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Former councilor, clerk didn’t defame

March 16, 2017 - 12:05am

HILO — The Intermediate Court of Appeals has sided with former County Council Chairman Dominic Yagong and former County Clerk Jamae Kawauchi in a 2012 defamation lawsuit filed by Elections Administrator Pat Nakamoto and one of her staff.

In a 26-page opinion signed Tuesday, a three-judge panel agreed with a 3rd Circuit Court judge that civil lawsuits against employers are pre-empted by workers compensation law except in the case of sexual assault. The panel also agreed that comments made in the newspaper by Yagong and Kawauchi weren’t defamatory.

At issue were statements by Yagong and Kawauichi quoted in a Jan. 12, 2012, article in Big Island newspapers naming four employees who had been fired for unspecified violations of county policy.

In the article, written by former Tribune-Herald reporter Jason Armstrong, Kawauchi identifies the four who were fired.

“Kawauchi confirmed four employees have “separated” from the county, but she couldn’t divulge why. However, she identified the employees as: Pat Nakamoto, a longtime elections program administrator; Glen Shikuma, warehouse manager; Shyla Ayau; and Elton Nakagawa,” the story said.

“‘They have received termination notices already,’ County Council Chairman Dominic Yagong said of three letters dated Friday,” the article said. “A separate notice had been sent earlier to another employee, whose termination appeal is now at the arbitration level, he said.”

“The infractions dealt with ‘violations of county policy,’ the Hamakua councilman said Wednesday,” the story continued. “I don’t want to go into details and jeopardize the process, Yagong said when asked for specific reasons for the discharges.”

The article then went on to give history of the investigation that started the prior year into alleged misuses of county facilities, without naming Yagong or Kawauchi as sources.

Judge Elizabeth Strance, in Kona, had ruled the statements didn’t meet the requirements for defamation and portraying someone in a false light. She’d also ruled against Nakamoto’s negligent investigation claim against Pahoa-based Corporate Specialized Intelligence and Investigations LLC, which Yagong and Kawauchi had hired to look into allegations of alcohol use and private business being conducted in county facilities.

“The circuit court properly granted summary judgment on the defamation and false light claims because the challenged statements by Kawauchi and Yagong were not false,” the appellate opinion stated.

Hilo attorney Thomas Yeh, who represented Yagong and Kawauchi at the appellate level, was satisfied with the opinion.

“It seems to be a pretty complete disposition of the claims made,” he said Wednesday. “From our perspective, the case is over.”

But Hilo attorney Ted Hong, representing Nakamoto, said he’s preparing to appeal the case to the state Supreme Court. Hong said the intermediate court has consistently opined that everything that happens to employees can be covered by workers compensation law, but in his view, that’s not always the case.

“This is the perfect case to take up to the Supreme Court to decide the issues,” Hong said. “The Supreme Court has never ruled whether defamation and injury to a person’s reputation is workers comp related.”

Hong had sought more than $500,000 per client in damages.

Yagong and Kawauchi were investigating reports that county employees were hosting parties with alcohol at the county’s Elections Division warehouse. The county code forbids alcohol use on county property.

The two were also looking into reports that the warehouse manager, Glen Shikuma, was running a private sign-making business in the county’s leased warehouse building, which would also have been against the county code. Investigators turned up evidence of empty, full and partially consumed alcohol containers, as well as sign-making equipment Shikuma said he was storing at the warehouse, but claimed he never used on county property.

After union grievance hearings, Nakamoto received a 10-day suspension and was reinstated. Shikuma died of an aneurysm before completing the union arbitration process.

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