State of Hawai'i, Department of Public Safety v. Forbes

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-MAR-2024
08:03 AM
Dkt. 142 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, DEPARTMENT OF PUBLIC SAFETY,
Employer-Appellant-Appellee,
v.
RUTH FORBES [MAB Case No. 354], Employee-Appellee-Appellant,
and
MERIT APPEALS BOARD, PAUL K.W. AU, VALERIE B. PACHECO,
and LAURIE SANTIAGO, Agency-Appellees-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 17-1-1242)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)

This is a secondary appeal. Employee-Appellee-

Appellant Ruth Forbes (Forbes) appeals from the March 8, 2018

Judgment (Judgment) and March 12, 2018 Notice of Entry of

Judgment, entered by the Circuit Court of the First Circuit

(Circuit Court),1 in favor of Employer-Appellant-Appellee State

of Hawai#i, Department of Public Safety (DPS), and against Forbes

and Agency-Appellee-Appellee Merit Board of Appeals, et al.

(MAB). Forbes also challenges the Circuit Court's: (1) February

23, 2018 Order (Order Reversing MAB) reversing MAB's June 30,

2017 Findings of Fact [(FOFs)], Conclusions of Law [(COLs)],

1
The Honorable Keith K. Hiraoka (Circuit Court Judge) presided.
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Decision and Order (MAB Decision);2 (2) October 16, 2017 Order

Denying Motion to Change Venue; Notice of Entry (Order Denying

Venue); and (3) October 16, 2017 Order Granting [DPS's] Motion

for Stay of [the MAB Decision], filed August 2, 2017 (Order

Granting Stay).

Forbes raises five (5) points of error on appeal,

contending that the Circuit Court erred in: (1) granting DPS's

motion to stay the MAB Decision because DPS did not satisfy the

statutory criteria for a stay; (2) denying Forbes's motion to
change venue because the Circuit Court Judge was conflicted and

did not recuse himself; (3) finding and concluding in its Order

Reversing MAB that MAB acted in excess of its statutory authority

in the MAB Decision; (4) determining in the Order Reversing MAB

that internal DPS policies supercede state law regarding

discharge; and (5) assuming in its Order Reversing MAB that

Forbes's conduct amounted to a criminal offense.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Forbes's points of error as follows:

(1) Forbes contends that the Circuit Court erred in

staying the MAB Decision because the court erroneously determined

under the Life of the Land v. Ariyoshi, 59 Haw. 156, 577 P.2d

1116 (1978), balancing test that DPS satisfied all of the

criteria set forth in Hawaii Revised Statutes (HRS) § 91-14(c)

2
The MAB Decision reversed DPS's discharge of Forbes as Warden of
the Kulani Correctional Facility (Kulani), and reinstated Forbes's employment
with DPS subject to a 60-day suspension.

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(2012).3 Forbes specifically argues that there was no showing of

irreparable injury under § 91-14(c)(2), nor that the public

interest would be served by staying the MAB Decision under § 91-

14(c)(4).

The granting or denying of injunctive relief rests with

the sound discretion of the trial court, and will be sustained

absent a showing of a manifest abuse of discretion. Sierra Club

v. Dep't of Transp. of State of Haw., 120 Hawai#i 181, 197, 202

P.3d 1226, 1242 (2009).
Regarding the first factor, the record shows that MAB

found that there was credible evidence supporting 21 of 38

charges against Forbes, including serious incidents of Forbes

sexually assaulting or harassing a subordinate, racially

harassing subordinates, creating a hostile work environment, and

lying to investigators. Thus, the Circuit Court did not abuse

its discretion in finding a likelihood that DPS would prevail on

the merits of its appeal of the MAB Decision when MAB upheld

multiple serious charges against Forbes, but nevertheless

3
HRS § 91-14(c) provides:

§ 91-14 Judicial review of contested cases.
. . . .
(c) The proceedings for review shall not stay
enforcement of the agency decisions or the confirmation of
any fine as a judgment pursuant to section 92-17(g); but the
reviewing court may order a stay if the following criteria
have been met:
(1) There is likelihood that the subject person will
prevail on the merits of an appeal from the
administrative proceeding to the court;
(2) Irreparable damage to the subject person will
result if a stay is not ordered;
(3) No irreparable damage to the public will result
from the stay order; and
(4) Public interest will be served by the stay
order.

