HomeMy WebLinkAboutCOM 0770.003 1998-2000 • •
, „tV O r • Huh
4�. .. ��,ll ei
Stephen K. Yamashiro Richard Wurdeman
Mayor R Coiporation.Counsel
E -C ,u ✓LIU
.
`°�. (., '00 JUN 20 P 4 33
Criuttf ��t ♦ ♦♦ of paftiaii C,r'i' I" I y ( 't
OFFICE OF THE C ORPORATION COUNSEL 'at-1N
101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720 -4262 • (808) 961-8251 • Fax (808) 961 -8622
June 19, 2000
Steven Kaufman, Esq.
Drug Enforcement Administration
Department of Justice
700 Army -Navy Drive
Arlington, VA 22202
RE: FORMAL NOTIFICATION OF INFORMATION CONCERNING
DEBARMENT PURSUANT TO SECTION 67.311, CFR, FOR THE
FOLLOWING GRANTS:
DCE /SP Agreement No. 2000 -43; OJP Form 4061/3
Organized Drug Enforcement Task Force; 99 -2000
Local Law Enforcement Grant; 199 -LB -VX -8602
Marijuana Eradication 2000
COPS Ahead Grant; 95 -CC -WX -0415
COPS School Based Partnership; 98 -SBWX -0046
Dear Mr. Kaufman:
Pursuant to Section 67.311, Code of Federal Regulations (hereinafter referred to as "CFR "), the
County of Hawaii, on behalf of Police Chief Wayne G. Carvalho, would like to bring to your
attention, information that may qualify and be "Information concerning the existence of a cause for
debarment ..." and may affect the County's ability to apply for, continue to receive DOJ and DEA
funds. See. Sec. 67.311, CFR. Additionally, pursuant to Sec. 67.310, CFR, the County of Hawaii
respectfully requests the opportunity to'informally resolve any concerns that you or your
department may have with the County of Hawaii's full cooperation.
I. Introduction.
By way of introduction, my name is Ted H. S. Hong, and I am an Assistant Corporation Counsel
for the County of Hawaii. I represent, Chief of Police Wayne G. Carvalho. On or about December
20, 1999, the County, Chief Carvalho and two other individuals, were found liable in a civil
lawsuit involving wrongful promotions made during the mid- 1980's. One of the causes of action
involved "fraud" in the department's promotion process. The jury awarded money damages to the
plaintiffs. Recently, after several post -trial motions, the County, Chief Carvalho and another
Comm..NA• , 0 03 ,
( - Bel . -T
-Pat tilt 2 1 2090
. T
Page 2 of 7
defendant have filed their notice of appeal. However, the trial court has still not entered its Final
Judgment against the defendants.
I am writing this letter to provide your agency with formal notice that the judgment in the civil
lawsuit, may qualify under the debarment regulations under the Code of Federal Regulations.
However, I do not believe it does and out of an abundance of caution, 1 felt that you should be
notified of the events surrounding the civil lawsuit.
I1. Facts.
On October 1, 1989, Wayne G. Carvalho, retired from his position as Deputy Chief of Police and
had no further contact with the police department. See, Exhibit "A" at 1, attached hereto. After
retiring from the department, two other individuals led the police department, Chief Victor Vierra
and Acting Chief John De Sa.
On November 16, 1994, Wayne G. Carvalho, was appointed Chief of Police for the County of
Hawaii, and remains so. See, Exhibit "A" at 2.
A. Federal Court.
On April 16, 1996, several police officers and retired officers filed a civil complaint in the United
States District Court for the District of Hawaii alleging that the County, and former Chiefs of
Police, violated their constitutional rights under 28 U.S.C. Sec. 1983, for failing to provide "fair
and impartial promotional policies and procedures" within the police department. See, Exhibit "B"
at 3. The complaint was amended several times, but summary judgment was still granted on the
defendants' behalf on November 19, 1997. See Exhibit "B" at 28. Additionally, given the nature
of the some of the claims brought by the plaintiffs, the District Court granted fees and costs to the
defendants. See, Exhibit "B" at 55 and 60. The District Court allowed the plaintiffs to refile the
State claims in state court.
B. State Court.
On December 18, 1997, the plaintiffs, refiled their state tort claims in the Third Circuit Court, State
of Hawaii. See Exhibit "C" at 65. Again, the focus of the complaint was the allegedly unlawful
promotions made by the named defendants. In relevant part, the complaint alleged:
22. Commencing in or about 1984 and continuing to at least 1995,
Defendants above - captioned engaged in a secret, systematic, fraudulent and illegal
scheme to deprive qualified police officers of promotions, to constructively
discharge officers, and to ensure that certain other officers were wrongfully
promoted. This scheme was not discovered by Plaintiffs, nor could it have been
discovered through reasonable diligence by Plaintiffs, until October, 1995, when it
was publicly reported that DeMorales admitted, under oath, that he had fixed nearly
every promotion in which he was involved in the County of Hawaii police
department, pursuant to the wishes of those in authority over him.
• •
Page 3 of 7
23. At all times relevant herein, police officers seeking promotion would be
required to take a written examination issued by the civil service, followed by an
oral examination before a panel of police inspectors and /or deputy chiefs of police
for the County of Hawaii. The written examination created the list of officers
eligible for promotion and the oral examination, alone, determined which eligible
officer received the promotion.
Emphasis added.
Exhibit "C" at 69 -70
Concerning the "Fraud" aspect of the complaint, the plaintiffs alleged:
33. Defendants intentionally made false statements of material fact
regarding the fairness and impartiality of the promotional examinations by
holding itself out as an organization that complied with all existing laws.
These representations were intended to and did create reasonable and detrimental
reliance on the part of Plaintiffs and Plaintiffs sustained substantial pecuniary,
general and special damages as a direct and proximate result thereof, in an amount
to be proved at trial.
* **
35. Defendants, and each of them, conspired to carry out the fraud
complained of herein by entering into an agreement or agreements to carry out
said fraud and by engaging in one or more overt acts to bring about the desired goal
of the conspiracy and as a direct and proximate result, Plaintiffs have sustained
substantial general, special and pecuniary damages in an amount to be proved at
trial.
* **
37. Defendants, through their representations, acts and failure to act,
fraudulently induced Plaintiffs to enter and remain with the Hawaii County
police department. Plaintiffs relied upon the representations of Defendants of a
fair and impartial promotions policy, Plaintiffs' reliance was reasonable and
Plaintiffs suffered substantial detriment as a direct and proximate result thereof,
and, Plaintiffs have sustained substantial general, special and pecuniary damages in
an amount to be proved at trial.
Emphasis added
Exhibit "C" at 74 -75; Chief Carvalho was later dismissed from this count.
Significantly, the plaintiffs limited their allegations concerning Chief Wayne Carvalho's
• •
Page 4 of 7
participation, and the time period in which the events took place:
51. Guy Paul, as Chief of Police of Hawaii County, indirectly offered to
confer a benefit on Carvalho and DeMorales if Carvalho and DeMorales would
ensure that certain favored candidates were promoted to positions within the police
department over better qualified Plaintiffs. Paul intended to influence DeMorales
and Carvalho to thereby act contrary to Carvalho and DeMorales' duty to
ensure that police promotions were fair, impartial and merit based. The
benefit Paul indirectly offered was that DeMorales and Carvalho would
remain employed with the Hawaii Police Department. DeMorales and Carvalho
were thereby influenced in the exercise of their discretion or power with respect to
the hire, retention, discharge or suspension of Hawaii County Police Officers, all in
violation of H.R.S. Sec. 708 -880.
Emphasis added.
Exhibit "C" at 79.
The trial court denied the majority of defendants' substantive pre -trial motions. 1 have included
three (3) orders granting Chief Carvalho's motions for partial summary judgment, which limited
his civil liability to a degree. See, Exhibit "C' at 87 -104. Importantly, the trial court granted Chief
Carvalho's motion for partial summary judgment and dismissed him from the "Fraudulent
Inducement" cause of action in Count III of the complaint. See Exhibit "C" at 96.
It should be noted that the plaintiffs entered into an agreement with former Chief of Police Guy
Paul. In return for Chief Paul's favorable testimony, he would not be named in the lawsuit by
them, and they would forego any monetary award rendered by ajury, if he was later named by one
or more of the defendants. I would note parenthetically, that the trial court denied defendants'
permission to raise, discuss, refer to or enter into evidence, this agreement.
On December 20, 1999, the trial court filed the Special Verdict forms in favor of the plaintiffs. I
have included one of the verdict forms for your reference. There were a total of nineteen (19)
plaintiffs. The jury filled out a separate verdict form for each plaintiff.
On or about April 11, 2000, Police Chief Wayne G. Carvalho, on behalf of the County of Hawaii,
signed a DEA Marijuana Eradication Grant under DCE /SP Agreement No. 2000 -43. See Exhibit
"D" attached. The standard language in the agreement includes "Certifications Regarding
Lobbying; Debarment, Suspension and Other Responsibility Matters; and Drug -Free
Workplace Requirements (Emphasis added)." The language of the grant that is of particular
concern states in relevant part:
• •
Page 5 of 7
2. DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY
MATTERS •
(DIRECT RECIPIENT)
As required by Executive Order 12549, Debarment and Suspension, and
implemented at 28 CFR Prt 67, for prospective participants in primary covered
transactions, as defined at 28 CFR Part 67, Section 67.510 -
A. The applicant certifies that it and its principals:
* **
(b) Have not within a three -year period preceding this application been
convicted of or had a civil judgment rendered against them for commission of
fraud or a criminal offense in connection with obtaining, attempting to obtain,
or performing a public (Federal, State, or local) transaction or contract under
public transaction; violation of Federal or State antitrust statutes or commission of
embezzlement, theft, forgery, bribery, falsification or destruction of records,
making false statements, or receiving stolen property;
Emphasis added and included.
See Exhibit "D" attached.
At the time Chief Carvalho signed this certification, several post -trial motions were pending, which
would have limited his liability, in total, in the case. Since then, the motions were heard by the
trial court, and it has not filed its Final Judgment in the above case.
All defendants intend to appeal the civil verdict against them, including the County of Hawaii as
well as Chief Carvalho. The Hawaii County Council has already approved an appeal.
III. Law and Analysis
In relevant part, Section 67.305, CFR states:
Debarment may be imposed in accordance with the provisions of Sec. 67.300
through 67.314 for:
(a) Conviction of or civil judgment for:
(1) Commission of fraud, or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public or private agreement or
• transaction;
Page 6 of 7
(4) Commission of any other offense indicating a lack of business integrity or
business honesty that seriously and directly affects the present responsibility of a
person.
* **
(b) Violation of the terms of a public agreement or transaction so serious as to
affect the integrity of an agency program such as:
(1) A willful failure to perform in accordance with the terms of one or more
public agreements or transactions;
(2) A history of failure to perform or of unsatisfactory performance of one or
more public agreements or transactions; or
(3) A willful violation of a statutory or regulatory provision or requirement
applicable to a public agreement or transaction.
I submit that Section 67.305, CFR does not preclude Chief Carvalho from applying for, accepting
or spending any money received as a grant or by agreement with your agency or the federal
government. First, Section 67.305(a)(1), CFR, links a civil judgment for the "commission of
fraud" with the performance of a "public" agreement or transaction," not general or generic
"fraud." Second, the regulations, when read, in pari materia, evince an intent to prohibit a
principal or entity from receiving funds where it has demonstrated a "lack of business integrity or
business honesty" under Section 67.305(a)(4), CFR. Additionally, the regulation makes direct
reference to violations of agreements "so serious as to affect the integrity of an agency program"
under Section 67.305(b), CFR. These prohibitions, do not fit the present civil action against Chief
Carvalho. On a preliminary and informal basis only, other staff attorneys in your office agree with
this interpretation. See, Exhibit "E ", attached hereto.
More importantly, when looking at the contents of the complaint, three points become obvious:
1. The plaintiffs do not allege any wrongdoing on Chief Carvalho's part, for any promotions
made since he took office as Chief of Police.
2. The promotions that attribute any wrongdoing to Wayne Carvalho, occurred in the mid -
1980's, when he served as Deputy Chief of Police, and according to the plaintiffs, his
participation was coerced based on an indirect threat to his continued employment. See
Exhibit "C" at 79.
3. Two - thirds (2/3) of the plaintiffs alleged wrongful promotions which occurred AFTER
Chief Carvalho left the department and had no further contact with the subsequent
administrations.
Page 7 of 7
Here, the general fraud alleged in the complaint involved misrepresentations as it relates to
departmental promotions. The complaint does not address or allege any wrong doing with respect
to public agreements, transactions, lack of business integrity or business honesty. The complaint is
simply about promotions made, with respect to Chief Carvalho, over fifteen years ago, when he
was not in control of the police department and in the greater majority of the alleged wrongful
promotions, he was not even employed with the department. Accordingly, I submit that the
County and Chief Carvalho are not precluded or prohibited from applying for, including signing
the required certification, accepting and spending federal funds.
V. Conclusion
The County of Hawaii and Chief Carvalho respectfully and out of an abundance of caution,
submits this letter and attachments as formal notification under Section 67.311, CFR, in the hopes
that your department with review the attachments and formally notify us that with respect to Chief
Carvalho's certification on prior grants, no further action and disclosure are necessary, that his
certification is acceptable, and the County and Chief Carvalho may continue to apply for, accept
and spend federal funds for such important grants as those listed in order to protect the health,
safety and welfare of our community.
Thank you for your kind and immediate attention to this request. Please feel free to contact me if
you have any questions or concerns.
Respectfully,
d H. Hong
Assistant Corporation Counsel
cc: Wayne G. Carvalho, Chief of Police
James Y. Arakaki, Chairperson, Hawaii County Council
Q O
1'
•
• •
•
wcwaa. 13-A 12/74 '89 OCT 3 PH 2 I S rtment p� HAWAII POLICE •
- Department
DEPARTMENT OF PERSONNEL SERVICES
COUNTY OF HAWAII
Division P O ice 9ear'quar :er5
PAYROLL CERTIFICATION • f
F No. Acct. N 020
2 HC 7 0040
SEPARATION r� r ERS Codes
BU No. I CICI Excluded ER Class Group
Use Only For Out Of Service Movements Position Status: Civil Service ❑ Exempt ® 9 P
1. Employee Name CARPI 1 HO . T1 G. 2. Soc. Sec. No. Rate
Lost First Middle
3. Class /
Rote 416 5 . 0 Y t c . ay Grade Step T ( 6
Deputy Police Chief. 4 P Gd 8 St A 6
5. Employee Status: (Check One) 6. Type of Separation: (Check One)
❑ Provisional ❑ Permanent 142 Exempt ❑ Resignation ❑ Dismissal
Probationary ❑ Limited Term iii Retirement ❑ Death
❑ Initial ❑ Short Term ❑ Layoff ❑ Termination of appointment
❑ New ❑- Contract
•
7. Reason for Separation
Service retirement effective 10/01/89
8. Effective Date / 10. Certification by Deportment of Personnel Services
09/29/89 COB' Y The above separation is in accordance with the Laws
. ' _ • v and Rules governing Civil Service, Classification and
q. Approval of Appointing Authority
Compensation for employees of the County of Hawaii.:
10/02/89
Date a ere Head ! 1
OCT -6 19EI9. A�ir�GAll"
DEPARTMENTS COPY With Date . Director of Personnel Services
•
EXHIBIT A' _.. 000001
5e.ri
FORM NO. 13 REV. 6/93 6000 -
- � HAWAII` .LICE
DEPARTMENT OF CIVIL SERVICE Depaztment POLICE HEADQUARTERS
COUNTY OF HAWAII �rV ‘i Division 5202.01 ppeo
PAYROLL CERTIFICATION Appropriation Symbol Pos. Nair 45
BU Code Retirement System Code
Class Group
APPOINTMENT OR IN- SERVICE C91 un ' 16 Pn o6
Pos. i�ISem��6Exemp 00 / 1 4 /
Employee Name CARVALHO, Wayne G. 2. Soc. Sec. No.
last First Middle
Police Chief { A -1e / 5532.00 /
Class / 4. Pay Grade & Step Rate
Former Class (If in- service change) Pos. No. 6. Pay Grade & Step Rate
11/16/94
. Effective Date(s) 8. Employee Name Changed To
. Type of Appointment : (Check One) 1 ature of Action ❑ Step Movement 11. Eligibility Clearance
U] Appointment
❑ Provisional ❑ Limited Term ❑leave of Absence (To Be Completed By
Probationary ❑Emergency 0 Promotion ❑ Suspension Dept. of Civil Service)
❑ Initial ❑ Contract ❑ Transfer ❑ Reinstatement
U.S. Citizen
❑ Inter -Dept! Movement ❑ Change of Class Title
m
❑ New / �-' Exempt ❑Inter- Govt'I Movement Resident, State of Hawaii
0 Permanent ❑Change of Pay ❑ Medical Examination
❑ Demotion ❑ Conversion
❑ Reallocation ❑ Other
2. Authority 13. Remarks
Police r'ission action of 10/19/94. / Y‘ppointed to exempt position, replacing
Victor V. Vierra.
14. Certification by Appointing Authority
the above action has been taken in accordance with the Laws and
lutes goveming Civil Service and Compensation for employees of 15. Certification by Department of Civil Service
:he County of Hawaii. The above personnel action is in accordance with Laws and Rules
Gam\ / governing Civil Service and C mpensatio a the
11 /10/94 �/� �i a..._.! 5t 1 Ycif N 'b 4 C.
Date Appointing Authority
V v Date Director of Personnel
DEPARTMENT
•
000002
b
1 j . .
` - 1
MICHAEL JAY GREEN 4451 ,}�
11 345 Queen Street, Second Floor, -� jQfm
. c
Honolulu, Hawaii 96813 ;SRmC
Telephone: (808) 521 -3336 419
a? .
DAVID J. GIERLACH 5041 � .1
345 Queen Street, Second Floor l i d e;;
Honolulu, Hawaii 96813 y t �oC10C �,.,. y �;
Telephone: (808) 521 -3336 1iW&LSnF`��
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
� DISTRICT OF HAWAII � h - 0 03 5 9. QAE
WILLIAM SILVA; R. CLAYTON ) CIVIL NO.
WELCH; DANIEL MLAKAR; )
MICHAEL RUBERSTEIN; JAMES )
NISHIMURA, JR.; RICHARD )
CANN; ERNEST CORREIA )
individually and ) COMPLAINT; DEMAND FOR JURY
on behalf of a class of ) TRIAL; SUMMONS
Hawaii County police )
Officers, )
• Plaintiffs, ) -
vs. )
i
COUNTY OF HAWAII; COUNTY OF )
HAWAII POLICE DEPARTMENT; )
VICTOR VIERRA, individually )
and his official capacity )
of Chief of Police for the )
County of Hawaii; WAYNE )
CARVALHO, individually )
and in his official capacity )
as Deputy Chief of Police )
Chief and Chief of )
of the County of Hawaii; )
FRANCES DeMORALES, )
individually and in his ).
capacity as Assistant Chief )
of Police of the County of )
Hawaii; RICHARD CARTER, )
SR., individually )
and in his official capacities)
with the County of Hawaii )
police department; JOHN DOES )
1 -100; JANE DOES 1 -00; )
DOE GOVERNMENTAL ENTITIES )
e 1 -100; DOE BUSINESS )
ENTITIES 1-100, ) `
EXHIEWT° " k " 000003
)
• Defendants. )
COMPLAINT
Plaintiffs William Silva, R. Clayton Welch, Daniel Mlakar,
Michael Duberstein, James Nishimura, Jr., Richard Cann, Ernest
Correia, individually and on behalf of a class of Hawaii County
Police Officers, for their Complaint against the County of
Hawaii, Victor Vierra, individually and in his official capacity
of Chief of Police of the County of Hawaii (and as deputy and /or
assistant Chief of Police), Wayne Carvalho, individually and in
his official capacities of assistant or deputy Chief of Police
and as Chief of Police of the County of Hawaii, Francis
DeMorales, individually and in his official capacity as assistant
and /or deputy Chief of Police of the County of Hawaii, Richard
Carter, Sr., individually and in his official capacities with the
County of Hawaii police department, and the above - captioned Doe
Defendants, allege and aver as follows:
1. Plaintiff William Silva ( "Silva ") is and was at all
times relevant, employed by the County of Hawaii as a police
officer and is a resident of the County of Hawaii, State of
Hawaii.
2. Plaintiff R. Clayton Welch ( "Welch ") was, at all times
relevant employed by the County of Hawaii as a police officer and
is currently a resident of the State of California.
•
C:\WPDOCS\CIVIL\SHOPO\BIGISLAN.COM
2
000004
• •
3. Plaintiff Daniel Mlakar ( "Mlakar ") is and was at all
times relevant, employed by the County of Hawaii as a police
officer and is a resident of the County of Hawaii, State of
Hawaii.
4. Plaintiff Michael Duberstein ( °Duberstein ") is and was
at all times relevant, employed by the County of Hawaii as a
police officer and is a resident of the County of Hawaii, State
of Hawaii. _
5. Plaintiff James Nishimura, Jr. ( "Nishimura ") was at all
times relevant employed by the County of Hawaii as a police
officer and is a resident of the County of Hawaii, State of
Hawaii.
6. Plaintiff Richard Cann ( "Cann ") was at all times
11/ relevant employed by the County of Hawaii as a police officer and _
is a resident of the County of Hawaii, State of Hawaii.
7. Plaintiff Ernest Correia ( "Correia ") is and was at all
times relevant employed by the County of Hawaii as a police
officer and is a resident of the County of Hawaii, State of
Hawaii.
8 Plaintiffs allege that hundreds of Hawaii County police
officers are similarly situated with the named Plaintiffs as more
fully set forth below in Plaintiffs' allegations against
Defendants and that the named Plaintiffs shall adequately protect
the rights and interests of the class of Hawaii County police
officers who have been injured due to the conduct of Defendants
alleged herein. The class is numerous and joinder of all members
C: \WPDOCS \CIVIL \SHOPO \BIOISLAN.COM
3
•
000005
•
is impractical and there are common questions of fact and law to
the class, including the legal obligations, knowledge and conduct
of Defendants and the damages to Plaintiffs and the class.
Separate cases could produce varying adjudications with respect
to individual members, resulting in conflicting and incompatible
standards of conduct, common questions predominate and judicial
efficiency favors a class.
9. Defendant County of Hawaii is a municipal corporation
located within the State of Hawaii.
10. Defendant County of Hawaii Police Department is a
department of the County of Hawaii.
11. Defendant Victor Vierra ( "Vierra ") is and was at all
times relevant employed by the County of Hawaii police department
and is a resident of the County of Hawaii, State of Hawaii.
12. Defendant Wayne Carvalho.( "Carvalho ") is and was at all
times relevant employed by the County of Hawaii police department
and is a resident of the County of Hawaii, State of Hawaii.
13. Defendant Francis DeMorales ( "DeMorales ") was at all
times relevant employed by the County of Hawaii police department
and is a resident of the County of Hawaii, State of Hawaii.
14. Defendant Richard Carter ( "Carter ") was at all times
relevant employed by the County of Hawaii police department and
is a resident of the County of Hawaii, State of Hawaii.
15. This Court has jurisdiction pursuant to 28 U.S.C. §
1331 and § 1343(3) because this action arises out of violations
of 42 U.S.C. § 1983, § 1985, and 18 U.S.C. § 1951 and 18 U.S.C. §
. C: \WPDOC$ \CIVIL \sgoPO \BIGIscAN.COM
4
000006
1961, et seq. This Court has jurisdiction over pendant State
claims pursuant to 28 U.S.C. § 1367 as said claims arise out of
the same transactions and occurrences which form the basis of the
federal question claims. Venue is proper because all of the
Defendants and the wrongs complained of herein occurred within
the District of Hawaii. 28 U.S.C. § 1391(b) and (d).
UNDERLYING FACTS
16. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 15 as if said paragraphs are fully set forth
herein.
17. At all times relevant, the County of Hawaii police
department was obligated by law and contract to provide fair and
impartial promotional policies and procedures to police officers
• employed by the County.
18. Commencing in or around 1985, and continuing to the
present, Defendants above - captioned engaged in a systematic,
fraudulent and illegal scheme to deprive qualified police
officers of promotions, to constructively discharge officers,
and to ensure that certain other officers were wrongfully
promoted. This scheme was not discovered by Plaintiffs, nor
could it have been discovered through reasonable diligence by
Plaintiffs, until October, 1995, when it was publically reported
that De Morales admitted, under oath, that he had "fixed" nearly
every promotion in which he was involved in the County of Hawaii
police department, and that he did so with the explicit or
implicit consent of those in authority above him.
• C: \WPDOCS \CIVIL \SHOPO \BIGISLAN.COM
5
000007
19. At all times relevant herein, police officers seeking
11 promotion would be required to take a written examination issued
by the civil service, followed by an oral examination before a
panel of police inspectors and /or assistant and /or deputy chiefs
of police for the County of Hawaii. The combined score of
written and oral examinations would then, supposedly, dictate
which of the qualified officers would be promoted.
20. At all times relevant, there were substantial increases
in salary and other benefits that the successful candidate
received.
21 In and around the mid to late 1980's, an agreement was
entered into by and between Vierra, Carvalho, DeMorales, Carter
and others (the "conspirators ") for the purpose of exerting
improper control and influence over the Hawaii County police
department. Part of that agreement involved ensuring that police
officers favored by the conspirators would be promoted to higher
and better paying ranks and positions over better qualified
police officers.
22 In exchange for receiving preferential treatment, those
favored by the conspirators provided illegal and /or improper
services for the benefit of the conspirators, including but not
limited to providing personal services for some of the
conspirators (e.g. home and automobile repairs /improvements);
soliciting campaign contributions for selected politicians; and
by failing to report or otherwise covering up illegal and /or
unethical behavior and conduct engaged in by the conspirators.
