's our closure rate? If a lot of these—how—what are the average age of these cases? MS. KAMAKA: That, you know, there is no closure rate per se. Our mission is to make the person whole, and that brings it to closure. MR. PALEKA: That's according to the statute? MS. KAMAKA: Correct. Some are very complex and take a long time. MR. PALEKA: I understand that, Charmaine,but once they are deemed ratable, and you can reach a decision, so— MS. KAMAKA: We close them. MR. PALEKA: Right. So— MS. KAMAKA: The claims you see listed on those that are to be referred to special council, are not those types of claims. Page 75 Hawaii County Council-25 November 3, 2415 MR. PALEKA: Still pending. MS. KAMAKA: There not, okay, MMI, Maximum Medical Improvement,rated and ready for closure. There litigious, depending on who you're speaking to. Complex claims. MR. PALEKA: Okay, so none of them are ratable and ready to have a—okay. MS. KAMAKA: No. They're controverted. MR. PALEKA: Okay. Thank you, Charmaine. It's good for people to know. CHR. KANUHA: Thank you, Mr. Paleka. I don't think there's any need for this one to go into executive session unless anyone has a dying wish to go and get some numbers. But if there's no more discussion—Ms. Eoff—let me just ask of Ms. Eoff real quickly. Ms. Eoff, are you okay? MS. EOFF: Yes, thank you. CHR. KANUEA: Okay, Mr. Chung. MR. CHUNG: We're going to be locked into like two year contract, or how is this thing going to work? Can we—? MS. STEBBINS: In the past, it hasn't been structured where they start and end date,just because of the nature of the work. I mean,we hire them to see claims through to their completion,just basing off of what was done in the past. We—it looks like the office would come before the Council to seek authorizations to either extend or provide additional funding to the existing contract every couple of years. It also—.I think it's a good idea, you know, once this contract expires, probably to do another procurement just to keep the process open and competitive. MR. CHUNG: Okay. And you guys will be keeping a tab on their bills,right? MS. STEBBINS: Charmaine's office works very closely with— MS. KAMAKA: We watch the funding, and if the funding is running low,we come before you again and ask for additional funding. It comes from the general fund account. The general fund,workers' compensation account. So it's not new monies, it's existing monies. MR. CHUNG: But, let's say it's getting out of hand, and hopefully it doesn't. MS. KAMAKA: When you say"out of hand," like expensive? Page 76 I R I Hawaii County Council-25 November 3, 2015 i MR. CHUNG: Yeah. Can we cut it short, or do we have to let it run its course? MS. KAMAKA: Cut it short,you assign an attorney to the claim that may not be well versed in workers' comp. MR. CHUNG: Right. MS. KAMAKA: I mean that's the alternative. MR. CHUNG: Well,how much were we spending in the past,per year? MS. KAMAKA: For—before we hired Nora? MR. CHUNG: Yeah. MS. KAMAKA: I just happen to have that information. You want calendar year or fiscal year? MR. CHUNG: Doesn't matter. MS. KAMAKA: Okay. This goes back to 2008. Let's see, budget year, $136,585. Budget year 2009, $1.92,723. Budget year 2010, $174,375. Budget year 201.1, $1.75,345. Budget year 2012, $197,605. MR. CHUNG: And that was the end,right? MS. KAMAKA: And that was the end. MR. CHUNG: It's kind of reasonable. So, if we see an aberration now, like let's say, $450,000 for—or you guys come for approval for it,then something's out of whack,right? MS. KAMAKA: That's not likely because you'd have to have ten attorneys all— MR. CHUNG: I can live with those amounts. I think those are fair. MS. KAMAKA: They're reasonable. MR. CHUNG: Yeah, okay. Thanks, Charmaine, I trust you. MS. KAMAKA: Okay, thank you. CHR. KANUHA: Thank you,Mr. Chung. Mr. Paleka. Page 77 i i Hawaii County Council-25 November 3, 2015 MR. PALEKA: One more, I guess. This could be a suggestion. Can we continue trying to seek filling that position for a workman's comp individual? And, while we're having these contracted attorneys, they can work together. I think it would help the attorney that if we do hire one. In the long term,we would be more feasible for us, especially if they—if we can keep that individual long term. MS. KAMAKA: While the position is there, right now it's unfunded. You know, the position has to be in Corp Counsel. Attorneys have to be housed at Corp Counsel organizationally. Right now, it's not funded. MR. PALEKA: It's not funded? MS. KAMAKA: It's not funded. I mean, for obvious reasons. I don't foresee it getting.filled between now and the end of next year. I don't foresee that. MR. PALEKA: I'm just