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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
17-SEP-2025
10:07 AM
Dkt. 36 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---STATE OF HAWAI‘I, DEPARTMENT OF PUBLIC SAFETY,
Respondent/Employer-Appellant-Appellee,
vs.
RUTH FORBES (MAB Case No. 354),
Petitioner/Employee-Appellee-Appellant,
and
MERIT APPEALS BOARD,
SEAN SANADA, VALERIE PACHECO, and NORA NOMURA,
Respondents/Agency-Appellees-Appellees.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1CC171001242)
SEPTEMBER 17, 2025
RECKTENWALD, C.J., McKENNA, EDDINS, AND DEVENS, JJ.,
AND GINOZA, J., DISSENTING
OPINION OF THE COURT BY DEVENS, J.
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I. INTRODUCTION
This case involves the discharge of an excluded collective
bargaining civil service employee under Hawai‘i Revised Statutes
(HRS) Chapter 76 and raises an issue relating to the scope of the
Merit Appeals Board’s (MAB) authority to modify an employer’s
disciplinary action. We conclude that under the facts and
circumstances of this case, the MAB acted within its statutory
scope of authority.
Petitioner/Employee-Appellee-Appellant Ruth Forbes (Forbes)
was employed by Respondent/Employer-Appellant-Appellee State of
Hawai‘i, Department of Public Safety (DPS) as the warden of Kulani
Correctional Facility (Kulani) until her discharge in 2015.
Forbes appealed her discharge to the MAB. After partially
sustaining the charges against Forbes and in consideration of
Forbes’s past employment record, which included more than twenty
years of service without any prior disciplinary action, the MAB
modified the employer’s discharge to a sixty-day suspension based
on the principle of progressive discipline, thus reinstating
Forbes to her former position. 1
DPS appealed the MAB’s decision to the Circuit Court of the
1 Board members present for the hearing were Paul K.W. Au, Valerie Pacheco, and Laurie Santiago. Current members are Sean Sanada, Valerie B. Pacheco, and Nora Nomura. See Hawaiʻi Rules of Appellate Procedure Rule 43(c) (eff. 2025).
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First Circuit (circuit court). The circuit court reversed the
MAB on the basis that the MAB exceeded its statutory authority in
modifying the DPS Director’s decision to discharge Forbes. 2 The
Intermediate Court of Appeals (ICA) affirmed.
We accepted Forbes’s application for writ of certiorari.
Forbes contends that the MAB’s decision to modify the employer’s
discharge action to a sixty-day suspension was within the MAB’s
statutory authority to review and modify disciplinary actions
taken against civil servants under HRS Chapter 76. We agree and
hold that the MAB did not exceed its statutory authority or abuse
its discretion when it modified the employer’s disciplinary
action from a discharge to a sixty-day suspension in alignment
with the employer’s own progressive discipline policy.
II. BACKGROUND
A. Factual Background
In December 2013, Forbes was selected to serve as the warden
of the Kulani prison on Hawaiʻi Island and was tasked with the
responsibility of reopening the prison, which had been closed
since 2009. The record reflects that Forbes was first employed
with DPS in 1995 as a correctional officer. She was subsequently
promoted to supervisor. Over her two decades of service, she had
2 The Honorable Keith K. Hiraoka presided.
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no disciplinary infractions.
In December 2014, a Kulani employee submitted a letter of
resignation to DPS citing a “threatening and hostile working
environment that [he had] been wrongly accused of and subjected
to by Warden Ruth Collar Forbes.” Subsequently, the former
employee submitted a formal complaint against Forbes for
incidents that allegedly occurred between January 2014 and
January 2015.
Forbes received a letter from the DPS Director informing her
that she would be placed on leave without pay pending the outcome
of an investigation relating to “allegations of creating a
hostile work environment[.]”
B. Agency Proceedings
1. DPS Director’s Decision
A Report of Investigation was completed recommending in
part, that the findings from the investigation be referred to the
Deputy Director for Corrections for pre-disciplinary proceedings.
The DPS Director sent Forbes a letter informing her of the
charges that were substantiated and those that were not. A predisciplinary due process hearing was held for Forbes before a
hearings officer. The hearings officer sustained thirty-seven
charges, partially sustained one charge, and dismissed five other
charges. The hearings officer recommended to the DPS Director
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that Forbes be discharged from her employment.
Forbes was subsequently notified by the DPS Director of his
decision to discharge her effective December 4, 2015.
