HomeMy WebLinkAbout COM 0957.001 2024-2026 From: Alan Fukamizu
Sent: Monday,July 20, 2026 10:34 AM
To: Council Testimony
Subject: Written Testimony Regarding Communication 957
Attachments: Written.Testimony.pdf; EXECUTIVE SUMMARY.pdf
Aloha Chair, Vice Chair, and Honorable Members of the Hawaii County Council:
Attached for inclusion in the public record are my written testimony regarding Communication 957,
"Legal Proceedings Concerning Alan Fukamizu," and an accompanying Executive Summary
highlighting the principal legal, administrative, evidentiary, financial, and operational considerations
supporting meaningful settlement authority for the July 31, 2026 Federal OSHA Alternative Dispute
Resolution mediation.
The testimony respectfully asks the Council to convene the anticipated executive session, consider
the complete factual, legal, evidentiary, administrative, financial, and operational circumstances
surrounding the pending proceedings, and provide Corporation Counsel with meaningful and realistic
authority to negotiate a fair and comprehensive resolution during the July 31 mediation.
The testimony addresses, among other matters:
• the prior HIOSH determination concerning,discrimination and pretext;
• my February 3, 2026 written and oral testimony concerning wastewater safety, environmental
compliance, and operational-readiness issues;
• my March 31, 2026 termination while the signed Federal OSHA ADR process remained pending
and HIOSH Case No. 26-005 remained open and under active investigation;
• the disputed scope and application of the alleged confined-space work restrictions and the prior
removal or restriction of my permit-required confined-space training;
• the County's investigation, pre-determination process, shifting explanations, and my clean
disciplinary record;
• unresolved evidentiary and public-records issues affecting the completeness of the factual record;
• the continued nonpayment of accumulated vacation, compensatory time, and related payroll
adjustments; and
• the value of a coordinated resolution of Federal OSHA Complaint No. 301068292, HIOSH Case No.
26-005, and UPW Individual Termination Grievance No. 6046-0000-2026.0037.
I respectfully request that the attached testimony and Executive Summary be distributed to the
Council members before their consideration of Communication 957 and included in the official record
for the Council's July 23, 2026 meeting. nn
Comm. No. v15?*
1 Ref.To: (-AMC�
Ref. Date JUL 2 3 2026
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Mahalo for your assistance and for the opportunity to submit written testimony.
Respectfully submitted,
Alan Fukamizu
UPW Unit 168 Chief Steward
Former Wastewater Treatment Plant Operator II
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WRITTEN TESTIMONY OF ALAN
FUKAMIZU
Submitted: July 19,2026
REGARDING COMMUNICATION 957 - LEGAL
PROCEEDINGS CONCERNING ALAN FUKAMIZU
AND MEANINGFUL SETTLEMENT AUTHORITY FOR
THE JULY 31, 2026 FEDERAL OSHA ADR MEDIATION
Aloha Chair, Vice Chair, and Honorable Members of the Hawai`i County Council:
My name is Alan Fukamizu. I am a former Wastewater Treatment Plant Operator II with the
County of Hawai`i Department of Environmental Management and continue to serve as UPW
Unit 168 Chief Steward.
As a Native Hawaiian with deep roots in this community, I viewed my work in wastewater
operations as more than employment. I viewed it as public service and as part of my kuleana
involving the protection of County employees, our water and environment, critical public
infrastructure, and the communities that depend upon safe and reliable wastewater operations
and clean ocean waters.
I respectfully submit this testimony regarding Communication 957, "Legal Proceedings
Concerning Alan Fukamizu," in support of the Council convening the anticipated executive
session, fully evaluating the County's potential legal, administrative, contractual, evidentiary,
financial, and operational exposure, and providing Corporation Counsel with meaningful and
realistic authority to negotiate in good faith during the July 31, 2026 Federal OSHA Alternative
Dispute Resolution mediation.
This is not a request for the Council to conduct a trial or decide every disputed fact. It is a
request to create a genuine opportunity to bring a responsible conclusion to a prolonged, multi-
year employment and whistleblower dispute whose record now includes a prior agency finding
of discrimination and pretext, repeated protected safety and environmental activity, public
testimony before this Council, termination during pending federal and state whistleblower
proceedings, and multiple overlapping administrative and contractual matters.
On June 8, 2026, the County advised me in writing that it believed the most productive use of the
July 31 mediation would be to pursue a comprehensive global resolution of the Federal OSHA
complaint, the state HIOSH complaint, and the labor grievance. The County further represented
that it was prepared to enter the July mediation with authorization to negotiate a comprehensive
global settlement package intended to provide finality for all parties.
Communication 957 was subsequently submitted by Deputy Corporation Counsel Demetri G.
Lametti on June 17, 2026, requesting an attorney-client confidential discussion with the Council
concerning my legal proceedings. The timing and stated purpose of that request make the
Council's July 23 consultation particularly important to whether the July 31 mediation will
proceed with sufficient authority to permit meaningful negotiations.
A fair and comprehensive negotiated resolution could provide meaningful finality, control the
County's continuing administrative and litigation exposure, and allow the parties to move
forward without requiring an admission of liability or acceptance of every position asserted by
either side.
The Public Importance of the Underlying Safety and
Environmental Concerns
The concerns I raised were not limited to a personal employment disagreement. They involved
confined-space safety, hazardous-energy control, Lockout/Tagout, fall protection, rescue
capability, employee training, machine guarding, operational readiness, maintenance of critical
equipment, environmental compliance, and the County's ability to safely inspect and maintain
essential wastewater infrastructure.
Those concerns arose within a wastewater system already facing serious and publicly
documented infrastructure, operational, and regulatory challenges.
In 2024,the County entered into an Administrative Order on Consent with the United States
Environmental Protection Agency under the Clean Water Act. EPA identified significant
operation and maintenance deficiencies affecting County wastewater systems and required the
County to repair and rehabilitate the Hilo Wastewater Treatment Plant, address deferred
maintenance, strengthen asset management, update operational procedures, and implement
measures intended to prevent sewage spills and unlawful discharges.
The County subsequently awarded a $337 million contract for the Hilo Wastewater Treatment
Plant Rehabilitation and Replacement Project.
The plant serves approximately 30,000 residents,treats an average of approximately three
million gallons of wastewater each day, and discharges treated effluent through the County's
ocean outfall offshore of Puhi Bay. It must continue operating safely and reliably while major
rehabilitation and replacement work proceeds.
The County's own emergency proclamations have recognized extensive corrosion, structural
deterioration, mechanical defects, compromised reliability, and the risk that critical infrastructure
could fail before permanent repairs are completed. As recently as June 3, 2026, the County again
declared that conditions at the plant posed an imminent danger or threat of an emergency or
disaster.
The public record does not resolve every individual safety concern I raised. It does establish,
however, that the facility context was serious, the infrastructure risks were substantial, and safe
access, effective maintenance, adequate training, regulatory compliance, and operational
readiness were matters of genuine public importance.
Against that background, good-faith employee reporting concerning safety, environmental
compliance, and operational readiness should have been treated as an asset to the County—not as
disloyalty or misconduct.
Prior HIOSH Determination and Direct County Notice
The County entered the present dispute with direct notice from a prior HIOSH investigation
concerning retaliation for my protected safety activity.
Following an investigation,HIOSH issued a Determination Notice and Order in Case No. 22-002
finding that the County discriminated against me in violation of HRS § 396-8(e).
HIOSH found that I had engaged in protected activity, that County management had actual
knowledge of that activity, and that the adverse action occurred approximately one day after my
most recent protected activity, supporting a causal relationship.
HIOSH further determined that the County's stated reasons for its actions were pretextual and
that I had established pretext by a preponderance of the evidence.
The Determination Notice and Order directed the County to provide training and retraining
concerning the rights and responsibilities of management and employees under FIRS § 396-8(e),
expunge adverse materials related to my exercise of protected rights, refrain from retaliating or
discriminating against me for exercising rights protected by the Hawaii Occupational Safety and
Health Law, and post a notice to employees. HIOSH also assessed a civil penalty based upon its
findings.
The County contested that determination, and I recognize that it did not become a final, un-
appealed administrative order or result in a final judicial judgment. The contested matter remains
unresolved and has not reached final administrative or judicial resolution.
Nevertheless, the determination was not merely an allegation raised by me. It was an official
agency determination issued after an investigation. It placed the County on direct and specific
notice that adverse treatment connected to my safety reporting presented serious retaliation and
pretext concerns, and that future personnel actions involving my protected activity required
careful, neutral, and well-documented consideration.
February 3, 2026 Council Testimony and Direct Notice
On February 3, 2026, less than two months before my termination, I provided this Council with
detailed written testimony and additional oral testimony concerning continuing safety,
environmental, operational-readiness, documentation, and accountability concerns within the
Wastewater Division.
That testimony did not raise generalized or speculative concerns. It identified specific facilities
and work areas, including the Hilo Wastewater Treatment Plant Primary Headworks and lower
pump gallery, the Zoo and Kolea underground pump stations, and the Hilo Wastewater
Treatment Plant bio towers. It addressed confined-space classifications, hazardous-energy
control and Lockout/Tagout procedures, atmospheric monitoring, rescue capability, fall-
protection and anchorage practices, safety documentation, employee training, and the
relationship between safe maintenance access and the County's obligations under the EPA
Administrative Order on Consent.
The supporting materials submitted with my testimony included contemporaneous email
correspondence beginning January 10, 2026. In that correspondence, I requested written
confirmation of the applicable confined-space classifications, the regulatory basis for those
classifications, and the Lockout/Tagout, atmospheric-monitoring, attendant, entry-supervision,
and rescue controls governing entry into the affected work areas. My initial request concerning
the Primary Headworks was acknowledged by Deputy Director Craig Kawaguchi, who advised
that he would obtain the requested answers.
The subsequent correspondence documents repeated follow-up efforts after the requested
information and the January 9, 2026 temporary-procedure memorandum were not promptly
provided. It also reflects notice to Department leadership, safety personnel, Union
representatives, Human Resources, and the Mayor's Office concerning the seriousness of the
issues and the need for timely,written clarification. I separated the concerns by location and
repeatedly requested the County's official classification determination, supporting hazard
evaluations, site-specific entry procedures,Lockout/Tagout documentation, rescue provisions,
and written confirmation of the regulatory framework being applied.
On January 26, 2026, the Department ultimately provided Wastewater Division Safety Procedure
SSP-2 and the January 9 memorandum titled"Temporary Safety Procedure -Primary Building
Lower Floor Atmospheric Monitoring." After reviewing those materials, I identified specific
apparent inconsistencies•concerning the County's use of"temporary reclassification,"the
distinction between hazard elimination and hazard control, the treatment of mechanical,
hydraulic, electrical, and process-flow hazards, and the absence of clearly integrated hazardous-
energy and rescue provisions. I then requested corrective clarification, supporting
documentation, and preservation of the records underlying the classification and entry decisions.
To date, there has been no response or substantive corrective action.
My February 3 testimony also identified concerns involving incomplete rescue planning and
improvised anchorage arrangements after certified rescue equipment had been removed from
service. I raised those matters not merely as criticism, but because incomplete or undocumented
life-safety controls create foreseeable risks to employees, operational continuity, regulatory
compliance, and County liability..
I provided the Council with the prior HIOSH determination, supporting email communications,
photographs and documentation concerning field practices, and a detailed request for corrective
action. The requested measures included a current confined-space inventory, written site-specific
hazard evaluations, documented reclassification or alternate-entry determinations, site-specific
Lockout/Tagout procedures, rescue-capability and feasibility assessments, employee training
verification, an independent third-party technical audit, defined deadlines, designated
accountability, and a formal report back to the Council.
I do not repeat all of that technical testimony here. It is already part of the public record.
Its importance to the present settlement evaluation is straightforward: County officials and this
Council had direct, documented notice of my continuing protected safety and environmental
activity before my March 31, 2026 termination. My testimony was specific, supported by
contemporaneous records, technically grounded, directed toward corrective action, and presented
through a formal public oversight process.
My employment was terminated while the mutually signed and agreed-upon Federal OSHA
ADR process concerning my EPA-related whistleblower complaint remained pending and
HIOSH Case No. 26-005 remained open and under active investigation.
These concerns were not created after my termination to support a monetary claim. They were
raised contemporaneously, internally, before regulatory agencies, and publicly before County
oversight bodies. Their timing, specificity, and documented nature are directly relevant to
County knowledge, the sequence of events, and the factual, legal, evidentiary, and administrative
risks.associated with continued proceedings.
Termination During Pending Whistleblower Proceedings
The County terminated my employment effective March 31, 2026.
At that time, the signed and agreed-upon Federal OSHA ADR process concerning my EPA-
related whistleblower complaint remained active, and HIOSH Case No. 26-005 remained open
and under active investigation.
The existence of those proceedings did not, by itself, legally prevent the County from taking
lawful and independently justified personnel action. It did, however, require careful, neutral, and
well-documented consideration of whether the proposed action was genuinely independent of my
protected safety, environmental,Union, and whistleblower activity.
The County maintains that its decision was based upon legitimate personnel and safety
considerations. However, the stated basis for the adverse action has not remained consistent
throughout the process. The County's communications and explanations have variously
emphasized alleged insubordination, an asserted refusal to follow supervisory directives, safety-
sensitive work restrictions, training-related limitations, and broader personnel and operational
considerations.
Those explanations are not interchangeable. The variation among them raises material questions
concerning what the actual basis for the decision was at the time it was made, whether that basis
was clearly communicated and consistently applied, and whether later explanations reflect an
expansion of or post hoc justification for the original disciplinary rationale.