. C: \WPOOCS \CIVIL \SBOPO \BIGISLAM.COM
6
000008
111 411
23 Some Hawaii County police officers suspected, but could
not prove, that promotions in the department were "rigged" and to
that end, many police officers, including Plaintiffs Nishimura
and Welch, either did not seek promotion or left the police
department because fair and impartial access to promotions was
denied by the Defendants.
24. On numerous occasions, as will be proved at trial,
certain police officers were "asked" to remove their names from
the list of those eligible for promotion in order that a police
officer selected by the conspirators might be appointed. In
those cases, the officer who agreed to withdraw his name would
then be given the next available promotion to the same rank, .
irrespective of the qualifications of other officers who passed
the civil service test and who were as qualified or more
•
qualified than those actually promoted.
25. Police officer William Perreira ( "Perreira ") has
admitted that De Morales provided to him, in writing, certain
oral examination questions prior to the oral examinations for the
positions of lieutenant and captain. In each instance, Perreira
was promoted over better qualified police officers, including but
not limited to some of the named Plaintiffs herein.
26. Examples of the illegal and corrupt promotions
practice, that directly impacted Plaintiffs and those similarly
situated include the following:
• C: \WPOOCS \CIVIL \SHOPO \BIGISLAN.COM
7
000009
a. Police officer J.I. (whose full name will be
disclosed in discovery) was found to have made harassing
telephone calls to a Hawaii County police dispatcher. Carter and
De Morales covered up the evidence in this case and subsequently
insured that J.I. was promoted instead of some of the Plaintiffs
herein. J.I. performed personal services for Carter, De Morales
and Vierra in exchange for his unlawful promotions.
b. A number of Plaintiffs were involved in
investigating allegations that De Morales, Carter, and others had
and /or were engaging in a series of illegal gambling activities
at various locations in the County of Hawaii. The careers of
nearly all of the investigating Plaintiffs ceased after the .
investigation was concluded. Police officers who acquiesced in
the gambling, or who failed to report the gambling, were among
those favored for promotions by the conspirators.
c. In or around 1988, De Morales told class Plaintiff
Mark Haggerty to sell political tickets for and on behalf of
Mayor, Steven Yamashiro within the Public Safety Building. Such
sales are and were in violation of the law. When Haggerty
refused, De Morales told Haggerty that his refusal to do so is
why he does not get promoted.
27. As a result of the corrupt and fraudulent misuse of the
Hawaii County police department promotional system, over one
hundred Hawaii County police officers have been wrongfully
deprived of rank, salary, benefits and other property rightfully
theirs.
.• C: \WPDOCS \CIVIL \SHOPO \BIGISLAN.COM
8
000010
• COUNT I
28. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 27 as if said paragraphs were fully set
forth herein.
29. Vierra, DeMorales, Carter, and Carvalho, as employees,
officials and /or decision-making personnel with responsibility
for the oversight, management and conduct of employees at the
Hawaii County police department, failed to implement necessary
and /or appropriate procedures and /or policies governing the
selection, training, retraining and /or supervision of its
officers employed at the Hawaii County police department, and /or
failed to implement and /or enforce said procedures and /or _
policies, and that such acts and /or omissions violated the civil
• rights of United States citizens, including Plaintiffs, and more
particularly violated the 1st and 14th Amendments of the United
States Constitution, and other guarantees, including Plaintiffs
rights to liberty, substantive due process and property, as
provided by the United States Constitution.
30. The longstanding and well -known practice of illegal
denial of promotions of police officers as hereinabove alleged,
cloaks said police officers, including Plaintiffs, as a discrete
and protected class within the meaning of 42 U.S.C. § 1985.
31. By their conduct as hereinbefore alleged, Defendants,
and each of them, violated the protections guaranteed to
Plaintiffs under the First and Fourteenth Amendments of the
• United States Constitution by depriving Plaintiffs of their
C: \WPDOCS \CIVIL \SHOPO \SIGISLAM.COM
9
00001.1
411 411
constitutional rights to property, substantive due process,
• liberty and other rights guaranteed by the United States
Constitution.
32. Defendants each had personal knowledge and /or awareness
of and /or acquiesced in the conduct of the individual Defendant's
as hereinbefore alleged and /or exhibited gross negligence or
deliberate indifference to the repeated violations of Plaintiffs'
civil rights, and as a direct and proximate result thereof,
Plaintiffs' sustained substantial general and special damages in
an amount to be proved at trial.
COUNT II
33. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 32 as if said paragraphs were fully set
forth herein.
•
34. Defendants intentionally made false statements of
material fact regarding the fairness and impartiality of the
promotional examinations which were intended to and did create
reasonable and detrimental reliance on the part of Plaintiffs and
Plaintiffs sustained substantial pecuniary, general and special
damages as a direct and proximate result thereof, in an amount of
not less than $10 million.
COUNT III
35. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 34 as if said paragraphs were fully set
forth herein.
• C : \WPOOCS \CIVIL \SHOPO \BIGISLAN.COM
10
000012
! i
36. Defendants, and each of them, conspired to carry out
9 the fraud complained of herein by entering into an agreement or
agreements to carry out said fraud and by engaging in one or more
overt acts to bring about the desired goal of the conspiracy and
as a direct and proximate result, Plaintiffs have sustained
substantial general, special and pecuniary damages in an amount
of not less than $10 million.
- COUNT IV
37. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 36 as if said paragraphs were fully set
forth herein.
38. Defendants, through their representations, acts and .
failure to act, fraudulently induced Plaintiffs to enter and
remain with the Hawaii County police department. Plaintiffs
• relied upon the representations of Defendants of a fair and
impartial promotions policy, Plaintiffs' reliance was reasonable
and Plaintiffs suffered substantial detriment as a direct and
proximate result thereof, and, Plaintiffs have sustained
substantial general, special and pecuniary damages in an amount
of not less than $10 million.
COUNT v
39. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 38 as if said paragraphs were fully set
forth herein.
• C: \WPDOCS \CIVIL \SHOPO \BIGISLAN.COM
11
000013
40. Defendants, through their wrongfully promoted agents
• and without Plaintiffs' consent, converted salaries and other
property rights to which Plaintiffs were lawfully entitled and as
a direct and proximate result, Plaintiffs have sustained
substantial general and special damages in an amount of not less
than $10 million.
COUNT VI
41. Plaintiffs rea }lege and incorporate by reference
paragraphs 1 through 40 as if said paragraphs were fully set
forth herein.
42. Plaintiffs herein had a constitutionally guaranteed
right to associate freely, to speak freely and to support -
political candidates of their choice. De Morales, and on
411 information and belief, each of the named Defendants, took
retaliatory action against class Plaintiffs who exercised these
rights and thus engaged in an impermissible infringement of
Plaintiffs' constitutional rights and as a direct and proximate
result, Plaintiffs have sustained substantial general and special
damages in an amount to be proved at trial.
COUNT vII
43. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 42 as if said paragraphs were fully set
forth herein.
44. De Morales intentionally inflicted severe emotional
distress on Plaintiffs by engaging in conduct that is outside the
bounds of decency and the expectations of civilized society and
• C: \WPOOCS \CIVIL \SHOPO \BIGISLAN.COM
12
000014
•
as direct and proximate result, Plaintiffs have sustained
substantial general and special damages in an amount to be proved
at trial.
COUNT VIII
45. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 44 as if said paragraphs were fully set
forth herein.
46. Defendants and of them, negligently caused
Plaintiffs to suffer severe emotional distress and as direct and
proximate result, Plaintiffs have sustained substantial general
and special damages in an amount to be proved at trial.
COUNT IX
47. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 46 as if said paragraphs were fully set
• forth herein.
48. Defendant County of Hawaii ( "County ") negligently
retained De Morales and other Defendants named herein and as a
direct and proximate result, Plaintiffs have sustained
substantial general and special damages in an amount to be proved
at trial.
COUNT X
49. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 48 as if said paragraphs were fully set
forth herein.
C: \WPDOCS \CIVIL \SHOPO \BIGISLAN.COM
13
000013
• •
50. Defendant County negligently supervised Defendants De
Morales and other Defendants who engaged in the wrongdoing
hereinbefore alleged and a direct and proximate result,
Plaintiffs have sustained substantial general and special damages
in an amount to be proved at trial.
COUNT XI
51. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 50 as if said paragraphs were fully set
forth herein.
52. 18 U.S.C. § 1951 proscribes the following acts:
(a) Whoever in any way or degree obstructs,
delays, or affects commerce or the
movement of any article or commodity in
commerce, by robbery or extortion or
• attempts or conspires so to do, or commits
or threatens physical violence to any
person or property in furtherance of a
plan or purpose to do anything in
violation of this section shall be fined
not more than $10,000 or imprisoned not
more than twenty years, or both.
(b) As used in this section --
(1) The term "robbery" means the unlawful
taking or obtaining of personal
property from the person or in the
presence of another, against his
will, by means of actual or threatened
force, or violence, or fear of injury,
immediate or future, to his person or
property, or property in his custody
or possession, or the person or property
of a relative or member of his family
or of anyone in his company at the
time of the taking or obtaining.
• C; \WPDOCs \CIVIL \sHOPO \BIGIstAN.cQM
14
000016
• •
(2) The term "extortion" means the obtaining
I/ of property from another, with his
consent, induced by wrongful use of
actual or threatened force, violence,' or
fear, or under color of official right.
(3) The term "commerce" means commerce
within the District of Hawaii, or
any Territory or Possession of
the United States; all commerce
between points within the same State
in a State, Territory, Possession,
or the District of Hawaii,
and any point outside thereof; all
commerce between points within the
same State through any place outside
such State; and all other commerce
over which the United States has
jurisdiction.
53. Throughout the period of time alleged above, De Morales
repeatedly threatened Plaintiffs with economic harm whenever any
mention or objection was raised that related to the illegal,
• fraudulent and wrongful scheme hereinbefore alleged. De Morales
repeatedly told Plaintiffs: "With a stroke of a pen" he could
fire or end the careers of Plaintiffs.
54. These threats, which were ratified by the other
Defendants, caused actual fear of retaliation and economic loss
among Plaintiffs. Plaintiffs reasonably believed that unless
they acquiesced in the wrongful conduct of Defendants their
careers would end "with the stroke of a pen."
55. For example, Plaintiff Derek Pacheco, in 1988, was
assigned by then Chief of Police Guy Paul to investigate
allegations that Defendant Carter was involved in illegal drug
transactions and /or was involved in warning drug dealers of
imminent police action. Although the internal investigation
C: \WPOOCS \CIVIL \SHOPO \BIGISLAM.COM
15
000017
against Defendant Carter ultimately "cleared" Carter, the careers
11 of Pacheco and most of the other police officers who were
involved in this investigation ceased (i.e., they were either
constructively discharged or denied further promotions) in
retaliation for their involvement in this investigation.
56. Further, Chief Guy Paul also assigned other police
officers to investigate, among others, De Morales and Carter who
were allegedly engaging -in illegal gambling activities. Charges
were brought against De Morales and Carter by the County
Prosecutor. The charges were eventually dismissed. The careers
of Plaintiffs who investigated Carter and De Morales either
ceased through constructive discharge or said Plaintiffs were no
longer promoted in retaliation for their involvement in this
• investigation.
57. In exchange for providing promotions to selected police
officers, the individual Defendants, through the exercise of
their official powers, obtained free personal services such as
free golf, free home and auto repair, solicitations for political
contributions and other things of value.
58. All of these activities constitute extortion through
the misuse of public authority as proscribed by the Hobbs Act.
59. The conduct complained of affected interstate commerce
because each injured Plaintiff received less money (due to either
constructive discharge or wrongful failure to promote) to spend
on goods and services involved in interstate commerce; and the
wrongful and fraudulent scheme placed unqualified police officers
• C: \WPDOCS \CIVIL \SHOPO \SIGISLAN.COM
16
000018
o
in positions of authority and prejudiced the morale of the Hawaii
I/ County police department which is charged with, among other
things, overseeing and enforcing the laws of the State, which
laws affect persons traveling interstate as well as goods and
services traveling interstate.
60. During all relevant times, Defendants Carvalho, Vierra,
De Morales and Carter conspired with one another to violate the
HOBBS Act and to defraud- Plaintiffs of their careers and
promotions, by engaging in the acts alleged hereinabove and by
engaging in other unlawful and fraudulent activities.
61. As part of the scheme to defraud, Carvalho, Vierra, De
Morales and Carter would and did agree to conspire together with
each other and with others to devise and participate in a plan of
deceit and deception, whereby they would and did abuse their
positions of official authority as hereinabove alleged, so as to
unlawfully, intentionally, and willfully, and with intent to
defraud, that is, knowingly and with specific intent to deceive
and extort Plaintiffs and to receive economic and other benefits
for themselves.
62. The individual racqueteering acts include, but are not
limited to:
a) denial of promotions to one or more Plaintiffs who
refused to solicit campaign contributions for certain
politicians;
• C: \WPDOCS \CIVIL \SHOPO \BIGISLAN.COM
17
000019
411 411
b) denial of promotions and /or constructive discharge
I/ from the police department for Plaintiffs who engaged in
authorized internal investigations of De Morales, Carter and
others;
c) "fixed" promotions for those police officers who
acquiesced in providing improper economic benefits to Carvalho,
Vierra, De Morales and Carter; and
d) De Morales' order of a wrongful and retaliatory
investigation of Pacheco, in 1992, which fraudulently and falsely
accused Pacheco of illegal conduct. This wrongful accusation and
wrongful investigation were initiated solely because Pacheco had
investigated a fellow police officer for theft and that officer
was favored by De Morales. De Morales authorized the wrongful
investigation of Pacheco after ordering Pacheco's superior to '
cease Pacheco's investigation of said police officer.
63. In carrying out this scheme to defraud and extort,
Yamashiro, Carvalho, Vierra, De Morales and Carter engaged, inter
alia, in conduct in violation of federal law, to wit: 18 U.S.C. §
1951.
64. In carrying out this scheme to defraud and extort,
Yamashiro, Carvalho, Vierra, De Morales and Carter engaged, inter
alia, in conduct in violation of the laws of the State of Hawaii,
to wit: Hawaii Revised Statutes, Sections 705. -510, criminal
solicitation; 705 -520, criminal conspiracy; 707 -764, extortion.
65. The illegal scheme of fraudulent promotions continued
until at least the summer of 1994,
• C: \WPDOCS \CIVIL \SHOPO \BICISLAN.COM
18
000020
66. U.S.C. § 1962(c) provides:
It shall be unlawful for any person
employed by or associated with any
enterprise engaged in, or the activities
of which affect, interstate or foreign
commerce, to conduct or participate,
directly or indirectly, in the conduct
of the enterprises affairs through a
pattern of racketeering activity.
67. The enterprise in this case consisted of DeMorales and
Carter who were associated together for the purpose of promoting
the unlawful schemes hereinbefore alleged. These Defendants had
a common purpose in "fixing" promotional examinations; engaged in
an ongoing informal organization to engage in the conduct
hereinbefore alleged and continued to act, over a period of
years, as a continuing unit. Throughout its existence, the -
purpose of the enterprise remained the same, to wit: to promote
9 unqualified or less qualified officers instead of officers
entitled to the position; to extort economic benefits for the
enterprise and its associates and to engage in the other wrongful
conduct alleged above.
68. The enterprise affected interstate commerce as
hereinbefore alleged.
69. Each of the individual Defendants were aware of the
existence of the illegal enterprise and were associated with it
at all times relevant herein.
70. Each of the individual Defendants engaged in a pattern
of racqueteering activity. On information and belief, Vierra
ordered De Morales, between 1989 and 1994, to ensure that
C: \WPOOCS \CIVIL \SHOPO \BIGISLAM.COM
19
000021
. .
selected police officers were promoted over other, more qualified
officers and Vierra did so on numerous ocassions. On information
and belief, Carvalho directed De Morales on at least two
ocassions to alter the promotional examination test documents for
officers J.I. and W.P., thereby ensuring promotion for these
officers over other and better qualified police officers. Carter
engaged in conduct that caused the careers of numerous police
officers to cease through constructive discharge or denial of
promotions, including, but not limited to Plaintiffs Pacheco,
William Perreira, and others, in retaliation for their lawful
investigation into Carter's alleged illegal activities. Each of
these Defendants participated in the conduct of the enterprise
through this pattern of racqueteering activity.
71. Each of the named Defendants are liable for all
statutory damages pursuant to 18 U.S.C. § 1961, et seq., and said
sum shall be trebled by operation of law.
COUNT X
72. Plaintiffs reallege and incorporates by reference
paragraphs 1 through 71 as if said paragraphs were fully set
forth herein.
73. Defendants Vierra and De Morales are "persons" within
the meaning of 18 U.S.C. § 1961(f) and § 1964 (c).
74. Defendants Carvalho and Carter are "persons" within the
meaning of 18 U.S.C. § 1961(3) and § 1964 (c).
C: \WPDOCS \CIVIL \SHOPO \SIGISLAN.COM
20
000022
• •
75. The Hawaii police department was an "enterprise" within
the meaning of 18 U.S.C. § 1961(4) and § 1962(c) which was
engaged in activities which affected interstate commerce during
the relevant times.
76. Defendants DeMorales, Vierra, Carvalho and Carter
conspired with the enterprise to violate 18 U.S.C. § 1962(c) as
hereinbefore alleged and Plaintiffs have sustained substantial
pecuniary damages in an - amount to be proved at trial, which sums
shall be trebled pursuant to 18 U.S.C. § 1961, et seq.
COUNT XI
77 Plaintiffs reallege and incorporate by reference
paragraphs 1 through 76as if said paragraphs were fully set forth
herein.
• 79. The conduct of Defendants, and each of them,
individually, was willful, wanton and in callous disregard of the
rights and sensibilities of Plaintiffs and Plaintiffs are
entitled to an award of punitive damages in an amount sufficient
to punish the Defendants, and each of them, and to deter others
from engaging in similar behavior.
WHEREFORE, Plaintiffs pray as follows:
1. That they be awarded judgment in their favor and
against Defendants on each Count of the Complaint;
2. That they be awarded general and special damages in an
amount not less than ten million dollars;
3. That they be awarded punitive damages in an amount to
be determined at trial;
• C: \WPDOCS \CIVIL \SHOPO \BIGISLAN.COM
21
000023
4. That they be awarded their statutory attorneys' fees
and costs of court;
5. That they be awarded prejudgment and post judgment
interest in the maximum amount provided by law;
6. That they be awarded such other and further relief as
this court deems just and equitable the circumstances.
DATED: Honolulu, Hawaii ` ) I 7 ; 1996.
di _ A PI/ Iii=L JAY •E
D • VID J. GIE •LA'.:•
Attorneys for 'laintiffs
•
. C: \WPDOCS \CIVIL \SHOPO \BIGISLAW.COM
22
000024
w
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
WILLIAM SILVA; R. CLAYTON ) CIVIL NO.
WELCH; DANIEL MLAKAR; )
MICHAEL RUBERSTEIN; JAMES )
NISHIMURA, JR.; RICHARD )
CANN; ERNEST CORREIA )
individually and ) DEMAND FOR JURY TRIAL
on behalf of a class of )
Hawaii County police )
Officers, )
Plaintiffs, - )
)
vs. )
COUNTY OF HAWAII; COUNTY OF )
HAWAII POLICE DEPARTMENT; )
VICTOR VIERRA, individually )
and his official capacity )
of Chief of Police for the )
County of Hawaii; WAYNE )
CARVALHO, individually )
and in his official capacity )
as Deputy Chief of Police )
Chief and Chief of Police )
of the County of Hawaii; )
FRANCES DeMORALES, )
individually and in his )
capacity as Assistant Chief )
of Police of the County of )
Hawaii; RICHARD CARTER, )
SR., individually )
and in his official capacities)
with the County of Hawaii )
police department; JOHN DOES )
1 -100; JANE DOES 1-00; )
DOE GOVERNMENTAL ENTITIES )
1 -100; DOE BUSINESS )
ENTITIES 1 -100, )
Defendants. )
• C: \WPDOCS \CIVIL \SHOPO \BIOISLAN.COM
23 000025
DEMAND FOR JURY TRIAL
1
Demand is hereby made for a trial by jury.
i
DATED: Honolulu, Hawaii a.li C , 1996
1 at r
J L s a: E •
'•VID J. GIE"LAS
Attorneys f.r Plaintiff
•
. C: \WPDOCS \CIVIL \SHOPO \BIGISLAN.COM
24
000026
•
MICHAEL JAY GREEN 4451
• 345 Queen Street, Second Floor
Honolulu, Hawaii 96813
Telephone: (808) 521
DAVID J. GIERLACH 5041
345 Queen Street, Second Floor
Honolulu, Hawaii 96813
Telephone: (808) 521 -3336
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
WILLIAM SILVA; R. CLAYTON ) CIVIL NO.
WELCH; DANIEL MLAKAR; )
MICHAEL RUBERSTEIN; JAMES )
NISHIMURA, JR.; RICHARD )
CANN; ERNEST CORREIA )
individually and . ) SUMMONS
on behalf of a class of )
Hawaii County police )
Officers, )
)
Plaintiffs, )
)
vs. )
COUNTY OF HAWAII; COUNTY OF )
HAWAII POLICE DEPARTMENT; )
VICTOR VIERRA, individually )
and his official capacity )
of Chief of Police for the )
County of Hawaii; WAYNE )
CARVALHO, individually )
and in his official capacity )
as Deputy Chief of Police )
Chief and Chief of Police )
of the County of Hawaii; )
FRANCES.DeMORALES, )
individually and in his )
capacity as Assistant Chief )
of Police of the County of )
Hawaii; RICHARD CARTER, )
SR., individually )
and in his official capacities)
with the County of Hawaii )
police department; JOHN DOES )
1 - 100; JANE DOES 1 -00; )
• C: \WPDOCS \CIVIL \SHOPO \B:3ISLAN.COM
25
000027
411 4111
DOE GOVERNMENTAL ENTITIES )
1 - 100; DOE BUSINES )
ENTITIES 1 -100, )
Defendants. )
SUMMONS
STATE OF HAWAII
TO THE DEFENDANTS:
YOU ARE HEREBY- SUMMONED and required to serve upon
Plaintiffs' attorneys, whose address is stated above, an answer
to the Complaint which is attached. This action must be taken
within twenty days after service of this summons upon you,
exclusive of the day of service.
If you fail to make your answer within the twenty day time
limit, judgment by default will be taken against you for the :
relief demanded in the Complaint.
This summons shall not be personally delivered between 10:00
p.m. and 6:00 a.m. on premises not open to the general public,
unless a judge of the above - entitled court permits, in writing on
this summons, personal delivery during those hours.
A failure to obey this summons may result in an entry of
default and default judgment against the disobeying person or
party.
DATED: Honolulu, Hawaii, APR 6 1996 , 1996.
WALTER A.Y.H. CHINK
CLERK OF THE ABOVE- ENTITLED COURT
7
• C: \WPDOCS \CIVIL \BHOPO \BIGISLAN.COM �/ / 41
Dept Clerk, Unitea States
District Court, District of Hawaii
000028
111/11 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WILLIAM SILVA; DANIEL MLAKAR; ) CV. NO. 96 -00359 DAE
MICHAEL DUBBERSTEIN; RICHARD )
CANN; HENRY J. SILVA; THOMAS )
C.S. HING, JR.; GILBERT FLORES;) F1LfD�
GLENN NOJIRI; JAMES KELLY; ) UNREDSVOESOMMMMCpU$T
RODNEY AURELLO; JULIAN SHIROMA;) DISTRICTOFHAwM -
ERROL ISHIMINE; STEPHEN )
SAKODA; and JERRY COLOMA; ) NOV 191997
individually and on behalf )
of class of Hawaii County )j o �d�,�IA
Police Officers, ) 1MAL7E�i Y. H. CHINK. Gt61
Plaintiffs, ) -
vs. )
COUNTY OF HAWAII; COUNTY OF )
HAWAII POLICE DEPARTMENT; )
VICTOR VIERRA, individually )
and in his official capacity as)
Chief of Police for the County )
of Hawaii, WAYNE CARVALHO, )
individually and in his )
•
official capacity as Deputy )
Chief of Police Chief and Chief)
Police of the County of Hawaii;)
FRANCES DeMORALES, individually)
and in his official capacity as)
Assistant Chief of Police of )
the County of Hawaii; JOHN DOES)
1 -100; JANE DOES 1 -100; DOE )
GOVERNMENTAL ENTITIES 1 -100; )
DOE BUSINESS ENTITIES 1 -100, )
Defendants, )
WAYNE CARVALHO, individually )
and in his official capacity as)
Deputy Chief of Police Chief )
and Chief of Police of the )
County of Hawaii; and VICTOR )
VIERRA, individually and in his)
official capacity as Chief of )
Police of the County of Hawaii,)
Defendants/ )
Third -Party )
Plaintiffs, )
000029
O t
vs. )
GUY PAUL, individually and in )
his official capacity as Chief )
of Police of the County of )
Hawaii, )
Third -Party )
Defendant. )
ORDER GRANTING DEFENDANTS' MOTION TO
DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT
The court heard Defendants' Motion' on October 27,
1997. Michael Jay Green, Esq., and David Gerloch, Esq., appeared
at the hearing on behalf of Plaintiffs; Reese R. Nakamura, Esq.,
appeared at the hearing on behalf of Defendants County of Hawaii
and Hawaii County Police Department; Gale L. F. Ching, Esq.,
appeared at the hearing on behalf of Defendant and Third -Party
Plaintiff Wayne Carvalho; Peter C. Hsieh, Esq., appeared at the
hearing on behalf of Defendant and Third -Party Plaintiff Victor
Vierra; and counsel for Defendant and Third -Party Plaintiff
Francis DeMorales did not attend the hearing. After reviewing
the motions and the supporting and opposing memoranda, the court
There were four separate dispositive motions filed in
this action. Defendants County of Hawaii and Hawaii County
Police Department filed a Motion to Dismiss or in the Alternative
Motion for Summary Judgment on July 14, 1997. Defendant Wayne
Carvalho filed a Motion to Dismiss or in the Alternative a Motion
for Summary Judgment on July 14, 1997. Defendant Victor Vierra
filed a Motion for Partial Summary Judgment as to all Plaintiffs
on July 14, 1997. Defendant Francis DeMorales filed a Motion for
Summary Judgment or Partial Summary Judgment on July 16, 1997.
