AI- 105
1.
Special / Executive Session Board of Supervisors Meeting
- Meeting Date:
- 02/08/2011
- Title:
- Settlement
- Submitted By:
- Katie Howard, Board of Supervisors
- Department:
- Board of Supervisors
Presentation:
No A/V Presentation
Recommendation:
Document Signatures:
# of ORIGINALS
Submitted for Signature:
Submitted for Signature:
NAME
of PRESENTER:
of PRESENTER:
Britt Hanson
TITLE
of PRESENTER:
of PRESENTER:
Chief Deputy County Attorney
Mandated Function?:
Source of Mandate
or Basis for Support?:
or Basis for Support?:
Information
Agenda Item Text:
Authorize the County Administrator to settle the County's lawsuit against ADOT and increase the amount to be paid to outside counsel representing the County in the lawsuit.
Background:
At a special meeting held on August 24, 2010, the Board authorized the County Administrator to retain outside counsel to file a lawsuit against ADOT to recover a claim in the amount of $422,000 for damage to Old Divide Road resulting from a fire started by an ADOT work crew on May 18, 2009. The Board authorized payment of outside counsel up to $5,000, with the hope that filing the lawsuit would get the attention of State Risk and the Attorney General's Office, and that this would lead to a settlement rather than protracted, costly litigation. The County retained John Kastner of Kimble, Nelson, Audilett and Kastner, who filed the lawsuit on the County's behalf.
After the lawsuit was filed, State Risk did get involved and called a meeting with the County as well as a private individual, who lives on Old Divide Road and suffered damage to his residence, and who separately filed a lawsuit against ADOT. That meeting was held on January 19, 2011 at the Board offices. The representative for State Risk was quite clear that he believes this claim should be settled quickly rather than litigated. We all agreed. He also stated that per policy established by the Legislature, the ceiling on any settlement by State Risk is $250,000, with approval also required by the Attorney General. Any settlement above that amount must be approved by the Joint Legislative Budget Committee, which he said is a difficult process.
The parties made progress toward a settlement. During the meeting, however, complications arose due to potential problems that rebuilding Old Divide Road would pose for the private owner, as well as uncertainty whether a portion of the property he believes he owns may in fact be owned by BLM. There were also unresolved questions as to whether ADOT could provide "in kind" services in rebuilding Old Divide Road (hauling fill with large ADOT trucks) and possible sources of inexpensive fill. The settlement meeting ended with the parties agreeing to research these issues, reconvene on Wednesday, February 23, 2011, and possibly reach a settlement.
The County Administrator and County Attorney are therefore requesting Board authority to settle the lawsuit on terms and conditions to be set by the Board. At the executive session to discuss this, the County Administrator and County Attorney will brief the Board more thoroughly on settlement issues and suggested outcomes.
Meanwhile, with Mr. Kastner's most recent bill, the total he has thus far billed the County is $5,142.72, which does not include additional time attending the January 19th meeting and preparing for it. The County Administrator and County Attorney are recommending that the Board raise the limit to $10,000. Thus far, the strategy set at the August 24th meeting has worked well—State Risk has agreed that this matter should be settled swiftly, and we appear to be moving in that direction. Mr. Kastner has performed well in representing the County and helping to get State Risk to the settlement table. If the settlement proceeds as swiftly as it appears, it is likely that fees paid to Mr. Kastner should not exceed $7,500, but we are requesting authority up to $10,000 in the event that the technical problems in reaching a settlement stretch the time required of Mr. Kastner.
After the lawsuit was filed, State Risk did get involved and called a meeting with the County as well as a private individual, who lives on Old Divide Road and suffered damage to his residence, and who separately filed a lawsuit against ADOT. That meeting was held on January 19, 2011 at the Board offices. The representative for State Risk was quite clear that he believes this claim should be settled quickly rather than litigated. We all agreed. He also stated that per policy established by the Legislature, the ceiling on any settlement by State Risk is $250,000, with approval also required by the Attorney General. Any settlement above that amount must be approved by the Joint Legislative Budget Committee, which he said is a difficult process.
The parties made progress toward a settlement. During the meeting, however, complications arose due to potential problems that rebuilding Old Divide Road would pose for the private owner, as well as uncertainty whether a portion of the property he believes he owns may in fact be owned by BLM. There were also unresolved questions as to whether ADOT could provide "in kind" services in rebuilding Old Divide Road (hauling fill with large ADOT trucks) and possible sources of inexpensive fill. The settlement meeting ended with the parties agreeing to research these issues, reconvene on Wednesday, February 23, 2011, and possibly reach a settlement.
The County Administrator and County Attorney are therefore requesting Board authority to settle the lawsuit on terms and conditions to be set by the Board. At the executive session to discuss this, the County Administrator and County Attorney will brief the Board more thoroughly on settlement issues and suggested outcomes.
Meanwhile, with Mr. Kastner's most recent bill, the total he has thus far billed the County is $5,142.72, which does not include additional time attending the January 19th meeting and preparing for it. The County Administrator and County Attorney are recommending that the Board raise the limit to $10,000. Thus far, the strategy set at the August 24th meeting has worked well—State Risk has agreed that this matter should be settled swiftly, and we appear to be moving in that direction. Mr. Kastner has performed well in representing the County and helping to get State Risk to the settlement table. If the settlement proceeds as swiftly as it appears, it is likely that fees paid to Mr. Kastner should not exceed $7,500, but we are requesting authority up to $10,000 in the event that the technical problems in reaching a settlement stretch the time required of Mr. Kastner.
Department's Next Steps (if approved):
Authorize the County Administrator to settle the lawsuit and increase the amount authorized to be paid to outside counsel.
Impact of NOT Approving/Alternatives:
Potential loss of settlement opportunity.
To BOS Staff: Document Disposition/Follow-Up:
n/a
Fiscal Impact
- Fiscal Year:
- One-time Fixed Costs? ($$$):
- Ongoing Costs? ($$$):
- County Match Required? ($$$):
- A-87 Overhead Amt? (Co. Cost Allocation $$$):
- Source of Funding?:
Fiscal Impact & Funding Sources (if known):
Outlay of up to $5,000 in additional attorneys fees. The funding source would be the General Fund. Possible recovery of up to $250,000 (or possibly all) of the cost to repair Old Divide Road, currently estimated at $422,000.