The Hawaii Attorney General’s Office is stepping into the middle of an ugly breakup between the state Department of Public Safety and, Ruth Forbes, a former Big Island prison warden, who is set to get her job back after being fired for sexual harassment and discriminatory remarks.
Last month, the AG’s office challenged a decision by the Hawaii Merit Appeals Board that found that Forbes’s termination was too harsh given the circumstances.
Even though the appeals board agreed that there was enough evidence to support many of the 38 allegations of wrongdoing against Forbes — including some of the most egregious incidents of sexual harassment — not all of the charges were sustained.
The board ultimately ruled that Forbes’s termination was not appropriate, in part because she had never been disciplined before, and also because relieving her of her duties did not “promote the efficiency of government service” as defined by law.
Instead, the board recommended that Forbes serve a 60-day suspension and be reinstated as the warden of the Kulani Correctional Facility. She would also be eligible for back pay.
Forbes’s case provides a brief glimpse into the murky world of government appeals, arbitration and mediation, a place where public sector employees and their union-backed attorneys duke it out with their bureaucrat bosses for the right to keep working, often with little public oversight.
While her case shows just how hard it can be to fire a problem employee, it also highlights the many mistakes a government agency might make while trying to get rid of someone.
Allegations included that Forbes grabbed a subordinate’s penis and called a black coworker “Monkey boy,” “Planet of the Apes” and “That black bastard.”
“It is very difficult to terminate employees from the public sector,” said Richard Rand, a Honolulu attorney at Marr Jones & Wang, who has practiced employment and labor law in Hawaii for nearly 30 years.
“You have to have either a really serious offense or series of offenses which together would constitute grounds for termination,” Rand said. “And all public sector employees have appeal rights, so there’s always somebody who’s going to second-guess your decision.”
Forbes was appointed as the warden of Kulani Correctional Facility in December 2013.
The minimum-security prison in Hilo had been closed in 2010 as a means to save money. Former Republican Gov. Linda Lingle had approved the shutdown in 2009, saying at the time that it was cheaper to send Hawaii’s inmates to the mainland than keep them here.
But Forbes’ time at Kulani was short-lived. She was fired by DPS Director Nolan Espinda in December 2015 after numerous complaints from subordinates and others in the department.
Espinda’s termination letter listed 38 charges that he said warranted Forbes’s dismissal, including sexual harassment and verbal abuse of at least nine employees.
Court records — which include copies of the department’s own internal investigation — laid out in detail the specifics of the circumstances that led to Forbes’s firing.
Among the allegations were that Forbes grabbed a subordinate’s penis, obtained and shared an “up-skirt” photo of a fellow DPS employee, and referred to another co-worker, an African-American male, as “Monkey,” “Planet of the Apes,” and “That black bastard.”
There were also concerns that Forbes had violated state procurement and ethics laws by directing business to a close personal acquaintance who often brought treats, such as food and drinks, to her and her staff and paid for meals and entertainment for them.
The Hawaii State Ethics Commission investigated Forbes, but didn’t issue a fine. It did, however, send her a letter explaining that she likely violated ethics rules related to the acceptance of gifts and fair treatment of vendors and contractors.
According to the records, Forbes had also “conspired to oust” then-DPS director Ted Sakai using her purported personal ties to legislative and executive staffers. She was also accused in her termination letter of mocking Espinda.
While DPS investigators said Forbes denied most of the allegations made against her she “systematically destroyed her credibility” by giving “false, evasive, incomplete, inconsistent, implausible, misleading and irrelevant answers.”
The records say that at least one employee heard Forbes describe herself as the “Teflon Dog” for her knack of avoiding punishment.
It was Forbes’s clean record that ultimately helped her win her appeal with the state Merit Appeals Board, a little known division of the Hawaii Human Resources Department that takes on employment-related grievances from civil service employees who aren’t part of a union.
In June, the board overturned Espinda’s decision, saying it was too severe.
Although Forbes was initially fired for 38 different violations, including allegations that she sexually harassed or discriminated against at least nine different Department of Public Safety workers, the board only substantiated 21 of the accusations.
The remaining 17 — some of which involved allegations of retaliation against employees who participated in civil rights investigations and accusations that Forbes inappropriately accepted gifts from a government contractor — were not.
“There was no evidence that Appellant was previously disciplined while a Warden or in any other position in DPS,” the board wrote. “Appellant is a long time employee with the DPS having served for more than twenty years for DPS.
