LIHUE — The Kauai County Auditor filed a civil suit against the county alleging retaliation. The complaint, filed by Ernesto Pasion against the County of Kauai, County Council Chair Jay Furfaro and others as defendants, was filed in 5th Circuit
LIHUE — The Kauai County Auditor filed a civil suit against the county alleging retaliation.
The complaint, filed by Ernesto Pasion against the County of Kauai, County Council Chair Jay Furfaro and others as defendants, was filed in 5th Circuit Court, a clerk confirmed on Monday.
It was filed by Pasion’s attorney Mark Bennett. The complaint is based on a County Council decision concerning Pasion, although details of the complaint are not yet public and a copy of the suit wasn’t available Monday.
Pasion was in his office working on Monday, but said he would not be at work on Tuesday. He could not say why but added the lawsuit is related to a council decision.
“I believe that I have been subjected to illegal retaliation as set out in my court complaint,” Pasion said. “I believe this is crucially important to the people of Kauai.
“The Kauai County Auditor should be independent, and able to do his or her job as required by the County Charter, without fear of any adverse consequences as a result,” he added.
The county was served with the complaint on Nov. 27, Pasion said, adding he is directing any questions to his attorney Bennett, or his associate attorney, Brandi Balanda.
County Communications Director Beth Tokioka said the county could not comment on pending litigation.
The County Auditor’s office was created by a voter amendment to the County Charter in 2008. Pasion, of Kalaheo, had served as a county clerk for 14 years when he was elected unanimously by the County Council to serve as auditor in 2009 — with his term ending Sept. 15, 2015.
Pasion is subject to annual review by the council. However, in his position as auditor he has the power to investigate agencies without direction from the council.
Since 2009 Pasion’s reports have included fuel costs, consumption and management, cash management practices, the Kaiakea Fire Station project, the Building Division and Department of Public Works and Implementation of the Cost Control Commission recommendations on energy savings. In addition, the office produces citizen briefing reports to explain the audits and a Comprehensive Annual Financial Report for the county.
The County Auditor’s office passed its first peer-review evaluation of policies and procedures, internal monitoring, staff training and development, and independence of operation in June.
An independent, external review by the Association of Local Government Auditors found the internal quality control system was “suitably designed and operating effectively to provide reasonable assurance of compliance” with government standards.
At the county budget hearings in April, Pasion requested to restore a funded internal auditor position to fill the vacancy left by the departure of Ron Rawls, a certified public accountant who now works for the state of Hawaii.
But the $1.1 auditor’s budget that was recommended by the mayor and approved by the council didn’t include filling the position or give the department the ability to hire an outside auditor for projects, and was a $300,000 reduction from the year before.
The cuts came at time when the mayor’s administration was a primary auditee, Pasion said at the hearings. Only the council as a body has that power, he added.
Rawls was the auditor who conducted the initial investigation for the interim report on fuel use released in April 2012. It reported irregularities, with possible fraud, theft and abuse of manual and automatic tracking systems.
Whether Rawls’ departure is related to Pasion’s complaint is unclear. Rawls has filed a complaint with the county for damages arising from an alleged constructive discharge complaint in 2012.
The matter is still under investigation and the county cannot comment further on that case, said Tokioka.
The auditor, by policy, must refer an investigation to an outside agency when a question of possible criminal information is produced. Attorney David Minkin and Kiamalu Consulting concluded there was concern about the process of fuel purchases by Mayor Bernard Carvalho Jr., but without apparent evidence of theft or fraud.
The information prompted the previous county prosecuting attorney to bring a 23-count indictment against a county employee. The charges were for falsifying business records related to the mayor’s use of county fuel in a privately-owned vehicle in 2009 and 2010.
According to information from the employee’s motion to dismiss the case, Pasion requested then Council Chair Bill “Kaipo” Asing to request approval for an independent auditor to conduct further investigation into the irregularities on Oct. 22, 2010. County Attorney Al Castillo responded with a memorandum “barring the County Council from approving the auditor’s request for independent investigation” on Nov. 18, 2010.
The Kauai County Council forwarded the report and audit to the Attorney General’s office to avoid possible conflict of interest issues with the prosecuting attorney’s office, according to the motion.
A 5th Circuit judge dismissed the case against the county employee without prejudice in November 2012. It was discovered that a grand jury didn’t find sufficient evidence for an indictment.
Pasion asserted at the budget hearings that the administration acted to cut the auditor’s budget, when a separation of powers should exist between administrative and legislative branches concerning the auditor.
In the past seven months the County Council has held approximately 20 closed executive sessions concerning Pasion’s alleged disciplinary or legal matters.
