Settlement reached in KPD case

A bitter, three-year legal battle between former Kaua’i Police Department Chief George Freitas and former KPD Lt. Alvin Seto that started with allegations of misconduct in the investigation of a KPD officer on sexual-abuse charges, may be coming to an end.

A recommended out-of-court settlement in a federal-court case in which Freitas allegedly retaliated against Seto for investigating KPD officer Nelson Gabriel on the criminal charges, has been sent to the Kaua’i County Council for approval.

The amount of the recommended cash settlement is not yet known.

Seto claimed in a lawsuit filed in U.S. District Court in Honolulu that Freitas violated his First Amendment right of free speech.

Seto also claimed Freitas retaliated against him in violation of the state Whistleblower’s Protection Act.

But Freitas contended he never prevented Seto from voicing his view-points, nor did he take any action that resulted in Seto being terminated or being demoted, in rank or pay.

Council members have apparently scheduled an executive session on Thursday, Nov. 3, in the historic County Building, to go over the recommended settlement. It was apparently hammered out among attorneys in the case.

If council members approve the proposed settlement, whose contents are not known at this point, Seto’s lawsuit will become moot.

If council members reject the proposal, the lawsuit remains alive, and county attorneys will likely move forward to defend themselves in what could be a time-consuming and costly trial, according to those familiar with the case and potential further proceedings.

Representatives in the Office of the County Attorney would not comment on the matter, as it is still formally a case under litigation.

Seto contended he was forced to resign from KPD on May 31, 2002.

Seto’s lawsuit is among various law-suits some Kaua’i police officers and KPD employees filed against Freitas when he headed the police department.

Some claimed Freitas didn’t always exercise firm control over KPD. In one case, an officer claimed that situation led to his beating and assault by other officers.

Freitas has rebutted such claims, and retired in 2003 with a $200,000 settlement from Kaua’i County leaders.

The Seto court case grew out of Gabriel’s indictment in June 1999 on sexual-abuse charges.

Four months later, Freitas closed an internal investigation, contending there wasn’t enough evidence to support the charges, a court document noted.

Seto contended, however, that Freitas had undermined a KPD policy that said internal investigations cannot be closed until a criminal investigation has been completed. Seto said his criminal investigation was still going on when Freitas made his call.

The sexual-abuse case against Gabriel took a different turn in July 2001, when a KPD dispatcher filed an administrative complaint, alleging Gabriel had sexually harassed her.

With this new wrinkle in the investigation, Seto felt duty-bound to re-interview one of Gabriel’s family members on the sex-abuse charges against Gabriel, court documents said.

Instead, Seto was ordered by Freitas not to re-interview that person, the document said.

Seto took the matter to a county prosecutor assigned to the case, and the prosecutor agreed that re-interviewing of the family member was in order.

But Freitas routed the prosecutor’s request for the interview to KPD’s patrol division instead of the detective division, court documents showed.

Seto felt Freitas’ action amounted to the hindering of the prosecution of Gabriel, prompting him to file a complaint with the Kaua’i Police Commission on July 26, 2001.

Freitas was informed of the complaint, and Police Commission members at the time apparently found merit with it, and put Freitas on paid leave.

In January 2002, commission members reprimanded Freitas for being abusive toward a sub-ordinate officer, and for transporting a non-KPD person in a police vehicle while not on police business.

But commission members didn’t agree fully with Seto’s charges, and returned Freitas to duty in January 2002.

Related to the sexual-abuse charges against Gabriel, Fifth Circuit Judge George Masuoka found Gabriel not guilty on the charges.

The investigation of Gabriel on the charges started after Seto received an anonymous tip.

In 2004, Freitas, through John Komeiji, a Honolulu attorney who represented him, tried to have Seto’s lawsuit dismissed.

But in late November 2004, U.S. District Court Judge Marvin Aspen found merit to Seto’s two-count civil lawsuit and Seto’s claims Freitas violated his First Amendment rights and retaliated against him in violation of the state Whistleblower’s Protection Act.

The state law protects from retaliation folks who have alerted authorities of wrongful acts being committed by their employer against the government.

Honolulu attorney Clayton Ikei represents Seto in the case.

Related to Seto’s claim his right to free speech had been violated by Freitas, Aspen noted that Seto’s concerns about his investigation of Gabriel and the conduct of Freitas addressed a “matter of legitimate public concern.”

Seto believed his concerns gave the public insight into how the Kaua’i Police Department, a government agency funded by taxpayer dollars, operated under Freitas during the Gabriel investigation.

Freitas argued, however, that the bulk of Seto’s complaint focused on the “personal, internal and administrative disputes” between him and Seto.

Aspen agreed with that argument, but noted that portions of Seto’s complaint become “protected speech” when they related to Gabriel’s criminal investigation.

Aspen also ruled that Seto became a victim of “adverse employment action” by Freitas.

That occurred when another KPD employee filed an administrative complaint in July 2001, alleging Gabriel had sexually harassed her, court documents noted.

Seto also argued that Freitas encouraged that worker to file a lawsuit against Seto. The lawsuit contended that Seto had pressured her into lying about the harassment she had suffered from Gabriel.

Seto also claimed Freitas attempted to initiate criminal charges against Seto for allegedly encouraging the KPD employee to lie.

Court documents noted that Freitas admitted he contacted or directed a deputy to contact county prosecutors about lodging criminal charges against Seto.

The judge said it was his impression that if the case went to trial, a jury could find that Freitas’ action was “done in retaliation” for Seto’s filing of his complaint against Freitas with the Kaua’i Police Commission.

But Freitas said he didn’t victimize Seto, an assessment agreed to by Aspen. The judge, in a court document, noted that Freitas “correctly points out that Seto was neither terminated nor demoted, in rank or pay.”

Aspen noted as well that, while Freitas admitted he may have questioned Seto’s conduct frequently between January and May 2002, Freitas took no disciplinary action against Seto.

“Mere threats and harsh words” did not constitute an adverse employment action against Seto, the judge ruled.

Related to claims by Seto that Freitas violated the state Whistleblower’s Act, Aspen note that anyone like Seto who reports a violation or a suspected violation is protected by the law.

But Freitas said the Police Commission complaint filed by Seto shouldn’t be protected because it lacked “foundation” or substance, and was motivated by Seto’s dispute with him, the court records showed.

While Aspen ruled in favor of Seto on this matter, the judge said a jury could go either way on it.

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