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cost The cost of litigation

Adding attorneys could save county money

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Posted: Monday, April 28, 2014 2:00 am | Updated: 12:18 pm, Mon Apr 28, 2014.

LIHUE — It’s a question of in-house versus outsourcing.

A cost-saving proposal by the Office of the County Attorney to create a litigation team within the County of Kauai department is being met with some resistance by officials who question how the team would be assembled — and whether the extra attorneys would be financially worth it.

The proposal, First Deputy County Attorney Mauna Kea Trask said, would add one new position in the Office of the County Attorney this year and is aimed at saving hundreds of thousands of dollars in taxpayer money on outside legal services.  

Supporters say the addition could pay off in the long run.

A Cost Control Commission analysis conducted last year found that the county spent about $1.3 million for special counsel services during the 2012-2013 fiscal year alone.

The cost for a two-member litigation team and a legal clerk, the county board concluded, would have saved the county about $350,000 to $375,000 during that same year.

In all, the Office of the County Attorney has spent just over $1 million in outside counsel services during this fiscal year, according to county budget documents.

Cost Commissioners say about half of those costs, totaling $459,268, could have been saved with a litigation division in place.

“The Cost Control Commission firmly believes that hiring a two-member legal team plus a legal clerk will save the county time and money and increase its efficiency in the County Attorney’s Office,” former Cost Control Commission Chair Sandi Sterker wrote in the board’s 2013 annual report.

Some officials, however, are not so sure.

They question whether the Office of the County Attorney, led by County Attorney Al Castillo, will be able to achieve the cost savings identified by the Cost Control Commission by only adding one attorney to the nine-member department.

“I do not see how one attorney is going to change the dynamics of your office right now,” Councilman Mel Rapozo told Castillo at a recent budget hearing. “That’s just the reality of it — I don’t care who you hire.”

The rate of representation

As it stands, Kauai County is the only county in the state that does not have a litigation team within their legal departments — one that includes attorneys specializing in specific areas of law.

The authority to approve outside legal services, and the payment for these services, lies in the hands of the Kauai County Council, according to the Kauai County Charter.

The actual payment for these services, however, are made by the Office of the County Attorney though a special counsel account within the office.

Outside special counsel, Trask said, generally costs county taxpayers about $200 to $400 an hour. Deputies within the office, meanwhile, charge about $35 to $45 an hour.

Though each of the county’s nine deputies specialize in certain areas of law, represent county boards and commissions, and advise all county departments, Trask said there are several reasons why outside legal services is needed.

Outside services, he explained, is sometimes retained to avoid potential or perceived conflicts of interests by department attorneys.

And on a relatively small island like Kauai, those instances are not rare.   

“If a case comes up involving a cousin of mine or a close family friend, I’m advised not to participate in it,” Trask said. “That’s one of the benefits and drawbacks of working on Kauai.”

Obtaining special counsel services, he said, is also needed to take on cases at times when workload demands are high or expert representation is required for certain cases.

And there’s a lot to go around.

During the 2013-2014 fiscal year, the Office of the County Attorney has appeared in 304 court cases, drafted 63 legal opinions and reviewed 3,131 contracts, legal documents, conveyances, and miscellaneous documents.

“We can never stop using special counsel — that’s a reality — but we can decrease or more creatively utilize their services with a strong litigation unit working in concert with them,” Trask said.

Recently, the county hired the Honolulu firm of McCorriston Miller Mukai MacKinnon LLP to represent the County of Kauai in a lawsuit filed by four biotech seed companies relating to Ordinance 960.

The most difficult part, Trask explained, is that there is also no way to tell when outside services may be needed.

“The reason why is because corporations don’t control when they get sued,” Trask said. “You can do as much as you can to prevent it but inevitably will happen.”

Mixed thoughts

While some county officials agree there is a need to reduce costs accrued for outside legal services, others say they have reservations.

Although Kauai County’s legal department has the smallest staff out of all the others across the state, Council Chair Jay Furfaro said the comparison must also include other factors as well.

