good afternoon for our staff we have committee secretary clearly in our legislative attorney carla that caught that members and also members of the public if you'd like to testify please sign up at the lobby once you are called is what's your name is called you'll have three minutes to testify only to the items listed on today's agenda upon testifying please state your name and or organization in which you represent  thank you on molokai a district office is there anyone wishing to testify thank you ladies members without objection so i would like to close public testimony thank you turn in your attention to the first agenda item on today's agenda coul one twenty two litigation matters the settlement authorization claim of a douglas county to claim twenty fourteen cash twenty twenty thank you chair good afternoon i believe that this is a matter we can handle in open session because it deals soley with a property damage claim and the basic facts are that on august twenty seventh tw ditto discovered water flooding into his garage and washroom of his home in mind to goo and so he contacted a plumber to come out and take a look at it and when the plumber came out he discovered that in fact there was a problem on the county side so the county was alerted and we sent out a work crew from environmental management to take a look at it and basically what happened was there was a sinkhole that was caused on the property there's now legation that there was  a hole drilled into the outline i don't have any information on and who may have done that or when but there may have been sand that had gone into that contributing to this sinkhole issue and that caused m wall to collapse he has provided us with three estimates the lowest of them is for the settlement amount that i'm requesting which is eight thousand eight hundred fifty one dollars responded to the call to help them out and fix the schooling i think you know put up the floor to the any members that have any questions for the department and or cooperation coun component that's left is whether the we agree to the settlement requests and yes yes so basic on those words they were all were all gone our crew fixed everything and put everything back and i guess it's a matter of just this settlement to sing down and so we don't know whether or not it was you know damaged prior i mean based on what this claim is saying it was there was a crack or a fire before we got there so but we don't know i mean that's kind of typical what happens when these type of incidents happens so in your investigation did you discover how long a period of time there there was this  members any other questions that you may have seeing nine chairs recommendation we will go ahead in our authorized the settlement amount i believe eight thousand discussion all those in favor say aye say no five eyes for excuse motion carries thank you i members moving on to the next agenda item we have how one twenty which is the a matter settlement authorization of the intergovernmental agreements with the us department of interior fish and wildlife services for the somet of the alleged violations of the aforementioned matter number one a proposed bill entitle the bill for an ordinance authorizing the mayor of the county of maui to enter into an intergovernmental agreement with the united states department of interior fish wildlife services for the settlement of the alleged violations at the y who could khali waste water reclamation facility the purpose of the proposed bill is to authorize the mayor to enter into an intergovernmental agreement with the united states fish and wildlife service is to settle alleged violations regarding the take of an endangered birds and migratory birds nest eggs in violation of the federal migratory bird treaty act at the white little collie waste water reclamation facility during september two thousand and fourteen a proposed bill entitled a bill ford ordinance authorizing the mayor of the county of maui to enter into an intergovernmental agreement with the united states department of interior fish wildlife services for the settlement of alleged violations that had occurred on the land i waste water treatment facility the purpose of the proposed bill is to authorize the mayor to enter into an intergovernmental agreement with the united states fish wildlife services to settle alleged violations during the take of endangered birds and migratory birds and committee may consider whether to recommend passage of the proposed bills on first reading with or without revisions the committee may also consider other related actions our members what we have today we will be presenting  have two settlement agreements that we feel are are very fair and that we have negotiated with the u s fish and wildlife service the actual agreements would like to present those in executive session so that you can have the opportunity to go over their terms of their fairly modest monetary settlement amount as far as the details of the incidents i'd like to turn that over to the department to go ahead go ahead and go over those details depar birds i guess barrel in from from the ocean side and so nobody could really see it because we're digging in our property side so i guess they borrowed always through and that's when they discovered so  when they stays covered that stuff everything is stopped and then they call national fish and wildlife and that's what happened so i guess there are some kind of takes from that on that particular instance the oxidation ponds and what happened was there's a one of our ponds the liner started to bubble up and what we noticed is so there was some kind of problem with our liner alone in that  pond so in order to do is try to investigate what's going on and try to determine how to fix that we had to drain the pond of the liquid and then figure out what to do with that liner and what happened i guess when you mine the standing now talking to when i met this national the united states fish and wildlife is when we drain the pond what happens is you have sludge so what is happening is in the sludge there's some type of maggots that's in the i guess that is inside the sludge from flies or whatever i guess these birds live around the pond they came in the a maggot one died and then down as maggots and then the others come in and then they eat those maggots and they start to die so that's basically what happened on the two different instances i remember   and i'm glad we have our attorneys i need to start for me this was another