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reinstated Forbes primarily because Forbes had not been

previously disciplined.

Regarding the second and third factors, the record

includes evidence that re-instating Forbes could result in

irreparable damage to DPS and its employees because, inter alia,

many of the employees subject to Forbes's harassment or, who

complained of a hostile work environment, are still employed at

Kulani. On the other hand, the risk of irreparable harm to

Forbes was low because if DPS lost on appeal, Forbes would have
been reinstated as warden and received back-pay.

Regarding the final factor, inter alia, the public

interest would be served by having Kulani be run free from

Forbes's substantiated hostile and harassing workplace behavior

until a final decision on the merits.

We conclude that the Circuit Court did not abuse its

discretion in its Order Granting Stay.

(2) Forbes argues that the Circuit Court erred in its

Order Denying Venue because (a) the Circuit Court Judge was

conflicted and did not recuse himself to avoid any appearance of

impropriety, and (b) the operative events occurred in the Third

Circuit. HRS § 603-37 (2016) allows a court, at its discretion,

to change the venue to another court upon satisfactory proof that

the change would be more fair and equitable.

Even assuming, arguendo, that the Circuit Court Judge

had a conflict, the appropriate remedy would be to transfer the

case to a different court in the First Circuit, not transfer it

to the Third Circuit. Forbes's first argument is without merit.

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Regarding Forbes's second argument, the Circuit Court

denied Forbes's change of venue because, inter alia, (1) DPS was

appealing a decision from MAB, (2) MAB is located in Honolulu,

(3) the MAB Decision was issued from Honolulu, (4) DPS's claim

for relief arises on Honolulu, (4) Forbes's financial-based

arguments were not persuasive, and (5) Forbes's separate civil

lawsuits against DPS on Hilo are not procedurally related or

substantively parallel to share, e.g., discovery or motion

practice. We conclude that the Circuit Court did not abuse its
discretion in denying Forbes's motion to change venue.

(3) Forbes argues that the Circuit Court erred in

concluding that MAB acted in excess of its statutory authority

by: (a) concluding that Forbes was not an excluded civil servant

subject to HRS Chapter 89C; (b) considering evidence outside of

the record; and (c) concluding that MAB's decision to modify

Forbes's discharge decision impinged upon the policies

promulgated by the state director of human resources development

(Director), contrary to HRS § 76-47 (2012).

Forbes argues that the Circuit Court ruled that HRS

Chapter 89C did not apply to Forbes, and the court then rejected

the "just cause" standard for discharging Forbes. Although the

language in the court's order is somewhat unclear, it appears

that the court determined that HRS Chapter 89C does apply to

Forbes. This is correct. Forbes is excluded from collective

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bargaining under HRS § 89-6(f)(3)(2012),4 and excluded civil

servants are subject to HRS Chapter 89C. In any case, the

Circuit Court did not reject the "just cause" standard. The

court determined that MAB exceeded its jurisdiction under HRS

§ 76-47(c)5 by injecting its own policy opinion that the zero-

tolerance policies promulgated by the Director were "not just

under the circumstances and will not promote the efficiency of

government service."

Forbes also contends that the Circuit Court erred in
relying on documents not in the record on appeal, specifically,

DPS Policy No. ADM.08.10. However, DPS's first exhibit was the

Public Safety Civil Rights Compliance Office's report of their

investigation into Forbes, which included ADM.03.13.3.2,

ADM.03.13.3.2a, and ADM.08.10. This argument is without merit.