The narrow scope of the County's investigation further complicates that issue. The March 10,
2026 investigative report was expressly limited to determining whether the wording of my
December 12, 2025 email constituted insubordination. It did not resolve the broader questions
concerning the clarity, lawfulness, and operational application of the alleged directive;
distinctions between permit-required and non-permit-required confined spaces; consistent
enforcement; protected activity and retaliation; or whether progressive discipline and lesser
corrective measures were available. The report nevertheless acknowledged that I repeatedly
sought clarification and that some facility areas or activities did not require the certifications
being referenced.
The County's own statements during the March 25, 2026 pre-determination meeting also
confirm that the proposed termination was originally presented as a narrowly focused action.
Director Girvan, acting on behalf of the County, stated that the proposed action was focused
specifically on my conduct of December 12, 2025, and did not rely upon previous or subsequent
actions. The County did not present the proposed termination as the culmination of a broader
pattern of misconduct, a prior disciplinary history, or an unsuccessful course of progressive
corrective action.
The theory presented at that meeting was that I had been specifically instructed not to perform
confined-space entry and had stated that I would continue doing so. That theory made the
existence of a clear, enforceable, and operationally defined directive central to the proposed
termination. Yet the County did not identify the specific spaces, regulatory classifications, tasks,
written directive, or training determination that supposedly established the scope and application
of the restriction.It also did not explain how the alleged restriction was to be reconciled with my
daily assigned wastewater-operator and standby responsibilities.
The County likewise did not adequately address the origin and disputed purpose of the training
restriction upon which its later position appeared to depend. The training at issue was confined-
space training associated with permit-required confined-space entry, including work involving
underground wastewater pump stations. In April 2023, while I remained protected under the
proceedings that resulted in HIOSH Determination Notice and Order Case No. 22-002, the
County removed or restricted that training after I removed from service a deficient piece of fall-
protection equipment intended for permit-required confined-space entry into 23' underground
pump stations.
I maintain that the removal or restriction of my confined-space training was retaliatory and was
intended not merely to address a neutral qualification issue, but to prevent me from returning to
underground pump stations where I had identified and could continue to identify significant
deficiencies affecting employee safety, public health, operational reliability, and environmental
protection. I previously presented this history, including the circumstances surrounding the
deficient fall-protection equipment and the resulting restriction of my pump-station assignments,
in my February 3, 2026 written and oral testimony to the Council.
That history is directly relevant to the County's later assertion that I was prohibited from
performing confined-space work because I lacked required training or qualifications. The
absence of training cannot reasonably be evaluated in isolation where the County itself had
removed or restricted the training following protected safety activity. A restriction created
through a disputed retaliatory action cannot automatically be treated as a neutral and
independently justified basis for later discipline without examining why the training was
removed, whether similarly situated employees were treated consistently, whether retraining was
offered, and whether the restriction was intended to address safety or to exclude me from
locations where additional deficiencies could be observed and reported.
The County also did not explain whether the alleged restriction applied to all confined spaces,
only permit-required confined spaces, particular underground pump stations, specific entry tasks,
or only work requiring designated entry qualifications.Nor did it explain whether I remained
authorized to conduct inspections, perform standby responses, complete non-entry work, or carry
out other wastewater-operator duties at those facilities. Those distinctions were critical because
confined-space classifications and entry requirements vary by location, task, hazard, and whether
entry was actually performed.
The County's failure to identify those distinctions left unresolved whether there was a single
clear directive capable of supporting termination or, instead, a disputed collection of training
restrictions and assignment limitations that originated in earlier protected-activity circumstances
and were never clearly defined, corrected, or reconciled with my continuing job duties.
The March 25 process also raises a substantial procedural due-process concern. On March 19,
2026, the Union requested the investigative packet so that it could appropriately prepare for the
pre-determination meeting. Human Resources responded that the County was not able to provide
the packet before the meeting. During the meeting, which lasted less than eight minutes,the
County stated that its position relied in part upon information from"other people on the site,"but
did not identify those individuals, disclose the substance of their information, or explain how that
• information supported termination.
Before and during that meeting, I nevertheless made every reasonable effort to respond. I
submitted a detailed written response expressly disputing insubordination, explaining the
unresolved operational ambiguity surrounding the alleged restrictions, documenting my repeated
requests for clarification, identifying the protected safety and environmental context, raising
investigative-fairness and due-process concerns, and explaining the temporal relationship
between my December 2025 EPA-related reporting and the proposed adverse action.
That written response specifically informed the County that the investigative packet had not been
provided and that the disputed evidence apparently included alleged oral directives, supervisory
notes, investigative materials, and management characterizations concerning whether I
knowingly refused clear instructions. The issue is therefore not whether I attempted to respond; I
did. The issue is whether that opportunity was meaningful when the evidence actually being
relied upon including information attributed to unidentified individuals had not been adequately
explained or disclosed.
These circumstances raise a material question under the pretermination due-process principles
recognized in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). Although a
pre-determination meeting need not constitute a full evidentiary hearing, it is intended to provide .
notice of the charges, an explanation of the employer's evidence, and a meaningful opportunity
to respond before the final decision is made. I do not ask the Council to make a constitutional
determination through this testimony. I identify the issue because it adds to the procedural,
evidentiary, credibility, and litigation risks that should be considered when evaluating
meaningful settlement authority. .
The County had direct notice of these issues before the termination decision was finalized. It had
an opportunity to identify and clarify the alleged directive, disclose and fairly assess the
evidence, consider the protected-activity and retaliation context, evaluate my clean disciplinary
history, and determine whether lesser corrective measures were appropriate. The County
nevertheless proceeded to termination without meaningfully resolving those issues.
Throughout my County career, I maintained a clean disciplinary record. Before the events
leading to my termination, I had not been subject to any type of formal discipline or progressive
corrective action, and the record did not reflect any pattern of misconduct or repeated failure to
comply with workplace expectations. My March 25 written response expressly placed the
County on notice of that history and objected that termination, without prior corrective or .
progressive measures, was disproportionate to the circumstances.
The decision to proceed directly to termination under those circumstances raises an additional
question of proportionality, particularly where the clarity, scope, and application of the alleged
directive remained disputed, the investigation was narrowly limited, the evidence relied upon
was not fully explained, and the County's stated explanations shifted or expanded over time. It
also increases the significance of whether lesser corrective measures were meaningfully
considered and, if rejected, what documented basis supported imposing the most severe form of
discipline.
I maintain that the termination cannot reasonably be separated from the surrounding history,
including:
• years of protected safety and environmental activity;
• the prior HIOSH discrimination and pretext determination;
• disputed removal and restriction of training; .
• repeated requests for clear written work instructions;
• unresolved internal complaints;
• public testimony before this Council;
• pending federal and state whistleblower matters;
• the narrow scope of the investigation and the operational and protected-activity issues left
unresolved;
• the County's reliance upon information from unidentified individuals that was not
meaningfully disclosed during the pre-determination process;
• unresolved due-process concerns regarding the explanation of the evidence and the
meaningfulness of the opportunity to respond;
• shifting and expanding explanations for the adverse action;
• my clean disciplinary record and the absence of prior progressive discipline; and
• the timing of the termination.
The termination did not resolve the dispute. It expanded it.
It created additional questions concerning County knowledge, causation, motive, procedural
fairness, selective enforcement, investigative completeness, proportionality, pretext, and the
remedies potentially available to me.
Those questions would otherwise continue to be examined in multiple proceedings involving
many of the same witnesses, documents, recordings, supervisory notes, investigative materials,
training records, safety procedures, disciplinary records, and disputed explanations. The same
evidence may be evaluated under different federal, state, contractual, constitutional, and
administrative standards, creating continued public expense, operational disruption, evidentiary
and credibility risk, and the possibility of inconsistent testimony or findings.
Why the March 31, 2026 Termination Materially Increased
the County's Exposure
The most consequential decision in this matter was not merely to continue my placement on
leave. It was the County's decision to convert a disputed temporary personnel action into
permanent termination while the signed, agreed-upon Federal OSHA ADR process concerning
my EPA and Clean Water Act-related protected activity remained pending and while HIOSH
Case No. 26-005 remained open and unresolved.
Those pending proceedings did not create immunity from lawful and independently justified
personnel action. They did, however, place the County on direct and unmistakable notice that my
protected activity, management knowledge, the sequence of adverse actions, and the County's
stated reasons were already subject to formal federal and state scrutiny.
The termination was therefore not imposed before the County knew that retaliation and protected
activity were disputed. It was imposed after the County had received extensive written notice of
those issues, after a prior HIOSH determination had found discrimination and pretext in
connection with my safety activity, after the new federal and state whistleblower matters were
underway, and after I had continued documenting safety, environmental, EPA, Union, and
public-oversight concerns. .
From a risk-management perspective, that decision materially escalated the dispute. The County
chose the most severe form of discipline at the point of maximum notice and maximum scrutiny.
The March 31 termination created a new and distinct adverse action substantially more serious
than the original placement on leave. It converted an existing dispute concerning work
restrictions, safety reporting, and administrative leave into a discharge case involving permanent
loss of employment, wages, benefits, service credit, retirement consequences, professional
standing, and future earning capacity.
It also substantially expanded the factual and legal questions subject to examination. Continued
proceedings may now address not only whether the original leave decision was lawful, but also:
• what County decision-makers knew about the Federal OSHA ADR and open HIOSH
investigation;
• what they knew about my EPA, Clean Water Act, safety, environmental, and Union
activity;
• whether the full protected-activity context was presented to and considered by the
decision-makers;
• whether the investigation was sufficiently broad, neutral, and complete;
• whether the County's evidence was adequately disclosed before termination;
• whether the alleged directive was clear, specific, operationally workable, and consistently
enforced;
• whether the County's explanations shifted or expanded after the decision;
• whether lesser corrective measures were meaningfully considered;
• whether termination was proportionate in light of my clean disciplinary record;
• whether later accounts are consistent with contemporaneous documents and recordings;
and
• whether the County would have imposed the same discipline in the absence of my
protected activity.
Those questions are particularly significant because the County's investigation was narrowly
limited, the Union's request for the investigative packet before the pre-determination meeting
was not granted, the County referred to information from unidentified individuals without
disclosing its substance, and the meeting itself lasted less than eight minutes. I nevertheless
submitted a detailed written response expressly raising the operational, whistleblower, due-
process, causation, and proportionality issues before the termination decision was finalized.
The County therefore cannot reasonably characterize these issues as objections developed only
after the discharge. It had direct written notice of them while it still had an opportunity to clarify
the alleged directive, examine the protected-activity context, disclose and fairly assess the
evidence, correct deficiencies in the process, consider lesser action, or decline to terminate.
The timing also materially strengthened the evidentiary significance of the County's decision.
OSHA's investigative framework recognizes that a short period between protected activity or
official agency action related to that activity and an adverse employment decision may support
an inference of a causal connection. That does not establish retaliation by itself, but it makes the
timing, decision-maker knowledge, consistency of the stated rationale, comparative treatment,
and completeness of the supporting record central issues for investigation.
The decision also altered the practical purpose and value of ADR. Instead of resolving the
existing dispute while my employment relationship remained potentially repairable,the County
imposed termination and substantially increased the number, seriousness, and value of the issues
that any later settlement would have to resolve. The termination added reinstatement, front pay,
back pay, lost benefits, retirement impacts, personnel-record relief, professional consequences,
and continuing economic loss to a dispute that was already under federal ADR and state
investigation.
The termination did not end the whistleblower proceedings. It supplied those proceedings with
the most severe adverse employment action available and expanded the evidence, remedies,
witnesses, credibility issues, and institutional decisions subject to review.
I do not ask the Council to determine through this testimony that the termination was retaliatory.
I ask the Council to recognize that terminating an employee during active Federal OSHA ADR
and an open HIOSH investigation, after extensive notice of protected activity and prior
retaliation concerns, was an exceptionally consequential escalation that materially increased the
County's factual, legal, evidentiary, remedial, and settlement exposure.
The County is now seeking comprehensive finality from the consequences of that decision. The
settlement authority provided for July 31 should reflect the fact that the County is not merely
resolving the dispute that existed before March 31. It is seeking to resolve the substantially larger
dispute created by the termination itself.
The Matters Proposed for Comprehensive Resolution and
the Unresolved Evidentiary Record
The County's proposed global framework identifies three overlapping individual matters arising
from my placement on leave and termination:
• Federal OSHA Complaint No. 301068292;
• HIOSH Case No. 26-005; and
• UPW Individual Termination Grievance No. 6046-0000-2026.0037.
A comprehensive negotiated resolution could address those matters through one coordinated
process rather than allowing substantially overlapping factual, contractual, statutory, and
remedial disputes to continue in separate forums.
Without settlement, the Federal OSHA matter may continue, HIOSH Case No. 26-005 may
resume, and the individual termination grievance may proceed through grievance processing,
labor arbitration, administrative review, and potentially judicial proceedings.
The potential remedies and consequences include reinstatement or front pay, back pay, lost
overtime and differentials, restoration of benefits and service credit, pension and retirement
impacts, personnel-record correction or expungement, accumulated leave, other make-whole
relief, and the substantial career and professional consequences resulting from my termination.
The settlement evaluation, however, cannot reasonably be limited to the three proceeding
numbers alone. Multiple unresolved public-records matters concern documents directly related to
the same safety, environmental, operational, training, hazard-assessment, corrective-action,
management-communication, and disciplinary issues presented in the Federal OSHA, HIOSH,
and grievance proceedings.