2. Charges
Among the charges sustained by the hearings officer,
nineteen were based on the employer’s policy no. ADM.03.13.3.2
Discrimination and Harassment in Employment, including charge no.
2, which alleged that Forbes had violated ADM.03.13.3.2 for
“sexually harassing [a former employee] through unwanted physical
contact including sexually suggestive or offensive touching.”
Policy no. ADM.03.13.3.2 Discrimination and Harassment in
Employment is a progressive discipline policy that prohibits
discrimination and harassment in the workplace. The policy
provides that
[d]iscrimination and harassment of employees and volunteers
of the [Public Safety Department] are prohibited and shall
not be tolerated or condoned by the Department. Employees
or volunteers of the Department engaged in such activity of
discrimination or harassment may be subject to corrective
action up to and including immediate discharge.
No. ADM.03.13.3.2 (emphasis added).
Only one charge, charge no. 25, found Forbes to be in
violation of the employer’s zero-tolerance policy no. ADM.08.10
Workplace Non-Violence “by imparting and/or intimating an intent
to cause physical or mental harm to [a former employee].”
3. Pre-Discharge Hearing
A pre-discharge hearing was held for Forbes to contest the
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DPS Director’s discharge decision. On December 16, 2015, the DPS
Director sent a letter informing Forbes that the discharge action
was sustained.
4. MAB Decision
Forbes appealed the DPS Director’s decision to the MAB. The
MAB held a two-day contested case hearing wherein the parties had
an opportunity to call and cross-examine live witnesses and
present other evidence in support of their positions. Forbes
argued that the investigation was based on unsubstantiated
allegations by four individuals “who resented the work, the pace,
and the accountability that they were held to.” Forbes further
contended that one of the employees who made complaints against
her had been investigated for a suspected relationship with an
inmate at Kulani and later resigned from DPS. The evidence
presented by Forbes included her longtime service with DPS
without any prior discipline and an award she received from the
governor for her “outstanding contributions to the State
government.”
On June 30, 2017, the MAB issued its Findings of Fact,
Conclusions of Law, Decision, and Order (Decision and Order).
The MAB found that there was “credible evidence” to sustain
charges nos. 2-15, 17, 19, 20, 33, 37, 38, and 41. However, the
MAB further found that there was no credible evidence to sustain
charges nos. 16, 18, 21-30, 34-36, 40, and 42. Relevant here,
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the MAB sustained charge no. 2 finding that there was “credible
evidence that Appellant [Forbes] sexually harassed [a former
employee] through unwanted physical contact in charge 2.”
However, the MAB also concluded that there was “no credible
evidence that Appellant [Forbes] imparted and/or intimat[ed] an
intent to cause physical or mental harm to [a former employee] in
charge 25.” As stated, that was the only charge lodged against
Forbes pursuant to the employer’s zero-tolerance policy no.
ADM.08.10 Workplace Non-Violence.
The MAB continued,
31. While Respondent has argued that the misconduct of
Appellant is more than adequate to support the decision to
terminate Appellant’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 Appellant, 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, Appellant was tasked with the responsibility for
reopening Kulani, which included installation of a new
communications system and hiring of employees to fill the
various vacant positions at Kulani which would have been
complicated for a Warden with experience. There was no
evidence that Appellant was previously disciplined while a
Warden or in any other position in DPS. Appellant is a
longtime 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. Thus, the
Board does not find that the discharge of Appellant 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 the Respondent DPS to discharge Appellant was not
just or to promote the efficiency of government, thus the
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Appellant’s appeal is GRANTED.
Pursuant to the MAB’s Decision and Order, Forbes was
reinstated to her former position as warden with the discharge
action modified to a sixty-day suspension.
C. Circuit Court Proceedings
DPS appealed the MAB’s Decision and Order to the circuit
court pursuant to HRS § 91-14(g). Specifically, DPS appealed
conclusions of law (COL) 31, 32, and 33, asserting that the MAB’s
determinations were in violation of HRS § 76-46; exceeded the
MAB’s statutory jurisdiction; affected by error of law; clearly
erroneous in view of the substantial evidence in the record; and
“[a]rbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.” DPS
did not appeal the MAB’s finding that there was insufficient
evidence to sustain charge no. 25. Forbes did not file a crossappeal.
