Outside Attorneys Review Fired Election Workers Lawsuit

When is an attorney not an attorney? Apparently when they are called a “professional services provider.”

That was the position taken Monday by Dominic Yagong, chairman of the Hawaii County Council.

At the council’s meeting last Wednesday, Yagong pulled from consideration a request from the county’s top attorney to meet with council members to discuss the hiring of an attorney to defend the county from a civil lawsuit.

The lawsuit was filed Jan. 20 by an attorney representing two county election workers. The two, which included longtime program administrator Pat Nakamoto, were among four from the Elections Division terminated over the past three months. Glen Shikuma, a 13-year employee of the division who supervised a Hilo warehouse rented by the county to store election materials, was fired in October for allegedly drinking alcohol and operating a private business at the facility. Nakamoto and two other elections employees were fired Jan. 6, also allegedly for drinking at the warehouse.

The terminations were ordered by County Clerk Jamae Kawauchi who is under Yagong’s supervision and was appointed to the clerk position by the chairman with the concurrence of the council’s majority.

The lawsuit filed by Hilo labor attorney Ted Hong accuses the county of improperly firing Nakamoto and Shikuma and seeks $500,000 for each for defamation of character and for emotional suffering. It also seeks $50,000 for Shikuma for alleged damage to his personal property.

The item Yagong pulled from the council’s agenda was a request from Corporation Counsel Lincoln Ashida to meet with council members “on questions and issues pertaining to the council’s powers, duties, privileges, immunities and liabilities” pertaining to the lawsuit.

Ashida requested the meeting be held in a closed executive session which is allowed under the county’s “sunshine law” because it involves attorney-client discussions.

The day before the meeting, Yagong sent a letter to his eight council colleagues informing them that the executive session would not take place as scheduled. The letter also noted that a Kona attorney and an Oahu law firm had already been hired “to assist with legal matters” on behalf of the council.

“We’ve hired an attorney to take a look at Communication 556,” Yagong told Big Island Now Monday, referring to the letter from Ashida seeking the meeting with lawmakers.

Yagong said that the lawyers were not hired to defend the county against the lawsuit but to examine Ashida’s request for a meeting. That included information accompanying the request which was not made public.

However, the Hawaii County Charter contains specific conditions for the hiring of special counsel. Section 6-5.5 requires approval by two-thirds of the council for the hiring of attorneys “for any special matter presenting a real necessity for such employment,” as well as the compensation to be paid. No other definition of “special counsel” is contained in the Charter.

Yagong said Monday that no such vote took place and that the Charter provision does not apply in this case. He likened the matter to the practice of hiring of outside expertise by various county departments from established lists of providers of “professional services.” He said one example would be the Department of Public Works hiring a private-sector engineer to help with a project.

“We can do it [hire the attorneys],” Yagong said. “It it’s for litigation purposes, that’s something different.”

Yagong’s letter to council members said he has already received “important information” from the recently hired attorneys about Ashida’s meeting request. It said that information should be discussed with county attorneys prior to the council taking action on Ashida’s request to hire special counsel.

Ashida on Monday declined to comment on Yagong’s action, saying that he has requested but not yet received information from the council on the matter.

“I’m trying to understand what happened on Feb. 1,” he said. Ashida said he would again seek to have his request placed on a future agenda. Yagong said Monday that he would likely do so at the council’s next meeting which is scheduled for Feb. 15.