Each defendant joined the motions made by the other defendants.
2
000030
41/
GRANTS Defendants' Motion to Dismiss as to Plaintiffs' federal
claims, and DISMISSES Plaintiffs' state law claims WITHOUT
PREJUDICE.
BACKGROUND
Plaintiffs are current police officers of the Hawaii
County Police Department ( "HCPD "), or were so employed during the
period between 1980 and 1995. Plaintiffs allege that Defendants
each engaged in a systematic and illegal scheme of wrongfully
promoting favored and pre- selected candidates to the ranks of
Sergeant, Lieutenant, Captain and Major, over better qualified
applicants, plaintiffs included. Promotions were allegedly given
in exchange for personal services for high ranking officials at
the HCPD, that were provided by the lower ranking officers that
were eventually promoted. Plaintiffs allege that the scheme was
uncovered in October 1995, when Defendant Francis DeMorales
admitted to tampering with promotions within the HCPD, and the
information was publicly reported.
Plaintiffs assert that the scheme of "promotions for
favors" injured Plaintiffs in their ability to obtain promotions
for which they were better qualified. Plaintiffs filed their
original complaint on April 16, 1996, subsequently, Plaintiffs
filed an Amended Complaint, a Second Amended Complaint, and most
recently a Third Amended Complaint. In their Third Amended
Complaint Plaintiffs allege violation of 42 U.S.C. § 1985, 42
U.S.C. § 1983, Due Process, state torts of fraud, conspiracy to
commit fraud, fraudulent inducement to enter and remain at the
. 3
000031
.•
HCPD, conversion of salaries and other property rights,
intentional infliction of emotional distress, negligent
infliction of emotional distress, negligent supervision and
negligent retention of named defendants against Defendant County,
and violations of 18 U.S.C. 5 1961 (RICO), spoilation of evidence
and punitive damages.
STANDARD OF REVIEW
I. Motion to Dismiss.
A motion to dismiss will be granted where the plaintiff
fails to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6). For the purposes of a 12(b)(6) motion,
"[r]eview is limited to the contents of the complaint." Clegg v.
Cult Awareness Network, 18 F.3d 752, 755 (9` Cir. 1994).
A complaint should not be dismissed "unless it appears
beyond doubt that plaintiff can prove no set of facts in support
of [her] claim which would entitle [her] to relief." Buckev v.
County of Los Angeles, 968 F.2d 791, 794 (9` Cir. 1992) (quoting
Love v. United States, 915 F.2d 1242, 1245 (9` Cir. 1989)
(further citations omitted)). All allegations of material fact
are taken as true and construed in the light most favorable to
the plaintiff.. Id. Civil rights complaints are to be liberally
construed. Id. (citing Gobel v. Maricopa County, 867 F.2d 1201,
1203 (9 °h Cir. 1989)).
2 At the hearing on Defendants' Motions for Summary
Judgment, Plaintiffs withdrew their claim for retaliation for
exercising their First Amendment rights.
41/
4
000032
To the extent, however, that "matters outside the
pleadings are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment." Fed. R.
Civ. P. 12(b); Del Monte Dunes at Monterey, Ltd. v. Monterey, 920
F.2d 1496, 1507 (9 Cir. 1990).
II. Motion for Summary Judgment.
Fed. R. Civ. P. 56(c) provides for summary judgment
when:
. the pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any, show
that there is no genuine issue as to any
material fact and that the moving party is
entitled to a judgment as a matter of law.
The movant bears the initial burden of "identifying . . those
portions of the material on file that it believes .demonstrates
the absence of any genuine issue of material fact." T.W.
Electric Service, Inc. v. Pacific Elec. Contractors Ass'n, 809
F.2d 626, 630 (9 Cir. 1987) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322 -23 (1986)). If the movant has met its burden,
then "the non - moving party must show that there are 'genuine
factual issues that properly can be resolved only by a finder of
fact because they may reasonably be in favor of either party.'"
California Arch. Bldg. Prod. v. Franciscan Ceramics, 818 F.2d
1466, 1468 (9`" Cir. 1987) (quoting Anderson v. Liberty Lobby,
Inc., 106 S. Ct. 2505, 2511 (1986)), cert. denied, 108 S. Ct. 698
(1988). When the "evidence" produced by each side conflicts,
"the judge must assume the truth of the evidence set forth by the
. opposing party with respect to that fact." Inferences from the
5
000033
010 facts, disputed and undisputed alike, must be drawn in the light
most favorable to the opposing party. T.W. Electric, 809 F.2d at
631. These genuine factual issues must be supported by
significant probative evidence. Commodity Futures Trading Comm'n
v. Savage, 611 F.2d 270, 282 (9`" Cir. 1979). Hence, the non-
moving party may not stand on its pleadings or merely assert it
will controvert the movant's evidence at trial. See T.W.
Electric, 809 F.2d at 630. Simple disagreement about a material
issue of fact, therefore, no longer precludes the use of summary
judgment. California Arch. Bldg. Prod., 808 F.2d at 1466.
DISCUSSION
I. Plaintiffs' Racketeer Influenced and Corrupt Organizations
Claims.
Plaintiffs allege a cause of action under the Racketeer
• Influenced and Corrupt Organizations Act ( "RICO "), 18 U.S.C.
§ 1962(b)(c) &(d). To state a cause of action under RICO, a
plaintiff must first show that there is racketeering activity,
and an enterprise that affects interstate commerce. Sedima.
S.P.R.L. v. Imrex Company, 473 U.S. 479, 496 (1985). Plaintiffs,
in their Third Amended Complaint, allege that Hawaii County
Police Department is the enterprise which affects interstate
commerce. Plaintiffs assert their RICO claim against named
Defendants DeMorales, Vierra and Carvalho.
Plaintiffs specifically allege violations of 18 U.S.C.
§ 1962(b), 18 U.S.C. § 1962(c) and 18 U.S.C. § 1962(d) against
Defendants DeMorales, Vierra and Carvalho. To allege a cause of
action under subsection (b) Plaintiffs must show that Defendants
11110 6
000034
a
"acquir[ed] or maintain[ed], directly or indirectly, any interest
in or control of any enterprise." 18 U.S.C. § 1962(b) (West
1984). Under subsection § 1962(c) Plaintiffs must show that
Defendants "conduct[ed] or.particpate[d], directly or indirectly,
in the conduct of . . the enterprise's affairs through a
pattern of racketeering activity." 18 U.S.C. § 1962(c) (West
1984). Subsection § 1962(d) requires that Plaintiffs produce
evidence that Defendants "conspire[d] to violate any of the
provisions of subsection . . . (b), or (c) of this section." 18
U.S.C. § 1962(d) (West Supp. 1997). Thus, under any of the
subsections of § 1962, to meet their burden on summary judgment,
Plaintiffs must first show that Defendants were engaged in
"racketeering activity" as defined in RICO.
1. Racketeering Activity.
Defendants maintain that Plaintiffs are unable to
produce evidence that Defendants committed any predicate acts
necessary to frame a RICO claim. The court agrees. Plaintiffs
allege that the predicate acts committed by Defendants amount to
extortion as defined in Hawaii Revised Statutes § 707 -764, and 18
U.S.C. § 1951, the Hobbs Act. However, the factual allegations
made by Plaintiffs do not satisfy the requirements of extortion
under either statute. Plaintiffs contend that the following
activity constitutes extortion under the statutes:
(1) the promotions of Jerry Ignacio to the
ranks of Lieutenant and Captain over better
qualified Plaintiffs in exchange for
performing personal services for Defendants
DeMorales and Vierra;
• 7
000035
4
(2) the promotion of Kenneth Mathison to the
rank of Sergeant over better qualified
Plaintiffs, in exchange for performing
personal services for Defendant Carvalho;
(3) the promotions of William Perreira to the
ranks of Lieutenant and Captain, based upon
orders Defendant DeMorales received from his
superiors that Perreira was to receive the
promotions, and Defendant DeMorales'
compliance with such orders out of fear that
his career with the . . . [HCPD] would be
jeopardized if he did not comply with said
superiors' orders; and
(4) the fixed promotions of numerous police
officers during the period of 1980 through
1995, over better qualified Plaintiffs, based
upon orders Defendant DeMorales received from
his superiors, including Third -Party
Defendant Guy Paul, and Defendants Carvalho
and Vierra, and Defendant DeMorales'
compliance with such orders out of fear that
his career with the . [HCPD] would be
jeopardized if he did not comply with said
superiors' orders.
Plaintiffs' September 4, 1997 Opposition at 13 -14. Even assuming
the improper activity occurred, it does not constitute
racketeering activity in violation of RICO by the named
Defendants.
Racketeering activity is defined in 18 U.S.C. § 1961.
Plaintiffs contend that Defendants engaged in activity which
violates Hawaii Revised Statutes § 707 -764, a predicate act under
§ 1961(1)(A). Hawaii Revised Statute § 707 -764 defines extortion
• 8
000036
..
f for purposes of Hawaii's criminal statutes.' A person commits
extortion in violation of H.R.S. § 707 -764 if he
(1) Obtains, or exerts control over, the
property or services of another with intent
to deprive him of the property or services by
threatening by word or conduct to: . . .
(i) Take or withhold action as a public
servant, or cause a public servant to take or
withhold such action; or .
(k) Do any other act which would not in
itself substantially benefit the defendant
but which is calculated to harm substantially
some person with respect to his health,
safety, business, calling, career, financial
condition, reputation, or personal
relationship; or
(2) Intentionally compels or induces another
person to engage in conduct from which he has
a legal right to abstain or to abstain from
conduct in which he has a legal right to
engage by threatening by word or conduct to
do any of the actions set forth in paragraphs
(a) through (k) of this section;
• H.R.S. 707 -764 (1994). Plaintiffs advance that they have alleged
facts sufficient to show that the named Defendants committed
extortion under Hawaii law, and therefore committed racketeering
activity for purposes of RICO.
3 The court notes that under § 1961(1)(A) the act of
extortion must be chargeable under State law and punishable by
imprisonment for more than one year. Plaintiffs assert that
H.R.S. § 707 -764 satisfies this requirement. However, extortion
is actually punishable under H.R.S. §§ 707 -765, 707 -766, 707 -767
and 707 -768. Section 707 -764 merely defines extortion for
purposes of state law. To be charged with extortion punishable
under Hawaii law by imprisonment for more than one year, a person
must either (1) "commit(] extortion of property or services the
value of which exceeds $200;" or (2) "commit(s] extortion . . .
of property or services the value of which exceeds $50 during any
twelve -month period; or . . . as set forth in section 707-
764(2)." H.R.S. §§ 707 -765, 707 -766 (1994).
4 Defendants Carvalho and Vierra argue that they did not
• obtain Plaintiffs' property, with their consent by wrongful use
9
000037
.. 4
While Plaintiffs allege that personal services
performed by lower ranking officers for the HCPD's highest
ranking officials were improperly induced in exchange for
implicit or explicit promises of promotions or other benefits,
they do not support this allegation with evidence. Under § 707-
764(1), Plaintiffs must provide sufficient evidence to show that
Defendants obtained the services of the lower ranking officers by
threatening them with one of the acts enumerated in the statute.
Plaintiffs have not satisfied their burden. Jerry Ignacio
( "Ignacio "), one of the lower ranking officials who performed
work for his superiors, stated in his deposition that he was not
forced to work for either Defendant DeMorales or Defendant
Vierra. He indicated that he did the work for Defendant
DeMorales because Defendant DeMorales' wife helped him to study
for some exams, and because Defendant DeMorales was a personal
friend. Exhibit 4, Plaintiffs' Opposition to Defendant County
and HCPD's Motion dated September 4, 1997, at 16 -19. Ignacio
also stated that he did the work for Defendant Vierra because it
was "[ljocal style, you help one another, help the neighbor."
Id. at 35. Plaintiffs have also failed to provide support for
their assertion that Defendant Carvalho extorted personal
services from Kenneth Mathison. Other than the paper allegations
of threatened force, violence or fear. Defendant Carvalho's
Reply at 7; Defendant Vierra's Motion at 21. This is not the
activity that Plaintiffs allege violates the statute. Plaintiffs
maintain that they were harmed by the extortionate acts committed
by Defendants, and are not required to be a party to the
extortion. The only requirement is that they suffer direct harm
• because of the extortion.
10
000038
ih• Ilih
made by Plaintiffs, there is no proof that lower ranking officers
were threatened or coerced within the meaning of the statute. It
is undisputed that those officers who performed work for
Defendants DeMorales and Vierra were promoted, and possibly
wrongfully promoted. Still, the court is unable to identify any
evidence in the record provided by Plaintiffs, sufficient to meet
their burden on summary judgment that the specific work was
procured through extortion, and that these acts amount to
racketeering activities under RICO.
Plaintiffs did provide evidence that Defendant Carvalho
and Defendant DeMorales, after being informed of the names of the
Chief's favored candidates for promotion, acted on this
information. They have also shown that Defendants Carvalho and
• DeMorales acted on the information because they felt they had to.
While there is no evidence that the actions taken by Defendants
Carvalho and DeMorales amount to extortion, there is evidence
that extortion may have been committed by the Chief when he gave
Defendants Carvalho and DeMorales the names of the favored
candidates. Because Defendants Carvalho and DeMorales felt that
they had to act pursuant to the information given to them by the
Chief, the Chief's actions may be considered extortion under
H.R.S. § 707- 764(2)(k). Both of these Defendants indicated that
they felt if they did not comply with the Chief's request, that
they would be substantially injured in their career. Exhibit 19,
Plaintiffs' Opposition to Defendant County and HCPD's Motion, at
51 -53, 78 -79; and Exhibit 17, Plaintiffs' Opposition, at 91.
• 11
000039
4
While neither Defendant DeMorales or Defendant Carvalho stated
that the Chief verbally threatened them with losing their job,
they both indicated that they felt there were serious
repercussions for not following the Chief's orders. Nonetheless,
contrary to Plaintiffs' argument, Defendants DeMorales and
Carvalho did not commit the extortion. While they acted on the
information provided by the Chief, Plaintiffs have not shown
their actions were extortionate. Rather, the evidence shows that
Defendants DeMorales and Carvalho may have been alleged victims
of the Chief's extortionate acts.
Furthermore, there is no evidence that Defendant
Vierra, the only remaining Defendant for purposes of this claim,
was the Chief who extorted the alleged promotion fixing. In
M fact, both Defendant DeMorales and Defendant Carvalho admit in
depositions that Defendant Vierra is not the Chief who coerced
their action. In a deposition taken July 29, 1997, Defendant
DeMorales stated that he was never approached by anyone in the
HCPD and told the names of the Chief's favored candidates for
promotion when Defendant Vierra was the Chief. Defendant
Carvalho "testified that . . [he] acted under the orders of
5 "Q. (By Mr. Green) Okay. . . . from the time Vic
Vierra was the chief and thereafter, were you ever approached by
anyone in the department and told who the favored candidate was
for promotion?
A. No." Exhibit A, Defendant and Third -Party
Plaintiff Victor Vierra's Reply (dated September 11, 1997) to
Plaintiffs' Memorandum in Opposition, to Defendant and Third -
Party Plaintiff Victor Vierra's Motion for Partial Summary
• Judgment.
12
000040
f Paul." Defendant Carvalho's Reply dated September 11, 1997 at 9.
In his deposition taken on August 19, 1997, the "Chief" that he
continually referred to as the individual who provided him with
the names of the preferred candidates, and hence may have
committed extortion, was then Chief Guy Paul. See Exhibit C,
Defendant Carvalho's Reply dated September 11, 1997, at 28 lines
20 -25. Therefore, Plaintiffs have failed to provide evidence
that Defendant Vierra was the individual that ordered Defendant
DeMorales and Defendant Carvalho to promote specific candidates.
Consequently, the court finds that Plaintiffs have not met their
burden and have not demonstrated that Defendant Vierra, Defendant
DeMorales and Defendant Carvalho were engaged in racketeering
activity as defined in H.R.S. § 707 - 764(2).
Plaintiffs have shown that extortionate acts may have
• been committed by Chief Guy Paul when he provided the names of
the favored candidates to Defendants Carvalho and DeMorales.
Plaintiffs have also shown that they may have been harmed as a
result of Chief Guy Paul's activity. Still, Plaintiffs have
failed to show that any of the defendants currently named in this
action committed acts sufficient to constitute extortion under
H.R.S. § 707 - 764(2). Chief Guy Paul is not a party to these
proceedings, and extortionate acts committed by him cannot form
the basis of Plaintiffs' RICO claim.
Plaintiffs also allege that there are sufficient facts
to show a pattern of racketeering by utilizing 18 U.S.C. § 1951,
the Hobbs Act, which is also a predicate act under RICO.
• 13
000041
sti•
• Extortion is defined in the Hobbs Act as "the obtaining of
property from another, with his consent, induced by wrongful use
of actual or threatened force, violence, or fear, or under color
of official right." 18 U.S.C. § 1951(b)(2). Because there is no
evidence that Jerry Ignacio, Kenneth Mathison, or any other lower
ranking police officer, provided services to Defendant Vierra or
Defendant DeMorales by wrongful use of threatened force, or under
color of official right, Plaintiffs have not met their burden on
summary judgment. Plaintiffs are also unable to use the Hobbs
Act as a means to show racketeering activity as to the actions of
Defendants Carvalho and DeMorales in fixing the promotions
because they are unable to show what property was obtained from
Defendants Carvalho and DeMorales by the Chief. Thus, the
activity alleged by Plaintiffs is not the type of conduct
prohibited by the Hobbs Act.
2. Conclusion.
Plaintiffs have failed to provide evidence that
Defendants Carvalho, DeMorales and Vierra engaged in any
racketeering activity as defined in 18 U.S.C. § 1961. Therefore,
the court GRANTS Defendants'. Motion for Summary Judgment as to
Plaintiffs' RICO claims.
II. Civil Rights Claim Under 42 U.S.C. § 1985.
Plaintiffs allege a cause of action under 42 U.S.C.
§ 1985 against each of the named Defendants. The claim is based
upon Plaintiffs' belief that the
employees, officials and /or decision - making
personnel with responsibility for the
• 14
000042
•�
oversight, management and conduct of
employees at the Hawaii County police
department, under color of state law, failed
to implement . . . procedures . . . governing
the selection, training, retraining . . of
its officers . . . and failed to implement
. . . said procedures . . . and that such
acts /or omissions violated the civil rights
of . . . Plaintiffs, and more particularly
violated the 1" and 14` Amendments of the
United States Constitution.
Plaintiffs' Third Amended Complaint at 12. In their Complaint,
Plaintiffs maintain that the illegal denial of promotions allows
them to claim status as a discrete and protected class within the
meaning of 42 U.S.C. § 1985. Defendants argue that Plaintiffs
failed to satisfy the requirements of a valid 42 U.S.C. § 1985
claim, because they have not shown that they were discriminated
against on the basis of race or any other suspect classification.
To allege a valid claim under 42 U.S.C. § 1985, a
plaintiff must show
(1) a conspiracy; (2) for the purpose of
depriving, either directly or indirectly, any
person or class of persons of the equal
protection of the laws, or of equal
privileges and immunities under the laws;
(3) an act in furtherance of the conspiracy;
and (4) whereby a person is either injured in
his person or property or deprived of any
right or privilege of a citizen of the United
States.
United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 828 -29
(1983). The United States Supreme Court also requires that there
must be some racial or class -based invidious discrimination
behind the conspirators actions. Griffin v. Breckenridge, 403
U.S. 88, 102 (1971). The Court has found that conspiracies
15
000043
•
414 411
motivated by economic and commercial conflicts do not trigger
§ 1985(3). United Brotherhood, 463 U.S. at 839.
Plaintiffs have not plead a valid claim under 42 U.S.C.
§ 1985. In their Complaint, Plaintiffs' only discussion of this
cause of action, they did not allege that they were discriminated
based upon race or any other suspect classification. To prove a
valid § 1985 claim, Plaintiffs were required to do so.
Furthermore, as Defendants contend, Plaintiffs did not indicate
that Defendants illegal promotion scheme was motivated by animus
towards the Plaintiffs. Since Plaintiffs did not properly state
a cause of action against Defendants based upon 42 U.S.C. § 1985,
the court GRANTS Defendants' Motion to Dismiss Plaintiffs' claim.
III. Plaintiffs' Claim for Violation of Due Process Pursuant to
the Fourteenth Amendment.
• Plaintiffs maintain that Defendants Vierra, DeMorales
and Carvalho deprived them of their right to due process by
implementing a promotions scheme that was based upon favoritism
instead of merit.' Defendants assert that Plaintiffs cannot
allege a deprivation of due process because they are unable to
identify a specific and protected property interest that was
deprived by Defendants.
6 In their Third Amended Complaint Plaintiffs also claim
a deprivation of a liberty interest. Plaintiffs failed to
provide any support in their oppositions to Defendants' motions
regarding a liberty interest, and focused only on the deprivation
of a property interest. Because of Plaintiffs' failure to
provide the court with any guidance as to the deprivation of a
• liberty interest, the court will not consider it.
16
000044
The Fourteenth Amendment only protects against
deprivations "without due process of law." Baker v. McCollan,
443 U.S. 137, 145 (1979). To make out a procedural due process
claim, a plaintiff must show "(1) a liberty or property interest
protected by the Constitution; (2) a deprivation of the interest
by the government; [and] (3) lack of process." Portman v. County
of Santa Clara, 995 F.2d 898, 904 (9 Cir. 1993). There is no
violation of procedural due process for the deprivation of
property by a state employee where "adequate state post -
deprivation,remedies are available." Hudson v. Palmer, 468 U.S.
517, 533 (1984) .
1. Property Interest.
Where a plaintiff alleges a. deprivation of due process
• rights protected by the Fourteenth Amendment, as a threshold
matter he must show first that there was a termination or
revocation of an existing property interest in a benefit created
by an independent source, such as state law. Board of Regents v.
Roth, 408 U.S. 564, 576 (1972).
Property interests which are protected by the Due
Process Clause may take many forms. Property encompasses more
than tangible real or personal property. For example, the United
States Supreme Court has held that the job of a tenured civil
servant is property. Cleveland Bd. of Educ. V. Loudermill, 470
U.S. 532 (1985). The Court has also found that a person
receiving welfare benefits under statutory and administrative
standards has a protected property interest in the continued
• 17
000045
4
D receipt of those benefits. Goldberg v. Kelly, 397 U.S. 254
(1970). To have a property interest, a plaintiff must have more
than a unilateral expectation of the benefit. Roth, 408 U.S. at
577. Rather, the plaintiff must show that their is a legitimate
claim of entitlement. Id. To determine whether such an
entitlement exists, the court must look to see if there is a
property interest created by "existing rules or understandings
that secure certain•benefits." Id.
Plaintiffs maintain that they have a protected property
interest in a "fair and meritorious promotions system."
Defendants continually argue that the property interest that
Plaintiffs rest on is the right to a promotion. This is not what
Plaintiffs indicate in their papers. Essentially, because the
promotions within the HCPD were not based upon merit, Plaintiffs
believe that they were not considered for the promotions, and
that the decisions were made without regard to those individuals
on the eligibility lists. The Hawaii State Constitution mandates
that "(the employment of persons in the civil service . . . shall
be governed by the merit principle." Haw. Const. Art. XVI, § 1.
Chapter 77 of the Hawaii Revised Statutes was enacted "to
establish in the State and each of the counties a system of
personnel administration based on merit principles . . with
incentives in the form of genuine opportunities for promotions in
the service." H.R.S. § 76 -1 (1996). Chapter 77 applies to "all
positions in the State," with few exceptions, therefore, the HCPD
and its employees fall under the guidelines imposed by this
18
000046
s
f Chapter. H.R.S. § 76 -16 (1996). The United States Supreme Court
explained that a property interest is not limited by rigid or
technical forms, rather that it denotes a broad range of
interests that are secured by existing rules or understandings.
Perry v. Sindermann, 408 U.S. 593, 599 (1972). Because of the
constitutional provision, the statutory support, as well as
administrative policies instituted pursuant to those provisions,
the court finds that state law has created an objective property
interest in a fair and meritorious promotions process.
Defendants reliance on Bigbv v. City of Chicago, 766
F.2d 1053 (7 Cir. 1985), and Burns v. Sullivan, 619 F.2d 99 (1"
Cir. 1980), is misplaced. In Bigbv, a group of black police
sergeants sued the City of Chicago for discrimination. Bigbv,
766 F.2d at 1053. The officers claimed that the City
discriminated against them by refusing to promote them after they
had failed the examination which they contended was racially
biased. Id. The court held that because the promoting officials
had discretion with regard to the promotion decision, the
plaintiffs had no vested right to be promoted. Id. at 1057.
Thus, no property interest was alleged. In Burns, the court's
decision turned on the finding that the plaintiff's "interest in
becoming a sergeant did not rise to the level of a property
interest entitled to constitutional protection." Burns, 619 F.2d
at 104. Neither of these cases support Defendants' argument that
Plaintiffs have not asserted a valid property interest here.