The Office of Information Practices has repeatedly intervened concerning Department of
Environmental Management responses to my records requests. The OIP record includes
identified deficiencies involving delayed or absent responses, failure to disclose records
following prepayment, failure to identify the particular records being withheld, failure to identify
the specific legal authority supporting nondisclosure, and an express determination that DEM's •
failure to respond in at least one matter constituted a constructive denial.Records concerning
employee and Union safety complaints, confined-space evaluations, Lockout/Tagout, corrective
action, environmental compliance, pump-station access, rescue planning, management
communications, and hazard abatement remain disputed, incomplete, or unresolved.
Those concerns are not abstract. In its HIOSH submission, the County acknowledged that DEM
could not locate my November 26, 2025 email reporting a missing machine guard and related
Lockout/Tagout concern, even though that contemporaneous safety email exists and was
independently preserved by me. The County's inability to locate a directly relevant
communication provides a concrete basis to question whether all responsive emails, text
messages, supervisory records, work orders, training materials, corrective-action records, and
management communications were located, preserved, reviewed, and considered before the
investigation and termination decisions were finalized.
I do not contend that every delayed or deficient records response independently establishes
retaliation, and I do not ask the Council to adjudicate any UIPA claim through this testimony.
The unresolved records matters are nevertheless material to the reliability and completeness of
the County's factual record, the adequacy of its internal investigation, the credibility of its later
explanations, and the possibility that additional corroborating, exculpatory, or contradictory
evidence may emerge if the pending proceedings continue.
Without settlement, the same County officials and employees may be required to produce
records and provide testimony repeatedly under different federal, state, contractual,
administrative, and constitutional standards. Continued proceedings may examine not only the
termination itself, but also:
• the clarity and consistency of the alleged work restrictions;
• the completeness and neutrality of the County's investigation;
• management knowledge of protected activity;
• the treatment and preservation of safety complaints;
• the accuracy and completeness of the County's document searches;
• the existence of additional internal communications;
• the adequacy of training and qualification records;
• contemporaneous audio recordings and corresponding transcripts of supervisory
discussions, investigative interviews, and the pre-determination meeting;
•
• whether later testimony, written notes, witness accounts, investigative findings, and
litigation positions are consistent with the contemporaneously recorded statements; and
• whether the stated disciplinary rationale was contemporaneous, complete, consistently
applied, and non-pretextual.
That continued examination would create additional public expense, operational distraction,
evidentiary and credibility risk, and the possibility of inconsistent testimony or findings. The
existence of contemporaneous recordings materially increases that risk because later
recollections, written characterizations, and sworn testimony may be compared directly against
statements made before the parties' positions became fully developed.
A comprehensive resolution would therefore provide the County with considerably more than
dismissal of three case numbers. It could provide finality against continued investigation,
repeated witness examination, additional document production, labor arbitration, administrative
review, disputed make-whole remedies, and the risk that presently unavailable records will
materially strengthen my claims or undermine the County's defenses.
The unresolved UIPA requests and OIP matters are not automatically included within the
County's proposed global framework. If the County seeks to include those matters, public-
records remedies, or claims potentially supported by records that remain undisclosed within a
comprehensive release, they must be expressly identified, separately evaluated, and supported by
additional consideration. Otherwise, those matters should remain clearly and specifically carved
out of any final agreement.
The County is therefore not merely seeking resolution of•three pending proceedings.It is seeking
substantial finality concerning a termination imposed during active protected proceedings while
the underlying documentary record remains materially incomplete and disputed. The breadth and
value of that requested finality should be fully reflected in the authority provided for the July 31
mediation and in any settlement ultimately negotiated.
Current Administrative and Implementation Status
An additional administrative matter reinforces the importance of clear authority, definite
responsibilities, and enforceable implementation terms.
More than three and one-half months have passed since my March 31, 2026 separation, and
payment of my accumulated vacation, compensatory time, and related retroactive payroll
adjustments remains unresolved.
The County initially represented that an original signed Final Leave of Absence form was
required before those amounts could be processed. The County later advised that Corporation
Counsel had determined that my prior written correspondence was sufficient authorization in
place of a signed Final Leave of Absence form.
I reviewed the vacation and compensatory-time balances reflected in the County's Final Leave of
Absence documentation, confirmed that I had no current discrepancies to report regarding those
balances, and provided the additional written authorization requested by the processing office.
That written authorization expressly permitted the County to proceed with payment while
preserving my rights and clarifying that the authorization was not a waiver, release, settlement,
accord and satisfaction, or relinquishment of any statutory, contractual, grievance,
administrative, or ADR-related claim.
Despite those actions, as of July 17, 2026, I had not received payment, confirmation that
payment was being processed, a definite payment date, or identification of any remaining legal,
contractual, policy, or administrative impediment.
I provide this limited update not to ask the Council to adjudicate a separate payroll dispute
during its consideration of Communication 957, but because it demonstrates the importance of
including clearly written responsibilities, identified decision-makers, definite completion dates,
and reliable implementation safeguards in any eventual resolution.
A comprehensive agreement cannot provide genuine finality if material obligations remain
subject to changing administrative requirements, uncertain processing, or open-ended
implementation. .
Why Meaningful Settlement Authority Is Reasonable and
Necessary
Meaningful settlement authority should not be viewed merely as authorization to make a
payment to one former employee.
It is the authority necessary to evaluate the full price and terms of obtaining comprehensive
finality across multiple active and potentially continuing proceedings, disputed employment
remedies, evidentiary uncertainty, administrative and arbitration exposure, litigation risk, and
years of accumulated conflict.
The County itself has stated that it seeks a comprehensive global resolution of the Federal OSHA
complaint,the open HIOSH matter, and my individual termination grievance, and that it intended
to enter mediation with authority to negotiate a comprehensive global settlement package.
Meaningful authority is therefore not an extraordinary concession. It is the practical means of
accomplishing the resolution the County has already stated that it seeks.
The relevant question is not simply what a settlement may cost. The relevant question is what the
County would,receive in exchange,what risks it would eliminate, and what continued
nonresolution is likely to cost.
The County has already devoted substantial public resources to my leave status, internal and
outside investigation, Human Resources review, Corporation Counsel involvement, regulatory
responses, Union grievance processing, public-records matters, document collection, witness
preparation, and related administrative proceedings.
Those expenditures are already incurred. They cannot be recovered by refusing to negotiate
meaningfully.
Without resolution, additional public resources may be required for resumed federal and state
investigations, grievance processing, labor arbitration, administrative review, document
production, OIP and public-records proceedings, witness interviews, testimony, legal analysis,
and potentially judicial proceedings. Continued expenditure would not guarantee the County a
better result, a more favorable result, or even a more certain result.
Continued proceedings would also permit further examination of the County's investigation,
disciplinary process, document searches, training and qualification records, safety procedures,
management communications, witness accounts, pre-determination process, and changing
explanations for termination. Contemporaneous audio recordings and corresponding transcripts
create an objective record against which later recollections, handwritten notes, investigative
conclusions, and sworn testimony may be compared.
The significance of resolving this matter is heightened by the County's existing obligations
under the EPA Administrative Order on Consent.
The AOC is not limited to one isolated repair at the Hilo facility. It expressly requires
rehabilitation and repair of the Hilo Wastewater Treatment Plant, repairs at the Kula`imano and
Papa`ikou treatment plants, pipeline improvements, a comprehensive condition assessment, an
Integrated Master Plan for wastewater across the County, updated Operations and Maintenance
manuals for all treatment systems, full implementation of an asset-management system,
development of a spill-response plan, and preventive maintenance intended to reduce sewage
spills. EPA identifies the County's wastewater system as including six treatment plants, sixteen
pump stations, approximately 105 miles of gravity sewer lines, and fourteen miles of force
mains.
Those are extensive, long-term, federally supervised operational obligations. They require
reliable management systems, accurate documentation, trained and qualified employees,
effective maintenance programs, functioning work-order and asset-management systems, safe
access to critical equipment, prompt hazard reporting, and the ability to perform corrective work
without creating additional worker-safety or environmental risk. This is a practical inference
from the AOC's required rehabilitation, maintenance, asset-management, operations-manual,
spill-response, and system-planning measures.
The concerns I raised were directly connected to those operational realities. They involved
confined-space classification, hazardous-energy control and Lockout/Tagout, rescue feasibility,
fall protection, training and qualification, maintenance access, documentation availability, work-
order systems, spill prevention, environmental compliance, and the ability to inspect and repair
critical wastewater infrastructure safely. My February 3 Council testimony identified specific
facilities, requested defined corrective deliverables, and explained how safety documentation and
operational readiness affect the County's ability to meet its environmental responsibilities.
The County therefore terminated a licensed wastewater operator and UPW Unit 168 Chief
Steward while I was continuing to report safety, environmental, maintenance, and operational-
readiness concerns closely related to the work the County must perform under federal
environmental oversight.
I do not contend that the AOC prohibited the County from taking lawful and independently
justified personnel action. Its significance is that the County imposed the most severe
employment action while it was under heightened federal scrutiny for wastewater operation and
maintenance deficiencies and while my protected reporting addressed closely related subjects.
That decision increased risk extending beyond an ordinary employment disagreement. Continued
proceedings may examine whether the County fully and neutrally evaluated reports relevant to
safe AOC implementation; whether qualified employees were encouraged or discouraged from
reporting operational deficiencies; whether safety, maintenance, and corrective-action records
were preserved and reviewed; and whether removing an experienced licensed operator during a
period of major rehabilitation and federal oversight served or undermined the County's asserted
operational interests.
The County's risk is therefore not limited to the possibility of an adverse finding in one forum.
Continued proceedings may examine:
• whether the alleged work restrictions were clear, specific, and operationally enforceable;
• whether the County's disciplinary rationale remained consistent;
• whether the investigation was complete, neutral, and based upon all relevant evidence;
• whether management fully considered protected safety, environmental, Union, OSHA,
HIOSH, and EPA-related activity;
• whether lesser corrective measures were considered before termination;
• .whether relevant emails, text messages, safety complaints, training records, work orders,
and management communications were preserved and reviewed;
• whether later testimony is consistent with contemporaneous recordings;
• whether the County's actions supported or discouraged candid reporting of matters
relevant to wastewater reliability and AOC compliance; and
• whether the final explanation for termination was contemporaneous or developed after
the decision.
A comprehensive settlement would therefore provide the County with substantial independent
value, including:
• a defined and enforceable resolution;
• finality regarding the specifically identified individual matters;
• avoidance of resumed and parallel proceedings;
• reduced legal, investigative, administrative, and operational expense;
• reduced uncertainty regarding reinstatement, front pay, back pay, benefits, retirement •
consequences, record correction, and other remedies;
• avoidance of repeated witness examination and document production;
• reduced risk of inconsistent testimony, findings, or outcomes;
• protection from the possibility that additional records will strengthen my claims or
undermine the County's defenses; and
• the ability to redirect management, legal, engineering, technical, and operational
resources toward employee safety, environmental compliance, rehabilitation of the Hilo,
Kula`imano, and Papa`ikou facilities, and the Countywide planning, maintenance, asset-
management, documentation, and spill-prevention obligations required by the EPA AOC.
The value of settlement is not limited to avoiding an adverse ruling. Settlement would allow the
County to control its exposure, define the scope of its obligations, negotiate appropriate
monetary and nonmonetary terms, and obtain certainty that cannot be guaranteed through
continued investigation, arbitration, public-records proceedings, or litigation.
A resolution would also account for the serious career, financial, retirement, professional, and
personal consequences resulting from the prolonged dispute and the termination of my County
employment. Those consequences continue while the matter remains unresolved and may
increase the economic and remedial issues that must ultimately be addressed.
Neither party must abandon every sincerely held position for settlement to be reasonable.
The County may continue to deny retaliation, procedural unfairness, pretext, and other alleged
wrongdoing. I may continue to dispute the County's factual explanations and legal defenses.
Settlement does not require either party to adopt the other's account. It requires both parties to
recognize the cost,uncertainty, and risk of leaving those disagreements unresolved.
Meaningful authority before July 31 is therefore essential. It would permit the County's
representatives to do more than listen, restate existing positions, or defer every material proposal
for later approval. It would allow them to evaluate monetary and nonmonetary terms, respond
meaningfully to proposals, explore alternatives, make counterproposals, address reinstatement or
separation options, evaluate release language and carve-outs, and determine whether an
agreement in principle can be reached.
Meaningful authority need not predetermine every term, surrender the Council's appropriate
oversight, or require acceptance of an unreasonable proposal. It must, however, provide
sufficient direction and flexibility for genuine bargaining within a realistic range of possible
resolution.
This is particularly important while the County is undertaking extensive federally supervised
wastewater corrections across multiple facilities and Countywide systems. Prolonging
overlapping employment, whistleblower, grievance, records, and administrative proceedings
diverts management attention, legal capacity, technical personnel, and public resources from the
same operational, maintenance, safety, and environmental obligations the EPA AOC requires the
County to address.
Without meaningful authority,the July 31 mediation risks becoming another preliminary
exchange rather than an actual opportunity to settle. That would not conserve public resources. It
would merely postpone the necessary decisions while economic loss, administrative expense,
evidentiary uncertainty, credibility risk, and institutional exposure continue to increase.
The County is seeking substantial finality concerning a termination imposed during active
protected proceedings, against an incomplete and disputed factual record, and during a period of
extensive federal wastewater oversight.