4
HRS § 89-6(f)(3) states:

§ 89-6 Appropriate bargaining units.
. . . .
(f) The following individuals shall not be included in
any appropriate bargaining unit or be entitled to coverage
under this chapter:
. . . .
(3) Top-level managerial and administrative
personnel, including the department head, deputy
or assistant to a department head,
administrative officer, director, or chief of a
state or county agency or major division, and
legal counsel[.]
5
HRS § 76-47(c) states, in pertinent part:

§ 76-47 Merit appeals boards; appointment, authority,
procedures.
. . . .
(c) The merit appeals board shall adopt rules of
practice and procedure consistent with section 76-14 and in
accordance with chapter 91. . . The rules shall recognize
that the merit appeals board shall sit as an appellate body
and that matters of policy, methodology, and administration
are left for determination by the director.

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In addition, Forbes argues that the Circuit Court erred

in determining that MAB acted in excess of its statutory

authority when MAB modified the Director's decision based on the

principle of progressive discipline.

The Hawai#i Supreme Court has provided that "civil

servants can be terminated only for just cause." Konno v. Cnty.

of Haw., 85 Hawai#i 61, 68, 937 P.2d 397, 404 (1997). HRS § 76-

46 (2012) states:
§ 76-46 Discharges; demotions. An appointing
authority may discharge or demote any employee when the
appointing authority considers that the good of the service
will be served thereby. Discharges may be made only for
such causes that will promote the efficiency of government
service.

Demotions or discharges shall be in accordance with
procedures negotiated under chapter 89 or established
under chapter 89C, as applicable.

(Emphasis added).

HRS § 76-47(e) allows MAB, if it finds that the reasons

for a disciplinary action are only partially substantiated, to

sustain the action, with the power to modify the action if the

circumstances so require. However, as noted supra, HRS § 76-

47(c) instructs MAB to defer to the decision of the Director when
reviewing matters of policy, methodology, and administration.

Further, Hawai#i Administrative Rules (HAR) § 14-25.1-

4(y) states:
§14-25.1-4 Appeal hearing.
. . . .
(y) In conducting its business and rendering its
decision, the board shall serve as an appellate body and
shall not impinge on the authority of the director in
matters of policy, methodology, and administration. All
decisions and orders of the board shall be made in
accordance with personnel laws, rules, policies, and
practices[.]

(Emphasis added).

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In the MAB Decision, MAB determined:
29. Therefore, the Board finds based on the Findings of
Fact, the allegations in charges 2, 3, 4, 5, 6, 7, 8,
9, 10, 11, 12, 13, 14, 15, 17, 19, 20, 33, 37, 38, and
41 are substantiated as the term is used in HRS
Section 76-47(e).[ 6]

MAB then concluded:
31. While [DPS] has argued that the misconduct of [Forbes]
is more than adequate to support the decision to
terminate [Forbes's] employment, the Board does not
believe that [Forbes's] discharge from employment was
"just" or made for such cause that would "promote the
efficiency of government service" under HRS Section
76-46. While the Board finds that there are
substantiated reasons to discipline [Forbes], the
Board also finds that many of the charges were not
substantiated and that there are several reasons why
the Board does not believe that discharge was the
appropriate discipline.
32. Here, . . . [t]here was no evidence that [Forbes] was
previously disciplined while a Warden or in any other
position in DPS. [Forbes] is a long time employee
with the DPS having served for more than twenty years
for DPS. [Forbes's] actions herein do not justify the
imposition of the severe sanction of discharge based
on the principle of progressive discipline. Thus, the
Board does not find that the discharge of [Forbes] was
just under the circumstances and will not promote the
efficiency of government service.
33. In view of the above, the Board finds that the action
taken by [DPS] to discharge [Forbes] was not just or
to promote the efficiency of government, thus
[Forbes's] appeal is GRANTED.

