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Hong argues conspiracy in Elections Division suit

Dominic Yagong and Jamae Kawauchi’s request to investigate the county’s Elections Division was part of a larger conspiracy to take over the county’s elections, an attorney argued Monday.

Ted Hong, who represents Elections Division Chief Patricia Nakamoto and former Elections employee Shyla Ayau, argued against a motion for summary judgment that would dismiss charges of defamation against Yagong and Kawauchi in their individual capacities.

“This was an attempt to power grab, take over the election office,” Hong argued in 3rd Circuit Court, before Judge Elizabeth Strance.

Strance did not issue a ruling on the motion, instead taking the arguments under advisement.

Hong said Yagong, the former County Council chairman, and Kawauchi, the former county clerk, initiated the investigation into whether Nakamoto and Ayau were aware of alleged parties where county employees consumed alcohol at the county’s elections warehouse, and allegations that the elections warehouse manager, Glen Shikuma, was making campaign signs and other signs at the warehouse, which is county property.

“There is evidence they acted beyond the scope of their authority,” Hong said, referring to comments county Human Resources Director Ronald Takahashi made to Yagong and Kawauchi that they did not have the authority to terminate Nakamoto’s, Ayau’s and Shikuma’s employment. “This is a case about intentionally injuring the reputation of three county employees. It is about conducting an investigation that was preconceived.”

Strance questioned Hong on whether a case should come to the court when it involves an authority figure making a decision regarding employment. Wouldn’t someone such as a council chairman be able to seek advice on termination but be able to make the final decision, she asked.

“They didn’t have the authority,” Hong responded. “That authority rests with the mayor. The assumption that Jamae Kawauchi or Dominic Yagong were the decision makers under collective bargaining … is fundamentally wrong.”

Mayor Billy Kenoi reinstated Nakamoto and Ayau, although Ayau had already taken a job elsewhere. Shikuma died last fall.

Francis Jung, attorney for Yagong and Kawauchi, argued Hong presented no evidence that the former clerk and council member acted outside their authority. He said the two, after learning Shikuma may have been printing counterfeit signs featuring Hello Kitty, Titleist and Arnold Palmer logos without obtaining copyright, were also trying to protect the county from liability under state and federal laws, including the Lanham Act, which protects trademarks, and the Racketeer Influenced and Corrupt Organizations Act, better known as RICO.

“If defamation is the actual issue here, it’s elementary, the statements have to be false,” Jung said. “If this is all they have, these statements are neither false nor defamatory.”

The one statement Hong cited, a comment by Kawauchi to a reporter that did confirm Nakamoto, Ayau and Shikuma had “separated” from the county was covered, Jung said, because the state’s Uniform Information Practices Act requires county officials to confirm hiring dates and which dates employees leave the county.

Kawauchi also told the reporter she could not divulge why the employees were no longer working for the county, Jung said, something Hong omitted from his argument.

An attorney for Corporate Specialized Intelligence and Investigations, which conducted the investigation at Yagong’s and Kawauchi’s request, argued on a separate motion for summary judgment that her client had nothing to do with any decision to terminate any county employees.

Strance did not indicate when she would rule.

The attorneys have until May 20 to submit their proposed orders in the case. Strance said when she did issue the ruling on the summary judgment motions, she would also rule on arguments she heard Friday relating to an anonymous commenter on the Hawaii Tribune-Herald website.

Hong has argued to have the commenter’s identity released, so the commenter can be asked questions on the record about who released information Hong said was part of a confidential investigation.