Plaintiffs are not alleging that they have a property interest in
19
000047
s
being promoted, rather they are claiming a property interest in a
fair and meritorious promotion system.'
Because the court finds that Plaintiffs asserted a
protected property interest in a fair and meritorious promotions
system, the court must now consider whether Plaintiffs' due
process rights were violated.
2. Deprivation by a State Actor Without Due Process.
Defendants argue that even if a property right exists,
there has been no deprivation of due process because Plaintiffs
were afforded an adequate opportunity to exercise their due
process rights and did not do so. Defendant Carvalho's Motion
dated June 14, 1997 at 18. According to Defendants, none of the
Plaintiffs filed formal grievances with the HCPD, their union, or
• the Department of Civil Service. Since Plaintiffs were given an
opportunity for a hearing regarding their allegations about the
promotions process, and simply did not exercise their right to
it, Defendants assert that they cannot now claim a due process
violation.
"The Due Process Clause of the Fourteenth Amendment is
not a guarantee against incorrect or ill- advised personnel
decision." Bishop v. Wood, 426 U.S. 341,350 (1976). In the
absence of any claim that the public employer has infringed on
' While both Plaintiffs and Defendants rely on Drocran v.
Ward, 675 F. Supp. 832 (1987), that decision was specifically
rejected by the New York Court of Appeals in Deas v. Levitt, 73
NY2d 525 (1989), on the state law grounds specifically referred
to by both parties. Therefore, the court will not consider that
• decision.
20
000048
eal
the exercise of an "employee's constitutionally protected rights,
. . . [the court] must presume the official action . . . if
erroneous, can be best corrected in other ways." Id. The
Supreme Court has recognized that post- deprivation remedies made
available by the state satisfy the requirements of the Due
Process Clause. Parratt v. Taylor, 451 U.S. 527, 538 (1981).
While the Supreme Court demands that the plaintiff have an
opportunity to be heard "at a meaningful, time and in a meaningful
manner," this does not mean that a plaintiff should always be
entitled to a pre - deprivation hearing. Id. at 540 (citations
omitted). Post- deprivation remedies are sufficient because in
most instances, "the loss is not a result of some established
state procedure[,]. and the State cannot predict precisely when
the loss will occur. [Because of this] • • • [i]t is difficult to
conceive of how the State could provide a meaningful hearing
before the deprivation takes place." Id. at 541.
While Plaintiffs may have been deprived of property by
state action, the court finds that there are adequate post -
deprivation remedies which Plaintiffs chose not to pursue, and
therefore, the Due Process Clause of the Fourteenth Amendment has
not been violated. Plaintiffs are able to file grievance
proceedings with the HCPD, their union, the County, or they could
file state law tort actions against Defendants. As Defendants
maintain, Plaintiffs cannot allege a deprivation of due process
because they simply chose not to pursue their state law remedies.
The court does believe that a promotion system based
21
000049
es S
101 upon favoritism is not a proper way to operate a public facility.
Nonetheless, Plaintiffs have failed to show the inadequacy of
state law remedies. In fact, assuming the allegations are
correct, the actions taken by Defendants are in direct violation
of state law. Hawaii state law requires a promotions procedure
based upon merit and impartiality, and therefore a system based
upon favoritism is not established state procedure. Rather, such
a system results from the unauthorized failure of state agents to
follow established state guidelines. Plaintiffs therefore have
adequate grounds to make state law claims and use the remedies
available to them there.
Plaintiffs cannot survive summary judgment with blanket
assertions that there was a deprivation of a due process right,
• without showing the court that there was no adequate state law
remedy. Accordingly, the court GRANTS Defendants' Motion for
Summary Judgment as to this claim.
IV. Plaintiffs' Claim for Violation of Substantive Due Process.
Plaintiffs also claim that defendants violated their
right to substantive due process. Substantive due process refers
to certain actions that the government may not engage in, no
matter how much process is afforded. Blaylock v. Schwinden, 862
F.2d 1352, 1354 (9 Cir. 1988). The United States Supreme Court
has found "certain rights associated with the family have been
accorded shelter under the Fourteenth Amendment's Due Process
Clause." Moore v. City of East Cleveland, 431 U.S. 494, 502 -03
(1977). Some of the rights given protection as substantive due
• 22
000050
3 4
process include freedom of choice with respect to child bearing,
parental rights, rights as to child rearing and living
arrangements. See Id.; Roe v. Wade, 410 U.S. 113 (1973); Stanley
v. Illinois, 405 U.S. 645 (1972). Limits on substantive due
process come from "respect for the teachings of history (and],
solid recognition of the basic values that underlie our society."
Griswold v. Connecticut, 381 U.S. 479, 501 (1965)(Harlan, J.
concurring).
Plaintiffs allege that the right to a meritorious
promotions system is a right guaranteed by substantive due
process. The court disagrees. The Supreme Court indicated that
the "[s]ubstantive due process clause has at times been a
treacherous field" for them. Moore, 431 U.S. at 502. "There are
• risks when the judicial branch gives enhanced protection to
certain substantive liberties without the guidance of the more
specific provisions of the Bill of Rights." Id. In Blaylock,
the Ninth Circuit declined to provide protection under the
substantive due process clause to the plaintiffs claim for
failure to properly administer the Montana Workers' Compensation
Act. 862 F.2d 1352, 1354 (9 Cir. 1988). The Ninth Circuit
there found that the plaintiffs had not alleged a substantive due
process right. Id. Plaintiffs here have also failed to allege a
right protected by the substantive due process clause. The right
to a fair and meritorious promotions system, while important, can
be protected through procedural safeguards. It is not the type
23
000051
•411
of right which has historically been offered protection through
the substantive due process clause.
Given the history of substantive due process, and the
Supreme Court's reluctance to extend protection through the
substantive due process clause, there is no basis upon which to
find such a right here. Hence, the court DISMISSES Plaintiffs'
claim for deprivation of a right guaranteed through the
Fourteenth Amendment as substantive due process.
V. Plaintiffs' Claim Under 42 U.S.C. § 1983.
To state a claim for violation of § 1983, a plaintiff
must show that the defendant acted under color of state law, and
that the defendant's conduct deprived the plaintiff of a right
guaranteed by the constitution or a federal statute. Ketchum v.
County of Alameda, 811 F.2d 1243, 1245 (9 Cir. 1987).
Here, Plaintiffs maintain that Defendants deprived them
of their right to due process as guaranteed by the Fourteenth
Amendment. Because the court has found that Plaintiffs were not
denied due process, there is no deprivation of a right guaranteed
by the constitution and no actionable claim under 42 U.S.C.
§ 1983. Thus, the court GRANTS Defendants' Motion for Summary
Judgment as to this claim.
VI. Conclusion.
As a result of the court's decision, Plaintiffs are
left with only state law claims. Those remaining claims are:
(1)fraud; (2) conspiracy to commit fraud; (3) fraudulent
inducement to enter and remain at the HCPD; (4) conversion of
24
000052
salaries and other property right; (5) intentional infliction of
emotional distress; (6) negligent infliction of emotional
distress; (7) negligent supervision; (8) negligent retention for
named Defendants against Defendant County; (9) spoilation of
evidence; and (10) punitive damages. The court finds that the
state courts would be better suited to address these issues of
state law. Having dismissed the federal claims in the instant
case, the court declines to exercise supplemental jurisdiction
as to the remaining state law claims. See 28 U.S.C. § 1367(c)
(1994). Accordingly, the court hereby DISMISSES the remaining
state law claims WITHOUT PREJUDICE.
1
8 Supplemental jurisdiction over state law claims is
governed by 28 U.S.C. § 1367. Section 1367(a) provides that a
district court "shall have supplemental jurisdiction over all
other claims that are so related to claims in the action within
[its] original jurisdiction that they form part of the same case
or controversy." 28 U.S.C. § 1367(a) (1994). Under § 1367(c), a
court may decline to exercise supplemental jurisdiction if:
(1) the claim raises a novel or complex issue of
state law,
(2) the claim substantially predominates over the
claim or claims over which the district court has
original jurisdiction,
(3) the district court has, dismissed all claims
over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c)(1) -(4) (1994) (emphasis added).
If a federal court declines to exercise its
supplemental jurisdiction, the court may either dismiss the
remaining state law claims or remand them to state court.
Carnegie- Mellon Univ. v. Cohill, 484 U.S. 343, 348, 351 -53
(1988); Watkins v. Grover, 508 F.2d 920, 921 (9 Cir. 1974).
25
000053
.i 4
CONCLUSION
For the reasons stated above, the court GRANTS
Defendants' Motion for Summary Judgment as to (1)
claims under RICO; (2) Plaintiffs' claim for a violation of
procedural due process under the Fourteenth Amendment; (3)
Plaintiffs' claim for violation of substantive due process under
the Fourteenth Amendment; and (4) Plaintiffs' claim for violation
of 42 U.S.C. § 1983. The court GRANTS Defendants' Motion to
Dismiss as to Plaintiffs' claim for violation of 42 U.S.C.
§ 1985, and DISMISSES Plaintiffs' state law claims WITHOUT
PREJUDICE.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, NOV 1 9 •
110
'AVID ,v.
UNITED STATES 6 STRICT JUDGE
William Silva et al. vs. Cou of Hawaii et al., Civil No. 96-
00359 DAE; ORDER GRANTING DEF NDANTS' MOTION TO DISMISS OR IN THE
ALTERNATIVE FOR SUMMARY JUDGMENT
26
000054
01/04/0D TUE 11:17 FAX 808 524 8293 McCORRISTON et.all 0002
McCORRISTON MIRO MILLER MUKAI
DAVID J. MINKIN 3639 -0
Five Waterfront Plaza, 4th Floor
500 Ala Moana Boulevard LODGE 0
Honolulu, Hawaii 96813
Telephone: 529 -7300 ftti 1 6 %999
Attorneys for Defendants � 15T1�1CT
County of Hawaii and County CLERK, U. Sr �k'u.,�lA11
of Hawaii Police Department
1}luT�1CTQ'
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WILLIAM SILVA; DANIEL MLAKAR; ) CIVIL NO. 96- 00359DAE
MICHAEL DUBBER$TEIN; RICHARD )
CANN; HENRY J. SILVA; THOMAS ) DEFENDANTS COUNTY OF HAWAII
C.S. HING, JR.; GILBERT ) AND COUNTY OF HAWAII POLICE
FLORES; GLENN NOJIRI; JAMES ) DEPARTMENT'S JUDGMENT AGAINST
KELLY; RODNEY AURELLO; JULIAN ) PLAINTIFFS
SHIROMA; ERROL ISHIMINE; )
STEPHEN SAKODA; JERRY COLOMA; )
individually and on behalf of )
a class of Hawaii County )
Police Officers, )
Plaintiffs, )
)
vs. )
COUNTY OF HAWAII; COUNTY OF )
HAWAII POLICE DEPARTMENT; )
VICTOR VIERRA, individually )
and his official capacity of )
Chief of Police for the County)
of Hawaii; WAYNE CARVALHO, )
individually and in his 1
official capacity as Deputy )
Chief of Police Chief and )
Chief of Police of the County ) Judge: The Honorable
of Hawaii; FRANCES DeMORALES, ) David A. Ezra
individually and in his )
official capacity as Assistant )
Chief of Police of the County )
of Hawaii; JOHN DOES 1 -100; )
000055
01/04/00 11:28 TX /RX NO.4283 P.002
•
01 /04 /0D TUE 11:17 FAX 808 524 8293 YCCORRISTON et.all 11003
• •
JANE DOES 1 -100; DOE 1
GOVERNMENTAL ENTITIES 1 -100; )
DOE BUSINESS ENTITIES 1 -100, )
1
Defendants. )
)
)
WAYNE CARVALHO; individually )
and in his official capacity 1
as Deputy Chief of Police )
Chief and Chief of Police of )
the County of Hawaii; and )
VICTOR VIERRA, individually )
and in his official capacity )
as Chief of Police of the
County of Hawaii, ) -
Defendants and 1
Third -Party )
Plaintiffs, )
vs. )
)
GUY PAUL, individually and in )
his official capacity as Chief )
of Police of the County of )
Hawaii, )
)
Third -Party )
Defendant. )
)
DEFENDANTS COUNTY OF HAWAII AND COUNTY OF
RAWATT WOLIC DEPARTMENT'S JUDGMENT AGAINST PC,AINTIFFS
Pursuant to Rule 54 of the Federal Rules of Civil
Procedure, Judgment is entered in favor of Defendants County of
Hawaii and County of Hawaii Police Department (hereinafter
"Defendant County ") and against Plaintiffs William Silva, Daniel
Mlakar, Michael Dubberstein, Richard Cann, Ernest Correia, Henry
2
000056
01/04/00 11:28 TX /RX NO.4283 P.003
01/04/00 TLE 11:17 FAS 808 524 8293 HCCORRISTON et.a11 0004
• •
J. Silva, Thomas C.S. Hing, Jr., Gilbert Flores, Glenn Nojiri,
James Kelly, Rodney Aurello, Julian Shiroma, Errol Ishimine and
Jerry Coloma (hereinafter - Plaintiffs "), jointly and severally,
in the total amount of TWENTY - FOUR THOUSAND ONE HUNDRED TWENTY -
ONE AND 91/100 DOLLARS ($24,121.91) as of March 5, 1999, which is
itemized as follows:
1. Costs pursuant to the Order $ 971.00
Affirming in Part, Reserving
in Part, and Modifying in Part
Report of Special Master on
Defendants' Motion for Award
of Attorneys' Fees and Costs
filed herein on May 28, 1998,
and
2. a) Attorneys' Fees pursuant to $ 22,226.30
the Report of Special Master
on Defendants' Motion for
Award of Attorneys' Fees and
Costs filed herein on March 5,
1999
2. b) Hawaii general excise tax $ 924.61
(4.16 %)
TOTAL AWARD $ 24,121.91
ACCORDINGLY, IT IS HEREBY ORDERED that Defendant County
shall recover from Plaintiffs, William Silva, Daniel Mlakar,
Michael Dubberstein,.Richard Cann, Ernest Correia, Henry J.
Silva, Thomas C.S. Ming, Jr., Gilbert Flores, Glenn Nojiri, James
Kelly, Rodney Aurelio, Julian Shiroma, Errol Ishimine and Jerry
Coloma jointly and severally, the total sum of $24,121.91,
consisting of the above itemized amounts, together with interest
thereon from and after the date of entry of this Judgment at the
3
000057
01/04/00 11:28 TX /RX NO.4283 P.004
01/04/00 TUE 11:18 FAX 808 524 8295 McCORRISTON et.all @1005
• • •
statutory rate of interest per annum, and that Defendant County
shall have execution therefor.
This Judgment is a Final Judgment and there ae no
remaining claims, parties and /or issues and there being no just
reason for delay, Judgment is entered forthwith upon the date
executed by the Court.
DATED: Honolulu, Hawaii,
JUDGE OF THE ABOVE - ENTITLED COURT
APPROVED AS 4 FORM:
Ade4
■'HAEL J. GRE
%•VID J. GIERLACH
DEBRA A. KAGAWA
Attorneys for Plaintiffs
William Silva; R. Clayton Welch;
Daniel Mlakar; Michael Dubberstein;
Richard Cann; Ernest Correia;
Henry J. Silva; Thomas C.S. Hing,
Gilbert Flores; Rodney Aurello;
Julian Shiroma; Errol Ishimine;
Stephen Sakoda; Jerry Coloma; and
James Nishimura, individually and
on behalf of a class of Hawaii
County Police Officers
William Silva, et al. v.. County of Hawaii, et al., Civil No. 96 -00359 DAE,
Defendants County of Hawaii and County of Hawaii Police Department's
Judgment Against Plaintiffs.
•
4
000058
01/04/00 11:28 TX /RX NO.4283 P.005
01/04/00 TOE 11:18 FAX 808 524 8293 McCORRISTON ot.all jo08
ALI THOENE
Attorney for Defendant
Frances DeMorales
•
'74fltrAld . c atutz+07
•
BRIAN J. DELIMA
HOWARD SHIROMA
Attorneys for Third -Party Defendant
Guy Paul
G; E L.E. CHINr
ITZI A. LEE
Attorneys f• Defendant
Wayne Carvalho, individually and
in his official capacity as Deputy
Chief of Police Chief and Chief
of Police of the County of Hawaii
William Silva, et al. v. County of Hawaii, et al., Civil No. 96-
00359 DAE, Defendants County of Hawaii and County of Hawaii
Police Department's Judgment Against Plaintiffs.
5
000059
01/04/00 11:28 TX /RX NO.4283 P.006
01=04/00 TUE 11:18 FAT 809 524 8293 MCCORRISTON et. al l a007
• •
HISAKA STONE .GOTO
YOSHIDA COSGROVE & CHING
Attorneys at Law FILED IN THE
A Law Corporation uNITED STATES DISTRICT; CON
DISTRICT. OF HAWAII
GALE L. F. CHING 2683 -0
MITZI A. LEE 6059 -0 Jul 91
Grosvenor Center, Mauka Tower
737 Bishop Street, Suite 3000
Honolulu, Hawaii 96813 �__--„WNBull
Telephone No.: 523-0451 WALTER A. Y. H,. INN. CLERI
Attorneys for Defendant
WAYNE CARVALHO, individually and
in his official capacity as Deputy
Chief of Police Chief and Chief
of Police of the County of Hawaii
IN THE UNITED STATES DISTRICT COURT
STATE OF HAWAII
WILLIAM SILVA; R. CLAYTON WELCH;) CIVIL NO. 96- 00359DAE
DANIEL. MLAKAR; MICHAEL )
DUBBERSTEIN; RICHARD CANN; ) DEFENDANT WAYNE CARVALHO,
ERNEST COR.REIA, HENRY J. SILVA; ) INDIVIDUALLY AND IN HIS
THOMAS C.S. HING JR.; GILBERT ) OFFICIAL CAPACITY AS DEPUTY
FLORES; GLENN NOJIRI; JAMES ) CHIEF OF POLICE CHIEF AND
KELLY; RODNEY AURELLO; JULIAN ) CHIEF OF POLICE OF THE COUNTY
SHIROMA; ERROL ISHIMINE; STEPHEN) OF HAWAII'S JUDGMENT AGAINST
SAKODA; and JERRY COLOMA; ) PLAINTIFFS
individually and on behalf of a )
class of Hawaii County police )
Officers, )
Plaintiffs, )
TRIAL
vs. ) DATE: November 12, 1997
COUNTY OF HAWAII; COUNTY OF ) JUDGE: The Honorable
HAWAII POLICE DEPARTMENT; VICTOR) David A. Ezra
VIERRA, individually and his 1
official capacity of Chief of )
Police for the County of Hawaii ;)
WAYNE CARVALHO, individually and)
in his official capacity as )
Deputy Chief of Police Chief and)
Chief of Police of the County of)
Hawaii; FRANCES DeMORALES, )
individually and in his official)
capacity as Assistant Chief of )
Police of the County of Hawaii; )
Y: \SILVp2 \JUDGMENT
000060
01/04/00 11:28 TX /RX NO.4283 P.007
01/04/00 TUE 11:19 FAX 808 524 8295 McCORRISTON et.all 0008
• •
JOHN DOES 1 -100, JANE DOES 1- )
100; DOE GOVERNMENTAL ENTITIES )
i -100; DOE BUSINESS ENTITIES 1- )
100, )
)
Defendants. )
)
)
VICTOR VIERRA; WAYNE CARVALHO, )
individually and in his official)
capacity as Deputy Chief of )
Police Chief and Chief of Police)
of the County of Hawaii; and )
FRANCES DeMORALES, )
)
befendants and Third- ) -
-Party Plaintiffs, )
)
vs. )
)
GUY PAUL, individually and in )
his official capacity as Chief )
of Police of the County of )
Hawaii
)
Third -Party Defendant.)
)
)
DEFENDANT WAYNE CARVALHO, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS DEPUTY CHIEF
OF POLICE CHIEF AND CHIEF CV POLICE OF THE
COUN'T'Y OF HAWAII'S .TTmGMENT AfAINSP PT.ATNTIFFS
Pursuant to Rule 54 of the Federal Rules of Civil
Procedure, Judgment. is entered in favor of Defendant Wayne
Carvalho, Individually And In His Official Capacity As Deputy
•
Chief Of Police Chief And Chief of Police Of The County of Hawaii
(hereinafter "Defendant carvalho ") and against Plaintiffs William
Silva, Daniel Mlakar, Michael Duhberstein, Richard Cann, Ernest
Correia, Henry J. Silva, Thomas C. S. Hing, Jr., Gilbert Florek,
Glenn Nojiri, James Kelly Rodney Aurelio, Julian Shiroma, Errol
Ishimine and Jerry Coloma (hereinafter "Plaintiffs "), jointly and
Y:\SILVA2 \JOOGNENi 2
000061
01/04/00 11:28 TX /RX NO.4283 P.008
01/04/00 TDB 11:29 FAX 808 524 8295 JIcCORRISTON 04.4111 ?1009
• •
severally, in_the total amount of TWENTY - THOUSAND EIGHT HUNDRED
THIRTY -EIGHT AND 28/100 DOLLARS ($20,838.28) as of March 5, 1999,
which is itemized as follows:
1. Costs pursuant to the $ 1,428.80
Order Affirming In Part,
Reserving In Part, And
Modifying In Part Report
Of Special Master On
Defendants' Motion For
Award Of Attorneys' Fees
And Costs filed herein on
May 28, 1998, and
2. Attorneys' fees pursuant $19,409.48
to the Report of Special
Master On Defendants'
Motions For Award Of
Attorneys' Fees And Costs
filed herein on March 5, 1999.
Total Amount $20,838.28
ACCORDINGLY, IT IS HERESY ORDERED that Defendant
Carvalho shall recover from Plaintiffs, William Silva, Daniel
Mlakar, Michael Dubberstein, Richard Cann, Ernest Correia, Henry
3. Silva, Thomas C. S. Ring, Jr., Gilbert Flores, Glenn Nojiri,
James Kelly Rodney Aurello, Julian Shiroma, Errol Ishimine and
Jerry Coloma jointly and severally, the total sum of $20,838.28,
consisting of the above itemized amounts, together with interest
thereon from and after the date of entry of this Judgment at the
statutory rate of interest per annum, and that Defendant Carvalho
shall have execution therefor.
This Judgment is a final Judgment and there are no
remaining claims, parties and /or issues and there being no just
Y: \51LYA2 \.1VOQIENT 3
000062
01/04/00 11:28 TX /RX N0.4283 P.009
01/04/00 TUE 11:19 FAX 808 524 8293 McCORRISTON et.all 0 010
• •
reason for delay, Judgment is entered forthwith upon the date
executed by the Court.
DATED: Honolulu, Hawaii,
JUL 1 9 1999
tavrb A.
JUDGE OF THE ABOVE - ENTITLED COURT
APPROVED AS TO FORM:
Nita
DEBRA A. KAGAWA
Attorney for Plaintiffs
WILLIAM SILVA; R. CLAYTON WELCH;
DANIEL MLAKAR; MICHAEL DUBBERSTEIN;
RICHARD CANN; ERNEST CORREIA; HENRY
J. SILVA; THOMAS C. 9. RING, GILBERT .
FLORES; RODNEY AURELLO; JULIAN
SHIROMA; ERROL ISHIMINE; STEPHEN
SAKODA; JERRY COLOMA; and JAMES '
NISHIMURA individually and on behalf
of a class of Hawaii County police
Officers
D J. M KIN
Attorney f Defendant
COUNTY OF WAIL
•
' +HN OSHIBATA
Q for Defendant
VICTOR VIERRA
WILLIAM SILVA, ET AL. v. COUNTY OF HAWAII, ET AL.; CIVIL NO.
96 -00359 DAE; DEFENDANT WAYNE CARVALHO, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS DEPUTY CHIEF OF POLICE CHIEF AND
CHIEF OF POLICE OF THE COUNTY OF HAWAII'S JUDGMENT AGAINST
PLAINTIFFS
Y: VS ILVA2 \JVD.
4
000063
01/04/00 11:28 TX /RX NO.4283 P.010
01/04/00 TIUE 11:19 FAX 808 524 8293 IIcCORRISTON et.all 0 011
•
•
_
ALIKA THOENE
Attorney -for Defendant
FRANCES DeMORALES
8 AN J. ELIMA
Attorney or Third -Party Defendant
GUY PAUL 41,
•
WILLIAM SILVA, ET AL. v. COUNTY OF HAWAII, ET AL.; CIVIL NO.
96 -00359 DAR; DEFENDANT WAYNE CAR:VALHO, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS DEPUTY CHIEF OF POLICE CHIEF AND
CHIEF OF POLICE OF THE COUNTY OF HAWAII'S JUDGMENT AGAINST
PLAINTIFFS
•
r: \S7LVA2 WVEGME$T 5
0000S4
01/04/00 11:28 TX /RX NO.4283 P.011 •
0
t -
THIRO CIRCUIT COURT
STATE OF HAWAII
MICHAEL JAY GREEN 4451 ) ' "D
345 Queen Street, Second Floor �7 DEC 18 PM 3: 34
Honolulu, Hawaii 96813
Telephone: (808) 521 -3336 p, C t�
DAVID J. GIERLACH 5041 STACEY LNO KA
345 Queen Street, Second Floor CLERK
Honolulu, Hawaii 96813
Telephone: (808) 521 -3336
DEBRA A. KAGAWA 6169
345 Queen Street, Second Floor
Honolulu, Hawaii 96813
Telephone: (808) 521 -3336
Attorneys for Plaintiffs
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII •
WILLIAM SILVA; DANIEL ) CIVIL NO.
