HILO — It’s been a year since West Hawaii Battalion Chiefs Steve Loyola and Ty Medeiros were suspended, reportedly for publicly criticizing Hawaii County Fire Chief Darren Rosario.
Loyola and Medeiros were put on paid leave Nov. 21 and reinstated June 22. An internal investigation is ongoing. Loyola remains on sick leave, but Medeiros has returned to his job. Battalion chief, one rank above captain, is a managerial position excluded from collective bargaining.
Their chance to have their case finally heard by the Merit Appeals Board was abruptly postponed Thursday after an attorney for the fire chief questioned whether the board had the authority to hear the case. The board plans to revisit the case Jan. 14 after considering written arguments from the two parties.
“We’ll think about and deliberate over that issue at that time,” said Merit Appeals Board Chairwoman June Rabago.
The board’s discussion on the jurisdictional issue was held in executive session, so members’ reasoning behind the decision isn’t known.
The last-minute motion by Deputy Corporation Counsel Steven Strauss prompted a spate of back-and-forth bickering between Strauss and the battalion chiefs’ attorney, Ted Hong, who said later he felt he was “ambushed” by the sudden oral motion.
Strauss had argued that Hong hadn’t proven that the case met the requirements for the Merit Appeals Board to take jurisdiction because he hadn’t shown that the chiefs suffered a “legal wrong” from disciplinary action.
Strauss, who had previously, and so far unsuccessfully, argued to close the hearing from the public and the media, said Hong was merely seeking a venue to “bash the department, bash the chief for no good purpose.” He said the two employees weren’t wronged because there is no back pay owed, no demotion and no derogatory information in their personnel files.
“This is not an oversight board for the management style of the chief,” Strauss said.
But Hong said he can’t prove his case until he presents evidence, including documents and witness testimony. He’d subpoenaed 17 witnesses for the two-day hearing, which was supposed to continue today.
“You don’t prove the claims and allegations and then hold the hearing,” Hong said. “What would be the point of the hearing?”
Hong said without evidence and testimony, the hearing amounted to no more than “two attorneys flapping our gums.” He said he needs to bring on witnesses to find out what black marks might be in the battalion chiefs’ files and how much overtime they lost — which he estimated at “tens of thousands of dollars” — due to being on paid leave.
Julian White, the deputy state attorney general who’s assisting the Merit Appeals Board with the case, seemed sympathetic.
“Part of your theory can be interpreted as ‘don’t holler until you’re hit,’” White told Strauss. “(But) where can these folks go to?”
Circuit Court remains an option if the Merit Appeals Board doesn’t hear the case, Hong said after the hearing.
A captain was also investigated and cleared by the chief for criticizing the department in public. Fire Chief Darren Rosario sent a letter March 25 to Capt. Sean Sommers, telling him he was being investigated on administrative charges that he violated the department’s rules when he criticized the department and fire chief in a March 19 interview on Hawaii News Now. Sommers, a 21-year veteran of the department, is assigned to the South Kohala Fire Station.
Loyola, a 24-year employee, had told Hawaii News Now they were suspended for criticizing how Rosario was running the department. Rosario, a 25-year employee, has been fire chief since September 2011.
Among the rules Sommers allegedly violated, Rosario said in the letter that was obtained by West Hawaii Today, is 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.”
“It is alleged that you have violated the aforementioned rules and regulations of the Hawaii Fire Department with your televised media interview which aired statewide on Thursday, March 19, 2015,” the chief said.
Employees agree to follow the rules as a condition of employment.
The letter went on to admonish Sommers “do not discuss this matter with anyone as it is confidential; any discussion about the aforementioned will be viewed as interfering with the administrative investigation.”
“This is exactly the reason you don’t hear from other personnel in the fire department,” Sommers told West Hawaii Today in March. “They fear retribution, and I don’t blame them. … I truly am risking everything right now.”