LIHU‘E — A federal appeals court ruled Tuesday there was no basis for claims of discrimination and conspiracy made by former Kaua‘i Police Department Chief K.C. Lum against several county officials, upholding a lower court’s decision. Lum filed his federal
LIHU‘E — A federal appeals court ruled Tuesday there was no basis for claims of discrimination and conspiracy made by former Kaua‘i Police Department Chief K.C. Lum against several county officials, upholding a lower court’s decision.
Lum filed his federal lawsuit in early 2006 against the late Mayor Bryan J. Baptiste, Police Commissioner Leon Gonsalves, former county Finance Department Director Michael Tresler, County of Kaua‘i and the County Council, accusing them of unlawfully pushing him out of his post as police chief.
A panel of three judges from the U.S. Ninth Circuit Court of Appeals affirmed the Honolulu U.S. District Court ruling after hearing oral arguments in Honolulu in mid-October, granting orders for summary judgment — essentially saying no material issue of fact exists and the county was entitled to a judgment without the need for a formal verdict.
The appeals court agreed with the lower court that:
— Lum was not entitled to minutes from an executive session of the County Council regarding a possible investigation of KPD;
— Lum, a contractor under a services contract — and not an employment contract — did not have a viable due-process claim and his employment agreement was “tainted by ethical violations by one of the police commissioners, so it was illegal and void;”
— Lum and attorney Clayton Ikei failed to show former county Finance Department Director Michael Tresler acted with conspiracy based on racial bias when Tresler canceled Lum’s employment agreement;
— Lum failed to prove any of a number of claims against Gonsalves, including that Gonsalves’ use of the term “Hop Sing” in an e-mail rose to the level of creating a hostile work environment for Lum.
“I’m very happy with the result,” said Tresler, now an officer with Grove Farm Company and hopeful that the appeals-court decision will end the case. “Justice has been served.”
Gregg Ushiroda, who represented the county in the proceedings, said, “It’s a good result for the county,” adding that U.S. Chief District Judge Susan Oki Mollway and the appeals court saw the case the same way.
“The district court got it right,” and Mollway’s rulings were “confirmed” by the appeals court, he said
Ikei could not be reached for comment Thursday. Lum, now living in Oklahoma and caring for his parents, said he had not yet absorbed the ruling, so did not want to comment.
Michael Ching, who was removed from the Kaua‘i County Police Commission amid allegations he tried to influence the commission’s selection of Lum as chief, also did not want to comment Thursday.
Richard Nakamura, attorney for Gonsalves, did not return a telephone call seeking comment.
County Attorney Al Castillo, who sat in on the mid-October appeals-court hearing and at one time represented Lum in a criminal case against the state of Hawai‘i, said the county was “totally vindicated.”
“I am hopeful that this concludes the case with Chief Lum,” said Castillo.
Ikei and Lum have further options including further appeal, motion for stay of mandate and petition for rehearing, but Castillo hopes they don’t exercise any of those options.
“I hope this is the end,” he said. “The ruling itself is pretty clear.”
Castillo also said members of the Kaua‘i County Council were worried about Lum’s conspiracy claim and said the ruling represents “a victory for the county.”
“When I saw the ruling, it was a mixed emotion where I was happy that there was no county exposure. I was glad that the judges did not sustain any allegation of conspiracy,” said Castillo.
“On the other hand, yes I was surprised that their decision was totally opposite from my experience being there, but I know that these things do happen,” Castillo said, comparing the experience to a trial jury that asks a judge questions that seemingly do not align with the eventual verdict. “A lot of times you’ll never know which way they’re going.”
Castillo said the three-judge panel was focused on the issue of a potential conspiracy, the denial of due process and the inappropriateness of Gonsalves’ racial slur, and characterized the mood of the oral argument session as “the old boy network of the county government versus K.C. Lum the police chief.”
• Paul C. Curtis, staff writer, can be reached at 245-3681 (ext. 224) or pcurtis@kauaipubco.com.