In its Order Reversing MAB, the Circuit Court noted DPS

policy no. ADM.03.13, which provides that discrimination and

harassment of employees will not be tolerated, and employees who

engage in such activity will be subject to discipline, including

immediate discharge. The Circuit Court determined that Forbes's

sexual assault charge, that MAB found substantiated, subjected

6
Charges 2-8 are for sexual assault/harassment, charges 9-15, 17,
19-20 are for harassment based on race/religion/ancestry/national origin,
charges 33 and 37 are for yelling and swearing at subordinates, and charge 38
is for lying to department investigators. MAB also found 17 of the 38 charges
were unsubstantiated.

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Forbes to immediate discharge under ADM 08.10,7 and MAB was

required to defer to the Director's policy under HRS § 76-47(c)

and HAR § 14-25.1-4(y). Because MAB ignored DPS policy no. ADM

08.10, and substituted its own judgment on what would be a "just"

reprimand for Forbes's substantiated sexual assault charge, MAB

exceeded its statutory authority under HRS § 76-47(c) and HAR §

14-25.1-4(y), and the Circuit Court did not err in its

determination.

(4) Forbes argues that the Circuit Court erred in
finding that DPS internal policies supercede the "just cause"

standard in discharge cases because Forbes's employment therefore

became "at will."

The Circuit Court did not rule that DPS internal

policies for discipline and discharge supercede a "just cause"

standard for discharge. Pursuant to DPS policy ADM.08.10, the

Director determined that a substantiated charge for sexual

assault is "just cause" for discharge, and the court overruled

MAB's decision to ignore that DPS policy. Regardless, there is

no indication that Forbes's discharge arose without cause;

rather, after investigation, DPS and MAB found and substantiated

21 violations of DPS policy. Forbes's argument that there was

not "just cause" for her discharge revolves around a seven factor

7
ADM.08.10 provides:
ADM.08.10 Workplace Non-Violence, 3.0–-Policy: The
Department of Public Safety will put in place a
zero-tolerance policy to any work related or workplace
violence. Physical assault against employees or malicious
property damage, behavior that imparts or intimates an
intent to cause physical or mental harm to another person
will be regarded as an act of violence.

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test for "just cause" that Hawai#i courts do not appear to have

adopted. Forbes does not demonstrate how, for example, a

substantiated charge of sexual assault is not "just cause" for

discharge. Forbes's fourth point of error is without merit.

(5) Forbes argues that the Circuit Court infringed on

her substantive due process rights by assuming Forbes's guilt of

a criminal offense for the conduct substantiated in the second

charge. The court stated, in pertinent parts:
The DPS civil rights compliance office investigator
concluded that "Forbes' conduct was not welcome by [the
employee]." Forbes' conduct could have subjected her to
prosecution for sexual assault under HRS § 707-733: . . .

Forbes' sexual assault of a subordinate DPS employee
subjected her to "immediate discharge" under the DPS "zero-
tolerance policy." ... In light of the substantiated charge
no. 2 against Forbes for sexual assault, the Board exceeded
its statutory authority and impinged upon the authority of
the director by applying the principle of progressive
discipline in lieu of the applicable zero-tolerance
immediate discharge policy.

(Emphasis added). Forbes contends that the Circuit Court's

findings here amount to "the First Circuit Court f[inding]

[Forbes] criminally guilty of the offense of Sexual Assault in

the Fourth Degree." This argument is without merit.

For the reasons set forth above, the Circuit Court's

March 8, 2018 Judgment is affirmed.

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DATED: Honolulu, Hawai#i, March 15, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Ted H.S. Hong,
for Employee-Appellee- /s/ Karen T. Nakasone
Appellant. Associate Judge

Kimberly Tsumoto Guidry, /s/ Sonja M.P. McCullen
First Deputy Solicitor General, Associate Judge
Appellate Division,
Department of the Attorney General,
for Employer-Appellant-Appellee.

Karen R. Tashima,
Deputy Corporation Counsel,
for Agency-Appellees-Appellees.

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