DPS argued that the MAB exceeded its statutory authority in
applying HRS § 76-46 to overturn Forbes’s discharge and abused
its discretion in reinstating her “in light of the severe and
pervasive behavior” sustained in the MAB’s findings. DPS further
motioned for the circuit court to stay the MAB’s Decision and
Order reinstating Forbes, which the court granted.
Following a hearing, the circuit court reversed the MAB’s
Decision and Order and concluded that the MAB “acted in excess of
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its statutory authority because its decision to modify the
discharge decision ‘based on the principle of progressive
discipline’ improperly impinged upon the policies promulgated
under the state director of human resources development, contrary
to the legislative purpose of HRS § 76-47(c).”
Citing to policy no. ADM.08.10 relating to workplace nonviolence, the circuit court determined that because charge no. 2
was sustained by the MAB, “that specific incident . . . required
[the MAB] to defer to the [human resources development]
director’s adoption of the zero-tolerance policy rather than a
policy of progressive discipline.” The circuit court concluded
that the MAB “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.”
However, the circuit court also observed that “[p]rogressive
discipline for most of the charges the [MAB] found were supported
by credible evidence . . . [and] could be imposed consistent with
DPS policy no. ADM.03.13.” The circuit court noted that “[w]ere
those the only charges at issue, the court would be required to
defer to the [MAB’s] expertise and experience and not substitute
its own judgment for that of the agency.”
D. ICA Proceedings
Forbes appealed the circuit court’s orders granting DPS’s
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motion for stay of the MAB’s Decision and Order, denying Forbes’s
motion to change venue, and reversing the MAB’s Decision and
Order, and the circuit court’s judgment. The ICA affirmed.
In her appeal to the ICA, Forbes raised several points of
error. Relevant here, Forbes asserted that the circuit court
erred in its determination that the MAB exceeded its statutory
jurisdiction in failing to apply the employer’s zero-tolerance
policy. Forbes noted that “[t]he zero-tolerance workplace
violence policy involved a separate charge” and “[t]he MAB
dismissed the workplace violence charge for lack of credible
evidence[.]” Forbes argued that the circuit court erroneously
“linked the dismissed workplace violence charge to the charge of
sexual harassment, under a completely separate departmental
policy as the linchpin of its decision overruling the MAB.”
Relevant to the issue before this court, the ICA
concluded that the MAB exceeded its statutory authority
under HRS § 76-47(c) and HAR § 14-25.1-4(y) based on the
DPS’s zero-tolerance workplace violence policy. Dep’t of
Pub. Safety v. Forbes, No. CAAP-XX-XXXXXXX, 2024 WL 1134050,
at *3 (Haw. App. March 15, 2024) (SDO).
Forbes contends that the MAB’s Decision and Order
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should be affirmed. We agree.
III. STANDARDS OF REVIEW
A. Agency Appeals
Review of a decision made by the circuit court upon its
review of an agency’s decision is a secondary appeal. The
standard of review is one in which this court must determine
whether the circuit court was right or wrong in its
decision, applying the standards set forth in HRS § 91-14(g)
. . . to the agency’s decision.
Bell v. Hawaiʻi Pub. Hous. Auth., 156 Hawaiʻi 1, 10, 568 P.3d 61,
70 (2025) (quoting Dep’t of Env’t Servs., City & Cnty. of
Honolulu v. Land Use Comm’n, 127 Hawaiʻi 5, 12, 275 P.3d 809, 816
(2012)).
HRS § 91-14(g) (2012 & Supp. 2016) provides the following
standards of review:
(g) Upon review of the record, the court may affirm the
decision of the agency or remand the case with instructions
for further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the
petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory
provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted exercise of
discretion.
“Pursuant to HRS § 91-14(g), an agency’s conclusions of law
are reviewed de novo, . . . while an agency’s factual findings
are reviewed for clear error.” Bell, 156 Hawaiʻi at 11, 568 P.3d
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at 71 (citing Camara v. Agsalud, 67 Haw. 212, 216, 685 P.2d 794,
797 (1984)).
B. Statutory Interpretation
Our standard of review for statutory interpretation is wellestablished. “The interpretation of a statute is a question of
law which [the appellate] court reviews de novo.” Sierra Club v.
Dep’t of Transp., 120 Hawai‘i 181, 197, 202 P.3d 1226, 1242 (2009)
(citations and emphasis omitted). “Where the language of the
statute is plain and unambiguous, our only duty is to give effect
to its plain and obvious meaning.” Id.