The authority provided for July 31 should therefore be proportionate to the breadth, seriousness,
public importance, and value of the matters the County seeks to resolve.
A mediation without meaningful authority does not reduce the County's exposure. It delays
resolution while preserving and potentially increasing every factual, financial, evidentiary,
operational, and institutional risk the mediation was intended to eliminate.
Settlement Does Not End Council Oversight
Any eventual resolution of my individual matters should not be treated as a substitute for
institutional accountability.
A settlement may properly resolve my employment, monetary,whistleblower, personnel-record,
and grievance claims.
It should not prevent continued Council oversight of:
• workplace safety;
• confined-space and hazardous-energy procedures;
• employee training;
• rescue capability;
• maintenance and operational readiness;
• environmental compliance;
• employee complaint handling;
• retaliation protections;
• disciplinary consistency; and
• management accountability.
The County is undertaking a $337 million rehabilitation of a plant operating under an EPA
Administrative Order on Consent and repeated emergency proclamations.
That effort will require experienced employees, reliable safety programs, complete technical
documentation, effective training, and a workplace culture in which employees may identify
hazards without fear of hostility or retaliation.
A settlement can close an individual dispute.
It should not erase the lessons that gave rise to it.
Request for Executive-Session Consideration and
Meaningful Settlement Authority
I respectfully ask the Council to convene the anticipated executive session under Communication
957, consider the complete factual, legal, evidentiary, administrative, financial, and operational
circumstances surrounding these proceedings, and provide Corporation Counsel with meaningful
and realistic authority to negotiate a fair and comprehensive resolution during the July 31, 2026
Federal OSHA ADR mediation.
Meaningful settlement authority would permit the parties to address the identified Federal
OSHA, HIOSH, and individual grievance matters through a single coordinated process; evaluate
reinstatement, back pay, front pay, benefits, pension consequefices, personnel-record relief,
expungement, accumulated leave, and other appropriate remedies; and determine whether
comprehensive finality can be achieved without years of additional proceedings.
A comprehensive negotiated resolution could:
• resolve the identified Federal OSHA, HIOSH, and individual grievance matters;
• provide finality without requiring a finding or admission of liability;
• avoid the expense and uncertainty of continued proceedings in multiple forums;
• resolve disputed employment and make-whole remedies;
• end the continuing expenditure of public and personal resources; and
• allow the County and the individuals involved to move forward.
This dispute arose in the context of protected safety and environmental activity involving critical
public infrastructure.
HIOSH previously issued a determination finding that the County discriminated against me and
that its actions were pretextual, although the County contested that determination and it has not
become a final, un-appealed administrative order or final judicial judgment.
This Council received direct written and oral notice of my continuing concerns on February 3,
2026.
•
The County terminated my employment less than two months later, while the Federal OSHA
ADR process remained pending and an active HIOSH investigation remained open.
The County disputes the significance of those facts. I maintain that they create substantial
continuing factual, procedural, evidentiary, contractual, administrative, and remedial exposure.
A comprehensive resolution would allow those disputed positions to be addressed responsibly
without requiring the Council to retry the entire matter.
As a Native Hawaiian, state-licensed wastewater operator, state-licensed potable water treatment
and water distribution operator, Union Chief Steward, and former County employee, I have
always believed that protecting workers, our water, public infrastructure, and the environment is
part of our shared kuleana.
I hope the Council's consultation under Communication 957 results in meaningful authority for
good-faith negotiations and creates a genuine opportunity to bring finality to my individual
matters while preserving the institutional lessons necessary to protect employees, the public, and
the environment going forward.
Mahalo for your consideration and for the opportunity to submit this testimony.
Respectfully submitted,
Alan Fukamizu
UPW Unit 168 Chief Steward
Former Wastewater Treatment Plant Operator II
EXECUTIVE SUMMARY
OF WRITTEN TESTIMONY BY ALAN FUKAMIZU
Submitted: July 19, 2026
Regarding Communication 957 -Legal Proceedings Concerning Alan Fukamizu
Purpose: This Executive Summary highlights the principal legal, administrative, evidentiary,
financial, and operational considerations supporting the request that the Council provide
Corporation Counsel with meaningful settlement authority for the July 31, 2026 Federal OSHA
ADR mediation.
This testimony is respectfully submitted regarding Communication 957, "Legal Proceedings
Concerning Alan Fukamizu;" and the anticipated executive session concerning the County's
legal, administrative, financial, evidentiary, and operational exposure arising from my December
2025 placement on leave and my March 31, 2026 termination.
I am not asking the Council to determine liability, resolve disputed facts, or substitute its
judgment for that of the agencies, arbitrators, or courts that may ultimately review these matters.
Rather, I respectfully ask the Council to evaluate the complete circumstances presented by the
overlapping proceedings and provide Corporation Counsel with meaningful and realistic
authority to negotiate a fair and comprehensive resolution during the July 31, 2026 Federal
OSHA Alternative Dispute Resolution("ADR")mediation.
The July 31 mediation follows an initial Federal OSHA ADR session conducted on May 14,
2026, which concluded without resolution. I voluntarily agreed to continue participating in the
ADR process because I remain willing to pursue a fair and comprehensive resolution if the
County participates with sufficient authority to negotiate meaningful terms in real time. If
settlement cannot be achieved, the pending proceedings will continue through their respective
investigative, administrative, contractual, arbitration, and judicial processes.
At present, the County faces exposure in three principal parallel proceedings arising from
substantially overlapping facts, witnesses, documents, and management decisions:
• Federal OSHA Whistleblower Complaint No. 301068292;
• HIOSH Investigation No. 26-005; and
• UPW Individual Termination Grievance No. 6046-0000-2026.0037.
The County also faces unresolved public-records proceedings before the Hawai`i Office of
Information Practices and the possibility of related administrative review, arbitration, or judicial
proceedings.
These matters involve many of the same factual issues while presenting the possibility of
different legal standards, independent findings, overlapping remedies, duplicative discovery,
• repeated witness testimony, and significant expenditures of public resources. Depending upon
the outcome of the principal proceedings, available remedies may include reinstatement,back
pay, front pay, restoration of benefits, pension-related relief, personnel-record relief,
expungement, accumulated leave, attorneys' fees where authorized, and other appropriate
equitable or make-whole remedies.
The County's potential exposure is further affected by the timing of the adverse employment
action. My employment was terminated effective March 31, 2026, while the Federal OSHA
whistleblower complaint remained pending, while the parties were operating under a signed
mutually agreed upon ADR process, and while HIOSH Investigation No. 26-005 remained open
and active. Consequently, the termination did not conclude the underlying dispute. Instead, it
expanded the potential remedies,increased the County's litigation and administrative exposure,
and created an additional adverse employment action subject to review by multiple independent
forums.
The present matters also arise against the background of the previous HIOSH DNO Case No. 22-
002. In that matter,HIOSH determined that protected activity and employer knowledge had been
established, concluded that an adverse action occurred one day after protected activity, found the
County's stated explanation to be pretextual, and ordered corrective measures, including training
and removal of adverse materials. Although that determination remains contested and is not
final, it nevertheless represents a prior agency evaluation involving retaliation, credibility,
motive, and the treatment of protected safety activity within the same employment environment.
It is therefore an appropriate consideration in evaluating litigation and settlement risk.
The evidentiary record is also extensive, contemporaneous, and, in several respects, disputed. It
includes contemporaneous emails, supervisory correspondence, audio recordings, transcripts,
safety complaints, work orders, operating logs, training records, personnel records, public-
records correspondence, and other documentary evidence created before, during, and after the
events at issue.
The County has acknowledged an inability to locate certain relevant records that I independently
preserved,while multiple public-records matters remain unresolved following repeated
intervention by the Hawai`i Office of Information Practices. These circumstances create
additional uncertainty regarding document preservation, search completeness, witness
recollection, credibility determinations, and the evidentiary record that may ultimately be
developed through OSHA,HIOSH, grievance, arbitration, administrative, or judicial
proceedings.
The existence of substantial contemporaneous documentary and recorded evidence also reduces
the likelihood that these matters will ultimately depend solely upon conflicting recollections
years after the events occurred. Instead, investigators, arbitrators, agencies, or courts may be able
to compare later explanations and testimony against records created at or near the time of the
underlying events.
Before my termination, the Council also received detailed written and oral testimony concerning
wastewater operations, employee safety, training, environmental compliance, infrastructure
reliability, and management accountability. Accordingly, the present matters extend beyond a
routine personnel dispute and include issues that were previously brought to the attention of
County leadership before the adverse employment action occurred.
•
These proceedings are occurring while the County continues to address significant wastewater
infrastructure and regulatory responsibilities, including compliance obligations under the EPA
Administrative Order on Consent and implementation of the approximately $337 million Hilo
Wastewater Treatment Plant rehabilitation and replacement project. Continued litigation across
multiple forums will likely require substantial additional management attention, document
production, witness preparation, legal resources, regulatory coordination, and public
expenditures while those operational responsibilities continue.
The County has likewise already devoted substantial public resources to these matters through
internal investigations, Human Resources review, Corporation Counsel involvement, regulatory
responses, grievance processing, public-records proceedings, document collection, witness
interviews, and mediation preparation. A negotiated resolution would permit the County to
conclude the identified matters in a coordinated manner rather than continuing to expend public
resources through multiple independent proceedings.
The County has indicated that it intends to seek a comprehensive release of claims arising from
my placement on leave and termination. A request for that degree of finality should be
accompanied by meaningful authority to negotiate consideration proportionate to the legal,
financial, administrative, evidentiary, and,operational risks that would be resolved.
Meaningful settlement authority would allow the parties to evaluate reinstatement, back pay,
front pay, benefits, pension consequences, personnel-record relief, expungement, accumulated
leave, and other appropriate remedies within a single coordinated process. It would also provide
the opportunity to achieve comprehensive finality without requiring either party to admit
liability,while avoiding years of additional investigation, litigation, administrative proceedings,
arbitration, duplicative costs, and the possibility that future decisions will instead be made by
outside agencies, arbitrators, or courts.
For these reasons, I respectfully request that the Council convene the anticipated executive
session, evaluate the complete factual, legal, evidentiary, administrative, financial, and
operational circumstances presented by these matters, and provide Corporation Counsel with
meaningful and realistic settlement authority for the July 31, 2026 Federal OSHA ADR
mediation.
Respectfully submitted,
Alan Fukamizu
UPW Unit 168 Chief Steward
Former Wastewater Treatment Plant Operator II
From: Alan Fukamizu
Sent: Monday,July 20, 2026 8:02 PM
To: Council Testimony
Cc: Alan Fukamizu
Subject: Supplemental Exhibits to Testimony, Communication 957, Federal OSHA ADR and
Contemporaneous HR Notice
Attachments: Supplemental Exhibit_2.pdf; Supplemental_
3.1 Response to_Notice_of Investigation_.pdfi SUPPLEMENTAL_3.2Notice of Leave
Without Pay Pending Investigation.pdf; Supplemental Exhibit_1.pdf
Aloha Chair,Vice Chair, and Honorable Members of the Hawaii County Council:
Earlier today, I submitted written testimony and an Executive Summary regarding Communication 957,
"Legal Proceedings Concerning Alan Fukamizu."
Attached as four supplemental exhibits for inclusion with that submission are documents providing
direct, contemporaneous evidence concerning the County's knowledge of my protected activity,the
initiation of the Federal OSHA ADR process, and the chronology preceding my March 31, 2026
termination. Limited redactions have been made to two exhibits to remove personal contact information
and other identifying information unnecessary to the Council's consideration of Communication 957.
Supplemental Exhibit 1: March 2, 2026 OSHA Request for ADR Form signed by Department of
Environmental Management Director Daniel Girvan in Federal OSHA Complaint No. 301068292.
Supplemental Exhibit 2: March 5, 2026 U.S. Department of Labor letter acknowledging the parties'
mutual request for Alternative Dispute Resolution and confirming that the complaint had been formally
entered into the Federal OSHA ADR process.
Supplemental Exhibit 3: December 15, 2025 Defense and Preservation letter documenting my
contemporaneous written notice to Department of Environmental Management Human Resources
concerning my protected safety, environmental, whistleblower, and union activity, my retaliation
concerns, and my request for preservation of relevant evidence.
Supplemental Exhibit 4: December 15, 2025 email chain documenting my transmission of the Defense
and Preservation letter to Department of Environmental Management Human Resources and Human
Resources' express confirmation of receipt.
Supplemental Exhibits 3 and 4 establish that DEM Human Resources had actual written notice of my
protected activity and retaliation concerns at the outset of the investigative and disciplinary process. On
December 15, 2025, Human Resources served me by email with a Notice of Leave Without Pay Pending
Investigation at 11:36 a.m.At 1:14 p.m.that same day, I transmitted my formal Defense and Preservation
letter directly to Human Resources, copied my union representative, requested confirmation of receipt,
and requested that the letter be placed in my official personnel file.At 1:25 p.m., DEM Human Resources
expressly confirmed receipt.
1
•
The Defense and Preservation letter identified my protected safety, environmental,whistleblower, and
union activity; expressly raised retaliation concerns; requested preservation of relevant documents,
communications,training records, inspection records, photographs, electronic data, and investigatory
materials; and reserved my rights and defenses. DEM Human Resources therefore had direct and
contemporaneous written notice of these matters before the County completed its investigation,
conducted the pre-determination process, or terminated my employment.
