Election lawsuits going to court

By NANCY COOK LAUER

Stephens Media

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 allow 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.

Meanwhile, two former Hawaii County elections workers were said to be among a team of eight that has been charged with taking over operations from the County Clerk’s Office.

State elections chief Scott Nago said Friday that he could not name the employees due to personnel privacy concerns. But, he said, “at least two, that I know of,” are former county elections workers.

He hinted that Nakamoto, who was fired in January, along with three other workers, is not on the team.

“She is already an employee of the county,” he said when asked if the deposed administrator would be involved in the general election. “She already has a job.”

The team will answer to Lori Tomczyk, state Ballot Operations Section Head, Nago said.

Last month, the state announced that it would be taking over operation of Tuesday’s election in response to mismanagement of the Big Island’s Primary Election, including the late opening of multiple precincts. Kawauchi, who took the reins after Nakamoto’s ouster, has maintained oversight of the voter registration and absentee voting processes.

Email Nancy Cook Lauer at ncook-lauer@westhawaiitoday.com.

Colin Stewart contributed to this report.