IV. DISCUSSION
The MAB has exclusive jurisdiction to decide appeals
relating to disciplinary actions taken against civil service
employees who are excluded from collective bargaining coverage.
HRS § 76-14 (2012). HRS § 76-47(a) provides that “[e]ach
jurisdiction shall establish a merit appeals board that shall
have exclusive authority to hear and decide appeals relating to
matters set forth in section 76-14 concerning the civil service
of the jurisdiction.” HRS § 76-47(a) (2012).
The thrust of Forbes’s contention is that the ICA and the
circuit court erred in concluding that the MAB exceeded its
authority when it modified the DPS Director’s disciplinary
action, thus rendering the MAB’s exclusive jurisdiction to hear
and decide such appeals pursuant to HRS §§ 76-14 and 76-47(a)
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“meaningless.”
The MAB sits as an appellate body. HRS § 76-47(e)
unambiguously vests the MAB with the following statutory
authority:
If the board finds that the reasons for the action are not
substantiated in any material respect, the board shall order
that the employee be reinstated in the employee’s position,
without loss of pay, but if the board finds that the reasons
are substantiated or are only partially substantiated, the
board shall sustain the action of the appointing authority,
provided that the board may modify the action of the
appointing authority if it finds the circumstances of the
case so require and may thereupon order such disposition of
the case as it may deem just.
HRS § 76-47(e) (emphasis added).
The plain language of the statute unequivocally grants the
MAB the authority to “modify” an employer’s disciplinary action
if the MAB finds modification is required under the circumstances
and is considered just.
Forbes’s first point of error is that the ICA’s affirmance
of the circuit court’s order reversing the MAB “interfere[s] with
the MAB’s exclusive and original jurisdiction.” The legislature
vested the MAB with the “exclusive authority to hear and decide”
appeals like the one at issue in this case. HRS § 76-47(a).
Importantly, however, HRS § 76-47(e) also provides that “findings
and decisions of the [MAB] shall be final on all appeals, unless
an appeal is taken as provided in chapter 91.” HRS § 76-47(e).
Here, DPS appealed the MAB’s Decision and Order to the circuit
court pursuant to HRS § 91-14. Therefore, the MAB’s Decision and
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Order was appropriately subject to further review by the circuit
court. The circuit court’s review, in turn, was pursuant to HRS
§ 91-14(g).
Because the circuit court reviewed the MAB’s Decision and
Order pursuant to HRS § 91-14(g), we disagree with Forbes’s
argument that the circuit court interfered with the MAB’s
jurisdiction. But we agree with Forbes that the MAB acted within
the scope of its statutory authority. We hold the MAB did not
exceed its statutory authority or abuse its discretion in
modifying the DPS Director’s disciplinary action from a discharge
to a sixty-day suspension.
In this case, both the ICA and the circuit court erroneously
concluded that charge no. 2 was charged pursuant to the
employer’s zero-tolerance workplace violence policy no.
ADM.08.10, and therefore, constituted a violation of the
employer’s policy. However, the only charge alleged pursuant to
policy no. ADM.08.10 was charge no. 25. The MAB found that there
was “no credible evidence” to sustain charge no. 25 and, as DPS
did not challenge this finding on appeal, it is binding on this
court. 3 See Okada Trucking Co. v. Bd. of Water Supply, 97 Hawaiʻi
450, 458, 40 P.3d 73, 81 (2002) (“Findings of fact . . . not
3 In oral argument, DPS conceded that the DPS Director’s letter discharging Forbes did not “link” charge no. 2 to policy no. ADM.08.10, which is the zero-tolerance policy at issue. Oral argument 36:20-38:00, http://oaoa.hawaii.gov/jud/oa/24/SCOA-103124-SCWC-XX-XXXXXXX.mp3 [https://perma.cc/XBY7-5Y3M].
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challenged on appeal are binding on the appellate court.”).
Based on this erroneous premise, the ICA determined that the
MAB exceeded its statutory authority because the Board was
required to defer to DPS’s zero-tolerance workplace violence
policy no. ADM.08.10 under HRS § 76-47(c) and HAR § 14-25.1-4(y).
Dep’t of Pub. Safety v. Forbes, 2024 WL 1134050, at *4. Indeed,
HRS § 76-47(c) guardrails the MAB’s role as an appellate
decision-making body by placing the limitation that “matters of
policy” are to be determined by the state director of human
resources development (DHRD). See also HAR 14-25.1-4(y) (eff.