Supplemental Exhibits 1 and 2 establish the next critical part of the chronology. On March 2, 2026,the
DEM Director personally signed the County's request to enter Federal OSHA ADR. On March 5,2026,the
U.S. Department of Labor confirmed that the parties had mutually requested ADR and that Federal OSHA
Complaint No. 301068292 had been formally entered into the ADR process.
The March 5 letter further confirms that OSHA's investigation was stayed pending mediation, not
dismissed or closed, and that the complaint would be returned for fact-finding investigation if settlement
was not achieved. Nevertheless,the County terminated my employment on March 31, 2026,while the
Federal OSHA ADR processremained pending.
Taken together,these exhibits establish a clear and documented sequence:
1. DEM Human Resources received and expressly acknowledged written notice of my protected
activity and retaliation concerns at the outset of the disciplinary process;
2. the DEM Director later signed the County's request to pursue Federal OSHA ADR;
3. OSHA formally entered the whistleblower complaint into ADR and stayed its investigation pending
mediation; and
4. The County terminated my employment while that federal processremained pending.
•
These documents are directly relevant to the County's knowledge,the chronology and integrity of the
investigative and disciplinary process,the legal and evidentiary risks presented by the pending
proceedings, and the need for meaningful and realistic settlement authority at the July 31, 2026
mediation.
I respectfully request that these supplemental exhibits be:
1. included with my previously submitted written testimony and Executive Summary;
2. distributed to the Council members before their consideration of Communication 957; and
3. included in the official record for the Council's July 23, 2026 meeting.
Mahalo for your assistance.
Respectfully submitted,
Alan Fukamizu
UPW Unit 168 Chief Steward
Former Wastewater Treatment Plant Operator II
2
U.S.Department of Labor Occupational Safety and Health Administration aT#<``."''°Frb
San Francisco Regional Office A •! °
Ronald V.Dellums Federal Building
1301 Clay Street,Suite 10S0N xy, �DM--y �4a
Oakland,CA 94612 `�+rE,�fvr
REQUEST FOR ADR FORM
Case No.: County of Hawaii/Alan Fukamizu/301068292
The Occupational Safety and Health Administration(OSHA) offers a voluntary program under
which the Complainant and Respondent may resolve a whistleblower complaint outside of the
investigative process,through early resolution.Early resolution is a process in which the parties
attempt to negotiate a settlement with the assistance of a neutral OSHA whistleblower expert,
who is not the investigator assigned to the case and is not involved in OSHA's decision-making
on the merits of the case.Communications during the early resolution process are kept
confidential,to the extent permitted by law, and are not disclosed to the Whistleblower
Investigator or any other Department of Labor employee who is involved in the agency's
decision-making on the merits of the case.If OSHA approves the parties'request for early
resolution,the investigation will be stayed pending the outcome of the early resolution process.
If the complaint is not resolved during the early resolution process, either party may share
information and documents that it disclosed during the early resolution process with the assigned
Whistleblower Investigator.
✓I am interested in pursuing ADR as an alternative to OSHA's investigation.
8/),-92ICJ 0.3 63 00,14
Signature Date
Daw 6 tRt//4AJ pAtiieL .FiQVAN C�
Print Full Name Daytime Phone Number Email address
H At d If coo mr y . 6O t/
U.S Department of Labor Occupational Safety&Health Administration
Philadelphia Regional Office
1835 Market Street i '-
Mailstop OSHA-RO/19
Philadelphia, PA 19106-2968 S'.iTes 0,b
Telephone: (215)861-4900
Fax: (215)861-4904
March 5, 2026
VIA Electronic Mail to: Fukamizu.Alan@gmail.com; daniel.girvan@hawaiicounty.gov
RE: County of Hawaii, Department of Environmental Management/Fukamizu/301068292
Dear COMPLAINANT/RESPONDENT:
This letter acknowledges the parties' mutual request for Alternative Dispute Resolution (ADR)
in the whistleblower case filed by Fukamizu against County of Hawaii, Department of
Environmental Management. Therefore, as of the date of this letter, the above referenced
complaint is entered formally in the ADR process. As the ADR Coordinator, I will be your point
of contact and will assist in resolving your dispute through mutual agreement. I will contact you
within ten (10)business days to discuss your initial offer in settlement and to coordinate a
schedule for mediation or other settlement conference activity. Please inform me immediately if
there are any changes to your address, phone number or email since the filing of the complaint.
OSHA's investigation will be stayed until five (5) days.after your mediation occurs. If the ADR
process does not result in a settlement agreement, the complaint will be returned to the Regional
Supervisory Investigator or the assigned investigator for a fact-finding investigation. If it is
determined that the complaint will not be resolved by settlement at this time,you will be notified
in advance that the complaint will be returned for investigation.
Thank you for your interest and participation in the OSHA ADR Program. I look forward to
speaking with you soon.
Sincerely,
Alternative Dispute Resolution Coordinator
Philadelphia, PA
County of Hawaii
Department of Environmental Management
345 Kekuanaoa St.,#41
Hilo, HI 96720
Re: Response to Notice of Investigation
This letter constitutes my formal written response and legal defense to the Notice of Investigation
issued to me. It addresses the matters identified therein, as well as all related facts, circumstances,
and legally protected activity.This response is submitted in good faith for purposes of cooperation;
however, it is expressly intended to preserve and assert all rights, defenses, and statutory
protections available to me.
Nothing in the Notice of Investigation narrows or limits the scope of protected activity addressed
herein. Nothing in this letter shall be construed as an admission of wrongdoing, policy violation, or
misconduct of any kind.All allegations, characterizations, or inferences inconsistent with the facts
or applicable law are expressly denied.
I. Background, Licensure, and Regulatory Role
I am a licensed wastewater operator and a licensed drinking water operator, including licensure in
drinking water treatment and distribution. By statute and regulation, I have non-discretionary duties
• to operate, inspect, and maintain water and wastewater facilities in compliance with state and
federal law, including obligations related to public health protection, environmental compliance, and
occupational safety.
I also serve as the Chief Steward for United Public Workers(UPW), Bargaining Unit 168, and as a
member of UPW,AFSCME Local 646, Bargaining Unit 1. In these capacities, I am legally obligated
to represent employees, enforce collective bargaining agreements, and raise safety, staffing,and
working-condition concerns, including those documented in the Union Safety Inspection conducted
on December 3,2025.
II. Protected Activity—Safety, Environmental,and Union Activity
My actions constitute protected activity under multiple independent bodies of law, including but not
limited to:the Hawaii Whistleblowers' Protection Act(HRS§378-62); Section 11(c)of the
Occupational Safety and Health Act(29 U.S.C. §660(c)); and federal environmental whistleblower
statutes administered by the U.S. Environmental Protection Agency.
My actions also constitute protected union and concerted activity under Chapter 89, Hawaii Revised
Statutes, including activity undertaken in my official capacity as a UPW Chief Steward and union
representative.This protected activity expressly includes conducting and documenting union safety
inspections, identifying OSHA/HIOSH violations, requesting corrective actions, and demanding
regulatory compliance.
I further maintain continuing whistleblower status based on prior protected activity formally
recognized in the Department of Labor and Industrial Relations Determination and Notice of Order
(DNO)No.22-002, which found retaliation had occurred.That determination remains contested and
unresolved.As a matter of law,whistleblower protections do not expire while a retaliation
determination remains pending or unresolved.
Ill. Protected Environmental Activity—Clean Water Act/EPA/SPCC
My actions are independently protected under federal environmental whistleblower statutes,
including the Clean Water Act(33 U.S.C. §1367), EPA whistleblower procedures at 40 CFR Part 7,
and the Spill Prevention, Control, and Countermeasure (SPCC)regulations at 40 CFR Part 112.
IV. Prima Facie Retaliation and Burden-Shifting Standard
To establish a prima fade case of retaliation under state and federal whistleblower law, a claimant
need only demonstrate that: (1)they engaged in protected activity; (2)the employer knew or should
have known of the protected activity; and (3)an adverse action occurred or was threatened under
circumstances giving rise to an inference of retaliation.That standard is satisfied here.
Once a prima facie case is established, the burden shifts to the employer to demonstrate by clear
and convincing evidence that the same action would have been taken absent the protected activity.
This is a heightened evidentiary standard.Any investigation or disciplinary action that fails to
account for this burden-shifting framework is legally deficient. .
•
V. Good-Faith Operational Necessity and Scope of Duties
The actions at issue were undertaken in good faith and squarely within the scope of my licensed
operational duties and union representation responsibilities. Regulatory inspection,facility access,
safety reporting, corrective action advocacy, and union safety enforcement are not discretionary
• acts;they are mandatory functions imposed by law, regulation, and collective bargaining
obligations.
VI. Investigative Obligations, Neutrality, and Preservation of Evidence
Any investigation conducted by or on behalf of the employer must evaluate the full scope of
protected activity described herein and must be neutral, comprehensive, and free from retaliatory
bias. Failure to do so compromises the integrity of the investigative process and may itself
constitute evidence of retaliation.
All documents, communications, emails, text messages,training records,SPCC plans, inspection
reports, photographs, electronic data, and investigatory materials related to this matter must be
preserved. Destruction or alteration of evidence may give rise to adverse inferences and
independent liability.
VII. Conclusion and Reservation of Rights
Any investigative findings or employment actions must fully account for the protected activity
described above and the applicable burden-shifting legal standards. Disciplinary or adverse action
taken without lawful justification may expose the employer to liability under OSHA, HIOSH, Chapter
89, HRS§378-62, and federal environmental whistleblower statutes.
This letter is submitted without waiver of any rights, claims, or protections,all of which are expressly
reserved.
Respectfully submitted,
Alan Fukamizu
Claimant/Employee
UPW Unit 168 Chief Steward
Statutory References:
1. HRS§378-62—Hawaii Whistleblowers' Protection Act
2.29 U.S.C. §660(c)—OSHA Section 11(c) .
3. 33 U.S.C.§1367—Clean Water Act Whistleblower Protection
4.40 CFR Part 7—EPA Whistleblower Procedures
5.40 CFR Part 112—SPCC Regulations
6. HRS Chapter 89—Collective Bargaining and Protected Union Activity
It id Alan <getkalani@a,grnail.corn:'
m
Notice of Leave Without Pay Pending Investigation ,
3 messages
Guinn-Lacy, Kahula<Kahula.Guinn-Lacy@hawaiicounty.gov> Mon, Dec 15, 2025 at 11:36 AM
To:"getkalani@gmail.com" <getkalani@gmail.com>, "Fukamizu, Alan" <Alan.Fukamizu@hawaiicounty.gov>
Hi Alan,
Due to your absences on December 13, 14, and 15, 2025, the attached Notice of Leave Without Pay Pending
Investigation is being served via certified mail and email. The effective date of the notice remains December 13, 2025.
1
If you have any questions regarding this matter, feel free to contact me.
Thank you,
0 ;.. KAHULA GUINN-LACY
. .a w q
'" V Human Resources Program Specialist
'; ;u I.
4 '"u-- Department of Environmental Management
•.' ,k r.
County of Hawaii
Tel: 808.961.84451 Fax: 808.961.8350
Kahula.Guinn-Lacy_@hawaiicounty_gov
i 2025.12.13 Notice of Leave Without Pay Pending Investigation A. Fukamizu.pdf
80K
Alan <getkalani@gmail.com> Mon, Dec 15, 2025 at 1:14 PM
To: "Guinn-Lacy, Kahula" <Kahula.Guinn-Lacy@hawaiicounty.gov>
Cc: Meghan Fujiyama <mfujiyama@upwhawaii.org>
Kahula, attached is my Defense and Preservation letter. Please send me a confirmation email that you have received.
I would also like to request a copy of this is placed in my official personnel file.
Thank you, Alan Fukamizu
Response_to_Notice_of Investigation_.pdf
6K
Guinn-Lacy, Kahula<Kahula.Guinn-Lacy@hawaiicounty.gov> Mon, Dec 15, 2025 at 1:25 PM
To: Alan <getkalani@gmail.com>
Cc: Meghan Fujiyama <mfujiyama@upwhawaii.org>
Hi Alan,
•
Confirming receipt of your email.
From: Alan Fukamizu
Sent: Monday,July 20, 2026 9:04 PM
To: Council Testimony
Subject: Additional Supplemental Exhibits to Testimony, Communication 957, March 25, 2026
Pre-Determination Record
Attachments: Supplemental Exhibit 5.pdf; Supplemental Exhibit 6.pdf
Aloha Chair,Vice Chair, and Honorable Members of the Hawaii County Council:
Earlier today, I submitted written testimony, an Executive Summary, and supplemental exhibits regarding
Communication 957, "Legal Proceedings Concerning Alan Fukamizu."
Attached for inclusion with those materials are two additional supplemental exhibits concerning the
March 25, 2026 pre-determination hearing, my written response to the proposed disciplinary action, and
the County's receipt and consideration of that response before my March 31, 2026 termination.
Supplemental Exhibit 5: March 25, 2026 Written Response submitted for the record at the pre-
determination hearing.
Supplemental Exhibit 6: March 25, 2026 email chain documenting my transmission of the Written
Response to Department of Environmental Management Human Resources, DEM Director Daniel Girvan,
and my union representative,together with Human Resources' express confirmation of receipt.
Supplemental Exhibit 5 sets forth my contemporaneous written defense to the proposed disciplinary
action. I submitted that response for the record at the March 25, 2026 pre-determination hearing. During
the approximately eight-minute meeting, DEM Director Daniel Girvan and Human Resources received
and examined the written submission, and Director Girvan expressly referred to its contents.An audio
recording of the meeting has been preserved and documents the proceedings.