voidable situation for me this is about the level of competence of some o operations on when i know exactly what should have been done to avoid this situation and yet i get it they would incompetent person on this site is now making us consider once a lead saying the birds generally eat maggots or another protein source that is infected with those talks and and get infected and then die and pass along a cycle the twenty twelve incident  you know the conditions were such the botulism was allowed to be toxic situations were created at the at the treatment plant birds you know got seconded die they were buried by the operator at the plant at that time and that operator no longer works for the county and that's somewhat a different situation in the twenty fourteen twenty fifteen that had to do with the pond liner bubbling up and so there was a sequence of response to that incident so that when the liner was was bubbling up and there was concern that it was methane causing the bubbling so we didn't want to puncture the liner or drain the pond before we determine what was causing the bubbling so there was also a delay with getting the right equipment if i understand that right to pump out the water  so that caused a delay in our response to the botulism event although fish and wildlife was working with us during that time to to address it in the correct manner a bit of a different situation there but those are  ago yes that's correct we are a consultant and a consultant that once mention potential issues or a concern a boat migratory or protected birds it was never part of the report to you for you and your division about potential issues that we should be aware of  not that i'm aware of and you know if that was part of their contract responsibilities the consultants the environmental impact statement should address concerns of that nature whether there is endangered or migratory birds or nesting season received no comments in my opinion and b r consultant should have done a better job on whether or not we could look to them for some kind of compensation or reimbursement  they probably did what was required but i think that they could have done a better job to the area not that i'm aware of and it's you know it's likely though that any project in that area since it's so close to the kind of the wildlife refuge you know it seems to me to be a fairly direction on that thank you and the other questions from the members i have a couple questions number one is the away liquid carlucci situation what remedial actions has the department analysis what happened with that one is were able to i guess a couple of the birds or is injured so they took it to some kind of rehabilitation  you implementing to prevent this from happening in the future for the for the the the birds for the local col basically we can just go ahead and notify whoever is our future consultants this is the instances what's happened during this construction project the and then they can what happening with that one is really we're getting a training session from oil wildlife services which will be take place next month in october what we're doing with alan is we're going to videotape that and then we're going to have our supervisors over there and what we can do for their own is we also come up with a standard operating procedure  just to so that whoever is there whether it's the supervisor of the future supervisor or whoever workers they kind of already know that once you discover these type of birds if a bird looks sick whatever they can a procedure that they can just follow and then within that center operating procedures it goes through steps on who to call you know where to call all the different agencies to call and  my understanding from talking to fish and wildlife it's really just a problem there so really it's seeing that first bird i mean once you get that first bird he says that it's it's the problem is mitigated after that because it's when that one bird dies and then all the other birds calm and that's kind of what that watch it that's why that thing spread so fast is there is there more of a better relationship or a a firm relationship between your department and the fish and wildlife department so i guess in my time here this is the first time we deal with them and they're they were actually really happy with  the response from with our engineers that were working on those projects so and now we've established who you actually i guess putting the face to the name and to the number so now it's more in the process of creating a standard procedures to identify these type of situations yes so we were completed that we've on developed that in house with a we really had a b of the following number one the communication fifteen dash two two one nine from counsel chair might white transmitting to propose resolutions to authorize the employment of special counsel and christopher salem versus county  all number two correspondence dated september seventeenth two thousand and fifteen from the department of cooperation council of transmitting a revised proposed resolution entitled authorizing the employment of special counsel in christopher salem versus county at all the purpose of the revised proposed resolution is to authorize the employment of special counsel to represent the defendants and christopher sealing versus county or at all for the total compensation not to exceed seventy five thousand committee may consider whether to recommend adoption of the revised proposed resolution with or without revisions the community may also consider the filing of county communication fifteen dash two one night and other related actions today we have with  point since we requested people to come here and talk to you about this and there are some additional defendants who have been named there are numerous departments and the mayor the case is not easy to describe it's one hundred thirty some page complaint with more than five hundred fifty allegations i've begun to read the complaint i've read an affidavit attached the complaint i'm beginning to get a sense of what the underlying substance of the case is not here to talk about that today but there are a number of defendants who have been named individually in the complaint in addition to being named in their official capacity and so the resolution today is to have special counsel appointed for those directors and the mayor and corporation counsel who have been named in their official capacity and have also been named in their individual capacity