Case dismissed: Defamation suit thrown out

A 3rd Circuit Court has dismissed another portion of the defamation lawsuit against two former county officials.

Judge Elizabeth Strance, in a ruling issued Tuesday morning, said the attorney representing Elections Division Chief Patricia Nakamoto and former elections employee Shyla Ayau failed to prove former County Council Chairman Dominic Yagong and former County Clerk Jamae Kawauchi acted in a “willful and wanton” way in investigating and firing four county elections workers last year.

“To the contrary, the admissible evidence now before this Court appears to clearly support a finding that Defendants Kawauchi and Yagong acted both with cause and within the scope of their employment within the County of Hawaii,” Strance wrote in her order granting Yagong’s and Kawauchi’s motion for summary judgment. “Conversely, the Plaintiffs have not provided this Court with ‘clear and convincing’ evidence of any animus or ‘willful or wanton’ tortious conduct by Defendants Kawauchi and/or Yagong towards the Plaintiffs. … Similarly, there is no evidence that Defendants Kawauchi and/or Yagong personally conducted any investigation, regarding the actions of the Plaintiffs in connection with the County Elections Warehouse.”

Francis Jung, who represented Yagong and Kawauchi, said they’re still awaiting Strance’s ruling on another motion for summary judgment, filed by the private investigation firm hired to conduct an inquiry into complaints about the Elections Division.

“Dominic Yagong and Jamae Kawauchi are both extremely thankful and pleased with the Court’s decision,” Jung said in an email Tuesday afternoon. “All of their actions were made with the intent of fulfilling their duties to the public to the best of their knowledge and abilities as hardworking, dedicated and honest public servants. Hopefully, the young people of Hawaii will not be afraid to seek future careers in public service or elected office out of fear of being persecuted by frivolous lawsuits. Justice will prevail in the end.”

Strance had previously dismissed the cases against Yagong and Kawauchi in their official capacities. This ruling dismisses the case in their personal capacities. Strance said in Tuesday’s ruling the Hawaii Labor Relations Board has exclusive jurisdiction over prohibited practice complaints against public employees.

Yagong and Kawauchi instigated an investigation into reports that county employees were hosting parties with alcohol at the county’s elections division warehouse. They 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.

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. Yagong and Kawauchi fired Nakamoto, Ayau, Shikuma and a fourth employee. County administrators later reinstated Nakamoto and offered Ayau her job back. Ayau declined, because she had taken a new position on Kauai. Shikuma died last August.

Nakamoto and Ayau, with Hilo attorney Ted Hong, filed the defamation case against Yagong and Nakamoto in early 2012.

Hong said Strance’s ruling was expected. When Strance granted the county’s motion earlier this year to dismiss the case against the former officials in their official capacity, Hong said he asked the court to allow an immediate appeal. Strance’s ruling Tuesday helps clear the way for that appeal.

“Two fundamental issues that need attention from the appeals court include whether workers compensation is the only remedy for injuries inflicted on former employees, after they have already left the job and when are government officials personally accountable for their misconduct,” he said in an email. “My clients are glad we can file the appeal shortly and get a definitive answer from the appeals court sooner than later.”