Auditor, county settle

LIHUE — Kauai County Auditor Ernesto Pasion has reached a settlement in his retaliation and whistleblowers complaint against the county.

In a prepared statement Thursday, Pasion said health matters prevent him from taking the matter to trial. He confirmed by phone he has been on medical leave since May 22, with an undisclosed illness that prevents him from fulfilling his duties for the remainder of his term ending Sept. 16.

“It is for that reason that I felt I needed to bring this lawsuit to a close,” Pasion said in the statement. “I would have preferred a public trial, but am not able to go forward with one, given my health issues.”

The terms require the county to pay Pasion $300,000. In exchange, Pasion agreed to not apply for reappointment and to not have contact with an acting county auditor.

“We felt it was a fair settlement,” said Mark Bennett, Pasion’s attorney.

There were no motions on the case in 5th Circuit court prior to the settlement, Bennett added. The terms require no admission of fault or wrongdoing by the defendants, and all monies are paid by the county, and not by any individual.

The suit claimed the county, and former County Council Chair Jay Furfaro, retaliated against Pasion in violation of the state Whistleblowers’ Protection Act, when he reported unlawful conduct to the council and to law enforcement officials regarding an audit on county fuel costs in 2012.

The case was filed in 5th Circuit on Nov. 25, 2013. Pasion claimed 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 upon and was illegally disciplined for reporting activities protected by law.

The county moved to U.S. Court – District of Hawaii, where it was ordered back to 5th Circuit for lack of federal jurisdiction, with the county ordered to pay court fees and $8,647.22 of Pasion’s attorney’s fees. It had been scheduled to go to trial July 11.

No part of the settlement is for salary, vacation, or sick pay hours, Bennett said. The settlement amount is above and beyond all that is already entitled to Pasion.

Pasion, of Kalaheo, was a county clerk for 14 years when he was elected by the County Council to serve as auditor in 2009. The auditor has the power to investigate agencies without direction from the council, with the individual holding the position subject to annual review by the council.

Pasion’s reports have included fuel costs, consumption and management, cash management practices, and recommendations on energy savings. The office also produces citizen briefing reports to explain the audits.

At the county budget hearings in April 2014, Pasion requested the restoration of an internal auditor position left vacant with the departure of Ron Rawls, a certified public accountant. The recommended budget from the mayor and approved by the council had a $300,000 reduction and didn’t include the position or the ability to hire outside auditors for projects.

The cuts came at a time when the mayor’s administration was a primary auditee, Pasion said at the hearings. Only the council as a body has that power, he added.

Pasion said the lawsuit shined a light on government and helped to make public officials more accountable. 

“As auditor, my goal was always to do my best for the citizens of Kauai, and I hope that I have, at least in part, succeeded,” Pasion said. “I brought this lawsuit only to expose what I believed to be egregious wrongdoings of certain government officials, and to make Kauai County government more transparent, more responsible, and more accountable, so as to fulfill their fiduciary obligations to Kauai citizens.”

The county did not comment on the settlement Thursday.


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