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Home My WebLink AboutCOM 1267.004 2006-2008 ifCHAEL F. NAUYOKAS 5095 Pacific Chmdien Center, M ;xa Tager 733 BMgp Suw:L Suite 230 Honolulu, awa 96"S 13 T e} . (908) 538-0553 F imik: (809) 53:1-386 Email: M Ana; V0k-aS,; i I .xr.esans Attome) for Respondent HAAIYi COLP-M" COUNCILMAN STAB' . HIGH E UAL MvPLL3Y T OP TUN?:t J .i C SSI WASHINGTON, D.C. ) EE C Na,: ' B-2007-00006 MEUSSA . CRANG, KOT[ON TO SEVER, FOR NEW TWAL, TO MOVIDE COPY. OF FUX AJO FOR 1R T it HAWAII ~ AN ORDER MO V4G MMAL AWAITC U'TY COUNCIL, ~ DI f y Repandeas. ) RESPONDENAT i AWAXII ICOIA"ff COUNCRMAN CY S- X M A"S NEON TO:SEV FOR NEW TIAI,.f TOPROWDE COPY OF FUZ AND FOR AN ORDER i The following .is intea ed apprupriufte motions for relief before the EQUAL EMPLOY E fit` OPPORTLNITY C Iwo MLSSION ("EEOC") ruing the follewing,matters with resp 2 -to EEO C No. 378-M 7,0M shave. Comm No. ftu Ref, To, Ref. Date 1. The t M.- A summary of the material fay from the perspective of Respondent maws " County Councilman Stacy SK Hip ( Respond t Hawaii Count' Councilman Higa") is as follou%.- Respondent Hawaii i County Councilman Hip is a member of Respondent Hawaii County Council. Respondent Hawaii County Councilman Hip is the target of the complaint filed herein Complainant Melissa M. Chang "Complain;ant").. such, Hawu'i Count) Councilman Hip's u, . due process rights before the federal hearing officer dictated that he should have had counsel from the County of Hawai,i Corporation Counsel's office representing him in this dispute. He didn't Non rcless, snippets of the ;purporteAdministrati _Decision have been leaked to the local press, three months i efere.the primary election. Resp tdant Hawaii County Councilman Hip is running for mayor:. The Corporation Counsel for the County= of Haw t"L Linool ; hida, has repmtedly "reported to the local newspapers regarding this matter thX Respondent Hawaii County Councilman is not his client at the f l level. l pondem HawaM Count Councilman Hip believed that loth Corporation Counsel shida and his deputies, Joe Ka vela ela and Mike Udovic, were his attorneys from the time this m:at was before the taft of'Hswal'i Cavil Rights Commission where Hip was a named respondent until the present. Howe, the County ofHaww'i apparently did not provide any attorney to protect Hawaii County' Councilman Hip's intend in this dispute at the fade al level. As a consequence, Reaspondmt Hawaii County Council man Hip has never bad his day in court on this matter.. With no counsel at the fed= l lever l lawai'i County Councilman ,Riga w never given the opportunity to put together a proper defense. He was only called as a awittness. He was not allowed to call his own witness, cross-examine the complaining Nvitness, or provide expert psychiatric testimony to put in question the credibility= of the complainant. Yet. he has been convicted in the local press, three months before the election. 2 The case of Bute v Off $borr hic Building-jug, 8,67 I.2d 1311 (1989) is instructive. In the 51,wle case, the court held that in a hostile environment complaint setting, the complainant must prove that the respondent, Councilman Hip, by a preponderance of the evidence, committed the sexual harassment i question. The complainartt must also prove that the County of Hawaii has liability through respo eat :ruperzar because it knew or should have known of the harassment and failed to take tamper remedial action against Councilman Higa. 71w above fdt at of proof never took place. Respondent Councilman Higa never had an attorney representing hint at the federal level. Only the County of Hawaii had counsel at the hearing. As a consequence, respondent Councilman Hip had no standing or opportunity at the hearing to provide his own independent defense to the sexual harassment charge by the complainau- He had no opportuhity to present h own Witnesses in his defense, to cross-examine the complainarrt snd to provide expert psychiatric testimony regarding the credibility of the complaining witness against him, as stated above.. Since this was a classic "he saidishe sail" type of factual setting, it was crucial to the defense o Counci'tm n Stack, Hip that he be allowed to provide this type ordefense ass utter of procedural and substanti- sae Process of lea as protectet! by the U.S. Constitution. 7bere is circurnstantial evidence suggesting that someone in the County of Hawaii Corporation Counsel's office leaked parts of the federal hearing officer's decision the was purportedly sealed to the local Hawaii Island news media in order to disparage respondent Councilman Riga. This cannot be deemed coincidence, sin the primary election for mayor is only 3 months away, Councilman Hip is a candidate for mayor, as is the former executive assistant to the existing mayor. The Corporation Counsel yeas appoint l by the present many r. Until resignation of the mayor's executive assistarnt~ the Corporation Counsel was also his attorney. The Corporation Counsel, Lincoln Ashida, has publicly disparaged respondent Councilman Hip in the 3 local prey during the past several dkyi, hying to dim himself from his own icnu. He quoted in the d anols du tar-Dul l n on Wednesday, June 2008, as follows.