97 -622
MLAKAR; MICHAEL ) (Non -Motor Vehicle Tort)
DUBBERSTEIN; RICHARD )
CANN; ERNEST CORREIA; )
HENRY J. SILVA; THOMAS C.S. ) COMPLAINT; DEMAND FOR JURY
HING, JR.; GLENN NOJIRI; ) TRIAL; SUMMONS
JAMES KELLY; RODNEY AURELLO; )
JULIAN SHIROMA; -ERROL )
ISHIMINE; and JERRY COLOMA; )
individually and )
on behalf of a class of )
Hawaii County police )
Officers, )
Plaintiffs, )
vs. )
COUNTY OF HAWAII; COUNTY OF )
HAWAII POLICE DEPARTMENT; )
VICTOR VIERRA, individually )
and his official capacity )
of Chief of Police for the )
County of Hawaii; WAYNE )
CARVALHO, individually )
and in his official capacity )
as Deputy Chief of Police )
Chief and Chief of Police )
of the County of Hawaii; )
•
FRANCES DeMORALES, )
individually and in his )
official capacity )
as Assistant Chief ) •...; byctc :`y true and
c.,rr cZ coy. n: the % ++nal o tits in this o!hw.
EXHIBIT " -- o 65
of Police of the County of )
Hawaii; JOHN DOES )
1 -100; JANE DOES 1 -00; )
DOE GOVERNMENTAL ENTITIES )
1 -100; DOE BUSINESS )
ENTITIES 1 -100, )
Defendants. )
COMPLAINT
Plaintiffs William Silva, Daniel Mlakar, Michael Dubberstein,
Richard Cann, Ernest Correia, Henry J. Silva, Thomas C.S. Hing,
Jr., Glenn Nojiri, James Kelly, Rodney Aurelio, Julian Shiroma,
Errol Ishimine, and Jerry Coloma, individually and on behalf of a
class of Hawaii County Police Officers, for their Complaint against
the County of Hawaii, County of Hawaii Police Department, Victor
Vierra, individually and in his official capacity of Chief of
Police of the County of Hawaii, Wayne Carvalho, individually and in
his official capacities as assistant or deputy chief of Police and
as a Chief of Police of the County of. Hawaii, Frances De Morales,
individually and in his official capacity as assistant or deputy
Chief of Police and as Chief of Police of the County of Hawaii, and
the above - captioned Doe Defendants, allege and aver as follows:
1. Plaintiff William Silva ( "Silva ") is and was at all times
relevant, employed by the County of Hawaii as a police officer and
is a resident of the County of Hawaii, State of Hawaii.
2. Plaintiff Daniel Mlakar ( "Mlakar ") is and was at all
times relevant, employed by the County of Hawaii as a police
officer and is a resident of the County of Hawaii, State of Hawaii.
2
000066
3. Plaintiff Michael Dubberstein ( "Dubberstein ") is and was
at all times relevant, employed by the County of Hawaii as a police
officer and is a resident of the County of Hawaii, State of Hawaii.
4. Plaintiff Richard Cann ( "Cann ") was at all times relevant
employed by the County of Hawaii as a police officer and is a
resident of the County of Hawaii, State of Hawaii.
5. Plaintiff Ernest Correia ( "Correia ") is and was at all
times relevant employed by the County of Hawaii as a police officer
and is a resident of the County of Hawaii, State of Hawaii.
6. Plaintiff Henry J. Silva ( "H.J. Silva ") is and was at all
times relevant employed by the County of Hawaii as a police officer
and is a resident of the County of Hawaii, State of Hawaii.
7. Plaintiff Thomas C.S. Hing, Jr. ( "Hing ") is and was at
all time relevant employed by the County of Hawaii as a police
officer and is a.resident of the County. of Hawaii, State of Hawaii.
8. Plaintiff Glenn Nojiri ( "Nojiri ")- is_aind was at -all times
relevant employed by the County of Hawaii as a police officer and
is a resident of the County of Hawaii, State of Hawaii.
9. Plaintiff James Kelly ( "Kelly ") is and was at all times
relevant employed by the County of Hawaii as a police officer and
is a resident of the County of Hawaii, State of Hawaii.
10. Plaintiff Rodney Aurelio ( "Aurelio ") is and was at all
times relevant employed by the County of Hawaii as a police officer
and is a resident of the County of Hawaii, State of Hawaii.
11. Plaintiff Julian Shiroma ( "Shiroma ") is and was at all
times relevant employed by the County of Hawaii as a police officer
3
000067
and is a resident of the County of Hawaii, State of Hawaii.
12. Plaintiff Errol Ishimine' ( "Ishimine ") is and was at all
times relevant employed by the County of Hawaii as police officer
and is a resident of the County of Hawaii, State of Hawaii.
13. Plaintiff Jerry Coloma ( "Coloma ") is and was at all times
relevant employed by the County of Hawaii as a police officer and
is a resident of the County of Hawaii, State of Hawaii.
14. Plaintiffs allege that over one hundred Hawaii County
police officers are similarly situated with the named Plaintiffs as
more fully set forth below in Plaintiffs' allegations against
Defendants and that the named Plaintiffs shall adequately protect
the rights and interests of the class of Hawaii County police
officers who have been injured due to the conduct of Defendants
alleged herein. The class is numerous and joinder of all members is
impractical and there are common questions of fact and law to the
class, including the legal obligations, knowledge and conduct of
Defendants and the damages to Plaintiffs and the class. Separate
cases could produce varying adjudications with respect to
individual members, resulting in conflicting and incompatible
standards of conduct. Common questions of fact and law predominate
and judicial efficiency favors a class.
15. Defendant County of Hawaii is a municipal corporation
located within the State of Hawaii.
16. Defendant County of Hawaii Police Department is a
department of the County of Hawaii.
17. . Defendant Victor Vierra ( "Vierra ") is and was at all
4
000068
. .
times relevant employed by the County of Hawaii police department
and is a resident of the County of Hawaii, State of Hawaii.
18. Defendant Wayne Carvalho ( "Carvalho ") is and was at all
times relevant employed by the County of Hawaii police department
and is a resident of the County of Hawaii, State of Hawaii.
19. Defendant Francis DeMorales ( "DeMorales ") was at all
times relevant employed by the County of Hawaii police department
and is a resident of the County of Hawaii, State of Hawaii.
UNDERLYING FACTS
20. Plaintiffs reallege and incorporate by reference
paragraphs 1 -19 as if said paragraphs were fully set forth herein.
21. At all times relevant, the County of Hawaii police
department was obligated by law and contract to provide fair and
impartial promotional policies and procedures to police officers
employed by the County.
22. Commencing in or about 1984 and continuing to at least
1995, Defendants above- captioned engaged in a secret, systematic,
fraudulent and illegal scheme to deprive qualified police officers
of promotions, to constructively discharge officers, and to ensure
that certain other officers were wrongfully promoted. This scheme
was not discovered by Plaintiffs, nor could it have been discovered
through reasonable diligence by Plaintiffs, until October, 1995,
when it was publicly reported that DeMorales admitted, under oath,
that he had fixed nearly every promotion in which he was involved
in the County of Hawaii police department, pursuant to the wishes
of those in authority over him.
5
000089
23. At all times relevant herein, police officers seeking
promotion would be required to take a written examination issued by
the civil service, followed by an oral examination before a panel
of police inspectors and /or assistant and /or deputy chiefs of
police for the County of Hawaii. The written examination created
the list of officers eligible for promotion and the oral
examination, alone, determined which eligible officer received the
promotion.
24. At all times relevant, there were substantial increases
in salary and other benefits that the successful candidates
received.
25. In and around the mid to late 1980's, Vierra, Carvalho,
DeMorales, and other employees of Defendant County improperly
agreed to promote certain favored police officers to higher and
better paying ranks and positions over better qualified police
officers.
26. In exchange for receiving preferential treatment, those
favored by the individual Defendants provided improper services for
the benefit of the Defendants, including but not limited to
providing personal services for some of them (e.g. home and
automobile repairs /improvements).
27. On numerous occasions, as will be proved at trial,
certain police officers were "asked" to remove their names from the
list of those eligible for promotion in order that a police officer
selected by the individual Defendants might be appointed. In those
cases, the officer who agreed to withdraw his name would then be
6
000070
given the next available promotion to the same rank, irrespective
of the qualifications of other officers who passed the civil
service test and who were as qualified or more qualified than those
actually promoted.
28. Police officer William Perreira ( "Perreira ") has admitted
that De Morales provided to him, in writing, certain oral
examination questions prior to the oral examinations for the
positions of lieutenant and captain. In each instance, Perreira
was promoted over better qualified police officers, including but
not limited to some of the named Plaintiffs herein.
29. Examples of the illegal and corrupt promotions practice
that directly impacted Plaintiffs and those similarly situated
include the following:
a. Police officer Jerry Ignacio ( "Ignacio ") was a
suspect in a case involving harassing telephone calls to a Hawaii
County police dispatcher.. De covered .up the evidence =in --
this case and subsequently insured that Ignacio was promoted
instead of some of the Plaintiffs herein. Ignacio performed
personal services for De Morales and Vierra in exchange for his
unlawful promotions.
b. A number of Plaintiffs were involved in
investigating allegations that De Morales and others had and /or
were engaging in a series of illegal gambling activities at various
locations in the County of Hawaii. The careers of nearly all of
the investigating Plaintiffs ceased after the investigation was
concluded. Police officers who acquiesced in the gambling, or who
7
000071
•
failed to report the gambling, were among those favored for
promotions by the individual Defendants, or some of them.
c. Donald Watson, a highly trained police officer
originally from the San Francisco police department spoke to Vierra
regarding his (Watson's) repeated failure to be promoted despite
excellent civil service tests and excellent police work. Vierra
told Watson words to the effect that "you will never make captain.
I know who I want for my commanders. I am only doing this (i.e.
providing promotion testing /oral exams) to comply with civil
service requirements."
d. On or about June 6, 1994, Watson received
information that a certain police officer would be promoted to
lieutenant. Watson received this information before the oral
examination was given. The police officer identified to Watson
was, subsequently, promoted to lieutenant.
e. In or around 1992, Correia -was advised .:;that - a
certain police officer would be promoted to Captain in Honokaa.
Correia learned this information before the oral examination was
given. The named police officer was in fact promoted.
f. In or around 1993, Correia received word that a
certain police officer was telling others that he would receive the
promotion to Captain of CID for the Kona area of the County of
Hawaii. These statements were made before the oral examinations
were given. That officer was in fact promoted. The only way that
certain officers could know they would receive promotions before
the examination was given was if the oral exam was fixed, as be
8
000072
• •
Morales has admitted.
g. Duriiig Vierra's tenure as Chief of Police, police
officer William Perreira was told by De Morales of his involvement
in widespread cheating on police promotional exams. Perreira
reported this admission to Vierra, and Perreira asked that his
information be disclosed and that past cheating be "made right."
Vierra replied by saying "some things its best the men don't know,"
or words to that effect.
h. Police officer Kenneth Mathison sat for the oral
examination for Sergeant. Mathison scored the lowest or nearly the
lowest of all applicants. As oral board members Richard Carter,
Sr., Wendell Paiva and Perreira calculated the scores, Carter
received a telephone call from Carvalho, who instructed Carter to
alter the numerical scores on the oral examination so that Mathison
would be promoted. The scores were altered. Mathison was promoted.
Prior to this occurrence, Mathison had assisted in constructing
certain improvements to Carvalho's home.
i. Dubberstein was rejected for promotion to Sergeant
• in favor of another, less qualified officer. The officer who was
promoted had failed and refused to complete mandatory incident
reports for about one (1) year. The officer who was promoted
ultimately spent months recreating the incident reports. DeMorales
sat on Dubberstein's oral examination board.
j. In 1993, and /or 1994, T. Aiona was rejected for
promotion in favor of an officer who, on information and belief,
provided free boating services to DeMorales.
9
000073
•
k. In or around 1994, the County made a conscious
decision to maintain a "code of silence" regarding the schemes of
test fixing that pervaded the police department.
30. As a result of the corrupt and fraudulent misuse of the
Hawaii County police department promotional system, over one
hundred Hawaii County police officers have been wrongfully deprived
of rank, salary, benefits and other property rightfully theirs.
31. In 1994, Acting Chief John DeSa ordered the destruction
of nearly all of the promotional records relevant to this case.
DeSa and the County knew such records would be relevant to such
litigation and would be highly probative of Plaintiffs' claims.
COUNT I
32. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 31 as if said paragraphs were fully set forth
herein.
33. Defendants intentionally made false statements of material -
fact regarding the fairness and impartiality of the promotional
examinations by holding itself out as an organization that complied
with all existing laws. These representations were intended to and
did create reasonable and detrimental reliance on the part of
Plaintiffs and Plaintiffs sustained substantial pecuniary, general
and special damages as a direct and proximate result thereof, in an
amount to be proved at trial.
COUNT II
34. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 33 as if said paragraphs were full set forth
10
000094
•
herein.
35. Defendants, and each of them, conspired to carry out the
fraud complained of herein by entering into an agreement or
agreements to carry out said fraud and by engaging in one or more
overt acts to bring about the desired goal of the conspiracy and as
a direct and proximate result, Plaintiffs have sustained
substantial general, special and pecuniary damages in an amount to
be proved at trial.
COUNT III
36. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 35 as if said paragraphs were fully set forth
herein.
37. Defendants, through their representations, acts and
failure to act, fraudulently induced Plaintiffs to enter and remain
with the Hawaii County police department. inaintiffs relied upon
the representations of Defendants of a fair and impartial
promotions policy, Plaintiffs' reliance was reasonable and
Plaintiffs suffered substantial detriment as a direct and proximate
result thereof, and, Plaintiffs have sustained substantial general,
special and pecuniary damages in an amount to be proved at trial.
COUNT IV
38. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 37 as if said paragraphs were fully set forth
herein.
39. Defendants, through their wrongfully promoted agents and
without Plaintiffs' consent, caused the conversion of salaries and
11
000075
other property rights to which Plaintiffs were lawfully entitled
and as a direct and proximate result, Plaintiffs have sustained
substantial general and special damages in an amount to be proved
at trial.
COUNT V
40. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 39 as if said paragraphs were fully set forth
therein.
41. Plaintiffs herein had a constitutionally guaranteed
right, pursuant to the Hawaii Constitution, to a fair and impartial
promotions practice. Defendants engaged in an impermissible
infringement of Plaintiffs' constitutional rights and as a direct
and proximate result, Plaintiffs have sustained substantial general
and special damages in an amount to be proved at trial.
COUNT VI
42. Plaintiffs reallege and :incorporate ..by- reference..
paragraphs 1 through 41 as if said paragraphs were fully set forth
therein.
43. Defendants intentionally inflicted severe emotional
distress on Plaintiffs by engaging in conduct that is outside the
bounds of decency and the expectations of civilized society and as
direct and proximate result, Plaintiffs have sustained substantial
general and special damages in an amount to be proved at trial.
COUNT VII
44. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 43 as if said paragraphs were fully set forth
12
000076
•
therein.
45. Defendants, and each of them, negligently caused
Plaintiffs to suffer severe emotional distress and as direct and
proximate result, Plaintiffs have sustained substantial general and
special damages in an amount to be proved at trial.
COUNT VIII
46. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 45 as if said paragraphs were fully set forth
therein.
47. Defendant County negligently retained De Morales and
other Defendants named herein and as a direct and proximate result,
Plaintiffs have sustained substantial general and special damages
in an amount to be proved at trial.
COUNT IX
48. Plaintiffs reallege and_ incorporate by reference
paragraphs 1 through 47 as if said paragraphs were fully forth
therein.
49. Defendant County negligently supervised Defendants De
Morales and other Defendants who engaged in the wrongdoing
hereinbefore alleged and as a direct and proximate result,
Plaintiffs have sustained substantial general and special damages
in an amount to be proved at trial.
COUNT X
50. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 49 as if said paragraphs were fully set forth
therein.
13
000077
• •
51. Guy Paul, as Chief of Police of Hawaii County, indirectly
offered to confer a benefit on Carvalho and DeMoraleb if Carvalho
and DeMorales would ensure that certain favored candidates were
promoted to positions within the police department over better
qualified Plaintiffs. Paul intended to influence DeMorales and
Carvalho to thereby act contrary to Carvalho and DeMorales' duty to
ensure that police promotions were fair, impartial and merit based.
The benefit Paul indirectly offered was that DeMorales and Carvalho
would remain employed with the Hawaii Police Department. DeMorales
and Carvalho were thereby influenced in the exercise of their
discretion or power with respect to the hire, retention, discharge
or suspension of Hawaii County Police Officers, all in violation of
H.R.S. §708 -880.
52. Carvalho offered to confer, directly or indirectly, on
police officer Richard Carter, the benefit of continued employment
and /or promotion and /or the opportunity t� advance in the police
department when he notified Carter that Kenneth Mathison was to be
promoted over better qualified police officers, in violation of
Carter's duty to promote based upon a fair, impartial, merit -based
promotional system.
53. DeMorales, by giving examination questions and areas to
study to selected police officers prior to the oral examinations,
intended to influence said selected police officers prior to the
oral examinations, intended to influence said selected police
officers to act contrary to a duty, i.e., the duty not to cheat and
the duty to report illegal conduct, to which the selected officers
14
000078
were subject. The benefit DeMorales conferred on said selected
police officers was the very means by''which said police officers
received promotions, the value of which exceeds $1,000.00.
54. The conduct hereinabove alleged constitutes a racketeering
activity as defined by H.R.S. §842 -1, because inter alia, the
conduct violates Hawaii law against commercial bribery.
55. Guy Paul, Wayne Carvalho and Frances DeMorales at all
times relevant were each employed by the Hawaii Police Department.
The Hawaii Police Department was the enterprise in this case as
defined by H.R.S. §842 -1. Paul, Carvalho and DeMorales had a
common purpose in fixing promotional examinations, engaged in on-
going conduct to facilitate this common purpose and acted, over a
period of years, as a continuing unit. Paul is only identified
herein for purposes of naming him as a member of the enterprise.
Plaintiffs are asserting no -affirmative claims against Paul for
relief.
56. Paul, Carvalho and DeMorales, at all times relevant,
maintained an interest in the Hawaii Police Department which was
facilitated and enhanced as a consequence of the racketeering
activity, in violation of H.R.S. §842 -2(2).
57. Paul, Carvalho and DeMorales, at all times relevant,
conducted the affairs of the enterprise through the aforedescribed
racketeering activity and at all such times, said individuals were
employed by the enterprise.
58. As a consequence of the foregoing, Plaintiffs have been
injured in their business or property and are entitled to damages,
15
000079
•
the costs of suit and attorney's fees.
COUNT XI
59. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 58 as if said paragraphs were fully set forth
herein.
60. The conduct of Defendants, and each of them, was willful,
wanton and in callous disregard of the rights and sensibilities of
Plaintiffs and Plaintiffs are entitled to an award of punitive
damages in an amount sufficient to punish the Defendants, and each
of them, and to deter others from engaging in similar behavior.
COUNT XII
61. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 60 as if said paragraphs were fully set forth
herein.
62. Defendant County is responsible for -the spoliation of
evidence caused - by.Acting Chief DeSa in 1994 when DeSa ordered the
destruction of nearly all of the promotions records necessary to
the prosecution of Plaintiffs' claims and Plaintiffs are entitled
to all of the rights and remedies available at law and in equity
that arise when spoliation is found to have occurred.
COUNT XIII
63. Plaintiffs reallege and incorporate by reference
paragraphs 1 through 62 as if said paragraphs were fully set forth
herein.
64. Defendants violated and continue to violate Plaintiffs'
procedural due process rights as guaranteed by the Hawaii
16
000080
Constitution by their failure to provide a promotions system based
on merit. Plaintiffs' private interest in fair and impartial
promotions was severely prejudiced by the official action
hereinbefore alleged; safeguards such as eliminating highly
subjective oral review boards which are prone to misuse would
greatly reduce the opportunities for government officials to engage
in the deprivation of Plaintiffs' constitutional rights; and there
would be minimal impact on legitimate government interests if the
oral boards were wholly eliminated in favor of objective,
scientifically - based promotions procedures. As a direct and
proximate result of these procedural due process violations,
Plaintiffs have sustained substantial general, special and
pecuniary damages in an amount to be proved at trial.
WHEREFORE, Plaintiffs pray as follows:
1. That they be awarded judgment in their favor and against
Defendants on each County of the Complaint;
2. That they be awarded general and special damages in an
amount to be proved at trial;
3.. That they be awarded punitive damages in an amount to be
determined at trial;
4. That they be awarded their statutory attorneys' fees and
costs of court;
5. That they be awarded prejudgment and postjudgment interest
in the maximum amount provided by law;
17
000081
6. That they be awarded such other and further relief as this
Court deems just and equitable under the circu tances.
DATED: Honolulu, Hawaii, December � / , 1997.
"rid
MIC
,07!„.41
D•', D
DEBRA A. " GAWA
Attorneys for Plaintiffs
18
000082
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII i'17-
WILLIAM SILVA; DANIEL ) CIVIL NO. b o
MLAKAR; MICHAEL )
DUBBERSTEIN; RICHARD )
CANN; ERNEST CORREIA; ) DEMAND FOR JURY TRIAL
HENRY J. SILVA; THOMAS C.S. )
HING, JR.; GLENN NOJIRI'; )
JAMES KELLY; RODNEY AURELLO; )
JULIAN SHIROMA; ERROL )
ISHIMINE; and JERRY COLOMA; )
individually and )
on behalf of a class of )
Hawaii County police )
Officers, )
Plaintiffs, )
vs. )
COUNTY OF HAWAII; COUNTY OF )
HAWAII POLICE DEPARTMENT; )
VICTOR VIERRA, individually )
and his official capacity )
• of Chief of Police for the )
County of Hawaii; WAYNE )
CARVALHO, individually )
and in his official capacity )
as Deputy Chief of Police )
Chief and Chief of Police )
of the County of Hawaii; )
FRANCES DeMORALES, )
individually and in his )
official capacity )
as Assistant Chief )
of Police of the County of )
Hawaii; JOHN DOES )
1 -100; JANE DOES 1 -00; )
DOE GOVERNMENTAL ENTITIES )
1 -100; DOE BUSINESS )
ENTITIES 1 -100, )
Defendants. )
000083
• •
DEMAND FOR JURY TRIAL
Demand is hereby made for a trial by j .
DATED: Honolulu, Hawaii, December ,P ' , 1997. A ir
/
MI air
DA ID J. /
DEBRA A. `, GAWA
Attorne - for Plaintiffs
000084
MICHAEL JAY GREEN 4451
345 Queen Street, Second Floor
Honolulu, Hawaii 96813
Telephone: (808) 521 -3336
DAVID J. GIERLACH 5041
345 Queen Street, Second Floor
Honolulu, Hawaii 96813
Telephone: (808) 521 -3336
DEBRA A. KAGAWA 6169
345 Queen Street, Second Floor
Honolulu, Hawaii 96813
Telephone: (808) 521 -3336
Attorneys for Plaintiffs
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
WILLIAM SILVA; DANIEL ) CIVIL NO. / p
7- E °�
MLAKAR; MICHAEL ) (Non -Motor Vehicle Tort)
DUBBERSTEIN; RICHARD )
CANN; ERNEST CORREIA; )
HENRY J. SILVA; THOMAS C.S. ) SUMMONS
HING, JR.; GLENN NOJIRI; )
JAMES KELLY; RODNEY AURELLO; )
JULIAN SHIROMA; ERROL )
ISHIMINE; and JERRY COLOMA; )
individually and
on behalf of a class of )
Hawaii County police )
Officers, )
Plaintiffs, )
vs. )
)
COUNTY OF HAWAII; COUNTY OF )
HAWAII POLICE DEPARTMENT; )
VICTOR VIERRA, individually ),
and his official capacity )
of Chief of Police for the )
County of Hawaii; WAYNE )
CARVALHO, individually )
and in his official capacity )
as Deputy Chief of Police )
Chief and Chief of Police )
of the County of Hawaii; )
FRANCES DeMORALES, )
individually and in his )
official capacity )
as Assistant Chief )
000085
• •
of Police of the County of )
Hawaii; JOHN DOES )
1 -100; JANE DOES 1 -00; , )
DOE GOVERNMENTAL ENTITIES )
1 -100; DOE BUSINESS )
ENTITIES 1 -100, )
Defendants. )
)
SUMMONS
STATE OF HAWAII
TO THE DEFENDANTS:
YOU ARE HEREBY SUMMONED and required to serve upon
Plaintiffs' attorneys, whose address is stated above, an answer to
the Complaint which is attached. This action must be taken within
twenty days after service of this summons upon you, exclusive of
the day of service.
If you fail to make your answer within the twenty day time
limit, judgment by default will be taken against you for the relief
demanded in the Complaint.
This summons shall not be personally delivered between 10:00
p.m. and 6:00 a.m. on premises not open to the general public,
unless a judge of the above - entitled court permits, in writing on
this summons, personal delivery during those hours.
A failure to obey this summons may result in an entry of
default and default judgment against the disobeying person or
party.