“Appellant’s actions herein do not justify the imposition of the severe sanction of discharge based on the principle of progressive discipline.”
The Attorney General’s Office now wants a Hawaii Circuit Court judge to reverse the appeals board decision, preventing Forbes from getting her job back.
Deputy Attorney General W. Max Levins said he couldn’t comment on the specifics of the case at this point in the proceedings, but he did note that his agency often pushes back against merit appeals board’s rulings when it is appropriate to do so.
In Forbes’ case, Levins said the seriousness of the allegations combined with the potential for future liability played a role in the attorney general’s decision to appeal.
“Given the conduct in the allegations that the board substantiated it’s inappropriate to place her back in a position of authority as a warden over, not only the institution, but specifically the same people that made the allegations against her,” Levins said.
“I see a lot of things occurring regarding the Department of Public Safety and I have substantial concerns as a citizen, as a taxpayer and as a lawyer.” — Ted Hong, attorney for Ruth Forbes
Forbes, of course, takes a different view, and filed a lawsuit in November against the Department of Public Safety, Espinda, and three of her accusers, Robert Castro, Gordlynn Ann Dias and Samantha Bechert, for defamation and gender discrimination.
The lawsuit contends that Forbes was given the “Herculean and unprecedented task of restarting the Kulani Facility from the ground up” — including hiring personnel and infrastructure construction — with little help from higher ups in the department.
“From the moment the facility reopened, disgruntled subordinates and the DPS administration threw up roadblocks, manipulated departmental procedures and deliberately and intentionally exaggerated complaints in an effort to have the Plaintiff terminated.”
As her attorney, Ted Hong, says: “They looked at this as a great opportunity to get rid of Ruth Forbes.”
Hong focused much of his attention on Forbes’s work history with the Department of Public Safety, pointing out that she worked her way through the ranks without getting into any trouble. He even highlighted in court records that she was honored by former Gov. Neil Abercrombie in 2011 for “outstanding contributions to the State government.”
Given her past, Hong said he believes Forbes — who was in the midst of a difficult divorce when she was alleged to have committed much of the wrongdoing — can learn from her mistakes and is professional enough to take direction from her superiors.
“She’s an example for people starting at the bottom and working their way to the top,” Hong said. “In that time she’s never been disciplined or had any write-ups. There’s nothing in her record.”
Hong, whose practice focuses on workplace law, said he’s representing Forbes both in her lawsuit and her employment appeal.
While she’s paying for his services in the lawsuit, he said, the Hawaii Government Employees Association — the state’s largest public employee union with roughly 46,000 members — has hired him to represent her in the ongoing termination appeal.
“This shows the HGEA’s commitment to how seriously they take their role in representing their members, whether it’s a clerical secretary or a warden,” Hong said. “The HGEA takes this matter very seriously despite the serious allegations that were raised against her. They spent a lot of time deliberating on what they wanted to do, but they were committed to standing behind her.”
There’s more to Forbes’s appeal than just her unblemished record, Hong said.
“That inmate was particularly dangerous because he was known as a gang leader who wanted to take over the leadership of the inmate population.” — Ruth Forbes
In court documents, Forbes said that one of her accusers was involved in a romantic relationship with a prison gang leader at Kulani. She said that employee and another correctional officer conspired with the inmate to try to get her fired.
“That inmate was particularly dangerous because he was known as a gang leader who wanted to take over the leadership of the inmate population,” Forbes said in a written declaration. “The DPS administration was well aware of these allegations involving that inmate because I personally communicated with them and sent them reports about my concerns.”
Hong said the real story is about the Department of Public Safety and its various missteps over the years, including the fact that one of the people involved in reviewing Forbes’s firing, Tommy Johnson, who was the Parole and Pardons Administrator at the the time, was recently reassigned due to an internal investigation involving his use of overtime.
According to news reports, Johnson has worked 1,100 hours of overtime in a five-year period.
“I see a lot of things occurring regarding the Department of Public Safety and I have substantial concerns as a citizen, as a taxpayer and as a lawyer,” Hong said. “There are just all these problems that are coming up in that department and Espinda, who is the head of the department, should be held accountable for this.”
Espinda refused to comment on Forbes’s ongoing legal cases, saying through DPS spokeswoman Toni Schwartz, that the agency was advised not to discuss pending legal matters.