Council declines to indemnify fire chief in employment lawsuit

  • HOLLYN JOHNSON/Tribune-Herald Fire Chief Darren Rosario

  • COUNCILMAN AARON CHUNG

The Hawaii County Council isn’t ready to put taxpayers on the hook for disciplinary actions Fire Chief Darren Rosario took in 2014 that are now the subject of a lawsuit.

The council, after an hour-long closed-door executive session Wednesday, voted 7-0 to file, rather than to act on a Corporation Counsel request to indemnify Rosario in a lawsuit filed by former West Hawaii Battalion Chief Steve Loyola. Had the chief been indemnified, the county would take responsibility for his actions as being in the course of his job, rather than the chief himself being personally liable.

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Loyola and fellow Battalion Chief Ty Medeiros were placed on paid leave and their uniforms physically stripped of badges and rank insignia after they publicly criticized the chief and complained to the Police Commission about his actions.

The Merit Appeals Board in 2016 unanimously ruled the battalion chiefs were not due overtime and vacation pay, and said Rosario’s actions were administrative, and not disciplinary. The two longtime firefighters, who had consistently received satisfactory performance evaluations, said they were humiliated by the chief’s actions.

During the course of that hearing, Loyola and Medeiros estimated they lost tens of thousands of dollars in overtime they otherwise would have earned, and in lower retirement benefits because the retirement income is based on prior earnings.

Council Chairman Aaron Chung wasn’t ready to agree to Corporation Counsel’s request that Rosario be indemnified, nor that the council take the matter behind closed doors to discuss it. Most of the matter not only is a public record in the court system, but numerous newspaper articles have been written about the case already, Chung said.

“I cannot vote to indemnify our chief. … I respect him,” Chung said, adding, “I would be willing to consider it based on what findings are made by the court. … How can I put the taxpayers on the hook for possible punitive damages?”

The council ultimately agreed to go into executive session at the request of Corporation Counsel Joe Kamelamela, who said some of the details of the lawsuit might include litigation strategy, which should be protected until the trial. A civil trial is currently set for late June.

“I think the chief was acting within the scope of his authority,” said Deputy Corporation Counsel John Mukai. “The chief made those decisions based on his role of Hawaii fire chief.”

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 follow the rules as a condition of employment.

“Now you have the fire department rules versus freedom of speech,” Chung said. “Couldn’t it be argued though for any department, would it be good that the people within their department could express their concerns so we could work for continuous improvement?”

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North Kona Councilwoman Karen Eoff was absent for the vote. Hilo Councilwoman Sue Lee Loy asked to be excused from the session and the vote as she had a conflict of interest because she worked on the case on a contract basis on behalf of the battalion chiefs before she became a council member when it was before the Merit Appeals Board.

This article has been edited to clarify that the council voted to file and not to act on Corporation Counsel’s request, rather than voted not to indemnify.