�� Hil° � DEC 18 1991
DATED: � MERM ll, Hawaii, `
STACEY ENOKA (SEAL)
CLERK OF THE ABOVE- ENTITLED COURT
000086
• • .,
THIRD CIRCUIT COURT
STATE OF HA'WAH
HISAKA STONE GOTO FILED
YOSHIDA COSGROVE & CHING 9' OCT -4 PH 3 39
Attorneys at Law
A Law Corporation -
CH'; • 1.4k
GALE L. 'F. CHING 2683 -0 CLERK
MITZI A. LEE 6059 -0
CAMILLE N. SIRIVATTHA 7159 -0 -
Grosvenor Center, Mauka Tower
737 Bishop Street, Suite 3000
Honolulu, Hawaii 96813
Telephone No.: 523 -0451
Attorneys for Defendant
and Third -Party Plaintiff
WAYNE CARVALHO, individually and
in his official capacity as Deputy
Chief of Police Chief and Chief
of Police of the County of Hawaii
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
WILLIAM SILVA; DANIEL MLAKAR; ) CIVIL NO. 97 -622
MICHAEL DUBBERSTEIN; RICHARD ) (Non -Motor Vehicle Tort) '
CANN; ERNEST CORREIA, HENRY J. )
SILVA; THOMAS C.S. HING, JR.; ) FINDINGS OF FACT, CONCLUSIONS
GLENN NOJIRI; JAMES KELLY; ) OF LAW AND ORDER GRANTING
RODNEY AURELLO; JULIAN SHIROMA; ) DEFENDANT WAYNE CARVALHO,
ERROL ISHIMINE; and JERRY ) INDIVIDUALLY AND IN HIS
COLOMA; individually and on ) OFFICIAL CAPACITY AS DEPUTY
behalf of a class of Hawaii ) CHIEF OF POLICE CHIEF AND
County Police Officers, ) CHIEF OF POLICE OF THE COUNTY
OF HAWAII'S MOTION FOR PARTIAL
Plaintiffs, ) SUMMARY JUDGMENT AS TO
COUNT VII NEGLIGENT INFLICTION
vs. ) OF EMOTIONAL DISTRESS
COUNTY OF HAWAII; COUNTY OF ) Hearing
HAWAII POLICE DEPARTMENT; VICTOR) Date: August 6, 1999
VIERRA, individually and his ) Time: 1:00 p.m.
official capacity of Chief of ) Judge: Hon. Riki May Amano
Police for the County of Hawaii;)
WAYNE CARVALHO, individually and)
in his official capacity as ) Trial: September 27, 1999
Deputy Chief of Police Chief and) Judge: Hon. Riki May Amano
Chief of Police of the County of)
Hawaii; FRANCES DeMORALES,
individually and in his official)
capacity as Assistant Chief of )
Police of the County of Hawaii; )
y:\silva2 \emodistfof
000087
III
JOHN DOES 1 -100; JANE DOES 1- )
100; DOE GOVERNMENTAL ENTITIES )
1 -100; DOE BUSINESS ENTITIES )
1 -100, )
Defendants. )
WAYNE CARVALHO, individually and)
in his official capacity as )
Deputy Chief of Police Chief and)
Chief of Police of the County of)
Hawaii, )
Defendant and Third- )
Party Plaintiff, )
vs. )
GUY PAUL, individually and in )
his official capacity as Chief )
of Police of the County of ) •
Hawaii, and the STATE OF HAWAII )
ORGANIZATION OF POLICE OFFICERS,)
Third -Party )
Defendants. )
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER GRANTING
DEFENDANT WAYNE CARVALHO, INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS DEPUTY CHIEF OF POLICE CHIEF AND CHIEF OF POLICE OF
THE COUNTY OF HAWAII'S MOTION FOR PARTIAL SUMMARY JUDGMENT
AS TO COUNT VII NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Defendant WAYNE CARVALHO, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS DEPUTY CHIEF OF POLICE CHIEF AND CHIEF OF
POLICE OF THE COUNTY OF HAWAII (hereinafter "Carvalho "),having
moved this Honorable Court for an Order For Partial Summary
Judgment As To Count VII Negligent Infliction Of Emotional
y:\.silva2 \emodistfof 2 pp
000088
Distress Of The Complaint, file- stamped May 20, 1999, hearing
held on August 6, 1999 at 1:00 p.m. before the Honorable Riki May
Amano, Presiding Judge in the presence of Debra Akemi Kagawa,
Esq. as counsel for the Plaintiffs; David Minkin, Esq. as counsel
for Defendant County of Hawaii and County of Hawaii Police
Department; Alika Thoene, Esq. as counsel for Defendant, Frances
DeMorales; Howard Shiroma, Esq. as counsel for Third -Party
Defendant Guy Paul; and Gale L. F. Ching, Esq. as counsel for
Defendant and Third -Party Plaintiff Wayne Carvalho, and Defendant
County of Hawaii and County of Hawaii Police Department,
Defendant Frances DeMorales and Third -Party Defendant Guy Paul,
having joined in said Motion, and the Court having reviewed the
memorandum of law, having noted that the Plaintiffs have not
opposed the motion and being fully informed of the facts and
circumstances involved herein, hereby makes the following
Findings Of Facts:
FINDINGS OF FACTS
1. Plaintiffs, Rodney Aurello, Bradley Ballesteros,
Arlen Bento, Richard Cann, Morton Carter, Jerry Coloma, Dennis
Correa, Ernest Correia, Michael Dubberstein, Lodybesy Glory, Earl
Hatada, Thomas Hing, Jr., Errol Ishimine, James Kelly, William
Lyman, Daniel Mlakar, Glen Nojiri, Julian Shiroma, Henry Silva,
William Silva and Burton Yamaguchi (hereinafter "PLAINTIFFS ") h d
filed a Complaint on or about December 18, 199$,
2. Count VII of the Complaint alleged that Defendant
Carvalho negligently caused PLAINTIFFS emotional distress for
y:\silva2 \emodistfof 3
000089
•
•
their claim of Negligent Infliction Of Emotional Distress as
stated in Count VII of the Complaint, filed December 18, 1997.
3. PLAINTIFFS have stated that they did not sustain
any physical injuries as a result of the alleged conduct by
Defendant Carvalho.
4. PLAINTIFFS have not opposed Defendant Wayne
Carvalho, Individually And In His Official Capacity As Deputy
Chief Of Police Chief And Chief Of Police Of The County Of
Hawaii's Motion For Partial Summary Judgment As To Count VII
Negligent Infliction Of Emotional Distress, filed May 20, 1999.
Based on the above Findings Of Facts the Court makes
the following Conclusions Of Law:
CONCLUSIONS OF LAW
1. Defendant Wayne Carvalho, Individually And In His
Official Capacity As Deputy Chief Of Police Chief And Chief Of
Police Of The County Of Hawaii's Motion For Partial Summary
Judgment As To Count VII Negligent Infliction Of Emotional
Distress is not opposed by the PLAINTIFFS.
Based on the above Findings Of Facts and Conclusions Of
Law, the Court makes the following ORDER:
ORDER
1. Defendant Wayne Carvalho, Individually And In His
Official Capacity As Deputy Chief Of Police Chief And Chief Of
Police Of The County Of Hawaii's Motion For Partial Summary
Judgment As To Count VII Negligent Infliction Of Emotional
Distress Of The Complaint, file- stamped May 20, 1999, is GRANTED
y:lsilva2 \emodistfof 4
000090
III
as to Defendant and Third -Party Plaintiff Wayne Carvalho,
Defendant County of Hawaii and County of Hawaii Police
Department, Defendant Frances DeMorales and Third -Party Defendant
Guy Paul. .
2. Each party shall bear their own attorneys' fees
and costs incurred in said Motion.
Dated: OCT 1999
THE HONOR IKI MAY AMANO
Presiding Judg
APPROVED AS TO FORM:
Michael Jay Gree , Esq.
David J. Gierlac , Esq.
Debra Akemi Kagawa, Esq.
Attorneys for Plaintiffs
U
David Mi , in, Esq.
Attorney .r Defendant
County of awaii and
Count .f Hawaii Poe Department
/
J
Ali'a Thoene, Esq.
Attorney for Defendant
Frances DeMorales
y \emodistfof 5
000091
(O. 5Q -tee\
Brian DeLima, Esq.
Howard Shiroma, Esq.
Attorneys for Third -Party Defendant
Guy Paul
WILLIAM SILVA, ET AL. V. COUNTY OF HAWAII, ET AL; CIVIL NO.
97 -622; FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER GRANTING
DEFENDANT WAYNE CARVALHO, INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS DEPUTY CHIEF OF POLICE CHIEF AND CHIEF OF POLICE OF
THE COUNTY OF HAWAII'S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO
COUNT VII NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
y :\silva2 \emodist.fof 6
000092
THIRD CIRCUIT COURT
STATE OF HAWAII
HISAKA STONE GOTO FILED
YOSHIDA COSGROVE & CHING 99 OCT -4 PM 3 40
Attorneys at Law
A Law Corporation
GALE L. F. CHING 2683 -0 C CLER
MITZI A. LEE 6059 -0
CAMILLE N. SIRIVATTHA 7159 -0
Grosvenor Center, Mauka Tower
737 Bishop Street, Suite 3000
Honolulu, Hawaii 96813
Telephone No.: 523 -0451
Attorneys for Defendant
and Third -Party Plaintiff
WAYNE CARVALHO, individually and
in his official capacity as Deputy
Chief of Police Chief and Chief
of Police of the County of Hawaii
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
WILLIAM SILVA; DANIEL MLAKAR; ) CIVIL NO. 97 -622
' MICHAEL DUBBERSTEIN; RICHARD ) (Non -Motor Vehicle Tort)
CANN; ERNEST CORREIA, HENRY J. )
SILVA; THOMAS C.S. RING, JR.; ) FINDINGS OF FACT, .CONCLUSIONS
GLENN NOJIRI; JAMES KELLY; ) OF LAW AND ORDER GRANTING
RODNEY AURELLO; JULIAN SHIROMA; ) DEFENDANT WAYNE CARVALHO,
ERROL ISHIMINE; and JERRY ) INDIVIDUALLY AND IN HIS
COLOMA; individually and on ) OFFICIAL CAPACITY AS DEPUTY
behalf of a class of Hawaii ) CHIEF OF POLICE CHIEF AND
County Police Officers, ) 'CHIEF OF POLICE OF THE COUNTY
OF HAWAII'S MOTION TO DISMISS
Plaintiffs, ) OR IN THE ALTERNATIVE MOTION
FOR SUMMARY JUDGMENT AS TO
vs. ) COUNT III (FRAUDULENT
INDUCEMENT) OF THE COMPLAINT
COUNTY OF HAWAII; COUNTY OF )
HAWAII POLICE DEPARTMENT; VICTOR) Hearing
VIERRA, individually and his ) Date: August 6, 1999
official capacity of Chief of .) Time: 1:00 p.m.
Police for the County of Hawaii;) Judge: Hon. Riki May Amano
WAYNE CARVALHO, individually and)
in his official capacity as
Deputy Chief of Police Chief and) Trial: September 27, 1999
Chief of Police of the County of) Judge: Hon. Riki May Amano
Hawaii; FRANCES DeMORALES,
individually and in his official)
y;\s i I v a2 \co un t3. fo f
000093
capacity as Assistant Chief of )
Police of the County of Hawaii; )
JOHN DOES 1 -100; JANE DOES 1- )
100; DOE GOVERNMENTAL ENTITIES )
1 -100; DOE BUSINESS ENTITIES 1- )
100, )
Defendants. )
WAYNE CARVALHO, individually and)
in his official capacity as )
Deputy Chief of Police Chief and)
Chief of Police of the County of)
Hawaii, )
Defendant and Third- )
Party Plaintiff, )
vs. )
GUY PAUL, individually and in )
his official capacity as Chief )
of Police of the County of )
Hawaii, and the STATE OF HAWAII )
ORGANIZATION OF POLICE OFFICERS,)
Third -Party )
Defendants. )
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER GRANTING
DEFENDANT WAYNE CARVALHO, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS DEPUTY CHIEF OF POLICE CHIEF AND
CHIEF OF POLICE OF THE COUNTY OF HAWAII'S MOTION TO DISMISS
OR IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT
AS TO COUNT III (FRAUDULENT INDUCEMENT) OF THE COMPLAINT
Defendant WAYNE CARVALHO, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS DEPUTY CHIEF OF POLICE CHIEF AND CHIEF OF
POLICE OF THE COUNTY OF HAWAII (hereinafter "Carvalho "), having
moved this Honorable Court for an Order Dismissing Or In The
Alternative Summary Judgment As To Count III (Fraudulent
Inducement) Of The Complaint, file- stamped May 20, 1999, hearing
yAsilva2 \count3.fof 2
000094
held on August 6, 1999 at 1:00 p.m. before the Honorable Riki May
Amano, Presiding Judge in the presence of Debra Akemi Kagawa,
Esq. as counsel for the Plaintiffs; David Minkin, Esq. as counsel
for Defendant County of Hawaii and County of Hawaii Police
Department; Alika Thoene, Esq. as counsel for Defendant, Frances
DeMorales; Howard Shiroma, Esq. as counsel for Third -Party
Defendant Guy Paul; and Gale L. F. Ching, Esq. as counsel for
Defendant and Third -Party Plaintiff Wayne Carvalho and Defendant
County of Hawaii and County of Hawaii Police Department,
Defendant Frances DeMorales and Third -Party Defendant Guy Paul,
having joined in said Motion, and the Court having reviewed the
memorandum of law, having noted that the Plaintiffs through their
attorneys have not opposed the motion and being fully informed of
the'facts and circumstances involved herein, hereby makes the
following Findings Of Facts:
FINDINGS OF FACTS
1. Plaintiffs, Rodney Aurello, Bradley Ballesteros,
Arlen Bento, Richard Cann, Morton Carter, Jerry Coloma, Dennis
Correa, Ernest Correia, Michael Dubberstein, Lodybesy Glory, Earl
Hatada, Thomas Hing, Jr., Errol Ishimine, James Kelly, William
Lyman, Daniel Mlakar, Glen Nojiri, Julian Shiroma, Henry Silva,
William Silva and Burton Yamaguchi (hereinafter "PLAINTIFFS ") had
filed a Complaint on or about December 18, 1991. W-- l�r�,/
2. Count III of the Complaint alleged that Defendant
Carvalho made fraudulent representations in support of their
y;\silva21count3.fof 3
000095
claim for Fraudulent Inducement (Count III) of the Complaint,
filed December 18, 1997.
3. PLAINTIFFS have not opposed Defendant Wayne
Carvalho, Individually And In His Official Capacity As Deputy
Chief Of Police Chief And Chief Of Police Of The County Of
Hawaii's Motion To Dismiss Or In The Alternative Motion For
Summary Judgment As To Count III (Fraudulent Inducement) Of The
Complaint, filed May 20, 1999.
Based on the above Findings Of Facts the Court makes
the following Conclusions Of Law:
CONCLUSIONS OF LAW
1. Defendant Wayne Carvalho, Individually And In His
Official Capacity As Deputy Chief Of Police Chief And Chief Of
Police Of The County Of Hawaii's Motion To Dismiss Or In The
Alternative Motion For Summary Judgment As To Count III
Fraudulent Inducement) Of The Complaint, filed May 20, 1999 is
not opposed by the PLAINTIFFS.
Based on the above Findings Of Facts and Conclusions Of
Law, the Court makes the following ORDER:
ORDER
1. Defendant Wayne Carvalho, Individually And In His
Official Capacity As Deputy Chief Of Police Chief And Chief Of
Police Of The County Of Hawaii's Motion To Dismiss Or In The
Alternative Motion For Summary Judgment As To Count III
(Fraudulent Inducement) Of The Complaint, filed May 20, 1999 is
GRANTED as to Defendant and Third -Party Plaintiff Wayne Carvalho,
y;\silva2 \count3.fof 4
000096
Defendant County of Hawaii and County of Hawaii Police
Department, Defendant Frances DeMorales and Third -Party Defendant
Guy Paul.
2. Each party shall bear their own attorneys' fees
and costs incurred in said Motion.
Dated: OCT 4 1999
THE HONORABLE RIKI MAY AMANO
Presiding Judge
APPROVED AS TO FORM:
reeriE
Michael Jay G
David J. GierlachV Esq.
Debra Akemi Kagawa, Esq.
Attorneys for Plaintiffs
David Mil kin, Esq.
Attorne 'for Defendant
County o] Hawaii and
County o Hawaii Poli
' c Department
Alika Th ene, Esq.
Attorney for Defendant
Frances DeMorales
y;\silva2 \count3.fof 5
000097
•
Brian DeLima, Esq.
Howard Shiroma, Esq.
Attorneys for Third -Party Defendant
Guy Paul
WILLIAM SILVA, ET AL. V. COUNTY OF HAWAII, ET AL; CIVIL NO. 97-
622; FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER GRANTING
DEFENDANT WAYNE CARVALHO, INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS DEPUTY CHIEF OF POLICE CHIEF AND CHIEF OF POLICE OF
THE COUNTY OF HAWAII'S MOTION TO DISMISS OR IN THE ALTERNATIVE
MOTION FOR SUMMARY JUDGMENT AS TO COUNT III (FRAUDULENT
INDUCEMENT) OF THE COMPLAINT
y;\silva2 \count3.fof 6
000098
HISAKA STONE GOTO THIRD CIRCUIT COURT STATE OF HAWAII
YOSHIDA COSGROVE & CHING FILED
Attorneys at Law
A Law Corporation T-4 PM 3 t,
GALE L. F. CHING 2683 -0 A
MITZI A. LEE 6059 -0 CLERK
CAMILLE N. SIRIVATTHA 7159 -0 .
Grosvenor Center, Mauka Tower
737 Bishop Street, Suite 3000
Honolulu, Hawaii 96813
Telephone No.: 523 -0451
Attorneys for Defendant
and Third -Party Plaintiff
WAYNE CARVALHO, individually and
in his official capacity as Deputy
•
Chief of Police Chief and Chief
of Police of the County of Hawaii
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
WILLIAM SILVA; DANIEL MLAKAR; ) CIVIL NO. 97 -622
MICHAEL DUBBERSTEIN; RICHARD ) (Non -Motor Vehicle Tort)
CANN; ERNEST CORREIA, HENRY J. )
SILVA; THOMAS C.S. HING, JR.; ) FINDINGS OF FACT, CONCLUSIONS
GLENN NOJIRI; JAMES KELLY; ) OF LAW AND ORDER GRANTING
RODNEY AURELLO; JULIAN SHIROMA; ) DEFENDANT WAYNE CARVALHO,
ERROL ISHIMINE; and JERRY ) INDIVIDUALLY AND IN HIS
COLOMA; individually and on ) OFFICIAL CAPACITY AS DEPUTY
behalf of a class of Hawaii ) CHIEF OF POLICE CHIEF AND
County Police Officers, ) CHIEF OF POLICE OF THE COUNTY
OF HAWAII'S MOTION TO DISMISS
Plaintiffs, ) OR IN THE ALTERNATIVE MOTION
FOR SUMMARY JUDGMENT AS TO
vs. ) PLAINTIFF WILLIAM SILVA'S
CLAIM OF RETALIATION•
COUNTY OF HAWAII; "COUNTY OF
HAWAII POLICE DEPARTMENT; VICTOR) Hearing
VIERRA, individually and his ) Date: August 6, 1999 .
official capacity of Chief of ) Time: 1:00 p.m.
Police for the County of Hawaii;) Judge: Hon. Riki May Amano
WAYNE CARVALHO, individually and)
in his official capacity as
Deputy Chief'of Police Chief and) Trial: September 27, 1999
Chief of Police of the County of) Judge: Hon. Riki May Amano
Hawaii; FRANCES DeMORALES,
individually and in his official)
capacity as Assistant Chief of )
Police of . the County of Hawaii; )
Y: \SILVA2 \RETAL.FOF
000099
liM
JOHN DOES 1 -100; JANE DOES 1- )
100; DOE GOVERNMENTAL ENTITIES )
1 -100; DOE BUSINESS ENTITIES )
1 -100, )
Defendants. )
WAYNE CARVALHO, individually and)
in his official capacity as )
Deputy Chief of Police Chief and)
Chief of Police of the County of)
Hawaii, )
Defendant and Third- )
Party Plaintiff, )
vs. )
GUY PAUL, individually and in )
his official capacity as Chief )
of Police of the County of )
Hawaii, and the STATE OF HAWAII )
ORGANIZATION OF POLICE OFFICERS,)
Third -Party )
Defendants. )
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
GRANTING DEFENDANT WAYNE CARVALHO, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS DEPUTY CHIEF OF POLICE CHIEF AND CHIEF OF
POLICE OF THE COUNTY OF HAWAII'S MOTION TO DISMISS
OR IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT
AS TO PLAINTIFF WILLIAM SILVA'S CLAIM OF RETALIATION
Defendant WAYNE CARVALHO, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS DEPUTY CHIEF OF POLICE CHIEF AND CHIEF OF
POLICE OF THE COUNTY OF HAWAII (hereinafter "Carvalho "), having
moved this Honorable Court for an Order Dismissing Or In The
Alternative Summary Judgment As To Plaintiff William Silva's
Y:\SILVA2 \RETAL.FOF 2
000100
• w i
Claim Of Retaliation In The Complaint And At Trial, file- stamped
May 20, 1999, hearing held on August 6, 1999 at 1:00 p.m. before
the Honorable Riki May Amano, Presiding Judge in the presence of
Debra Akemi Kagawa, Esq. as counsel for the Plaintiffs; David
Minkin, Esq. as counsel for Defendant County of Hawaii and County
of Hawaii Police Department; Alika Thoene, Esq. as counsel for
Defendant, Frances DeMorales; Howard Shiroma, Esq. as counsel for
Third -Party Defendant Guy Paul; and Gale L. F. Ching, Esq. as
counsel for Defendant and Third -Party Plaintiff Wayne Carvalho
and Defendant County of Hawaii and County of Hawaii Police
Department, Defendant Frances DeMorales and Third -Party Defendant
Guy Paul, having joined in said Motion, and the Court having
reviewed the memorandum of law, having noted that the Plaintiffs
through their attorneys have not opposed the motion and being
fully informed of the facts and circumstances involved herein,
hereby makes the following Findings Of Facts:
FINDINGS OF FACTS
1. Plaintiffs, Rodney Aurello, Bradley Ballesteros,
Arlen Bento, Richard Cann, Morton Carter, Jerry Coloma, Dennis
Correa, Ernest Correia, Michael Dubberstein, Lodybesy Glory, Earl
Hatada, Thomas Hing, Jr., Errol Ishimine, James Kelly, William
Lyman, Daniel Mlakar, Glen Nojiri, Julian Shiroma, Henry Silva,
William Silva and Burton Yamaguchi (hereinafter "PLAINTIFFS ") had
filed a Complaint on or about December 18, 1997.
2. Plaintiff William Silva alleged that on or about
March 15, 1996 he was transferred from the Juvenile Aid Section
Y: \SILVA2 \RETAL.FOF ' 3
000101
• ac
to the South Hilo Patrol Section as a form of retaliation because
of his status as a Plaintiff in this case.
3. Plaintiff William Silva has admitted that prior to
the filing of Civil No. 96- 00359, Silva v. County of Hawaii. et.
al. (hereinafter "FEDERAL CASE "), he did not inform anyone that
he was going to be filing a lawsuit or be part of a lawsuit
alleging promotional improprieties.
4. PLAINTIFFS and Plaintiff William Silva have not
opposed the Motion To Dismiss Or In The Alternative Motion For
Summary Judgment As To Plaintiff William Silva's Claim Of
Retaliation, file- stamped May 20, 1999.
Based on the above Findings Of Facts, the Court makes
the following Conclusions Of Law:
CONCLUSIONS OF LAW
1. Defendant Wayne Carvalho, Individually And In His
Official Capacity As Deputy Chief Of Police Chief And Chief Of
Police Of The County Of Hawaii's Motion To Dismiss Or In The
Alternative Motion For Summary Judgment As To Plaintiff William
Silva's Claim Of Retaliation is not opposed by the PLAINTIFFS and
including Plaintiff William Silva.
Based on the above Findings Of Facts and Conclusions Of
Law, the Court makes the following ORDER:
ORDER
Defendant Wayne Carvalho, Individually And In His
Official Capacity As Deputy Chief Of Police Chief And Chief Of
Y:\SILVA2 \RETAL.FOF 4
000102
Police Of The County Of Hawaii's Motion To Dismiss Or In The
Alternative Motion For Summary Judgment As To Plaintiff William
Silva's Claim Of Retaliation is GRANTED as to Defendant and Third -
Party Plaintiff Wayne Carvalho, Defendant County of Hawaii and
County of Hawaii Police Department, Defendant Frances DeMorales
and Third -Party Defendant Guy Paul, as follows:
1. There shall not be any reference to or evidence of
the transfer of Plaintiff William Silva from the Juvenile Aid
Section to the South Hilo Patrol Section of the Hawaii County
Police Department that occurred on or about March 15, 1996 at the
trial proceedings in this case; and
2. There shall not be any reference to or evidence of
alleged retaliation against Plaintiff William Silva because of
his status as a Plaintiff at the trial proceedings in this case.
3. Each party shall bear their own attorneys' fees
and costs incurred in said Motion.
Dated: ,9
THE HONORABLE RIKI MAY AMANO
Presiding Jud e
APPROVED AS TO FORM:
Michael Jay Gree3, Esq.
David J. Gierlach, Esq.
Debra Akemi Kagawa, Esq.
Attorneys for Plaintiffs
Y:4SILVA2\RETAL.FOF 5
000103
1
David Min in, q.
Attorney for D endant
County of Hawaii and
County of Hawaii Police Department
Alika Thoene, Esq.
Attorney for Defendant
Frances DeMorales
000 b1/4cTSY
Brian DeLima, Esq.
Howard Shiroma, Esq.
