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Friday, February 25, 2000

Four allege
Maui County

The plaintiffs say they were
punished for reporting on the
liquor branch director

By Debra Barayuga


A federal jury was to resume deliberations today on a lawsuit filed by four former Maui Liquor Department investigators who allege they were retaliated against for revealing alleged corrupt and illegal activities by supervisors.

The case, argued over the last three weeks before U.S. District Judge Alan C. Kay, was turned over to jurors.

Arthur De Lima Sr. and Charles R. Bunch filed the complaint against Maui County in January 1994 and were later joined by Curt Tokunaga and Richard Cherry.

Michael Akana, one of the attorneys for the plaintiffs, in closing arguments yesterday, said it would have been easy for the four to look the other way, fill out their time sheets and receive their pensions.

But they did "the right thing" in speaking out against improprieties in the Maui Liquor Department and paid dearly for it, he said.

The men's lives have essentially been on hold for the past seven years, Akana said. "We're asking simply to return the financial loss suffered for telling the truth for the good of the public."

James Takayesu, Maui corporation counsel, said evidence presented during the trial did not show any pattern of retaliation against the plaintiffs.

While the plaintiffs were appropriately disciplined for violating departmental rules such as not showing up for work or frequenting bars after calling in sick, they were also commended for conducting thorough investigations or submitting outstanding reports, Wayne Pagan, chief liquor control officer, had testified.

The department withheld discipline, for example, when De Lima failed to appear at two adjudication hearings, resulting in the cases being tossed out, Pagan said.

Even if they did receive negative performance evaluations for missing work, resulting in lower productivity, they did not lose any pay, Takayesu said.

Takayesu argued that the plaintiffs filed the lawsuit to further their personal and career interests.

County points to job rivalry

Tokunaga and De Lima had applied for the Liquor Department director position and had to find a way to derail the appointment of Frank Silva, Takayesu said. Silva was later appointed director after Joseph Souza retired in June 1993.

Beginning as early as April 1993, the plaintiffs reported to Maui police and the FBI that a liquor licensee was making illegal payments to Souza.

The licensee was a convicted felon -- the granting of a liquor license was a violation of state and county liquor laws. "This convicted felon paid for his license and that's what the checks were all about," Akana said.

The plaintiffs also reported that liquor licensees were getting preferential treatment and liquor laws were being selectively enforced.

They contend their supervisors failed to follow established procedures for dealing with confidential personnel files. They allege Pagan -- supposedly at the request of a Liquor Commission member -- put together a packet of false and defamatory information about them and turned it over to the commission to discredit and discourage them from testifying.

They also allege they were followed, received numerous memos criticizing them for petty violations and were reprimanded for violations of department policies while other investigators guilty of similar violations were not.

None had any negative performance evaluations from the department until after they spoke out, Akana said.

The county should be held liable for its practice of retaliating against employees who exercise their rights as provided by the First Amendment and the state's Whistleblower Protection Act, he said.

Then-Maui Mayor Linda Lingle knew of the retaliation against the plaintiffs as early as September 1993 and "ratified improper actions or ignored it," Akana said.

Four say they were forced out

Among the county's actions were to deny plaintiffs De Lima and Cherry the right to return to the same job or to any other county position, such as the Maui Police Department, where both had served previously, Akana said.

De Lima and Cherry have been on indefinite disability leave from the Maui Liquor Department since February and May 1994, respectively.

Bunch, who resigned in February 1994, and Tokunaga, who resigned in August 1993, contend they left because they could no longer tolerate the harassment and retaliation.

Their attorneys say they left because they were forced to choose between their families or their jobs.

No charges were ever brought as a result of the FBI inquiry into the plaintiffs' allegations or the separate investigation conducted by the Maui Liquor Commission.

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