- "Ashida.susgested Hip's position is limed to his campaign for mayor." As a consequence of the above, Council tan Higa has no competent legal representation from the County of Hawaii at the present time before the EEOC. If that is not enough, Corporation Counsel Lincoln Ashida sus to brine selective details of the decision before the remaining members of the Hawaii County CournciI in Executive session as soon as: possible. One of those Council members is obviously adverse to Councilman ,H ga because he too is.runnin 'for mayor against Councilman H iga., l His narne is Counciln Angel Pile from Kona. The Corporation C€ tinsel apps deters ned to bring this matter before the, rernuinin members of the County Council before the election, without any attempt to disclose the CWjM file. The file purportedly includes psychiatric records of the Complainant that would.piat her credibility in jeopardy if respondent Counc In n Higa had been given an opportunity to provide his can defense at the federal level. The Complainant's :counsel, Stanford Masai, has been. the at rr y for the.internat anal Longshore and Warehouse Union that is a strong supporter for another mayoral candidate, Billy IS.enoL who recently resigned as executive assistant to the present mayor. Bawl on the above, there are compelling facts suggesting that Respondent times lea Raga has been "thrown under the bus" in this federal prowling, warranting a new trial or a r -openiin of the existing hearing to give Respondent Councilman Hip an opportunity to provide his own defense. After the details of the purported ruling by Judge Schmidt were leaked try the local press, County of Hawaii Corporation Counsel Lincoln Ashida has refused to provide Pespondent Councilman Higa with the fles'arnd records of the case so that he can protect himself at the federal level during a new trial, a re-opetnin& or the appellate process before the l l 'OC. It is impossible 4 for Respondent Hi a to profit himself without these records. In the meantime, Ashida has called Judge Schmidt to authorize him to release selected details of his ruling to the Council :members without Respondent Councilman Hip's autborizatiorn. Respondent Hip has requested the Office of V scipl nary Counsel of the State of Hawaii to investigate the propriety of the HaWaN County Corporation Counsel Lincoln. Ashide's continued representation of the co-respondents in this case, When this matter was l ehm the Stew of Hawaii Civil Rights Commission, Litidoln Ashida and Joe y K,amelamels at the Corporation Counsel's office were representing Respondent Stacy Hip. I v purportedly a, reamed respondent before the State orflawaii'Civil Rights Commis on. When this matter was transferred to the EEOC, the respondent was only the County ofHawaii and then, some -unknown time, the Hawaii Count. Council was also added as a respondent. When this matter erupted in the local press as stated above, Lincoln Ashitda repeatcdly told the press that his -office does M represent respondent Councilman Him at the fecal level. As unlikely as than may be, the practical result, as eve mentioned, is dw respondent icy Hi has had no ass to the entire file and materials of this dispute; so he is, to dam, unable to pmperriy defend himself. if. Relief 1# thelt;#ta A, Respondent Councilman Hi as a member of Respondent.. a ii Count-y Council, moves to ;sir in this matter for the reasons stated above, B. Respondent Councilman Hip moves for a new trial in this matter for the reason that he was not afforded counsel at the time of the administrative hearing before Judge Schmidt. He did not have his day in court; he was not allowed to Inc present in the hang to confront the witnesses against him; 'he wras not allowed to call witnesses in his own defense; he was not allowed,to call any psychiatric expert to put in issue the credibility of the complainant, 5 C. Respondent Councilmen H ga requests that the EEOC enter an order directing respondent County cif' Hawaii to provide respondent Councilman Higa with the entire le forthwith, D. Respondent Councilman flip seeps an fader preventing the pi m l disclosure by the County of Hawaii Corporation Counsel Lincoln Ashida„ or.any of his deputies, of anything except the safiz f le to he remaining respondent Council members i her County employees without his authorization. The only fair way for disclosure to take place is if the entire record is disclosed, including the psychiatric records of the complaining witness, so that respondent Councilman Hip can properly defend himself in this rush tojudgment. E. For such other relief as a rs p;rp . DATED. Honolulu, Hawitii, June 2009. LAW OFMCE OF MICHAEL F. NAUYCIti:A Att ar a w` Aa b trator & M or IC lwr, l", NJUYOKAS Aftmey for Respondent COUNCILMAN TACY X. IGA 6 U.S, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION OFFICE OF FEDERAL OPERAT70N.TS 1 13LJSSA CHANCE, EEOC No.: 37B-2007-00006 Rcspnndent, } CE RTIF ICA TE OF SER C'E vs, COUNTY OF HAWAPI, espondea E t 'IF A" 0F SCR3 I HERBY CER=11 that an f try, cumtescam cope ofd foregoing document was duly served an the following Wit, s, at t ch last knomm adds s , by depositing a copy of't same in the U .S. mil, postage prepaid, follows. T xA,? tFQTD H. +1ASUI,.ESQ. 345 Quern Street,, Suite 900 Honolulu, Hawaii 9681 .httomey for C pl n t MELISSA CHADIC LINCOLN S.T. ASHIDA., ESQ. Corporation Counsel County of Hawa,i'i Hilo Lagoon Centre 10 1 Aupuni S ttvc , Suite 325 Hilo, Hawaii 9670 Attorneys for Respondents COUNTY OF HAWAI°I and ,AWAIT COUNTY COUNCIL DATED.- Honolulu, Hawaii, Jane , 2009. LAW OFFICE OF MICHAEL F. NAU YO AS Aho y, Arbitrator & Mediator jY C F. NA CKAS A r for ReWndent R 2