Attorneys for Third7Party Defendant
Guy Paul
•
WILLIAM SILVA, ET AL. V. COUNTY OF HAWAII, ET AL; CIVIL NO. 97-
622; FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER GRANTING
DEFENDANT WAYNE CARVALHO, INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS DEPUTY CHIEF OF POLICE CHIEF AND CHIEF OF POLICE OF
THE COUNTY OF HAWAII'S MOTION DISMISS OR IN THE ALTERNATIVE
MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF WILLIAM SILVA'S CLAIM
OF RETALIATION
Y: \SILVA2 \RETAL.FOF 6
000104
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
WILLIAM SILVA, et al., ) CIVIL NO. 97 -622
) (Non - Motor Vehicle Tort)
Plaintiffs, )
vs. ) SPECIAL VERDICT FORM FOR
) PLAINTIFF HENRY SILVA
)
COUNTY OF HAWAII, et al., )
)
Defendants. )
)
Trial: September 27, 1999
Judge: Hon. Riki May Amano
SPECIAL VERDICT FORM FOR PLAINTIFF HENRY SILVA
The jury must answer the questions in the order given, unless otherwise indicated. Read
and follow all instructions carefully. Each answer requires the agreement of at least 10 jurors;
however, the same 10 jurors need not agree on each answer. Please note that some of the
questions are conditioned on the answers to other questions and some need not be answered:
follow the instructions. If you do not understand any question or if you wish to communicate
with the court on any other subject, you must do so in writing through the Bailiff.
THIRD CIRCUIT COURT
STATE OF HAWAII
HIL O, HAWAII
FILED IN O'E?! COURT /1
AT 82-7 DEC O'CLOCK ^
L1` 2 0 999
—
, J. Il.2 wA..(.C... -4
- - -' Clock
000105
• •
Question 1: QUALIFIED IMMUNITY
Do you find that Plaintiffs proved by clear and convincing evidence that the
following are NOT entitled to qualified immunity as to Plaintiff HENRY SILVA?
Wayne Carvalho Yes t_ No
Francis DeMorales Yes ✓ No
If you answered "no" as to Wayne Carvalho, do not answer Questions 3 through 4
and Questions 6 through 8 with respect to Wayne Carvalho. If you answered
"yes," go to Question 2.
If you answered "no" as to Francis DeMorales, do not answer Questions 3 through
4 and Questions 6 through 8 with respect to Francis DeMorales. If you answered
"yes," go to Question 2.
2
000106
Question 2: STATUTE OF LIMITATIONS
Do you find that Defendants proved by a preponderance of the evidence that
Plaintiff HENRY SILVA's recovery is time - barred with respect to the following?
For Questions 2(a), 2(b) and 2(c), answer "yes" if you find that the
Plaintiff knew or should have known of his injury, the negligence
or violation of a duty, and the causal connection between the two
BEFORE the dates specified below. Answer "no" if you find
otherwise.
Ouestion 2(a):
April 16, 1994 Yes No
(Intentional Infliction of
Emotional Distress)
Please go to Question 2(b).
Ouestion 2(b):
December 18, 1991 Yes No
(Infringement of Constitutional
Right, Violation of Procedural
Due Process, Racketeering)
Please go to Question 2(c).
Ouestion 2(0:
April 16, 1990 Yes No
(Fraud, Conspiracy to Commit
Fraud, Negligent Retention,
Negligent Supervision)
If you answered "no" to any of the above, go to Question 3. If you answered
"yes" to all of the above, go to Question 9.
3
000107
! •
Question 3: All questions in this section relate only to INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS.
If you answered "yes" to Question 2(a), go to Question 4. If you answered "no" to
Question 2(a), go to Question 3(a).
Question 3(a)
Do you find that Plaintiffs proved by a preponderance of the evidence that Francis
DeMorales intentionally inflicted emotional distress on Plaintiff HENRY SILVA?
Yes `I No
If you answered "yes," go to Question 3(b). If you answered "no," go to Question
4.
Question 3(b):
Do you find that Plaintiffs proved by a preponderance of the evidence that the
conduct of Francis DeMorales was a substantial factor in causing damages to
Plaintiff HENRY SILVA?
Yes ✓ No
If you answered "yes," go to Question 3(c). If you answered "no," go to Question
4.
Question 3(el:
Do you find that Plaintiffs proved by a preponderance of the evidence that Francis
DeMorales was acting within the course and scope of his employment with the
County of Hawaii when he intentionally inflicted emotional distress on Plaintiff
HENRY SILVA?
Yes -✓ No
If you answered "yes," go to Question 3(e). If you answered "no," go to Question
3(d).
4
000108
• •
Question 3(d):
Do you find that Plaintiffs proved by a preponderance of the evidence that the ,
- County of Hawaii ratified the conduct of Francis DeMorales?
Yes / No
Please go to Question 3(e).
Question 3(e):
What are the amounts of damages for Plaintiff HENRY SILVA?
General Damages: $ / / De 0 .DD
Special Damages: $ ¥ , DP D .00
Question 3(f):
If you found in Question 3(d) that the County of Hawaii ratified the conduct of
Francis DeMorales, what percentage, if any, of the County of Hawaii's ratification
is due to the conduct of Guy Paul?
5� %
5
99.0109
Ouestion 4: All questions in this section relate only to FRAUD and CONSPIRACY TO
COMMIT FRAUD.
If you answered "yes" to Question 2(c), go to Question 6. If you answered "no" to
Question 2(c), go to Question 4(a).
Ouestion 4(a):
Do you find that Plaintiffs proved by clear and convincing evidence that any of
the following committed fraud and/or conspiracy to commit fraud against Plaintiff
HENRY SILVA?
Wayne Carvalho Yes ^ No
Francis DeMorales Yes • No
Other County employees Yes ` No
If you answered "yes" to any part of Question 4(a), go to Question 4(b). If you
answered "no" to all parts of Question 4(a), go to Question 5.
Ouestion 4(b):
Wherever you answered "yes" to Question 4(a), do you find that Plaintiffs proved
by a preponderance of the evidence that the conduct of the liable person or
persons was a substantial factor in causing damages to Plaintiff HENRY SILVA?
Wayne Carvalho Yes / No
Francis DeMorales Yes • No
Other County employees Yes No
If you answered "yes" to any part of Question 4(b), go to Question 4(c). If you
answered "no" to all parts of Question 4(b) go to Question 5.
6
000110
Question 4(c):
Wherever you answered "yes" to Question 4(b), do you find that Plaintiffs proved
by a preponderance of the evidence that the liable person was acting within the
course and scope of their employment with the County of Hawaii when they
committed fraud and/or conspiracy to commit fraud against Plaintiff HENRY
SILVA?
Wayne Carvalho Yes f / No
Francis DeMorales Yes / No
Other County employees Yes J No
Please go to Question 4(d).
Question 4(d):
Wherever you answered "no" to Question 4(c), do you find that Plaintiffs proved
by a preponderance of the evidence that the County of Hawaii ratified the conduct
of the person or persons who committed fraud and/or conspiracy to commit fraud
against Plaintiff HENRY SILVA?
Wayne Carvalho Yes No
•
Francis DeMorales Yes No
Other County employees Yes No
Please go to Question 4(e).
Question 4(e):
What is the amount of special damages for Plaintiff HENRY SILVA?
$ 00 0
7
000111
•
• •
Question 4(f):
What percent of liability do you allocate to the following person or persons who
have been found liable to Plaintiff HENRY SILVA for damages in Question 4(b)?
Wayne Carvalho
Francis DeMorales 0
Other County employees -1
TOTAL 100%
Note: The sum of the percentages given in response to Question 4(f) must total
100 %.
Question 4(g):
If you found in Question 4(f) that "other County employees" are liable to Plaintiff
HENRY SILVA for damages, what percentage, if any, of the County of Hawaii's
liability is due to the conduct of Guy Paul?
7�v
Question 4(h):
If you found in Question 4(f) that Wayne Carvalho is liable to Plaintiff HENRY
SILVA for damages, what percentage, if any, of Wayne Carvalho's liability is due
to the conduct of Guy Paul?
Question 4(i):
If you found in Question 4(d) that the County of Hawaii ratified the conduct of
Francis DeMorales, Wayne Carvalho and/or "other County employees ", what
percentage, if any, of the County of Hawaii's ratification is due to the conduct of
Guy Paul?
8
00011.2
•
Question 5: All questions in this section relate only to NEGLIGENT
RETENTION and NEGLIGENT SUPERVISION.
If you answered "yes" to Question 2(c), go to Question 6. If you answered "no" to
Question 2(c), go to Question 5(a).
Question 5(a):
Do you find that Plaintiffs proved by a preponderance of the evidence that the
County of Hawaii negligently retained and/or negligently supervised the
following:
Wayne Carvalho Yes / No .
Francis DeMorales Yes 1 / No
Victor Vierra Yes ✓ No
If you answered "yes" to any part of Question 5(a), go to Question 5(b). If you
answered "no" to all parts of Question 5(a), go to Question 6.
Question 5(b):
Do you find that Plaintiffs proved by a preponderance of the evidence that the
County of Hawaii's negligence was a substantial factor in causing damages to
Plaintiff HENRY SILVA?
Yes f No
If you answered "yes," go to Question 5(c). If you answered "no," go to Question
6.
•
9
00011.3
•
Ouestion 5(c):
- What are the amounts of damages for Plaintiff HENRY SILVA?
General Damages: $ 07 // 0 00 • 00 -
Special Damages: $ q 000. 00
Ouestion 5(d):
If you found that the County of Hawaii is liable to Plaintiff HENRY SILVA for
damages, what percentage, if any, of the County of Hawaii's liability is due to the
conduct of Guy Paul?
5 o %
10
000114
s
Ouestion 6: All questions in this section relate only to INFRINGEMENT OF
CONSTITUTIONAL RIGHT and VIOLATION OF PROCEDURAL DUE
PROCESS.
If you answered "yes" to Question 2(b), go to Question 8. If you answered "no" to
Question 2(b), go to Question 6(a).
Ouestion 6(a):
Do you find that Plaintiffs proved by a preponderance of the evidence that any of
the following engaged in an impermissible infringement of Plaintiff HENRY
SILVA's constitutional right to a fair and impartial promotions practice?
Wayne Carvalho Yes / No
Francis DeMorales Yes No
Other County employees Yes ✓ No
If you answered "yes" to any part of Question 6(a), go to Question 6(b). If you
answered "no" to all parts of Question 6(a), go to Question 7.
Ouestion 6(b):
Wherever you answered "yes" to Question 6(a), do you find that Plaintiffs proved
by a preponderance of the evidence that the conduct of the liable person or
persons was a substantial factor in causing damages to Plaintiff HENRY SILVA?
Wayne Carvalho Yes ✓ No
Francis DeMorales Yes ' No
Other County employees Yes No
If you answered "yes" to any part of Question 6(b), go to Question 6(c). If you
answered "no" to all parts of Question 6(b), go to Question 7.
11
00€1,15
• •
Question 6(c):
Wherever you answered "yes" to Question 6(b), do you find that Plaintiffs proved
by a preponderance of the evidence that the liable person was acting within the
course and scope of their employment with the County of Hawaii when they
engaged in the impermissible infringement of Plaintiff HENRY SILVA's
constitutional right to a fair and impartial promotions practice?
Wayne Carvalho Yes 7 No
Francis DeMorales Yes No
Other County employees Yes J No
Please go to Question 6(d).
Question 6(d):
Wherever you answered "no" to Question 6(c), do you find that Plaintiffs proved
by a preponderance of the evidence that the County of Hawaii ratified the conduct
of the person or persons who engaged in the impermissible infringement of
Plaintiff HENRY SILVA's constitutional right to a fair and impartial promotions
practice?
Wayne Carvalho Yes No
Francis DeMorales Yes No
Other County employees Yes No
Please go to Question 6(e).
Question 6(e1:
If you answered "yes" to any part of Question 6(b), what are the amounts of damages for
Plaintiff HENRY SILVA?
General Damages $ / 000.00
Special Damages: $ i t / 000. & 0
Please go to Question 6(f).
12
000fls
Question 6(f):
•
What percent of liability do you allocate to the following person or persons who
have been found liable to Plaintiff
f7 HENRY � SILVA for damages in Question 6(b)?
Wayne Carvalho 7il/
Francis DeMorales i t 0
Other County employees qv
TOTAL 100%
Note: The sum of the percentages given in response to Question 6(0 must total
100 %.
Question 6(g):
If you found in Question 6(0 that "other County employees" are liable to Plaintiff
HENRY SILVA for damages, what percentage, if any, of the County of Hawaii's
liability is due to the conduct of Guy Paul?
9
Question 6(h):
If you found in Question 6(0 that Wayne Carvalho is liable to Plaintiff HENRY
SILVA for damages, what percentage, if any, of Wayne Carvalho's liability is due
to the conduct of Guy Paul?
I %
Ouestion 6(0:
If you found in Question 6(d) that the County of Hawaii ratified the conduct of
Francis DeMorales, Wayne Carvalho and/or "other County employees ", what
percentage, if any, of the County of Hawaii's ratification is due to the conduct of
Guy Paul?
Please go to Question 7.
•
13
000117
Ouestion 7: RACKETEERING
All questions in this section relate only to RACKETEERING.
Question 7(a):
Do you find that Plaintiffs proved by a preponderance of the evidence that any of
the following engaged in acts constituting commercial bribery?
Wayne Carvalho Yes / No
Francis DeMorales Yes •/ No
If you answered "yes" to any part of Question 7(a), go to Question 7(b). If you answered
"no" to all parts of Question 7(a), go to Question 8.
Question 7(b):
Wherever you marked "yes" to Question 7(a), do you find that Plaintiffs proved by
a preponderance of the evidence that any of those persons violated the state
racketeering statute?
Wayne Carvalho Yes No
Francis DeMorales Yes -/ No
If you answered "yes" to any part of Question 7(b), go to Question 7(c). If you answered
"no" to all parts of Question 7(b), go to Question 8.
Question 7(c):
Wherever you marked "yes" to Question 7(b), do you find that Plaintiffs proved
by a preponderance of the evidence that the conduct of any of the following
person or persons was a substantial factor in causing damages to Plaintiff HENRY
SILVA?
Wayne Carvalho Yes ' No
Francis DeMorales Yes No
If you answered "yes" to any part of Question 7(c), go to Question 7(d). If you
answered "no" to all parts of Question 7(c), go to Question 8.
14
000118
Ouestion 7(d):
What are the amounts of damages for Plaintiff HENRY SILVA?
General Damages: $ /0 000,00
Special Damages: $ ` f , D 00. D 0
Ouestion 7(e):
What percent of liability do you allocate to the following person or persons who
have been found liable to Plaintiff HENRY SILVA for damages in Question 7(c)?
Wayne Carvalho 50
Francis DeMorales 50
TOTAL 100%
Note: The sum of the percentages given in response to Question 7(e) must total
100 %.
Ouestion 7(f):
If you found in Question 7(e) that Wayne Carvalho is liable to Plaintiff HENRY
SILVA for damages, what percentage, if any, of Wayne Carvalho's liability is due
to the conduct of Guy Paul?
O
Please go to Question 8.
15
000119
• •
Ouestion 8: PUNITIVE DAMAGES
All questions in this section relate only to PUNITIVE DAMAGES.
Ouestion 8(a):
Do you find that Plaintiffs proved by clear and convincing that punitive
damages should be assessed against Francis DeMorales?
Yes ✓ No
If you answered "yes," go to Question 8(b). If you answered "no," go to Question
8(c).
Question 8(b):
What is the amount of punitive damages for which Francis DeMorales is liable to
Plaintiff HENRY SILVA?
7 0 ,000 -DO
Ouestion 8(c):
Do you find that Plaintiffs proved by clear and convincing evidence that punitive
damages should be assessed against Wayne Carvalho?
Yes .✓ No
If you answered "yes," go to Question 8(d). If you answered "no," go to Question
9.
Question 8(d):
What is the amount of punitive damages for which Wayne Carvalho is liable to
Plaintiff HENRY SILVA?
$ 1 /l / b0 0 , 0 0
Please go to Question 9.
16
000120
• •
Question 9: All questions in this section relate only to ABUSE OF PROCESS.
Question 9(a):
Do you find that Defendants Wayne Carvalho and/or Francis DeMorales proved by clear -
and convincing evidence that Plaintiffs committed abuse of process against Wayne
Carvalho and/or Francis DeMorales?
Wayne Carvalho Yes No
Francis DeMorales Yes No
If you answered "yes" to any part of Question 9(a), go to Question 9(b). If you answered
"no" to all parts of Question 9(a), go to Question 10.
Question 9(h):
Wherever you answered "yes" to Question 9(a), do you fmd that Defendants Wayne
Carvalho and/or Francis DeMorales proved by a preponderance of the evidence that the
conduct of the liable person or persons was a substantial factor in causing damages to
Wayne Carvalho and/or Francis DeMorales?
Wayne Carvalho Yes No
Francis DeMorales Yes No
If you answered "yes" to any part of Question 9(b), go to Question 9(c). If you answered
"no" to all parts of Question 9(b), go to Question 10.
Question 9(c):
If you answered "yes" to Wayne Carvalho in Question 9(b), what are the amounts of
damages for Defendant Wayne Carvalho from Plaintiff HENRY J. SILVA?
General Damages: $
Special Damages: $
Please go to Question 9(d).
17 000121
•
Question 9(
If you answered "yes" to Francis DeMorales in Question 9(b), what are the amounts of
damages forDefendant Francis DeMorales from Plaintiff HENRY J. SILVA?
General Damages: $
Special Damages: $
Please go to Question 10.
18
000122
•
•
Ouestion 10: All questions in this section relate only to NEGLIGENT INFLICTION OF
EMOTIONAL DISTRESS.
Question 10(a): -
Do you find that Defendants Wayne Carvalho and/or Francis DeMorales proved by a
• preponderance of the evidence that Plaintiffs negligently inflicted emotional distress
against Wayne Carvalho and/or Francis DeMorales?
Wayne Carvalho Yes No ✓
Francis DeMorales Yes No /
If you answered "yes" to any part of Question '10(a), go to Question 10(b). If you
answered "no" to all parts of Question 10(a), go to Question 11.
Question 10(b):
Wherever you answered "yes" to Question 10(a), do you find that Defendants Wayne
Carvalho and/or Francis DeMorales proved by a preponderance of the evidence that the
conduct of the liable person or persons was a substantial factor in causing damages to
Wayne Carvalho and/or Francis DeMorales?
Wayne Carvalho Yes No
•
Francis DeMorales Yes No
If you answered "yes" to any part of Question 10(b), go to Question 10(c). If you
answered "no" to all parts of Question 10(b), go to Question 11.
Question 10(c):
If you answered - "yes" to Wayne Carvalho in Question 10(b), what are the amounts of
damages for Defendant Wayne Carvalho from Plaintiff HENRY J. SILVA?
General Damages: $
Special Damages: $
Please go to Question 10(d).
19
000123
• •
Question 10(d):
If you answered "yes" to Francis DeMorales in Question 10(b), what are the amounts of
damages for - Defendant Francis DeMorales from Plaintiff HENRY J. SILVA?
General Damages: $ -
Special Damages: $.
Please go to Question 11.
20 000124
•
Question II: All questions in this section relate only to INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS.
Question 11(a):
Do you find that Defendants Wayne Carvalho and/or Francis DeMorales proved by a
preponderance of the evidence that Plaintiffs intentionally inflicted emotional distress
against Wayne Carvalho and/or Francis DeMorales?
Wayne Carvalho Yes No `. /
Francis DeMorales Yes No
If you answered "yes" to any part of Question 11(a), go to Question 11(b). If you
answered "no" to all parts of Question 11(a), go to Question 12.
Question 11(b):
Wherever you answered "yes" to Question 11(a), do you find that Defendants Wayne
Carvalho and/or Francis DeMorales proved by a preponderance of the evidence that the
conduct of the liable person or persons was a substantial factor in causing damages to
Wayne Carvalho and/or Francis DeMorales?
Wayne Carvalho Yes No
Francis DeMorales Yes No
If you answered "yes" to any part of Question 11(b), go to Question 11(c). If you
answered "no" to all parts of Question 11(b), go to Question 12.
Question 11(c):
If you answered "yes" to Wayne Carvalho in Question 11(b), what are the amounts of
damages for Defendant Wayne Carvalho from Plaintiff HENRY J. SILVA?
C?eneral Damages: $
Special Damages: $
Please go to Question 11(d):
21 000125
• •
Question 1I(
If you answered "yes" to Francis DeMorales in Question 11(b), what are the amounts of
damages for Defendant Francis DeMorales from Plaintiff HENRY J. SILVA?
General Damages: $
Special Damages: $
Please go to Question 12.
2 z 000126
•
Ouestion 12: All questions in this section relate only to PUNITIVE DAMAGES.
Ouestion 12(a):
Do you find that Defendant Wayne Carvalho proved by clear and convincing evidence
that punitive damages should be assessed against Plaintiffs?
Yes No
If you answered "yes," go to Question 12(b). If you answered "no," go to Question 12(c).
Question 12(b):
What is the amount of punitive damages for which Plaintiff HENRY J. SILVA is liable to
Defendant Wayne Carvalho?
Ouestion 12 {c1:
Do you find that Defendant Francis DeMorales proved by clear and convincing evidence
that punitive damages should be assessed against Plaintiffs?
Yes No ✓
If you answered "yes," go to Question 12(d). If you answered "no," date and sign this
form.
Question 12(d): •
What is the amount of punitive damages for which Plaintiff HENRY J. SILVA is liable to
Defendant Francis DeMorales?
23
000127
• •
DATED: Hilo, Hawaii, Pei . /3 , 1999.
- iitos
Foreperson
24 , 000128
C;) O
1' 1
I i rl
li
� 'i
I
i
I
.....J.....r... U. 0uau..c
• 1 • • Drug Enforce nt Administration
Agreement Number: 2000 -43
•
AGREEMENT
This agreement is entered between the HAWAII COUNTY POLICE DEPARTMENT
hereinafter referred to as the HCPD and the DRUG ENFORCEMENT ADMINISTRATION OF
THE UNITED STATES DEPARTMENT OF JUSTICE, hereinafter referred to as DEA, with a
reference to the following:
There is evidence that trafficking in controlled substances exists and that such illegal activity has a
substantial and detrimental effect on the health and general welfare of the people of the State of
HAWAII. The parties hereto agree that it is to their mutual benefit to cooperate in locating and
eradicating illicit cannabis plants and in the investigation and prosecution of cases before the courts
of the United States and the courts of the State of HAWAII involving controlled substances. The
DEA, pursuant to the authority of 21 USC 873, proposes to provide certain necessary funds and the
HCPD is desirous of securing funds.
NOW, therefore, in consideration of the mutual covenants hereinafter contained, the parties hereto
have agreed as follows:
1. The HCPD, will, with its own law enforcement personnel and employees, as hereinafter perform
specified, performed the activities and duties described below:
A. Gather and report intelligence data relating to the illicit possession and distribution
of marijuana.
B. Investigate and report instances involving the trafficking in controlled substances.
C. Provide staffing of law enforcement personnel for the eradication of illicit marijuana
located within the State of HAWAII.
D. Arrest and bring to prosecution defendants charged with violation of the controlled
substance laws.
E. Send required samples of eradicated marijuana to the NIDA marijuana Potency
Monitoring Program.
It is understood and agreed by the parties to this agreement that the activities described in
Sub - paragraphs A, B, C, D, and E above shall be provided with the existing personnel and that
the scope of the HCPD program with respect to those activities by such personnel, shall be solely at the
HCPD discretion, subject to appropriate limitations contained in the budget adopted by the HCPD.
EXHIBIT _ D r _ 000129
Letter of Agreement N1/4,00 -43 • Page 2
2. DEA will pay to the HCPD the amount of TWO HUNDRED SIXTY FIVE THOUSAND
DOLLARS ($265,000) for the period of JANUARY 1, 2000 TO DECEMBER 31, 2000 to defray
the cost relating to the eradication and suppression of illicit marijuana. It is explicitly understood
and agreed that Federal funds provided to the HCPD under this agreement may not be used to
defray costs relating to herbicidal eradication of marijuana without the advance written consent of
DEA.
The expenses shall include payment of deputies' /officers' overtime, salary and overtime of reserve
officers during the period of time they are engaged in the eradication process, and per diem as
appropriate, as well as other direct costs such as purchases of expendable equipment, rental of
equipment and vehicles, and fuel for vehicles and aircraft and minor repairs and maintenance
necessitated by their use. These funds shall not be used for the purchase of non - expendable
equipment defined as property having a useful life of more than one year and all purchases with an
acquisition cost of $600 or more per unit or an aggregate cost of $5,000 must have verbal approval
from the DEA DCE/SP Coordinator. In the event DEA approves the purchase of non - expendable
equipment that costs $5,000 or more per unit for the use by the HCPD personnel pursuant to this
Agreement, DEA may elect to claim DEA ownership of this equipment at the end of the period of
this Agreement, or DEA may at its discretion, allow the HCPD to retain ownership of the equipment
for its future use in accordance with applicable federal rules and regulations.
Payment by DEA to the HCPD will be in accordance with a schedule determined by DEA and said
payment will be made pursuant to the execution by the HCPD of a Standard Form SF -270, Request
for Advance or Reimbursement, and receipt of same by DEA. However, no funds will be paid by
DEA to a state /county agency under this Agreement until DEA has received to its satisfaction an
accounting of the expenditures of all funds paid to this state/county agency during the periods of
previous Agreements for this same purpose. These expenditures will be reported on a Standard
Form SF -269, Financial Status Report, or equivalent document.
3. Employees of the HCPD shall at no time be considered employees of the United States
Government or the Drug Enforcement Administration for any purpose, nor will this Agreement
establish an agency relationship between the HCPD and the Drug Enforcement Administration.
