HILO — Defamation lawsuits against Hawaii County Council Chairman Dominic Yagong and County Clerk Jamae Kawauchi will begin playing out in a Kona courtroom later this month as 3rd Circuit Court Judge Elizabeth Strance considers a county motion to dismiss.
Strance took over the cases after the two Hilo judges recused themselves. Judges do not have to specify why they’re stepping down from a case, but it’s likely they feared potential conflicts in the small political town that is Hilo.
At issue are lawsuits filed by fired Elections Administrator Pat Nakamoto and Senior Elections Clerk Shyla Ayau, alleging false and misleading information was leaked to the media about an investigation into drinking parties and a private business operation at the elections warehouse that led to their termination.
Hilo attorney Ted Hong had originally sought $500,000 per employee in claims cases, but he says he’ll seek more than that in court. The lawsuits contain five counts: defamation, defamation through negligence, portraying the plaintiffs in a false light, negligent investigation and negligent infliction of emotional distress.
Strance has scheduled a hearing on Deputy Corporation Counsel Laureen Martin’s motion to dismiss at 1:30 p.m. Nov. 26. Martin contends the cases should be dismissed because any possible claim arose through the course of the employees’ employment and is therefore pre-empted by state workers’ compensation laws.
The county is defending Yagong and Kawauchi only in their official capacities and against any liability to the county. Yagong and Kawauchi are also being sued in their individual capacities and have hired Kona attorney Frank Jung to represent them. Jung said Friday he will likely file an answer to the lawsuit next week.
“Obviously, we’re denying liability, and we’ll proceed from there,” Jung said.
The County Council last month voted down Yagong’s request to hire special counsel to defend the county and officers against the lawsuit. The vote, in executive session, was 3-5, with Hilo Councilmen Donald Ikeda, J Yoshmoto and Dennis Onishi voting no, along with Puna Councilman Fred Blas and Kohala Councilman Pete Hoffmann.
Martin is scheduled to brief the council in executive session at its meeting Friday.
In her motion to dismiss, Martin notes there is only one exception to the worker’s compensation laws that allows lawsuits for damages, and that is in the case of sexual harassment on the job.
“Workers’ compensation laws are designed to protect employees for workplace injuries by compelling employers to provide compensation for such injuries regardless of fault,” Martin said in her motion. “In return, the employer receives protection against workplace lawsuits.”
Nakamoto, Ayau and two other employees were fired in January. After union grievance hearings, Nakamoto received a 10-day suspension, and she and Ayau were reinstated to their positions, but neither has returned.
Ayau has since moved to Kauai, where she’s working as an elections staffer there, and Nakamoto has a doctor’s note excusing her from work because of stress, Hong said.
One of the fired elections workers has since been reinstated and gone back to work.
The other, former Warehouse Manager Glen Shikuma, was scheduled for a union arbitration in October, but died of an aneurysm in August.