“This council is a lot smaller than any of the other counties — most counties have nine members but we have seven,” he told Castillo at a recent budget hearing. “You have a smaller staff. Well, we are a smaller county and we have to do more with less in many ways.”

In his budget message, Mayor Bernard Carvalho Jr. said his administration “concurs wholeheartedly” with the idea pitched by the Cost Control Commission to create a litigation team in the Office of the County Attorney.

The rollout of this division, he suggested, should be done incrementally by creating one fully funded position and one position based on available funds during the 2014-2015 fiscal year. County departments, meanwhile, are working on the 2015 budget, which they could adopt in about two weeks.

The second position, Carvalho proposed, would be filled during the 2015-2016 fiscal year.

“We feel confident that this investment will result in substantial future savings,” Carvalho wrote.  

But not everyone sees it that way.

“I just can’t buy into this right now — I don’t think the numbers work,” Furfaro told Castillo. “Does the idea work? Yes, I think you bring a very powerful point to the table.”

Castillo echoed the mayor’s proposal, and said his department is “taking the baby steps necessary for the creation of a unit” and must work within their budget constraints to make it happen.

“Certainly it would be more logical to have a whole litigation unit with more than one attorney; however, we need to recognize the amount of dollars that we have and the amount of dollars that we don’t have,” Castillo said. “I would prefer a whole bunch of attorneys but we simply cannot afford it at this time. As far as not seeing the benefits, we can take on more cases and we would bring another person in to help in servicing the other departments. One attorney alone makes a really big difference.”

• Darin Moriki, county government reporter, can be reached at 245-0428 or dmoriki@thegardenisland.com. Follow him on Twitter at @darinmoriki.

© 2015 Thegardenisland.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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  • Eagle 6 posted at 11:01 pm on Tue, Apr 29, 2014.

    Eagle 6 Posts: 1315

    County sues itself, county councilman sues county, people that worked for last prosecutor sues county, for starters.
    Litigation unit, two more county lawyers plus a clerk? = more lawsuits that will still need outside counsel.
    If I was anti GMO, and wanted the Bill upheld, these are the last people I would want on my team.
    I'm pro GMO, and these are the last people I would want on my team. Takes some nerve to even contemplate and convince that this is nothing more than lawyers feeding lawyers. Sorry Castillio, you bear the brunt of this until your contract is done. And Albert, this is the USA, you will be held accountable for your deceptions against the people you serve. The three commenters previous are also correct.
    What's the odds on Castillio bringing up a suit against the county before his tour is over? Yep, nobody is going to bet against that.
    No Sunshine, No Respect

  • ripped off posted at 2:42 am on Tue, Apr 29, 2014.

    ripped off Posts: 172

    The biggest problem is the County not operating within the law -- subverting the statutes, creative interpretation, and outright skullduggery within the County Attorney's
    Office. The County thru its attorneys tries to defend the indefensible. This County needs to clean up its act big time!

  • tunataxi posted at 10:22 pm on Mon, Apr 28, 2014.

    tunataxi Posts: 640

    I agree with borninhawaii except for blaming Hoosier and Bynum... it's the underhanded tactics of smear and intimidation from the old network that needs to stop... it's the 21st Century people... our Old Boy network need's to realize their time is coming to an end. Too many people talking these days... it's the Information Age

  • BorninHawaii posted at 7:52 am on Mon, Apr 28, 2014.

    BorninHawaii Posts: 390

    The cost control committee is making a smart request. But the root of the problem is not so much the cost as the council members who consistantly put us in litigation. Its time for Kauai citizens to elect smarter less aggressive council members in the upcoming election. You may disagree but, the truth is what we have now is not working. We need to NOT elect people like Hoosier and Bynum, electing similar poeple will spell doom for the county, and ultimately runaway increased fees and property taxes to pay for all their so called flag waving for a better Kauai. I see no better, only grief.


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