In my written response, I denied refusing any lawful directive or engaging in insubordination; explained
that I had sought clarification concerning unclear and operationally conflicting safety restrictions;
identified my protected safety and environmental reporting, including my communication with EPA;
referenced the prior HIOSH determination concerning discrimination for protected activity; addressed
the timing of the proposed termination; and noted my clean disciplinary record and the absence of prior
corrective or progressive discipline.
During the meeting, Director Girvan acknowledged that my written submission discussed other actions
and events occurring in December 2025 and afterward. He then stated that the action the Department
intended to take was focused specifically on my alleged conduct of December 12, 2025, and that the
County's position relied in part on information provided by unidentified "other people on the site" and on
my written communication.
Director Girvan further stated that"our decision" did not refer to the other dates or events identified in
my response and characterized the proposed action as being based solely on the alleged conduct of
1
December 12, 2025.The recording documents these statements and preserves the limited discussion
that occurred during the approximately eight-minute proceeding.
The recording also reflects that the broader matters addressed in my written response, including my
protected safety and environmental activity, my EPA communication,the prior HIOSH discrimination
determination,the disputed operational application of the alleged restrictions, my retaliation concerns,
and the absenceof prior discipline, were not substantively discussed during the meeting.After
explaining the Department's stated position concerning December 12, Director Girvan asked whether I
had anything further to present. I responded that my written'statement reflected my position and that I
relied upon it for the record.
Supplemental Exhibit 6 further establishes that, at 2:08 p.m. on March 25, 2026, I transmitted the same
written response directly to DEM Human Resources, DEM Director Daniel Girvan, and my union
representative. I expressly requested confirmation of receipt and inclusion of the response in the
administrative record.At 2:13 p.m., DEM Human Resources confirmed receipt,with Director Girvan and
my union representative included in the correspondence.
These exhibits establish that DEM Human Resources and the DEM Director received and examined my
written response during the March 25 pre-determination hearing, expressly referred to its contents, and
received the same submission electronically immediately following the meeting.They therefore had
direct notice of my defenses, my protected safety and environmental activity, my retaliation concerns,
the disputed scope and application of the alleged work restrictions, and my clean disciplinary record
before the County terminated my employment six days later, on.March 31, 2026.
They also complete an important portion of the chronology already documented in my earlier
supplemental exhibits:
1. On March 2, 2026,the DEM Director sighed the County's request to pursue Federal OSHA ADR.
2. On March 5, 2026, OSHA formally entered the whistleblower complaint into ADR.
3. On March 25, 2026, I submitted my detailed written response for the record at the pre-
determination hearing.
4. During the approximately eight-minute meeting,the DEM Director and Human Resources
received and examined the response, and the Director expressly referred to its contents.
5. During that meeting,the Director stated that the Department's intended action was focused
specifically on the alleged conduct of December 12, 2025, referred to information from
unidentified "other people on the site," and used the phrase "our decision"when describing the
Department's position.
6. An audio recording of the pre-determination meeting has been preserved and documents the
proceeding.
7. At 2:08 p.m.that same day, I transmitted the written response directly to Human Resources, the
DEM Director, and my union representative and requested its inclusion in the administrative
record.
8. At 2:13 p.m., Human Resources expressly confirmed receipt.
9. On March 31, 2026, the County terminated my employment while the Federal OSHA ADR process
remained pending.
Taken together,these exhibits and the preserved audio record show that the County's final decision was
made after DEM Human Resources and the DEM Director had received and examined my detailed
2
written defense, after the Director had expressly referred to its contents during the pre-determination
hearing, and after the County had entered the federal whistleblower matter into ADR.
They are directly relevant to the County's knowledge, the adequacy and integrity of the pre-determination
process, the extent to which my written defenses were meaningfully considered,the County's reliance
on information attributed to unidentified individuals,the legal and evidentiary risks presented by the
pending proceedings, and the need for meaningful and realistic settlement authority at the July 31, 2026
mediation.
I respectfully request that Supplemental Exhibits 5 and 6 be:
1. included with my previously submitted written testimony, Executive Summary, and supplemental
exhibits;
2. distributed to the Council members before their consideration of Communication 957; and
3. included in the official record for the Council's July 23, 2026 meeting.
Mahalo for your assistance.
Respectfully submitted,
Alan Fukamizu
UPW Unit 168 Chief Steward
Former Wastewater Treatment Plant Operator II
3
WRITTEN RESPONSE -PRE-DETERMINATION HEARING
March 25, 2026
Alan Fukamizu
This written response is submitted for the record regarding the proposed disciplinary
action.
At all relevant times, I acted in good faith and within my responsibilities as a licensed
wastewater operator and union steward to identify and report workplace safety and
environmental compliance concerns.
I did not refuse any directive, and at no time did I willfully decline to perform assigned
duties. At no time did I engage in insubordination. I did not refuse a lawful order; rather,
I sought clarification where directives were unclear or conflicted with established safety
requirements.
My communications regarding work restrictions were made to obtain clarification so that
I could comply safely, consistently, and in accordance with OSHA/HIOSH requirements
and my professional licensing obligations. As a licensed operator, I am obligated to
ensure that work is performed in accordance with applicable safety standards, and I
cannot disregard unresolved safety ambiguities that may affect compliance.
In April 2023, management issued a directive restricting my ability to perform core
operator duties, including confined space entry and lockout/tagout. This directive arose in
the context of prior safety concerns I reported, including the removal of defective fall
protection equipment from service, and while an active HIOSH whistleblower case was
pending. These actions were taken in accordance with established safety practices and
regulatory requirements.
Those restrictions remained in place upon my return to work in November 2025. I
requested written clarification regarding the scope, basis, and operational application of
these restrictions, consistent with standard safety documentation such as job hazard
analyses or formal operating procedures. Despite this, clear written guidance identifying
specific restricted areas, conditions, and procedures was not provided.
This lack of clarity created an ongoing and unavoidable operational conflict. I remained
assigned to both my regular daily duties and standby duties, each of which routinely
involves work in and around areas associated with confined spaces, including non-permit
required confined spaces, and related safety procedures. Under these conditions, the
restrictions could not be applied in a clear, consistent, or operationally feasible manner.
•
Accordingly, I sought clarification and appropriate documentation so that I could perform
my assigned duties safely and in compliance with applicable requirements. My
communications, including the December 12, 2025, email, reflect an effort to resolve
these issues and ensure compliance, rather than a refusal to follow instructions. To the
extent any language in that communication has been interpreted as noncompliant, it must
be understood in context. At the time, I was assigned both regular daily duties and
standby duties that inherently require response to operational conditions involving
confmed space and related safety procedures, while simultaneously being subject to
unclear and unwritten restrictions on performing those same duties. My statements
reflected the need for clear, written direction to resolve that conflict—not a refusal to
perform assigned work. Any interpretation of that communication as a refusal disregards
the operational context and the absence of clear, written direction necessary to safely
perform assigned duties.
On December 3, 2025, during a safety walkthrough, I identified a condition involving an
open drain valve on a fuel tank that presented a potential Spill Prevention, Control, and
Countermeasure (SPCC) concern. I reported this issue to my supervisor due to the risk of
environmental contamination.
On December 8, 2025, I contacted the Environmental Protection Agency (EPA) for
guidance regarding this condition. EPA subsequently contacted Department personnel
and provided compliance-related information.
On December 12, 2025, I followed up with management and provided documentation of
that communication.
On December 13, 2025, I was placed on unpaid leave pending investigation.
My actions must be understood within the broader context of ongoing protected safety
activity. Since at least 2020, I have raised workplace safety and compliance concerns
through internal channels, union activity, and public testimony. The Hawaii Occupational
Safety and Health Division (HIOSH) issued a formal determination (DNO 22-002)
finding that the Department discriminated against me for protected activity and ordering
that such conduct cease.
Following my return to'work, I continued to raise safety and compliance concerns
through appropriate channels, including issues related to confmed space entry, hazard
control, and regulatory compliance. At all times, my actions were consistent with
established safety practices and regulatory expectations and were undertaken to prevent
potential safety and environmental violations.
The proposed termination follows my December 2025 safety reporting and
communication with EPA regarding a potential regulatory concern. The timing and
sequence of these events are directly relevant to understanding the context of my actions
and the characterization of my conduct.
In addition, throughout my employment I have maintained a clean disciplinary record.
The proposed level of discipline, without prior corrective or progressive measures, is
disproportionate to the circumstances described above.
This response is submitted to ensure that the full context_of these events is fully preserved
in the record. I reserve all rights and remedies available under applicable law.
Respectfully submitted,
Alan Fukamizu
UPW Unit 168 Chief Steward
GiIIAlan <'gefkalani@grnail.cvrn>
Notice of Pre-determination Hearing
3 messages
Guinn-Lacy, Kahula<Kahula.Guinn-Lacy@hawaiicounty.gov> Wed, Mar 18, 2026 at 4:28 PM
To: "getkalani@gmail.com" <getkalani@gmail.com>
Good afternoon,
Please see the attached Notice of Pre-determination Hearing. A hard copy will be sent via certified mail.
Thank you,
,. ,ar'T ' i, KAHULA GUINN-LACY
r
'°�r Human Resources Program Specialist -
1 ,;fig IJ
''7" Department of Environmental Management
County of Hawaii
Tel: 808.961.84451 Fax: 808.961.8350
Kahula.Guinn-Lacy@hawaiicounty.gov
r
in 2026.03.18 Notice-of Pre-determination Hearing A. Fukamizu.pdf
109K
Alan <getkalani@gmail.com> Wed, Mar 25, 2026 at 2:08 PM
To: "Guinn-Lacy, Kahula" <Kahula.Guinn-Lacy@hawaiicounty.gov>
Cc: Meghan Fujiyama <mfujiyama@upwhawaii.org>, Daniel Girvan <daniel.girvan@hawaiicounty.gov>
Bcc: Alan <getkalani@gmail.com> r
Kahula, .
Attached is a copy of my written response that was submitted for the record at the March 25, 2026 pre-determination
hearing.
I rely on this written submission as my response to the proposed action. Please confirm receipt and inclusion in the
administrative record.
Thank you,
Alan Fukamizu
UPW Unit 168 Chief Steward
WRITTEN.RESPONSE.AlanFukamizu.3:25:26.docx
17K
Guinn-Lacy, Kahula<Kahula.Guinn-Lacy@hawaiicounty.gov> Wed, Mar 25, 2026 at 2:13 PM
To: Alan <getkalani@gmail.com> •
Cc: Meghan Fujiyama <mfujiyama@upwhawaii.org>, "Girvan, Daniel" <Daniel.Girvan@hawaiicounty.gov>
Hi Alan,
Confirming receipt of the attached written response.
C ,
From: Alan Fukamizu
Sent: Wednesday,July 22, 2026 11:30 AM
To: Council Testimony
Subject: Supplemental Testimony Submission Regarding Communication 957
Attachments: SUPPLEMENTAL QUESTIONS FOR COUNCIL.CONSIDERATION REGARDING
COMMUNICATION 957.pdf
Aloha Chair,Vice Chair, and Honorable Members of the Hawaii County Council:
Yesterday, I submitted written testimony, an Executive Summary, and supporting exhibits regarding
Communication 957, "Legal Proceedings Concerning Alan Fukamizu."
Attached for inclusion with those materials is my supplemental testimony document
titled "Supplemental Questions for Council Consideration Regarding Communication 957."
The attached questions are respectfully submitted to assist the Council in evaluating the factual, legal,
evidentiary, administrative, constitutional,financial, and settlement issues presented by the pending
proceedings.They identify matters that may warrant careful consideration during the anticipated
executive session and in determining appropriate settlement authority for the July 31, 2026 Federal
OSHA Alternative Dispute Resolution mediation.
For the Council's awareness,the underlying supplementals, evidence, exhibits, and records supporting
these questions comprising more than 200 pages of documentation have already been transmitted
directly to Corporation Counsel. County legal counsel therefore has had direct access to the supporting
record before its confidential consultation with the Council.
The supplemental questions address, among other matters:
• the County's changing descriptions of the conduct underlying the investigation and discharge;
• the clarity, scope, and operational enforceability of the alleged work restrictions;
• the County's SSP-2 confined-space classifications and procedures;
• the November 9, 2025 supervisory discussion and the continuing need for clarification;
• the November 26, 2025 safety disclosure and the County's contemporaneous response;
• the County's prior written notice of protected safety, environmental, regulatory, and union
activity;
• the limited scope of the March 10, 2026 investigative report;
• evidence not disclosed before the March 25, 2026 pre-determination meeting;
• constitutional due process and potential federal civil-rights exposure;
• progressive discipline and potentially comparable DEM disciplinary outcomes;
• the prior contested HIOSH determination that found discrimination and pretext;
• the recurring involvement of the same direct supervisor in the prior and current matters;
• the March 31, 2026 termination while Federal OSHA ADR and HIOSH proceedings remained
pending; and
• the scope of meaningful monetary and nonmonetary settlement authority.
1
The questions are not intended to direct or prejudge the Council's deliberations, request public
disclosure of attorney client-privileged advice, or ask the Council to make a public determination of
disputed facts or liability. I am not requesting written or public answers from individual Council
members.
They are respectfully submitted to identify issues that may assist the Council in its confidential
consultation with Corporation Counsel and in evaluating whether the County's settlement position fully
accounts for the complete record, potential exposure, available remedies, and the value of achieving a
fair and comprehensive resolution.
