Ex-county attorney in conflict of interest?

By NANCY COOK LAUER

Stephens Media

A Kona attorney who transitioned from county legislative staff to the personal representation of County Council Chairman Dominic Yagong and County Clerk Jamae Kawauchi in a politically charged lawsuit says it’s not a conflict of interest for him to do so.

Frank Jung began working as the legislative branch legal specialist on Oct. 1. He was hired, he said, for a single project, determining if the Office of Corporation Counsel, the county’s official legal counsel, had a conflict of interest in the lawsuit.

He resigned from the position, which pays between $5,107 and $7,545 monthly, on Oct. 23. That same day, he notified attorney Ted Hong, who filed the lawsuit against the county, that he was representing Kawauchi in her personal capacity, according to an email Jung provided.

As of Friday, the county Department of Human Resources still showed Jung as an employee. But Yagong, who said he retained Jung as his personal attorney Oct. 24, said Monday that Jung has returned his uncashed paycheck. Finance Director Nancy Crawford was unable to determine Friday whether another paycheck was issued for the pay period ending Oct. 31.

“He did not receive a dime for work completed as legal specialist for the County of Hawaii,” Yagong said.

At issue are defamation 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. Hong said he is seeking more than $1 million for his clients.

The Office of Corporation Counsel, the official civil legal representative for the county, is defending the county, as well as Yagong and Kawauchi in their official capacities, after the County Council voted in closed session not to hire outside attorneys to do so. The council also voted against hiring attorneys to represent the two in their individual capacities.

“I was specifically hired by the chairman of the County Council as a legal specialist but not as a lawyer. I was never hired as counsel,” Jung said Friday. “And I am only representing them in their individual capacities, not in their official capacities.”

Jung said he didn’t have access to privileged information about the lawsuit during his brief tenure as an employee, nor did he work on the case prior to leaving his job and being retained as a personal attorney.

Kawauchi declined to discuss the specifics of Jung’s work while he was a county employee. Nor would she say when she decided to retain him as an attorney.

“He resigned Oct. 23; we engaged him after that. I don’t see any problem with that,” Kawauchi said. “I hope this is not somebody’s intention to keep us from having lawyers because that would be very wrong.”

Hawaii County Code prohibits county officers or employees from taking any official action directly affecting a “private undertaking in which the officer or employee is engaged as legal counsel, advisor, consultant, or representative, or other agency capacity.” In addition, the county has an anti-revolving-door policy prohibiting county agencies from contracting with “any person or business which represented or assisted personally in the matter by a person who has been an employee of the agency within the preceding two years and who participated while in county office or employment in the matter with which the contract is directly concerned.”

South Kona Councilwoman Brenda Ford, who had requested Jung be hired, said Friday that Jung’s research showed the Corporation Counsel had a conflict of interest in defending the case.

“He said everyone in Corporation Counsel had a conflict of interest,” Ford said. “In an abundance of caution, I will not say any more.”

Corporation Counsel Lincoln Ashida, who was hired by Mayor Billy Kenoi and confirmed by the County Council, acknowledged Monday that he had indeed feared, at one time, that his office had a potential conflict of interest defending the case because of information the office had previously received. He declined to be specific.

But after discussing the issue with the state Office of Disciplinary Counsel and getting clearance from the County Council, Ashida said he felt confident to proceed.

Yagong said Corporation Counsel strenuously objected to allowing Jung to participate in a closed executive session with the council, even though the legal specialist in the past has been allowed to participate in these sessions.

“I personally believe the objections by Corporation Counsel played a significant role in the resignation, as it virtually kills any effort to bring legal research forward to help the County Council make an informed decision on any issue,” Yagong said.

Ashida said he’d not seen Jung’s report saying his entire office has a conflict of interest in the case. He added he was still unclear about Jung’s current employment status, as no documents had been shared with his office.

“To date we have not been consulted or even informed what his status is,” Ashida said. “My assumption is because he is an experienced, licensed attorney and a county appointee for albeit a short period of time, that he understands what the ethics code prohibits.”

This is not the first time Yagong’s hiring of attorneys in the case has raised eyebrows in the administration. Finance Director Nancy Crawford earlier this year refused to pay James Kawachika, an attorney with Honolulu-based O’Connor Playdon & Guben, $9,174.53 he billed for legal work in the employee grievance case that preceded the lawsuit.That bill remains outstanding.

Yagong had retained Kawachika and two other attorneys in January without taking it to the council and getting the six votes that are required to hire outside legal counsel.

Yagong disagreed the legal work needed to go through council, citing his powers under state procurement law that allow him, as chief procurement officer for the legislative branch, to select from a list of professionals, including attorneys, as long as the purchase order is $25,000 or less. The attorneys, Yagong said earlier this year, were not retained for litigation.

Ashida noted on Monday that attorneys on the same side of the case “should not be adversarial.” He said his office and Jung are essentially defending the same clients, although his office is defending them in their official capacities and Jung is defending them in their individual capacities.

“Strategically, there is still benefit to a cohesive, collaborative defense,” Ashida said.

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