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Raising Cane

Rob Perez

Sunday, September 28, 2003


City worker’s firing
is conflict of interest


City worker Solomon Silva was fired last month based partly on an investigation conducted by a supervisor whom Silva had sued a year earlier in a whistle-blower lawsuit.

If that isn't a blatant conflict of interest, I don't know what is.

Silva was one of four sewage plant workers who sued the city and several supervisors in June 2002, accusing them of retaliation after the workers exposed allegedly illegal activity involving city resources and supervisors.

Department of Environmental Services official Nick Musico was one of the managers named in the original lawsuit, although the plaintiffs say they subsequently removed him as a defendant to streamline the case.

Still, the connection was there. That link should have been enough to raise many red flags when the department considered assigning Musico earlier this year to investigate another supervisor's allegation that Silva had threatened that supervisor in May.

But the city didn't even consider the issue.

Musico got the assignment, and he determined there was sufficient evidence to support the firing of Silva. His recommendation was sent up the chain of command for further reviews and last month Silva was fired, an action he is appealing through his union.

"I believe I was set up from the get-go," Silva said.

The handling of the Silva investigation is just one of numerous examples that three of the four plaintiffs told me about to buttress their claim that they are continuing to be harassed and retaliated against. (The fourth, who works at another treatment plant, says he no longer is suffering retribution).

From what I've seen, the three workers have a fairly strong case, with the Silva issue being one of the most disturbing.

What kind of job Musico did in the investigation is almost irrelevant. He could've been the fairest, most thorough investigator in the city, but that's beside the point. The bottom line was the process was tainted from the start. Because of his link to the lawsuit, Musico never should have received the assignment. That should've been a no-brainer.

City officials, however, say Musico was the best-qualified person for the investigation, given his experience, expertise and reputation for fairness. They said his removal from the lawsuit long before the investigation began made the conflict issue moot.

What's more, they noted that Musico's findings were reviewed independently by upper managers as part of the city's standard procedure for handling disciplinary matters.

"We have a very structured process to ensure we don't treat someone inappropriately," said Timothy Houghton, deputy director for DMS, which oversees the Kailua plant. "You get a number of independent reviews."

But several legal experts I contacted questioned the city's use of Musico in the investigation.

"That's absolutely bad personnel policy," said Tom Grande, an attorney who has represented employees in whistle-blower lawsuits but is not involved with this case. "The city should have bent over backwards to make sure the employee was going to get a fair shake."

Even the city's top ethics official, while declining to comment specifically on the Kailua case, voiced general concerns.

Stressing that he was speaking hypothetically, Chuck Totto, executive director of the Ethics Commission, said he would have concerns about a defendant -- even one who was later dropped from a lawsuit -- investigating an allegation against an employee who filed the lawsuit.

"It raises a very serious question," Totto said.

If the Silva investigation were the only thing the workers had to complain about since the lawsuit was filed, you might be able to dismiss that incident as simply management bungling or miscalculation.

But three of the four workers cite a litany of incidents that, when viewed collectively, suggests retaliatory behavior, though in many cases it's not clear who was responsible.

What seems clear, however, is that the three have been targeted, along with a couple of their relatives who have been equally critical of management.

What also seems evident is that the Kailua workplace, which has been the subject of previous Raising Cane columns, continues to reflect an environment where some workers apparently believe they can get away with harassing co-workers, sometimes openly, sometimes anonymously.

Tensions have been so high in the past that violence has erupted. Police have been called to the plant a number of times. Several city and police investigations are pending.

Frank Doyle, the department's director, acknowledged that problems still exist at the facility. But he said considerable improvements have been made as a result of significant personnel and other changes initiated by the city.

"We've made some good strides," Doyle said. "But we've still got a ways to go."

He denied that managers have retaliated against the four who filed the whistle-blower lawsuit, saying all employees are treated equally and fairly.

The three Kailua workers disagree.

One plaintiff, George Smith Jr., said, for example, that he and two co-workers, Cynthia Kama-Smith (his wife) and Jacob Silva (Solomon's brother) in August were ordered by a supervisor to go inside a large aeration tank to do maintenance without the proper training or the appropriate safety equipment. The three said they refused to do the work because a gas-monitoring meter and an emergency extraction system (designed to lift an incapacitated worker from the tank) were not in place, they had not received any training and the task wasn't part of their job duties.

Doyle and Houghton disputed the workers' comments, saying the safety equipment was in place and proper training was provided.

Jacob Silva said he reluctantly did the work the following day after those measures were taken.

The workers say they have been so stressed by what is happening that it is affecting their health, and several are seeing a psychologist or are on medication to cope with the stress.

"Everyday, it's like going to work with a gun to your head," Jacob Silva said.

Grande, the attorney, said the workers' plight is sending the wrong message to would-be whistle-blowers: If you report wrongdoing, you could face harassment, too.

"Employers should embrace these people," he said. "Unfortunately, employers take the opposite tack."





See the Columnists section for some past articles.

Star-Bulletin columnist Rob Perez writes on issues
and events affecting Hawaii. Fax 529-4750, or write to
Honolulu Star-Bulletin, 500 Ala Moana Blvd., No. 7-210,
Honolulu 96813. He can also be reached
by e-mail at: rperez@starbulletin.com.

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