and there is a what i believe is a potential conflict not necessarily an actual conflict but as i understand it inherently  conflict with an individual who's been named in their official capacity and in their individual capacity so we're seeking to have special counsel appointed to represent the directors and the mayor and corporation council have been named in their individual capacity  again the complaints rather lengthy i do have a list of the various causes of action which i'm happy to read off if if if you want to get into that as i understand it the crux of the matter is  involves development remits whereby developers developing subdivisions that involve three lots or less were permitted to defer certain costs associated with those developments to include roadway improvements and drainage and in this instance my understanding is that one of those watts was subsequently transferred and those costs passed on to the purchaser of that lot as best i can figure that is the central allegation in this case and and the complaint goes on to describe developers and put in appropriately not being assessed cost associated with developments and somehow those costs then being burden and shoulder by the citizens of the county of maui saying this very crudely and rudimentary  assess costs associated with development of his law and as i understand it the plaintiff's claims that he should have been assessed the cost for the development and the improvements  associated with those watts so that he could then turn around and collect those costs from the developer pursuant to what i guess could be best described as a kind of indemnity agreement or agreement that he be reimbursed for those costs which had a expiration date on it and apparently that date came and went mr salem with never and never been assessed those costs and as i understand it to date has not been assessed those costs beyond that you know getting into the substance of this complaint will be long and drawn out given the length of it given what appear to be disconnected and in large part of the allegations that are completely irrelevant to what the operative facts of this case are but some of those allegations suggest that numerous county officials point officials have engaged in some sort of inappropriate conduct outside of their official capacity there's an insinuation of that i don't see any actual allegations which connect the dots to demonstrate that but in an abundance of caution we do need to have a special counsel appointed for those officials who have been sued in their individual capacity so that's essentially what what this request is for  i'm happy to answer any questions with but again as to the substance of the complaint that is something we're still looking at we don't believe that there's a lot of merit to it but given the length i'm not making that request ok i mean not at least on the resolution this before you at some point if we actually have to get into litigation of this matter i may make that request ok i'll let you know  that i did receive a call yesterday from the attorney representing mr say when mr gold's office and they seem well more than interested in trying to mediate this matter and i have let them know that i'm not in disagreement with that proposal we've been able to procure some additional time to address the actual allegations and answer the complaint which we may or may not meet but the proposal essentially is that if we can get the case in the mediation that we might be able to get some of these defendants dismissed as part of that process and addition to putting over the counties and all the defendants obligation to actually file an answer to the complaint but this is all just these are things that are being discussed and we go shoot it now again we don't have a disagreement principle to mediation but that's something we're going to have to discuss a little further before we need not act on this resolution of this time well i didn't it wasn't my intention to suggest that i think you can and should but  frankly i'm hoping that we can get this into mediation sooner rather than later and maybe address some of the underlying issues that may make this resolution move but that's just my thinking on this i don't know that ultimately the other side's going to agree to this but in the event that we aren't able to work this out the way that i would hope we're going to need to have be ready to have special counsel in place it's my understanding the request for a special counsel is based on the fact that the in addition to the in addition to mr bond or counsel that all deputies were also named in the in the claim which makes the entire department defendant's in which case i'm not sure if it's appropriate for you guys to even be in discussion with the plaintiff's attorney the department of corporation counsel has been named not individual not all the individual deputies and again without wanting to get too deeply into litigation strategy any department is not a separate legal entity from the county and there's ample case law in hawaii and in federal court which holds that the individual departments are not entities that can be sued so that's just to give you a sense of where that's going to go ultimately we believe but the allegations do not name all the deputies and i don't believe that by naming the department you disqualify every deputy in the office by the same token if it was a private firm if you sue the firm you don't necessarily disqualify all the lawyers that firm from being able to step up and appear to defend no i and i understand that but the what was relayed to us a couple of weeks ago was  was that in fact this was going to involve all our deputies individually and well so that's not the case that yeah that doesn't appear to be the case we have the final point and that is in fact the case and also you know just by way of anecdote i and one of the newer deputies and wasn't around when any of this took place so there's less of a concern about there being some allegation that a particular deputy that we need special couns so i'm not ready to support it as i have yet to be convinced that our position is all the position i have not been we have not been to wake up counsel that if  bear yeah it's not my understanding that we need to get express authority from the council to enter into mediation in this is something the plaintiffs have asked for or mr gould's office the attorney represents the pointers and i never disagreed that i mean if we can start having