I respectfully request that the attached supplemental testimony be:
• included with my previously submitted written testimony, Executive Summary, and supporting
exhibits;
• distributed to the Council members before consideration of Communication 957; and
• included in the official record for the Council's July 23, 2026 meeting.
Mahalo for your time and assistance.
Respectfully submitted,
Alan Fukamizu
UPW Unit 168 Chief Steward
Former Wastewater Treatment Plant Operator II
2
SUPPLEMENTAL QUESTIONS FOR COUNCIL
CONSIDERATION REGARDING COMMUNICATION
957
Legal Proceedings Concerning Alan Fukamizu
July 23, 2026 Hawai`i County Council Meeting
Submitted by Alan Fukamizu
Purpose and Scope
The following questions are respectfully submitted to assist the Hawai`i County Council in its
consideration of Communication 957, "Legal Proceedings Concerning Alan Fukamizu," and its
anticipated confidential consultation with Corporation Counsel.
These questions are based upon the written testimony, Executive Summary, and supporting
records already submitted. They identify factual, legal, evidentiary, administrative, financial,
constitutional, and settlement issues that may warrant careful evaluation in determining the
County's potential exposure and the scope of appropriate settlement authority for the July 31,
2026 Federal OSHA Alternative Dispute Resolution mediation.
These questions:
• do not ask the Council to make a public determination of disputed facts or liability;
• do not request public disclosure of attorney-client privileged advice;
• do not request that individual Council members provide written or public answers;
• do not assume that any disputed allegation has been conclusively established; and
• are not intended to direct or prejudge the Council's deliberations.
They are respectfully provided to assist the Council in determining whether the County's current
evaluation fully accounts for the complete factual record, the applicable legal and constitutional
standards, the pending administrative proceedings, and the potential value of achieving a fair and
comprehensive resolution.
1. Current and Controlling Basis for the Adverse Action
Has Corporation Counsel identified and reconciled the County's differing descriptions of the
conduct that allegedly justified my removal from work, investigation, and discharge?
More specifically, how did Corporation Counsel reconcile:
• the December 13, 2025 Notice of Leave Without Pay Pending Investigation, which
characterized the matter as alleged entry into confined spaces without required training or
authorization;
•
•
• the January 9, 2026 Notice of Investigation Meeting, which characterized the matter as an
investigation into alleged"insubordinate content" in my December 12, 2025 email;
•
• the March 10, 2026 investigative report, which.expressly limited its assignment to
whether the wording of that email constituted insubordination;
• the March 25, 2026 pre-determination meeting, during which the County stated that its
proposed action was focused specifically on my actions of December 12, 2025; and
• the March 30, 2026 Notice of Discharge, which characterized my communication as
deliberate disregard of supervisory authority and established safety requirements.
What does the county now contend was the actual and controlling basis for discharge:
• actual unauthorized confined space entry;
• lack of required training or authorization;
• violation of a specific safety rule;
• refusal to obey a supervisory directive;
• the wording or tone of the December 12 email;
• alleged intent to perform restricted work in the futgre; or
• some combination of these grounds?
•
If the County's theory changed during the investigation and disciplinary process,what explains
those changes, and how did Corporation Counsel evaluate whether the shifting stated basis
affects notice, procedural fairness, credibility, pretext, and litigation risk?
•
2. Identification of the Alleged Directive
What precise directive does the County contend I knowingly refused or violated?
In evaluating that issue, did Corporation Counsel determine:
• who issued the directive;
• when it was issued;
• whether it was written, verbal, or both;
• whether the April 22, 2023 memorandum remained operative when I returned to work in
November 2025;
• whether that memorandum was located, reissued, reviewed, or explained to me upon my
return;
• whether the alleged directive was modified by later supervisory communications;
• what specific facilities, structures, locations, classifications, tasks, or operating conditions
it covered;
• what duties remained authorized;
• • whether regular operator duties and standby responsibilities were affected; and
• what consequences were communicated for an alleged violation?
•
Did the County identify a single written or verbal directive containing enough operational detail
that a wastewater operator could consistently determine, in the field, which locations and duties
were prohibited and which remained authorized?
3. Operational Scope and Enforceability of the Alleged Restriction
How did Corporation Counsel evaluate whether the alleged restriction was sufficiently clear,
specific, and operationally enforceable within an active wastewater-treatment environment?
Did the alleged restriction identify:
. • whether it applied to Permit-Required Confined Spaces;
• whether it applied to Non-Permit Required Confined Spaces;
• whether it applied to both classifications;
• whether it applied to all areas broadly described as confined spaces;
• the particular facilities, structures, rooms, galleries, pump stations, pits, tanks, or other
locations covered;
• the particular duties or activities prohibited;
• what inspections or safety verification activities remained permissible;
• how emergency response and standby responsibilities were to be performed;
• how supervisors were expected to assign work consistent with the restriction; and
• what process existed for obtaining prompt clarification?
If those operational parameters were never clearly identified, how did the County conclude that
my request for clarification constituted a knowing refusal to follow a clear, lawful, and
enforceable directive?
4. Consistency With the County's SSP-2 Confined-Space Procedure
How did Corporation Counsel reconcile the alleged generalized restriction involving"confined-
space entry"with the County's own Wastewater Division Safety Procedure SSP-2?
Did Corporation Counsel consider that SSP-2:
• separately defines Permit-Required Confined Spaces and Non-Permit Required Confined
Spaces;
• establishes classification-specific procedures;
• identifies designated Non-Permit Required Confined Space locations within wastewater
facilities;
• contemplates employee entry into designated Non-Permit Required Confined Spaces
under specified atmospheric testing procedures;
• provides procedures for reclassification based upon identified hazards and conditions;
and
• reflects that confined-space determinations depend upon classification, location, hazards,
atmospheric conditions, assigned role, and required procedures?
On January 26, 2026, Wastewater Division Chief Christopher Laude stated that SSP-2 contained
the confined-space classification determinations for all Wastewater Division facilities and the
applicable entry procedures.
How did the County reconcile that classification-specific framework with an alleged directive
that did not identify whether it applied to Permit-Required Confined Spaces,Non-Permit
Required Confined Spaces, or both?
If the County intended to prohibit specific permit-required entries, rescue duties, retrieval duties,
fall-protection work, Lockout/Tagout activity, SCBA use, gantry crane operation, or other
specialized duties, why were the specific restricted activities, locations, hazards, qualifications,
and operational limitations not clearly identified?
5. Specific Spaces, Training Requirements, and Alleged Safety Violation
What specific confined space, facility, structure,work area, or task did the County contend I
improperly entered or performed?
For each alleged location or activity, did the County identify:
• the County's formal classification of the space;
• whether it was a Permit-Required Confined Space or a Non-Permit Required Confined
Space;
• the actual or potential hazards present;
• the specific training allegedly required;
• the training I had previously completed;
• the training the County contended had expired, been removed, or become insufficient;
• the legal, regulatory, policy, or procedural basis for that conclusion;
• the specific authorization allegedly required;
• the person authorized to grant or deny that authorization; and
• the written procedure allegedly violated? r
Did the investigation establish any:
• unauthorized entry into a classified Permit-Required Confined Space;
• actual confined-space safety violation;
• injury or near miss event;
• exposure of another employee to an identified hazard;
• refusal to perform a clearly defined assignment;
• interference with wastewater operations;
• operational sabotage; or
• other resulting harm?
If no such event was established, how did Corporation Counsel evaluate the County's
characterization of the matter as discharge-level safety misconduct?
6.November 9,2025 Supervisory Discussion, Conflicting Records, and Continuing Need
for Clarification
How did Corporation Counsel evaluate the preserved November 9, 2025 supervisory discussion
concerning the scope and application of the alleged restrictions?
During that discussion, my direct supervisor made statements indicating that he:
• still needed to obtain clarification;
• needed to determine exactly what the restrictions meant;
• needed to locate the governing memorandum;
• intended temporarily to"stick to" broad categories until clarification was obtained; and
• still needed to"iron out"the unresolved issues.
How did Corporation Counsel reconcile those contemporaneous statements with the County's
later position that the restrictions were already clear, settled, fully understood, operationally
defined,unequivocal, and knowingly disregarded?
Did Corporation Counsel evaluate whether the November 9 discussion demonstrates that
clarification remained unresolved within the supervisory chain itself?
Did the County rely upon supervisory notes purporting to memorialize the November 9
discussion as evidence supporting notice, willfulness, or insubordination, and, if so:
• were those notes provided to me before the pre-determination meeting or termination;
• was I given a meaningful opportunity to review and respond to them; and
• were they compared with the preserved audio recording and transcript of the same
discussion?
Has Corporation Counsel reviewed the preserved audio recording transcripts and evaluated
whether they materially differ from, contradict, or call into question the supervisory account
relied upon in support of termination?
In evaluating the November 9 discussion and any conflicting supervisory account, did
Corporation Counsel consider that the same supervisor was also directly involved in the prior
events examined in HIOSH Case No. 22-002?
If my direct supervisor acknowledged that the governing memorandum could not readily be
located and that the scope and application of the restrictions still required clarification, on what
basis did the County later conclude that my continued requests for clarification constituted
deliberate insubordination?
7. November 26, 2025 Safety Disclosure and the County's Contemporaneous Response
How did Corporation Counsel evaluate my November 26, 2025 email to Jason Imamura in which
I openly disclosed that I had gone downstairs in the solids building an area I understood to be a
designated Non-Permit Required Confined Space to verify operator complaints concerning a
missing machine guard?
Did Corporation Counsel consider that the email:
• directly disclosed the entry rather than concealing it;
• described complaints made by several operators;
• identified a potential machine guarding hazard;
• requested installation of the proper machine guard; and
• requested use of proper Lockout/Tagout procedures under the County's safety procedures
if the equipment continued functioning without the guard?
If management believed that the disclosed entry violated a clear, urgent, and safety sensitive
restriction, why did management not immediately:
• identify the solids building lower level as prohibited;
• provide the confined-space classification for that location;
• issue written clarification;
• reissue the April 22, 2023 memorandum;
• identify whether the alleged restriction applied to Permit-Required or Non-Permit
Required Confined Spaces;
• remove me from an affected assignment;
• remove me from standby responsibilities;
• issue immediate corrective action;
• investigate the disclosed entry at that time; or
• provide a clear direction preventing recurrence?
How did Corporation Counsel evaluate the fact that the disclosed November 26 entry was not
contemporaneously treated as an immediately clear or discharge level safety violation, but was
later incorporated into the County's disciplinary narrative?
Did Corporation Counsel consider whether that sequence supports ambiguity, inconsistent
enforcement, selective enforcement, retaliation, or pretext?
8.Prior Notice of Protected Activity,Retaliation Allegations, and Preservation Obligations
What notice did the relevant supervisors, Human Resources officials, investigators, Department
leadership, and final decision makers have of my protected safety, environmental, regulatory,
and union activities before my removal from work and discharge?
In particular, how did Corporation Counsel evaluate:
• my November 17, 2025 formal complaint to DEM Human Resources alleging
discrimination associated with protected safety activity;
• my request in that complaint for an investigation and protection against further
retaliation;
• the complaint's discussion of prior fall protection and confined-space activity;
• the complaint's description of subsequent changes to my work duties and scheduling;
• the unresolved supervisory-conduct concerns identified in that complaint;
• my December 15, 2025 Defense and Preservation Letter;
• Human Resources' same day acknowledgment of receipt of that letter;
• the letter's identification of protected OSHA, HIOSH, environmental, union, and
whistleblower activity;
• the letter's identification of the prior HIOSH retaliation determination;
• the letter's request for a neutral and comprehensive investigation; and
• its express demand for preservation of relevant emails, text messages, training records,
inspection records, photographs, electronic data, and investigatory materials?
What steps were taken to:
•
• investigate the retaliation allegations;
• separate protected activity from alleged misconduct;
• ensure neutrality within the investigation;
• preserve all relevant records;
• determine whether the proposed adverse action would have occurred absent the protected
activity; and
• prevent further retaliation while the allegations were being investigated?
Did the officials responsible for the March 31, 2026 discharge receive, review, and meaningfully
address the November 17 complaint and December 15 Defense and Preservation Letter before
making the final decision?
9. Scope and Limitations of the March 10, 2026 Udovic Investigation
Because the March 10, 2026 investigative report expressly limited its assignment to whether the
December 12, 2025 email constituted insubordination, what separate investigation or decision
making process evaluated the broader issues excluded from that assignment?
Did any investigator or decision maker evaluate:
• whether the underlying directive was sufficiently clear;
• whether it was lawful and operationally enforceable;
• whether it identified specific locations or duties;
• the distinction between Permit-Required and Non-Permit Required Confined Spaces;
• SSP-2's classification and entry framework;
• whether restrictions were consistently enforced;
• whether my regular and standby duties conflicted with the alleged restrictions;
• whether my requests for clarification had been adequately answered;
• whether my safety reporting constituted protected activity;
• whether my environmental and EPA related communications constituted protected
activity;
• whether my union-steward activity was protected;
• whether the chronology supported retaliation;
• whether the prior HIOSH findings affected credibility or motive;
• whether similarly situated employees received materially different discipline;
• whether the stated reason for discipline was pretextual; and
• whether progressive or lesser corrective measures were appropriate?
The investigative report acknowledged that I repeatedly sought clarification and that some
facility areas or activities did not require the certifications being referenced.
How did the County resolve those acknowledged clarification and classification issues before
concluding that I knowingly refused a clear directive?