looking at the long term. I mean, if we can get a handle of these cases,instead of them you know having to— MS. KAMAKA: I would think we'd have a better opportunity, probably at the top of 2017, to recruit a work comp attorney, because it's an appointed position. MR. PALEKA: It's an appointed position? MS. STEBBINS: My position is appointed by the Mayor, and all the deputies are appointed, so we're co-terminus with the Mayor's term. MR. PALEKA: But the Corporation Counsel position that you had mentioned, that's a staff attorney? That's not a appointed position, is it? MS. STEBBINS: The Deputy who was handling workers' compensation, she was housed within the Health and Safety Division,but she came under organizationally, she came under Corp Counsel. She was a Deputy Corporation Counsel. MR. PALEKA: Okay. CHR. KANUHA: Ms. Wille. MS. WIL.LE: I have some problem with how old so many of these cases are. I mean, I know when I did some workers' comp, it was the employer, it's always how to keep it going longer, and year after year. And you look at all these people on pro se. Again, I know that we're trying to protect the County and save money, but at the same time, we need to look at it,us as a Council,both sides. And I was always—felt up against the—it getting extended and year after year—and then Page 78 Hawaii County Council-25 November 3, 2015 finally,the person feels, I don't have any choice, I have to settle for something that seems very unfair. I don't—I appreciate what Council Member Paleka was saying, sort of, what is the long term view? But I feel like we really are—we got two paths and once we go down this one, these are the people that are going to get the education, and be working on it, and have those cases. It's not going to be that easy, to go and hire somebody else. You know, I don't—I'm not going to support this. I'm just really feel strongly it's a disservice, and I feel that we just have to make more of an effort to find somebody that can do these cases. We have vacancies, and somehow fill it. At the same time,if it was—we want somebody who is a specialist to help a staff temporarily, because someone's died and we got to bridge it, I don't have any problem. But, I don't see this as a bridge issue, I see this as a long term direction and path. So, that's why. CHR. KANUHA: Thank you,Ms. Wille. Mr. Chung,I want to give you the last opportunity. MR. CHUNG: Thank you. Very briefly, you know, I agree with her,I agree with Mr. Paleka, and you know,perhaps Molly, in just as the administrator, you could kind of work towards grooming somebody. But that's really up to you, quite frankly. But I will mention the reality of the situation. There's a dearth of good workers' compensation attorneys in Hilo anyway, and that's why claimants aren't able to get representation. So they have to go away because there aren't any people here, because its, maybe it's not profitable, I don't know what. And it is very specialized, so it's going to be difficult, I think, to get someone. I mean— and it was really fortunate that Nora was willing to come on board. So, you know, that's just the reality of this situation. So, I know you guys are stuck,but if you guys can kind of just possibly,maybe,have one of your deputies go sit in at an Appeals Board hearing with these guys. MS. STEBBINS: We have one of our deputies who was assigned as Nora's back- up, all of the attorneys have back-ups assigned to cover, and he's been handling the workers' comp matters this past month or so. Frankly,if we.had the man power, I wouldn't be opposed to dedicating a staff person to workers' comp,but we have two vacancies we're trying to fill. That's difficult enough as it is, and we just don't have the staff right now to dedicate someone to this assignment, which is full time. MR. CHUNG: Right. And I wasn't suggesting that. I was just saying if you guys could kind of, maybe let that person, whoever Nora's back-up was, go accompany Leong, Kunihiro, Benton, and Brook at some of those hearings, and maybe interface with them, and just learn. And then you guys can start sending this person to more training possibly, and if it works out,it works out. If it doesn't, it doesn't. But yeah, I'll support this though. Page 79 Hawaii County Council-25 November 3,2015 ADJOURN- There being no further business, at 4:19 p.m.,Mr. Paleka moved to adjourn the MENT: meeting. Seconded by Mr. Onishi and carried by the following voice vote: Ayes: Council Members Chung,David,Eoff, Hagan, Onishi,Paleka, Poindexter,Wille, and Chair Kanuha—9. Noes: None. Absent: None, Excused: None. CHR. KANUHA: We are adjourned. Council Approval: SEP 4 7 2011 LINTY CLERK SMljmlhs Page 85