Ethics Board weighs in on attorney compensation

Hawaii County is suing an attorney representing former Council Chairman Dominic Yagong and former County Clerk Jamae Kawauchi in a 2012 defamation lawsuit filed by Elections Administrator Pat Nakamoto, saying the money Yagong and Kawauchi paid him rightfully belongs to the county.

Kailua-Kona attorney Frank Jung asked the county Board of Ethics to weigh in on the county’s claim that Jung, who worked as a part-time legal specialist in the County Clerk’s office during Yagong’s and Kawauchi’s tenure, was barred from working on the case in his private practice for at least 12 months after leaving county government.

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The county, in an Oct. 29, 2018 complaint, wants Jung to turn over the $84,928 Yagong and Kawauchi paid him to defend them in the lawsuit after he left the county. The complaint also says Jung is not entitled to $250,859 in fees and costs for representing the two.

“Under the provisions of (the county code), any fee, gift, profit, or other compensation received by a former officer or employee in violation of Section 2- 91. 2 ( a) or Section 2- 91. 2 ( b) shall be forfeited to the county,” Deputy Corporation Counsel Andrew Son said in the complaint. “Under the provisions of Section 2- 91. 2( d), Hawaii County Code, the Office of Corporation Counsel is authorized to take all measures necessary to recover such compensation.”

The county, which is also a defendant in the Nakamoto lawsuit, is, in theory, on the same side in the case as Yagong and Kawauchi.

The complaint cites the county ethics code that says, “no former employee, within 12 months after the termination of the former officer or employee’s employment or term of office with the County, assist and/or represent any person or act in a representative capacity for a fee, compensation or other consideration, or otherwise act for the former officer or employee’s own personal economic gain, in relation to any specific case, proceeding, contract, application, or pending legislation with which the former officer or employee’s official duties with the county had been directly concerned, had under active consideration or had obtained information which by law is not available to the general public.”

The Board of Ethics, after a lengthy closed-door session last month, on Friday came up with a ruling in executive session, but declined to say what it was. An attorney from Maui County has been advising the Board of Ethics.

Jung, contacted Tuesday, said he had not yet been apprised of the Ethics Board’s ruling. He said any work he did for the county was on a pro bono basis and he did not get paid.

Jung cited the county charter that says it’s a conflict of interest “for employees or officers of the county to appear in behalf of private interests for compensation before any agency of the county, other than a court of law, nor represent private interests against the interest of the county in any litigation to which the county is a part.”

The defamation case is currently in civil court, after the state Supreme Court in 2018 overturned rulings at both the circuit and Intermediate Court of Appeals levels that dismissed the case.

The Supreme Court dismissed the claims against Kawauchi, saying the comments attributed to her in a 2012 newspaper article weren’t defamatory because they were true.

The court sent the rest of the case back to circuit court for further proceedings for all defendants except Kawauchi. The circuit court must decide because “whether Yagong’s allegedly defamatory statements were true involves a disputed question of material fact.”

The lower court must also decide whether the private investigator hired by the county, Corporate Specialized Investigations and Intelligence Services LLC, breached its duty of care, “to conduct an investigation honestly, truthfully, with fair dealing, and to report the results of the investigation accurately, without misrepresenting any facts,” the 48-page ruling states.

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Nakamoto and former elections clerk Shyla Ayau sued after statements by Yagong and Kawauchi were quoted in a Jan. 12, 2012, article in Big Island newspapers naming four employees who had been fired for unspecified violations of county policy. In the article, Kawauchi identifies the four who were fired.

“I’m very happy that the Hawaii Supreme Court vindicated all of the actions taken by Jamae Kawauchi and confirmed the Circuit Court’s rulings in her favor as well as almost all of the actions taken by Dominic Yagong. Only one remaining issue regarding Dominic Yagong remains to be decided by the jury,” Jung said Tuesday. “Assuming that all issues of potential conflict have been resolved, I look forward to working with the Corporation Counsel in Circuit Court to resolving that remaining issue in Mr. Yagong’s and the county’s favor.”

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