conversation about a case towards potential resolution right up front i'm all for it and i understand your question because of what i said a moment ago i think there was some mention and i they they didn't commit to this but as an incentive it was suggested to me that our participation in mediation could potentially lead to some of the defendants being dismissed from the complaint and so what i'm hearing there is that we may be able to clean up some of the necessity for special counsel if that is in fact the case but that's just my view i'm listening i listened intently to what i was being told pointers counsel yesterday and they think that there are some concerns here about a conflict across the board i don't think we agree with them as to all those concerns but in this particular instance with regard to the individuals those who have been named outside of as having explore or pursue both mediation and i see a special counsel to the fact that we have twenty days to file an answer granted the plaintiffs have orally agreed to it an extension we're not firm on that so as we said sit here presently the facts are we know is that we have twenty days to respond there's a possibility of negotiations  mediation and we are faced with a deadline if we don't pass this out of committee we delay the opportunity to have the full council hear this in appropriate timeframe council the head of the corporation council and within that are at the deputies that are appointed we also i don't want that to be an issue so right off the bat i wanted to be clean where any special counsel appointed and that special counsel is i'm going to make an amendment to the resolution that special counsel shall regularly report directly to the counsel chair and the  counsels committee of the whole on the status of the case and the counties legal strategy so that there will be a bifurcation or a separation between the special counsel and the cooperation coun this may not even come to fruition through the full council we still have it's up to chair white to whether he's going to agenda this matter or not depending on what  the mediation brings about but at least we would have the opportunity to i would say pull the trigger and get a special counsel when needed and there would not be a time frame delay and that is my position and i'm supporting this resolution ok thank you jim if i may just quickly yes we don't want to get caught flat footed if if  and the suggestion that we go into executive session and actually i would request that we do that to have some more tea tale discussion about what is part of our strategy is in having special counsel ready to go if things don't work out with respect to negotiations we're hoping to jump start so i would make that request and i think it could be very brief a brief discussion but there are some things that we have had a little difficulty here because this while it seems like it's not proposed resolution by adding a new be it resolved paragraph eight to read as follows that the special counsel for the county shall regularly report directly to the counsel chair and the counsel's committee of the hall on the status of the case and the counties legal strategy and and re numbering the existing paragraph eight to paragraph ni request executive session in this matter if the members do so move at this time other committees in receipt of the following number one the correspondence dated april fourth two thousand and thirteen from the department of corporation counsel requesting consideration of a proposed resolution to authorize settlement of justin  civil or number twelve dash one dash zero eight one two and two and transmitting a copy of the a complaint the complaint alleges among other things retaliation against justin dobbs a county employee for reporting allegedly illegal behavior by the employees of the department of liquor control constitutional violations as was wrongful termination of the employment damages the purpose of the proposed resolution is to authorize settlement of the case number two correspond is dated september first two thousand and fifteen from the department of corporation counsel requesting consideration of the revised proposed resolution entitled authorizing settlement of justin dogs versus resolution with or without revisions the committee may also consider other related actions today we have presenting the case is debbie corporation counsel transform who is here today on the department of liquor control for ten months before he was terminated in august of twenty eleven he's alleging that he was terminated on grounds that specifically that he was intending to whistle blow against the department for as the chair said certain and ethical behavior by the department and the county had two separate grounds to terminate  chamber for executive session a main motion on the floor to adopt the resolution also was passed was an amendment to the resolution to add specific language that the special coun for the county of maui shall regularly regularly report directly to the council chair and the council's committee of the hall on the status of the case and the county's legal strategy we are still in discussion at this time and the chair will entertain a motion to and the title and text of the proposed resolution as appropriate to refer to the complaint filed on september eighteenth two thousand and fifteen and is signed will entertain a motion to men the second whereas clause by striking the second sentence which reads the lawsuit is expected to be filed in the second circuit court for the state of hawaii alleging fraud and violations amended resolution the title and tacks of the proposed resolution as appropriate to refer to the complaint filed on september eighteenth two thousand and fifteen and the assigned case number and to delete references to the draft complaint or anticipated lawsuit so by miss carrillo seconded by mr white all those any discussion seeing none all those in favor say aye all those opposed say no by striking the second sentence which reads the lawsuit is expected to be filed in the second circuit court for the state of hawaii alleging fraud and violations of the charter  amend the third where as paragraph india amended resolution by striking the phrase draft complaint received by the department of corporation council on august seventeenth two thousand  and inserting in its place the phrase complaint filed in civil number fifteen dash one dash zero four nine six brand three on september eighteenth two thousand and fifteen so