HILO — It’s been little more than two weeks since two fired elections workers filed suit against County Clerk Jamae Kawauchi and Council Chairman Dominic Yagong. But it’s already clear no Hilo judge is going to hear the lawsuits.
Both Judge Glenn Hara and Judge Greg Nakamura have recused themselves from the case, according to court records. That leaves only two Kona judges, Chief Judge Ronald Ibarra or Judge Elizabeth Strance, if the lawsuits are to remain in the 3rd Circuit. Judges do not have to specify why they’re stepping down from a case, but Ted Hong, who’s representing the two elections workers, says it’s happened before, and the cases were moved to Kona.
“Hilo is a small town,” Hong said, adding, “It doesn’t really matter which judge hears the case because I think the facts are pretty clear.”
At issue are defamation lawsuits filed by fired Elections Administrator Pat Nakamoto and Senior Elections Clerk Shyla Ayau, alleging information was leaked about an investigation into drinking parties and a private business operation at the elections warehouse that led to their termination. Also named in the lawsuits are Hawaii County and the Pahoa-based Corporate Specialized Intelligence and Investigations.
The first county response to the lawsuits will occur at 9 a.m. today, when the County Council is set to go into executive session in Hilo council chambers. The discussion will be closed to the public, but the public can testify beforehand in council chambers or by videoconference from the West Hawaii Civic Center or the Waimea or Pahoa council offices.
Deputy Corporation Counsel Laureen Martin, who is representing the county, declined to comment Monday on what will be discussed or if she will recommend that outside attorneys handle the case. The county requested and received from Hong an additional 30 days to file an answer to the lawsuit, which was to be due Wednesday.
Hong, who served as Corporation Counsel for the county in 2000, said he expects Yagong and Kawauchi will be advised to retain their own attorneys, in the event any of their actions were outside the scope of their positions with the county.
“To the extent that a public official doesn’t follow the law, they can be served in their individual capacity,” Hong said. “(The county) can’t defend someone who has broken the law. … If someone goes beyond the law, they need to find their own personal counsel.”
Hong declined to say how much in damages he’s seeking, although he said it would be more than the $500,000 for each plaintiff he had sought when he began threatening lawsuits earlier this year. Hong is asking for a jury to hear the case and set damages. The lawsuit alleges five counts: defamation, defamation through negligence, portraying the plaintiffs in a false light, negligent investigation and negligent infliction of emotional distress.
The loss of Nakamoto and Ayau and two other seasoned elections workers could have contributed to problems in the Aug. 11 primary, when several polling places opened late, leading Gov. Neil Abercrombie to extend polling place hours 90 minutes for Hawaii County only.
The controversy started in July 2011 when Kawauchi and Yagong reportedly discovered alcohol and private sign-making equipment in the Makaala Street warehouse. Yagong hired the private investigator after county Human Resources Director Ronald Takahashi recused himself from the case, citing a long-standing friendship with Shikuma.
The investigator found that roughly a quarter of the 3,000-square-foot warehouse was taken up with Shikuma’s sign-making equipment, materials and records, according to a Sept. 6, 2011 investigative report made part of the court record. In addition to two bottles of beer in the refrigerator, an unopened bottle of wine and an opened bottle of beer nearby, the investigator found numerous empty bottles of beer covered with bedsheets and a photo showing Shikuma and other people sitting in the warehouse with open containers of beer in front of them, according to the report. The county has a zero-tolerance alcohol policy.
Investigators also found invoices sent for private sign-making work faxed from county fax machines during business hours and evidence that individuals brought privately owned vehicles to the elections warehouse to have signs placed on them for profit, according to the report.
Yagong did not return telephone calls for comment Monday.