Yagong hires private counsel

BY JASON ARMSTRONG

STEPHENS MEDIA

jarmstrong@hawaiitribune-herald.com

HILO — Fallout from the recent firing of four Hawaii County elections workers has prompted Council Chairman Dominic Yagong to hire private attorneys to discuss “legal matters” regarding the terminations he approved.

County payments to Kailua-Kona attorney Michael Matsukawa, a former county Corporation Counsel, and the Honolulu law firm of O’Conner, Playdon and Guben will be capped at $15,000 each, Yagong said.

“That doesn’t mean we’ll spend up to that” amount, the Hamakua councilman said of the potential $30,000 bill to taxpayers.

Yagong officially informed his colleagues of the hiring decision in a one-page letter issued Tuesday, one day before the council was scheduled to consider holding a closed-door meeting Corporation Counsel Lincoln Ashida requested.

“These highly distinguished attorneys are arguably the best in their field in their respective areas of practice and will be able to fully and completely discuss with you their legal advice and counsel concerning the matters relating to Communication No. 556 at a future meeting,” Yagong wrote to fellow lawmakers.

That was in reference to Ashida’s written “request for special counsel” to discuss two of the former workers’ wrongful termination claims that combined top $1 million.

Ashida said he’s also provided other related documentation to the council. That information has not been made public, however.

Although designated as the county’s chief legal adviser responsible for defending county employees in matters relating to their official duties, Ashida made a request to hire a private attorney, apparently to defend against the former workers’ monetary demands.

Before Wednesday’s meeting, Ashida said he couldn’t reveal details, but would after the discussion had been held.

That never happened, however, because on Tuesday Yagong announced that he had withdrawn Ashida’s last-minute request from the following day’s council meeting agenda.

“This matter will be placed on a future agenda at a later date pursuant to our Council Rules of Procedure,” Yagong wrote in his one-page letter that stated the Office of the County Clerk contracted the attorneys.

“I signed on the invoice,” Yagong said Friday when asked who authorized the hiring of private attorneys.

County Clerk Jamae Kawauchi, an appointee of the Yagong-led council majority, terminated Pat Nakamoto, the longtime elections program administrator, and Glen Shikuma, who had supervised a rented Hilo elections warehouse.

Each is seeking $500,000 for allegedly being libeled, ridiculed and made to suffer an impaired “enjoyment of society.” Shikuma also wants an extra $50,000 for alleged property damage.

In consultation with Yagong, Kawauchi also fired Elections Divisions employees Shyla Ayau and Elton Nakagawa on Jan. 6.

The dismissals stem from alleged drinking parties held at the Hilo elections warehouse and Shikuma’s alleged use of the facility for his own business purposes.

While Ashida was apparently seeking permission to hire private counsel to defend the county against the former workers’ claims, Yagong said the attorneys he hired won’t be doing that work.

“We’re only hiring them actually to look at the contents of Communication 556,” Yagong said.

“We’d like to sit down with the corporation counsel to have that discussion,” Yagong said, adding he wants clarification and to have concerns addressed.

Because of the late submittal of Ashida’s letter, the attorneys “have not been afforded an opportunity to discuss the legal matters concerning Communication No. 556,” Yagong wrote in his letter to lawmakers.

They were selected from the official list of professional service providers desiring to work for the county, he said.

The legislative branch of government has the authority to hire private attorneys, provided their fees don’t exceed a $25,000 cap, Yagong said.

Yagong noted that authority was used last July when he ordered a private investigation of how the Hilo elections warehouse was being used.

According to the county Charter, the council may hire special counsel if at least six of the nine members support the move and if it’s “any special mater presenting a real necessity for such employment.”

The council hasn’t taken that vote or authorized the hiring. However, lawmakers are considering a proposed Charter amendment that would allow a bare majority of five lawmakers to hire private attorneys “without express limitation.”

On Wednesday, the council voted 9-0 to postpone until Feb. 15 considering the bill that, if passed, would be placed on November general election ballots. Only Big Island voters may amend the Charter, which serves as the constitution for local government.

South Kona Councilwoman Brenda Ford, the bill’s author, said she wants more time to obtain an answer to a question she has. She also wants to amend the bill to require support from at last two-thirds of the council before it could hire outside legal advice.

Asked if the council chairman now has that sole authority, Ford declined to comment.

“My bill has nothing to do with anything else,” she said.

It’s a separation of powers issue, said Ford, who wants to remove the corporation counsel’s ability to block the council from obtaining outside legal help. That change would permit the legislative branch to “function without interference from the executive branch,” she said.

As head of the executive branch, the mayor picks the corporation counsel, but the council must confirm the appointment, according to the Charter.