4. The HCPD shall maintain complete and accurate reports, records and accounts of all obligations
and expenditures of DEA funds under this Agreement in accordance with generally accepted
accounting principle and in accordance with State laws and procedures for expending and
accounting for it's own funds. The HCPD shall further maintain its records of all obligations and
expenditures of DEA funds under this Agreement in accordance with all instructions provided by
DEA to facilitate on -site inspection and auditing of such records and accounts.
5. The HCPD shall permit and have available for examination and auditing by DEA, the United
States, Department of Justice or the Comptroller General of the United States, or any of their duly
authorized agents and representatives, any and all investigative reports, records, documents,
accounts, invoices, receipts or expenditures relating to this Agreement. In addition, the HCPD will
maintain all such foregoing reports and records until all audits and examinations are completed and
resolved, or for a period of three (3) years after termination of this Agreement, whichever sooner.
000130
Letter of Agreement No•00 -43 • Page 3
6. The recipient agrees to comply with the organizational audit requirements of OMB Circular A-
133, "Audits of States, Local Governments, and Non - Profit Organizations." In conjunction with the
beginning date of the award, the audit report period of the state or local government entity to be
audited under the single audit requirement is (1/2000) to (12/2000). The audit report must be
submitted no later than (1/02) and each audit cycle thereafter covering the entire award period as
originally approved or amended. The management letter must be submitted with the audit report.
Subsequent audits must be submitted no later than thirteen (13) months after the close of the
recipient organization's audited fiscal year. The submission of the audit report shall be as follows:
When the Department of Justice (DOJ) is the cognizant agency, an original and one copy of the audit
report shall be sent to:
DOJ Regional Inspector General for Audit
San Francisco regional Audit Office
525 Marker Street, Suite 3522
San Francisco, California 94105
415- 974 -0993
A copy of your audit transmittal letter addressed to the Regional Inspector General, shall be sent to:
Audit Services
Office of the Controller
Office of Justice Programs
633 Indiana Avenue, NW, Room 942
Washington, D.C. 20531
When DOJ is not the cognizant agency, an original and one copy of the audit report shall be sent to
the cognizant agency:
Also, a copy of the audit report shall be sent:
DOJ Regional Inspector General for Audit
San Francisco regional Audit Office
525 Market Street, Suite 3522
San Francisco, California 94105
415- 974 -0993
000131
•
Letter of Agreement N 2000 -43 Page 4
• •
A copy of your audit transmittal letter addressed to the Regional Inspector General, shall be sent to:
Audit Services
Office of the Controller
Office ofJustice Programs
63a Indiana Avenue, NW, Room 942
Washington, D.C. 20531
The recipient agrees to submit their corrective action plan with the audit report to the DOJ Regional
Inspector General for Audit, when there are findings /recommendations disclosed in the audit report.
The corrective action plan should include: (1) specific steps taken to comply with the
recommendations; (2) timetable for performance and/or implementation date for each
recommendation; and (3) description of monitoring to be conducted to ensure implementation.
A Department ofJustice Order requires the Office ofJustice Programs (OJP) to maintain a data base
of all grants made by DOJ components. DOJ Order 2900.8A (June 20, 1990) copy attached). To
implement this requirement, OJP requires all DOJ components to submit to it a completed form,
"Grantee Information for Access, a copy of which is attached, for completion by the recipient.
The recipient acknowledges that failure to furnish an acceptable audit as determined by the
cognizant Federal agency may be a basis for denial of future Federal funds and/or refunding of
Federal funds and may be a basis for limiting the recipient to payment by reimbursement on a case
basis.
7. Executive Order 12549
The participant agrees that an authorized officer or employee will execute and return to the DEA
State and Local Programs Section, Washington, D.C. 20537, the attached OJP Form 4061/3,
"Certification Regarding Lobbying; Debarment, Suspension, and other Responsibility Matters; and
Drug Free Workplace Requirements." The participant acknowledges that this agreement will not
take effect and that no Federal funds will be awarded by DEA until the completed certification is
received.
8. Disclosure of Federal Participation
In compliance with Section 623 of Public Law 102 -141, the recipient agrees that no amount of this
Award shall be used to finance the acquisition of goods or services (including construction services)
for the Project unless the recipient:
(a) Specifies in any announcement of the awarding of the contract for the procurement of
the goods and services involved (including construction services) the amount of
Federal funds that will be used to finance the acquisition; and
(b) Expresses the amount announced pursuant to paragraph (a) as a percentage of the total
cost of the planned acquisition.
•
000132
Letter of Agreement No11100 -43 • Page 5
The above requirements only apply to a procurement for goods or services (including construction
services) that have an aggregate value of $500,000 or more.
9. It is further covenant and agreed that the HCPD will hold the DEA, its agents and employees and
the United States Government harmless from any and all claims, demands, suits, liabilities and cases
of action, of whatever kind and designation, and where -ever located in the State of HAWAII,
resulting from the Domestic Cannabis Eradication/Suppression Program funded by DEA. The DEA
acknowledges that the United States is liable for the wrongful or negligent acts or omissions of its
officers and employees while on duty and acting within the scope of their employment to the extent
permitted by the Federal Tort Claims Act, 28 USC Sections 1346(b), 2671, et seq.
10. The HCPD will comply with Title VI of the Civil Rights Act of 1954 and with section 504 of
the Rehabilitation Act of 1973, as amended, and with all requirements imposed by or pursuant to the
regulations of the Department of Justice (28 CFR Part 42, Subparts C, D, and G) issued to those
Acts relating to discrimination on the grounds of race, color, creed, sex, age, national origin or
handicap and to equal employment opportunities.
11. Within sixty (60) days after termination of the Agreement, the HCPD will prepare SF -269,
Financial Status Report, itemizing the breakdown of final expenditures. This SF -269, along with a
refund check for any unexpended funds which were advanced by DEA, pursuant to this
Agreement will be returned to DEA.
12. Upon submission of the SF -269 to State and Local Programs Section (DOS) for the preceding
year, a copy of the general ledger and the underlying supporting documentation reflecting the
expenditures for equipment in excess of $5,000 and the expenses associated with the rental or
leasing of vehicles or aircraft must be attached.
13. The duration of this Agreement shall be as specified in Paragraph 2. The terms of this
Agreement may be terminated by either party for good cause shown by notice in writing given to the
other party thirty (30) days prior thereof. All obligations that are outstanding on the above
prescribed termination date or on the date of any thirty (30) day notice of termination shall be
•
liquidated by HCPD within sixty (60) days thereof, in which event DEA will only be liable for
obligations incurred by the HCPD during the terms of this Agreement. In no event shall the HCPD
incur any new obligations during the period of notice of termination. The HCPD shall return to
DEA all unexpended funds forthwith after the sixty (60) days liquidated period.
•
000133
Letter of Agreement 2000 -43 Page 6
• •
THE HAWAII COUNTY POLICE DEPARTMENT
By: ittypi 4,4iArtim
WAYNE G. CARVALHO
Title: POLICE CHIEF
Date: 4 -11 -CO
•
DRUG ENFORCEMENT • • MINIS • • TION
By: al.lAJ / A %(/
Special Agent i ige
Date:_2y)
• DEA'ACCOUNTING DATA:
DEA/FFS INPUT DATE: , BY:
*DIVISIONAL FISCAL CLERK MUST INPUT INTO DEA/FFS
TO BE FILLED OUT BY HEADQUARTERS:
APPROVAL FOR PAYMENT
This is to verify that all of the administrative determinations have been made, that the payment is
legal, proper, correct and approved for payment.
Amount:
Obligation Doc No.
Line No.
Signature
Printed Name /Title
Date Approved
000134
�:- • U.S. DEPARTMENT OF JUSTICE •
. OFFICE OF JUSTICE PROGRAMS
OFFICE OF THE COMPTROLLER
CERTIFICATIONS REGARDING LOBBYING; DEBARMENT, SUSPENSION AND
OTHER RESPONSIBILITY MATTERS; AND DRUG -FREE WORKPLACE REQUIREMENTS
Applicants should refer to the regulations cited below to determine the certification to which they are required to
attest. Applicants should also review the instructions for certification included in the regulations before completing this
from. Signature of this form provides for compliance with certification requirements under 28 CFR Part 69, "New
Restrictions on Lobbying" and 28 CFR Part 67, "Government -wide Department and Suspension (Nonprocurement) and
Government -wide Requirements for Drug -Free Workplace (Grants)." The certifications shall be treated as a material
representation of fact upon reliance will be placed when the Department of Justice determines to award the
covered transaction, grant, or cooperative agreement.
1. LOBBYING public (Federal, State, or local) transaction or contract under a
• Title 31 of the U.S. Code, and public transaction; violation of Federal or State antitrust
As required by Section 1352,
implemented at 28 CFR Part 69, for persons entering into a statutes or commission of pmbe t, theft forgery,
grant or cooperative agreement over 5100,000, as defined at statements, falsification
or receiving re ion ceiving g stolen property;
o of f records, making false
28 CFR Part 6 the applicant certifies that
erty;
(a) No Federal a (c) Are not presently indicted for or otherwise criminally or
() appropriate funds have been paid or will be civilly charged by a governmental entity (Federal, State, or
Paid, by or on behalf of the undersigned, to any person for in- local) with commission of any of the offenses enumerated in
Iluencing or attempting to influence an officer or employee of paragraph (1)(b) of this certification; and
any agency, a Member of Congress, an officer or employee of
Congress. or an employee of a Member of Congress in con- (d) Have not within a three -year period preceding this applica-
nection with the making of any Federal grant, the entering into lion had one or more public transactions (Federal, State, or
of any cooperative agreement, and extension, continuation, local) terminated for cause or default; and
renewal, amendment, or modification of any Federal grant or
cooperative agreement B. Where the applicant is unable to certify to any of the
(b) If any funds other than Federal appropriated funds have statements in this certification, he or she shall attach an
P explanation to this application.
been paid or will be paid to any person for of influencing
tempting to influence an officer or employee of any agency, a a
Member of Congress, an officer or employee of Congress, or 3. DRUG - FREE WORKPLACE
an employee of a Member of Congress in connection with this (GRANTEES OTHER THAN INDIVIDUALS)
Federal grant or cooperative agreement, the undersigned shall
complete and submit Standard Form - LLL, Disclosure of As required by the Drug Free Workplace Act of 1988, and
Lobbying Activities, in accordance with its instructions; implemented at 28 CFR Part 67, Subpart F, for grantees, as
(c) The undersigned shall require that the language of this cer- defined at 28 CFR Part 67 Sections 67.615 and 67.620 -
tification be included in the award documents or all subawards A. The applicant certifies that it will or will continue to provide
at all tiers (including subgants, contracts under grants and a drug -free workplace by:
cooperative agreements, and subcontracts) and that all sub-
recipients shall certify and disclose accordingly. (a) Publishing a statement notifying employees that the
unlawful manufacture. disMbution, dispensing, possession, or
2. DEBARMEN T SUSPENSION, AND OTHER use of a controlled substance is prohibited in the grantee's
2. DEB RMEN1 MATTERS workplace and specifying the actions that will be taken against
(DIRECT RECIPIENT) employees for violation of such prohibition;
(bf Establishing an on -going drug -free awareness program to
As required by Executive Order 12549. Debarment and
Suspension, and implemented at 28 CFR Prt 67, for prospec- in ortn employees about -
tive participants in pnmary covered transactions, as defined at (1) The dangers of drugs abuse in the workplace;
28 CFR Part 67, Section 67.510 -
( The grantees policy of maintaining a drug -free workplace;
A. The applicant certifies that it and its principals:
(a) Are not presently debarred, suspended, proposed for debar - assistance programs; and counseling, rehabilitation, and employee
'ment, declared ineligible sentenced to a denial of Federal
benefits by a a State or Federal al co rt, or Federal (4) The penalties that may be imposed upon employees for
or agency; by y department drug abuse violations occumng in the workplace;
(c) Making it a requirement that each employee to be engaged
(b) Have not within a three -year period preceding this applica- in the performance of the grant be given a copy of the state-
lion been convicted of or had a avil judgment rendered against ment required by paragraph (a);
them for commission of fraud or a criminal offense in connec-
tion with obtaining, attempting to obtain, or performing a (d) Notifying the employee in the statement required by
paragraph (a) that. as a condition of employment under the
grant, the employee will -
OJP FORM 406116 (3 -91) REPLACES OJP FORMS 40612, 4062/3 AND 4061 /4 WHICH ARE OBSOLETE. 000135
(1) Abide by the terms of the statement; and
•
•
•
(2) Notify the employer in writing of his or her conviction for a
violation of a criminal drug statute occurring in the workplace
no later than five calendar days after such conviction;
•
•
(e) Notifying the agency, in writing, within 10 calendar days
after receiving notice under subparagraph (d)(2) from an Check 0 if there are workplace on file that are not identified
employee or otherwise receiving actual notice of such convic-
lion. Employers of convicted employees must provide notice. here.
including position title. to: Department of Justice. Office of Section 67, 630 of the regulations provides that a grantee that
Justice Programs, ATTN: Control Desk, 633 Indiana Avenue, is a State may elect to make one certification in each Federal
N W., Washington, D.C. 20531 Notice shall include the iden- fiscal year. A copy of which should be included with each ap-
tification number(s) of each affected grant;
age may D Department
to u OJP Form 4061/7. States and State •
(0 Taking one of the following actions, within 30 calendar
days of receiving notice under subparagraph (d)(2), with Check 0 if the State has elected to •
respect to eny employee who is so convicted -
4061/7.
complete OJP Form
(1) Taking appropriate personnel action against such an
employee, up to and including termination consistent with the DRUG -FREE WORKPLACE
requirements of the Rehabilitation Act of 1973, as amended; or
(2) Requiring such employee to participate satisfactorily in a (GRANTEES WHO ARE INDIVIDUALS)
Workplace INDIVIDUALS) Act of
Y As required by the Dru 1988, and
drug p p lace abuse assistance or rehabilitation program approved for implemented at 28 CFR Part 67, Subpart F, for grantees, as
such purposes by a Federal, State, or local health, law enforce- defined al 28 CFR Part 67; Sections 67.615 and 67.620 -
ment, or other appropriate agency;
(g) Making a good faith effort to continue to maintain a A. As a condition of the grant I certify that I will not engage
lace through implementation of paragraphs (a), (b), in the unlawful manufacture, distribution, dispensing,
(c), (d), (e), and (0, son, or use of a controlled substance i contion
free work any
B. The grantee may insert in the space activity with the grant; and
sit
for the P provided below the 8. If convinced of a criminal drug offense resulting from a
Performance of work done in connection with violation occurring during the conduct of any grant activity, I
the specific grant: y
Place of Performance (Street address, d r will report the conviction, in writing within 10 calendar days
of the conviction, to: Department of Justice, Office of Justice
code) ty, coun ry, state, zip Programs, ATTN: Control Desk, 633 Indiana Avenue, N.W.,
Washington, D.C. 20531.
•
As the duly authorized representative of the applicant, I hereby certify that the applicant will comply with the above certifications.
1. Grantee Name and Address:
•
Hawaii Police Department
349 Kapiolani Street
Hilo, Hawaii 96720
2. Application Number and/or Project Name
3. Grantee IRSNendor Number
DCE /SP Agreement No. 2000 -43
4. Typed Name and Title of Authorized Representative
WAYNE G. CARVALHO
POLICE CHIEF
5. Signature
6.. Date
: C�/ 00
000136
cenry ual to fhe best of my s10NA t:tffTlFICATION
knowledge and belief the data on AUTHORIZED CERTIFYING OFFICIAL DATE REQUEST - l
the reverse are correct and that ad BUeMfTTEp
outlays were made In accordance 1 . U . �A C � t �. •�_ . _ •
1
with the grant conditions on TYPEp OR P
k other W �fv( 1` - a
agreement and that payment Is ,� a. NAA1E AND TITLE
-
due and has not been previously WAYNE G. CARVALHO, POLICE CHIEF TELEPHONE (AREA CODE,
requested. NUMBER AND ..224 ION)
•
This space for agency use (808) 961 -2244
Public reporting burden for this collection of Information is estimated to average 60 minutes per
•
response, including time for reviewing instructions, searching existing data sources,
maintaining the data needed, and completing and reviewing the collledion of Information.ng and
comments regarding done burden estimate or any other a Sentl
including suggestions for reducing this burden to the sAed °f office of M fh nag emn of information. ,
Paperwork Reduction Project (03anagement and Budget
48.0004) Washington. (>ton, DC 20503.
PLEASE DO NOT RETURN YOUR COMPLETED FORM TO THE OFFICE OF MANAGEMENT
AND BUDGET. SEND IT TO THE ADDRESS PROVIDED BY THE SPONSORING AGENCY.
INSTRUCTIONS
Please type or print legibly. Items 1, 3, 5, 9, 10, 11e, 11 f, 118 111, 12 and 13 are self - explanatory; specific instructions
for other items are as follows: .
•
Item Ent
Item Ent
2 Indicate whether request is prepared on cash or accrued
expenditure basis. All requests for advances shall be activity. if additional columns d indi p a ber many
prepared on a cash basis. additional forms as needed and indicate page number in
4 Enter the Federal grant number, or other identifying space provided in upper right; however, the summary
y. shown�n the P ot column on the first page.
activities should be
number t assigned Federal
the Federal sponsoring number, a dency. If
. the, advance or reimbursement is for more than one 1la Enter in "as of date,' the month, day, and year of the
grant or other agreement, insert N/A; then, show the
aggregate amounts. On a separate sheet, list s. Enter program each ending of the p rogunting rogram t pa to which this amount
grant or agreement number and the Federal share of rebates, and discounts), the e a tp date appropriate net of refunds,
outlays made against the grant or agreement. requests ar i
),
cash aspro colu For
m
6 Enter the employer identification number assigned by the of actual cash disbursements for
goods and services, the
U.S. Internal Revenue Service, or the FICE (institution amount of indirect expenses charged, the value of
code if requested by the Federal agency. ) in -kind contributions applied, and the amount of cash
advances and payments made to subcontractors and
7 This space is reserved for an account number or other subrecipients. For requests prepared on an accrued
identifying number that may be assigned by the recipient. expenditure basis, outlays are the sum of the actual xp es
p disbursements, the amount of indirect expenses
8 Enter the month, day, and year for the beginning and incurred, and the net increase (or decrease) in the
ending of the period covered in this request If the amounts owed by the recipient for goods and other
request is for an advance or for both an advance and property received and for services
reimbursement, show the period that the advance will employees, contracts, subgrantees and other payees. by
cover. If the request is for reimbursement, show the 11b Enter the cumulative cash income received to date, if
period for which the reimbursement is requested. requests are prepared on a cash basis. For requests
Note: The Federal sponsoring agencies have the option of prepared on an accrued expenditure basis, enter the
requiring recipients to complete items 11 or 12, but not enmu income named ta to. program income basis,
both. Item 12 should be used when only a minimum enter only the amount use dfor the project o pr n come th
amount of information is needed to make an advance was re t hed t t used for the ret. or program by the
and outlay information contained in item 11 can be terms of the grant or other agreement.
obtained in a timely manner from other reports.
11d Only when making requests for advance payments, enter
11 The purpose of the vertical columns (a), (b), and (c) is to the total estimated amount of cash outlays that will be
made during the period covered by the advance.
provide space for separate cost breakdowns when a
fu n te budgeted by program, 13 has been planned and bud
fu or Complete the certification before submitting this request.
•
•
000137
STANDARD FORM 270 (Rev. 7 Back
•
• Of AB APPROVAL. NO. • - PAGE OF
0348 -004
1 PAGES
REQUEST FOR ADVANCE ` "C coo or bah tot's 2. BASIS OF REQUEST
OR REIMBURSEMENT / TYPE OF Z ADVANCE El REIMBURSE. ❑ CASH
PAYMENT ` MENT
REQUESTED b. x 4'n
fhb oppb) box
(See instructions On back) FINAL PARTIAL •. ACCRUAL
3. FEDERAL SPONSORING AGENCY ANO ORGANIZATIONAL ELEMENT 4. FEDERAL GRANT OR OTHER 5. PARTIAL PAYMENT REQUEST
TO WHICH THIS REPORT IS SUBMITTED IDENTIFYING NUMBER ASSIGNED NUMBER FOR THIS REQUEST
DRUG ENFORCEMENT ADMINISTRATION BY FEDERAL AGENCY
2000 -43
6. EMPLOYER IDENTIFICATION 7. RECIPIENTS ACCOUNT NUMBER B. PERIOD COVERED BY THIS REQUEST
NUMBER OR IDENTIFYING NUMBER FROM (month, day, year) TO (month, d
ay,.year)
996000567 N/A JANUARY 1, 2000 DECEMBER 31, 2000
9. RECIPIENT ORGANIZATION 10. PAYEE (Where check is to be sent if different than Item 9)
Name: Name: HAWAII COUNTY OF HAWAII POLICE
DEPARTMENT'
Number Number C/O DEA
and Street N/A and Street: 300 ALA MOANA BOULEVARD, ROOM 3129
HONOLULU, HAWAII 96850
City, State City, State
and ZIP Code: and ZIP Code:
11. COMPUTATION OF AMOUNT OF REIMBURSEMENTS /ADVANCES REQUESTED
(a) (b) (c)
PROGRAMS/FUNCTIONS /ACTIVITIES Ns-
TOTAL
a. Total program (As o/ date)
outlays to date $ 265,000.00 $ $ $ 265,000.00
b. Less: Cumulative program income
0.00
c. Net program outlays (Line a minus
line b) 265,000.00 0.00 0.00 265,000.00
d. Estimated net rash outlays for advance
period 0.00
e. Total (Sum oflines c 6 d) 265, 000.00 0.00 0.00 265, 000.00
Non - Federal share of amount on fine e 0.00
g. Federal share of amount on line, 265,000.00 265,000.00
•
h. Federal payments previously requested 0.00
i. Federal share now requested (line g
minus line h) 265,000.00 0.00 0.00 265,000.00
j. Advances required by 1st month
month, when requested 265, 000.00
by Federal grantor 265,000.00
agency for use in making 2nd month
0.00
prescheduled advances
3rd month
0.00
12. ALTERNATE COMPUTATION FOR ADVANCES ONLY
a. Estimated Federal cash outlays that wilt be made during period covered by the advance ,$
b. Less: Estimated balance of Federal rash on hand as of beginning of advance period
c. Amoi n t r rru e.o-n 4ine a minus I' a D) .p 0 00
AUTHORIZED FOR LOCAL REPRODUCTION (Continued on Reverse) STANDARD FORM 270 (Rev. 7 -97)
Prescribed by OMB Circulars A -102 and A -110
000138
•
�0
• •
•
Subject Datc
April 10, 2000
Grantee Information for ACCESS
To From
Audit Services Drug Enforcement Administration
State and Local Programs Section
1. GRANTEE: Hawaii County Police Department
2 . GRANTEE ADDRESS: 349 Kapiolani Street
Hilo, Hawaii 96720
3. GRANT NO: 2000 -43
4. GRANT PERIOD: January 1. 2000 - December 31. 2000
5. AUDIT REPORT PERIOD:
6. COGNIZANT AGENCY: Department of Justice
* 7. RECIPIENT TYPE: 01 AGENCY LEVEL: 03
(Code) (Code)
3. REASON OR MEMO: (Check As Many of the Following As Apply)
a. New Grantee: [ } e. Change in Audit Report Period: [ ]
b. New Award: [ X ] f. Change in Cognizant Agency: [ ]
c. Change in Grantee Address: [ ] g. Other:
d. Change in Award Report Period: [ } (Specify)
NOTE: If submission is for a CHANGE ONLY (8c -8g) to information previously submitted to Audit
Services. you will only need to complete Item 1 in Items I— 6 in addition to your change information.
* CODES for Item 7: Recipient Type and Agency Level
01 - Law Enforcement 02 - State 03 - County 04 — City
000139
0 0
•
•
Aiu, Thomas K. - -
Harrison, Ellen ;TAI: GAB
Sent: Friday, June 09, 2000 6:08 AM
Sent: CA:, KAM 1
To: Kelly, Thomas E.; Aiu, Thomas K.
Cc: Goldman, Bettie; Kaufman, Steven „ ::; d •
Subject: Honolulu County Council Certification Issue
During
em my m a g r e edd to find them a point of contact ct wii ti n the Department the could
provide members,
de embere, I agreed ,
pfinitive guidance on the requirements of the suspension /debarment certification.
the Controller of the DOJ Office of Justice
Programs (OJP) and Stacy Worth ngton of Schwimer,
her staff. We briefly discussed the council's concerns,
and I faxed Ms. Schwimer a copy of Mr. Hong's 612100 letter. _ They agreed that, of course, the
county can continue to apply for and receive DOJ and DEA funds. -They also confirmed that the DOJ
regulations requiring reporting of certain civil judgments are directed toward findings of fraud, etc., in
financial matters, not toward all alleged fraud.
They also advised that all1V1r. Hong's telephone calls were not wasted, after all. Mr.
Worthington told me that he had recently received an e-mail message from the County Counsel
about the civil judgment against the chief and that he had written back, askin g
a) is the Chief a "principal" who would be directly involved in administering a grant? and
b) did the lawsuit involve misuse of funds?
Finally, they offered an attorney in OJP's Office of General Counsel as a future point of
contact for Mr. Hong. Andrea Grill can be reached at (202) 514 -2125. I will try to reach Mr. Hong
and provide this information.
1 hope this helps.
Ps. I will be out of the office next week on training. In my absence, Senior Attorney Steven
Kaufman, and our supervisor, Associate Chief Counsel Bettie
Goldman, will handle any follow -up questions.
Pps. Thank you both very much for all your courtesy and assistance! I look forward to seeing you
again in August.
i 00c140
EXHI BIT " 1+ TOTAL P.02