Two firefighters who claim they were stripped of their badges by Fire Chief Darren Rosario for publicly criticizing him are suing the chief and the county.
Earlier this month, attorney Ted Hong filed a lawsuit in Hilo Circuit Court on behalf of West Hawaii Battalion Chief Ty Medeiros and a separate amended complaint on behalf of retired West Hawaii Battalion Chief Steve Loyola. The civil suits allege the suspensions violated their right to due process, that they were retaliated against for being whistle-blowers, and were defamed and humiliated.
The suits also claim the county was negligent in supervising Rosario “concerning the performance of his job, including following personnel laws and policies concerning recruitment, internal complaints, harassment, and endangerment of Fire Department personnel and the general public.”
The suits seek reinstatement, back pay, fringe benefits, seniority and overtime, compensatory and punitive damages, and attorneys fees and costs.
Medeiros’ suit claims he lost more than $40,000 in overtime and vacation pay during a seven-month suspension. Loyola, who has retired, estimates he lost more than $51,550 as a result of being placed on indefinite administrative leave.
“The mistake that too many department directors make is they think the department is their own little kingdom or fiefdom, that they can do whatever they want to whomever they want,” Hong said Friday. “And, especially within the public sector, they can’t. And they should know better. And it is unfortunate that people within not only the Fire Department, but also other departments, and not only the county but also the state just don’t realize it. They treat people however they want to treat them.”
Medeiros wrote a letter to Rosario Sept. 15, 2014, requesting his resignation and sent copies to the Fire Commission and Mayor Billy Kenoi. Loyola wrote a letter to the Fire Commission on Sept. 23, 2014, requesting Rosario and Deputy Chief Renwick Victorino be fired. Medeiros and Loyola claimed Rosario had put lives and safety at risk because of inadequate emergency plans they say became obvious during tsunami and hurricane risks.
Loyola also alleged illegal misconduct by Rosario, including covering up a theft investigation, violating Civil Service laws regarding promotions and fiscal improprieties concerning the oversight of a “Fire Relief Association” fund.
Both previously filed for lost overtime pay and benefits to the county’s Merit Appeals Board, which unanimously rejected their claims.
Medeiros’ suit claims he was called to Rosario’s office on Nov. 21, 2014, and was ordered to remove the badge and battalion chief insignia from his uniform while other department personnel witnessed and the event was captured on video.
An internal investigation was conducted by former Police Chief Victor Vierra. Medeiros’ badge and insignia were returned on April 2, 2015, and he was allowed to return to work on June 30.
“Ty wants to be vindicated and to set the record right in terms of the humiliation he experienced,” Hong said.
“The testimony at the appeals board from the other battalion chiefs was that now, people are referring to retaliatory discipline from Chief Rosario as ‘poke bowl’ because … when their badges and insignia were taken away, Randy Kurohara, the (county’s) deputy managing director, reversed that decision later on and ordered the fire department to return those badges and insignia. And they put it in a KTA poke bowl and returned it to them.”
Loyola’s suit claims Assistant Fire Chief Gantry Andrade went into Loyola’s Fire Department dorm room without permission on Nov. 21, 2014, and took Loyola’s badge and rank insignia without Loyola’s permission, stripping Loyola of his rank and duties.
“Steve was told to report to the fire chief’s office and was told that something like the badge stripping was going to happen,” Hong said.
“He was at an event with his child’s class and he decided to stay with his child’s class. He was one of the chaperons.”
Hong said Loyola was “actually forced to take a retirement.”
“After the Merit Appeals Board hearing he was running out of leave, and basically, to earn some sort of money for his family, he felt forced to take an early retirement. It was a substantial financial loss to him,” he said. “… He wants to go back to the department. That’s his life.” Hong added that Loyola thinks if he returns to the department, he’ll be retaliated against “based on his experience and what (Loyola and Medeiros) wrote to the Fire Commission.”
While both plaintiffs claim the badge and insignia stripping were retaliatory measures by the chief, the Merit Appeals Board found the actions were administrative, not disciplinary.
“The insignia and the badges are county property. And just like police officers are required to turn in their badges and weapons when they are placed on administrative leave, so are Fire Department personnel,” said Deputy Corporation Counsel Steve Strauss, who represented Rosario before the panel.
Strauss also disputed Hong’s claim that Loyola was forced to retire.
“He refused to return to his job,” Strauss said.
Strauss described Medeiros’ and Loyola’s actions as “a failed coup attempt.”
“The Fire Commission considered the allegations of both Medeiros and Loyola and, despite those allegations, gave a positive rating to Chief Rosario in his performance review,” he said. “… It’s important to note that not all criticisms of employers are protected by First Amendment considerations. … It’s primarily a private grievance; it’s not a public concern. When you complain about your employer and how they’re treating you or how you perceive that you are treated, it’s not a First Amendment claim.”
The Fire Department has a regulation stating, “no member shall publicly criticize or ridicule the department, its policies or the members … when such action tends to impair the good order or efficiency of the department, interferes with the ability of officers to maintain discipline or it’s made with reckless disregard for truth or falsity.”
Employees agree to the rules as a condition of employment.
Strauss said the county will ask a judge to dismiss the suits. He said the firefighters “have to pursue their appeal rights” of the board’s ruling before taking their claims to court.
“On behalf of Chief Rosario and the county, the complaints have no merit,” Strauss said. “… The plaintiffs proceeded before the Merit Appeals Board and they have their appeals rights of the Merit Appeals Board’s decision, which utterly rejected their claims. But they don’t have a right to bring a multiplicity of actions.”
Email John Burnett at
jburnett@hawaiitribune-
herald.com.