2003). In this case, however, both the ICA and the circuit court
understandably overlooked that charge no. 2 was alleged pursuant
to policy no. ADM.03.13.3.2, which is a progressive discipline
policy and provides that employees in violation of the policy
“may be subject to corrective action up to and including
immediate discharge.”
Because the sustained charges were not alleged pursuant to
policy no. ADM.08.10, the MAB properly considered progressive
discipline policy no. ADM.03.13.3.2, and its decision to modify
the disciplinary action did not contravene that policy or impinge
on the DHRD’s authority to formulate and implement policy. Thus,
the MAB did not ignore the employer’s disciplinary policies, and
the modification of the DPS Director’s decision to discharge
Forbes was well-within the MAB’s granted statutory authority
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under HRS § 76-47. 4
Reviewing the MAB’s findings, we conclude that the MAB
appropriately considered the DPS Director’s discharge decision in
alignment with the disciplinary policies applicable to the
sustained charges.
After holding a two-day contested case hearing, during which
the three-panel board heard oral testimony from eight witnesses,
including Forbes, the MAB issued a decision modifying the DPS
Director’s disciplinary action to a sixty-day suspension. The
MAB based its decision on the principle of progressive
discipline, which did not contravene policy no. ADM.03.13.3.2 and
was well-within the bounds of its authority to modify a
disciplinary action as it deemed just. See HRS § 76-47(e).
In weighing the evidence presented, the MAB considered
Forbes’s service record and mitigating factors such as evidence
that she was “tasked with the responsibility for reopening
Kulani, . . . which would have been complicated for a Warden with
experience.” The MAB continued that Forbes had “served for more
than twenty years for DPS,” and “[t]here was no evidence that
[Forbes] was previously disciplined while a Warden or in any
4 Although it is unnecessary to our holding, we agree with the ICA that the circuit court did not rule that DPS’s policies superseded the “just cause” standard for discharge. See Konno v. Cnty. of Hawaiʻi, 85 Hawaiʻi 61, 68, 937 P.2d 397, 404 (1997) (noting that “civil servants can be terminated only for just cause”); see also HRS § 76-1 (2012) (“It is the purpose of this chapter to require each jurisdiction to establish and maintain a separately administered civil service system based on the merit principle.”).
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other position in DPS[.]” Weighing the evidence, credibility of
the witnesses, and considering the mitigating factors above, the
MAB modified the employer’s discharge to a sixty-day suspension. 5
We “decline to consider the weight of the evidence . . . or
to review the agency’s findings of fact by passing upon the
credibility of witnesses or conflicts in testimony, especially
the findings of an expert agency dealing with a specialized
field.” See Igawa v. Koa House Rest., 97 Hawai‘i 402, 410, 38
P.3d 570, 578 (2001) (citations and quotations omitted). As the
circuit court noted in its order reversing the MAB, if the only
charges sustained were pursuant to the progressive discipline
policy no. ADM.03.13.3.2, “the court would be required to defer
to the Merit Appeals Board’s expertise and experience and not
substitute its own judgment for that of the agency.”
For these reasons, we defer to the MAB’s expertise and
discretion as both the trier of fact and an expert agency dealing
within a specialized field and conclude that the MAB did not
abuse its discretion in modifying the DPS Director’s decision to
5 While we recognize the serious nature of the charges against Forbes, as discussed in the dissent, we also note that the MAB’s decision to modify the discipline to a sixty-day suspension is neither trivial nor inconsequential. A sixty-day suspension without pay is the equivalent of approximately three months of wages/salary or about 25% of an employee’s annual earned income, which can have a serious and devastating short-term and long-term financial impact on an employee.
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terminate Forbes.
V. CONCLUSION
We reverse the ICA’s April 12, 2024 Judgment on Appeal to
the extent the ICA affirmed the circuit court’s March 8, 2018
Judgment reversing the MAB’s Decision and Order. The MAB’s
June 30, 2017 Findings of Fact, Conclusions of Law, Decision, and
Order are affirmed.
Ted H.S. Hong /s/ Mark E. Recktenwald for petitioner
/s/ Sabrina S. McKenna
Kalikoʻonalani D. Fernandes
and Sianha M. Gualano /s/ Todd W. Eddins for respondent State of
Hawaiʻi, Department of /s/ Vladimir P. Devens Public Safety
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