Auditor’s case back in court

LIHUE — The county auditor’s civil case against the County of Kauai is back in state court.

Kauai County Auditor Ernesto Pasion, of Kalaheo, filed a complaint claiming common law retaliation of the Hawaii Whistleblowers’ Protection Act, negligence, and declaratory relief in 5th Circuit on Nov. 25, 2013. It was moved to U.S. Court – District of Hawaii at the request of the county, until U.S. Magistrate Judge Richard Puglisi ordered the case back to 5th Circuit earlier this year.

“We believed that the case didn’t state a federal cause of action and should have remained in state court,” said Pasion’s attorney, Mark Bennett of Starn O’Toole Marcus & Fisher.

The federal court also ordered the county to pay $8,647.22 of Pasion’s attorneys fees incurred in preparing for federal procedures.

There were no decisions on the merits of the case and it just noted that there wasn’t federal jurisdiction in the matter, Bennett added.

Pasion, who is currently on medical leave, said he was pleased with the federal court’s decision.

On Wednesday, Chief Judge Randal Valenciano of the 5th Circuit, agreed with the attorneys and set the trial date of July 11, 2015. The trial is anticipated to run two to three weeks.

The complaint names the County of Kauai, and former County Council Chair Jay Furfaro as defendants. It alleges that a County Council decision against Pasion was illegal and in retaliation for an audit his department oversaw for county fuel costs.

Pasion claims that the administration acted to cut the auditor’s budget with disregard to a separation of powers between administrative and legislative branches. The complaint alleges the auditor’s authority to investigate agencies without direction from the council was infringed.

Pasion was elected unanimously by the County Council to serve as auditor in 2009. He is subject to annual review by the council and his current term is scheduled to end Sept. 15, 2015.

The County of Kauai declined to comment on pending litigation.

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