If no separate neutral review considered the protected activity, retaliation, operational,
proportionality, and pretext issues excluded from the investigation, how did Corporation Counsel
evaluate the completeness and reliability of the disciplinary process?
10. Pre-Determination Evidence, Constitutional Due Process, and Potential Federal Civil-
Rights Exposure
What notice of the charges and explanation of the County's evidence were provided to me before
the March 25, 2026 pre-determination meeting?
Did the information provided before that meeting sufficiently identify or explain:
• the witnesses or"other people on the site"whose information was being relied upon;
• the substance of the information or allegations attributed to those individuals;
• Jason Imamura's handwritten notes;
• the specific directive allegedly violated;
• the confined spaces, classifications, locations, duties, or activities involved;
• the training or authorization allegedly required; and
• the evidence allegedly establishing that I knowingly refused a clear, lawful, and
operationally enforceable directive?
How did Corporation Counsel evaluate whether my civil service status, collective bargaining
protections, applicable just cause requirements, or other terms and conditions of employment,
separately or collectively, created a constitutionally protected property interest in my continued
employment?
If such a protected property interest existed, how did Corporation Counsel evaluate whether the
pre-termination process complied with:
• the Due Process Clause of the Fourteenth Amendment to the United States Constitution;
• article I, section 5 of the Hawai`i Constitution; and
• the minimum pre-termination safeguards recognized in Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 545-46 (1985)?
More specifically, how did Corporation Counsel evaluate the adequacy of the process,
considered as a whole,where:
• the Union requested the investigative packet in order to prepare for the meeting, but the
County declined to provide it before the meeting;
• the meeting lasted less than eight minutes;
• the County stated that it relied partly upon information from "other people on the site"
without identifying those individuals or disclosing the substance of their information;
• disputed supervisory notes relied upon to establish notice, willfulness, and disobedience
were not provided before termination; and
• I was therefore required to respond to the County's conclusions without receiving the
underlying evidence necessary to fully understand and meaningfully address those
conclusions?
Did Corporation Counsel evaluate whether these circumstances, taken together, provided the
constitutionally required notice of the charges, explanation of the employer's evidence, and
meaningful opportunity to present my side of the matter before the termination decision was
finalized?
Finally, did Corporation Counsel evaluate whether a failure to provide constitutionally adequate
pre-termination process could constitute a deprivation of federally protected procedural due
process rights under color of state law and create potential federal civil rights liability or
enforcement exposure under 42 U.S.C. § 1983?
Relevant authorities: U.S. Const. amend. XIV, § 1; Haw. Const. art. I, § 5; 42 U.S.C. §
1983; Cleveland Board of Education v. Loudermill, 470 U.S. 532, 545-46 (1985).
11.March 25 Written Response,Decision-Maker Review, and Completeness of the Record
Was my detailed March 25, 2026 written response received and reviewed by every official
involved in recommending, approving, or issuing the March 31, 2026 discharge?
What consideration was given to the response's discussion of:
• my denial that I refused a lawful directive; •
• my repeated efforts to obtain clarification;
• the operational conflict between the alleged restrictions and my assigned duties;
• the County's failure to identify particular restricted locations;
• Permit-Required and Non-Permit Required Confined Space distinctions;
• my licensed operator responsibilities;
• my union steward responsibilities;
• the December 3, 2025 safety inspection;
• the December 8, 2025 EPA communication;
• the timing of my removal from work; .
• the prior HIOSH retaliation determination;
• the protected-activity and retaliation chronology;
• neutrality and procedural fairness concerns;
• the preservation and completeness of the investigative file;
• my clean disciplinary record; and
• the absence of prior progressive corrective action?
Did the final decision maker review the actual materials identified or submitted during the
investigation, or rely primarily upon the investigator's characterization of those materials?
Did Corporation Counsel evaluate whether the County's evidence collection and document
searches were complete, including:
• the County's reported inability to locate the April 22, 2023 memorandum;
• the County's apparent use, in support of the termination, of my own copy of the
memorandum, which I provided to Human Resources with my November 17 complaint;
• the County's inability to locate other directly relevant communications that I
independently preserved;
• the status of emails, text messages,training records,work orders, safety complaints, and
supervisory records;
• the preservation demand made on December 15, 2025; and
• the unresolved public records matters involving DEM?
If material evidence remained undisclosed, unlocated, or unreviewed, how did Corporation
Counsel account for that evidentiary uncertainty when evaluating liability,and settlement value?
12.Progressive Discipline,Potentially Comparable Cases, and Proportionality
How did the County justify immediate discharge in light of:
• my clean disciplinary record;
• the absence of prior formal discipline;
• the absence of progressive corrective measures;
• the disputed nature of the alleged directive;
• the unresolved requests for clarification;
• the absence of an identified injury or actual Permit-Required Confined Space violation;
and
• the protected safety, environmental, and union context?
Did Corporation Counsel evaluate the records of potentially comparable DEM disciplinary
matters involving:
• insubordination;
• direct refusal to comply with supervisory instructions;
• refusal to comply with a safety related personal protective equipment instruction;
• repeated failure to follow directives;
• failure to report;
• failure to bring required safety equipment;
• disruptive workplace behavior;
• operational impacts; and
• hostile or uncooperative conduct?
Did Corporation Counsel consider that the identified outcomes in those matters included:
• verbal warnings or reprimands;
• written reprimands;
• a 24-hour suspension; and
• an 80-hour suspension?
If the employees in those matters were not similarly situated, what material distinctions justified
discharge in my case rather than a lesser or progressive disciplinary measure?
Did the County identify any prior DEM matter in which an employee with a clean disciplinary
record was discharged solely because of the wording of a communication arising from
unresolved safety restrictions and repeated requests for clarification?
How did Corporation Counsel evaluate whether the apparent disparity supports concerns
regarding:
• proportionality;
• consistent enforcement;
• just cause;
• selective enforcement;
• retaliatory motive; or
• pretext?
13.Prior HIOSH Findings,Recurring Supervisory Involvement, Credibility, and Pretext
Recognizing that HIOSH Determination Notice and Order Case No. 22-002 remains contested
and is not a final adjudication of the current dispute, how did Corporation Counsel evaluate its
relevance to the County's present legal, evidentiary, and settlement risk?
Dict Corporation Counsel consider that the prior HIOSH determination expressly found
discrimination and stated that the County's actions were pretextual in a matter involving:
• protected safety activity;
• confined-space concerns;
• fall-protection concerns;
• training issues; and
• supervisory and disciplinary conduct?
Did Corporation Counsel specifically consider that Jason Imamura the direct supervisor whose
alleged verbal directives, handwritten notes, and characterization of events were relied upon in
the present disciplinary matter was also identified as the direct supervisor involved in the events
examined in HIOSH Case No. 22-002?
How did Corporation Counsel evaluate the significance of the same direct supervisor being
materially involved in:
• the prior HIOSH matter, in which HIOSH found discrimination and pretext; and
• the present matter, in which his alleged verbal directives, handwritten notes, and
characterization of the November and December 2025 events were relied upon to support
termination?
Did Corporation Counsel evaluate whether that recurring supervisory involvement affected:
• the credibility of the current disciplinary narrative;
• the reliability of disputed supervisory notes;
• the interpretation of the November 9, 2025 discussion;
• motive;
• selective enforcement;
• retaliation;
• pretext; and
• the overall weight that should be assigned to the evidence attributed to the same
supervisor?
•
Did Corporation Counsel review the prior witness statements concerning:
• the escalation and characterization of workplace events;
• statements attributed to Jason Imamura;
• the attempted workplace violence characterization;
• the witness's denial that he felt threatened;
• the witness's statement that he did not initiate a complaint; and
• the witness's concern that the characterization was not accurate or fair?
How did Corporation Counsel compare that prior history with the current record, including:
• Jason Imamura's November 9, 2025 statements acknowledging uncertainty and the
continuing need for clarification;
• his statement that he needed to locate the governing memorandum;
• his statement that the parties still needed to determine exactly what the restrictions meant
and "iron out" the unresolved issues;
• the disputed handwritten notes later relied upon to establish notice, willfulness, and
disobedience;
• any material differences between those notes and the preserved audio recording and
transcript of the November 9 discussion;
• the lack of immediate written clarification or corrective action following the November
26, 2025 safety disclosure; and
• the County's later portrayal of the alleged restrictions as clear, settled, fully understood,
operationally defined, and knowingly disregarded?
Did Corporation Counsel evaluate whether the prior HIOSH findings,the prior witness
statements, the recurring involvement of the same direct supervisor, and the conflicting or
disputed current evidence created a heightened need for independent corroboration and careful
credibility review before relying upon that supervisor's account to support termination?
What weight did Corporation Counsel give the prior HIOSH findings and recurring supervisory
involvement when evaluating:
• motive;
credibility;
• selective enforcement;
• retaliation;
• pretext;
• evidentiary risk;
• litigation exposure; and
• settlement value?
14. Termination During Pending Federal OSHA ADR and HIOSH Proceedings
What legal, evidentiary, administrative, and settlement-risk analysis was performed concerning
the decision to terminate my employment on March 31, 2026?
According to the submitted record:
• the DEM Director requested Federal OSHA ADR on March 2, 2026;
• OSHA formally entered the whistleblower matter into ADR on March 5, 2026;
• the County continued with the disciplinary process while the federal ADR matter was
pending;
• the County issued the Notice of Discharge on March 30, 2026;
• the discharge became effective March 31, 2026; and
• HIOSH Case No. 26-005 also remained open.
Before approving discharge, did the County evaluate whether terminating the complainant during
pending whistleblower and retaliation proceedings would:
• create an additional and more severe alleged adverse action;
• materially increase potential back pay and front-pay exposure;
• create reinstatement and personnel record remedies;
• affect benefits, service credit, and pension consequences;
• expand the relevant damages period;
•
• create new witness, document, and credibility issues;
• complicate the existing Federal OSHA,HIOSH, and grievance proceedings;
• increase potential retaliation or pretext exposure; and
• make a comprehensive settlement more costly and difficult?
Did the officials responsible for the discharge understand that the termination would not end the
pending proceedings but could instead expand their scope and potential remedies?
Did Corporation Counsel evaluate whether the termination decision could be viewed as
occurring after:
• written notice of protected activity;
• a formal request for protection against retaliation;
• a written preservation demand;
• the prior contested HIOSH determination finding discrimination and pretext;
• direct EPA-related activity asserted to be protected;
• the initiation of Federal OSHA ADR; and
• the opening or continuation of related HIOSH proceedings?
How did those circumstances affect Corporation Counsel's assessment of the County's litigation
and settlement risk?
15.Meaningful Settlement Authority and Scope of a Comprehensive Resolution
What specific monetary and nonmonetary settlement authority must be available during the July
31, 2026 Federal OSHA ADR mediation to permit meaningful negotiation and potential
resolution in real time?
Will the County's representatives attending the mediation have authority to address:
• reinstatement;
• placement into an equivalent or mutually acceptable position;
• an agreed separation, if reinstatement is not achieved;
• back pay;
• front pay;
• lost overtime;
• lost standby compensation;
• shift differentials and other premium compensation;
• health and employment benefits;
• service credit;
• pension and retirement consequences;
• correction or expungement of personnel records;
• removal of the discharge and related adverse materials;
• restoration or payment of accumulated leave;
• unpaid vacation and compensatory-time amounts;
• attorney's fees or costs where legally available;
• tax consequences;
• neutral employment references;
• non retaliation protections;
• future employment eligibility;
• confidentiality or non disparagement terms, if requested;
• resolution of the Federal OSHA complaint;
• resolution of HIOSH Case No. 26-005;
• resolution of the individual termination grievance; and
• other appropriate make whole relief?
Has the Council been informed of the estimated financial exposure associated with:
• reinstatement;
• back pay;
• front pay;
• benefits;
• pension or retirement losses;
• personnel record relief;
• continued administrative proceedings;
• arbitration;
• federal or state litigation;
• potential civil rights claims;
• statutory remedies;
• attorney's fees and litigation expenses;
• management and employee time;
• evidentiary uncertainty; and
• years of additional proceedings?
If the County seeks a broad or global release, has Corporation Counsel clearly identified:
• every claim;
• every administrative matter;
• every grievance;
• every public records matter;
• every potential civil rights issue;
• every known or unknown claim;
• every form of prospective or retrospective relief; and
• every person or entity proposed to be released?
If the County seeks releases involving unresolved public records requests, pending OIP matters,
undisclosed documents, unproduced evidence, or matters extending beyond the three
proceedings specifically identified for ADR, will those matters:
• be expressly identified;
• be separately evaluated and valued;
• require an additional settlement premium; or
• be expressly carved out of any final agreement?
Will the County have sufficient authority during the mediation to modify its position and respond
meaningfully to information, risk assessments, or mediator recommendations presented during
the session without postponing negotiations for additional authorization?
Finally, has the Council considered whether providing meaningful and realistic settlement
authority for the July 31 mediation could achieve:
• finality;
• resolution of multiple pending proceedings;
• avoidance of years of additional administrative and judicial litigation;
• reduced legal and operational costs;
• protection of public resources;
• correction of unresolved employment and personnel issues; and
• a fair and comprehensive resolution without requiring either side to abandon legitimate
concerns without appropriate consideration?
Conclusion
These questions are respectfully submitted so that the Council may evaluate whether the
County's present legal and settlement assessment fully accounts for:
• the shifting stated basis for investigation and discipline;
• the absence of clearly identified operational restrictions;
• the County's own SSP-2 classification framework;
• the unresolved requests for clarification;
• the protected.safety, environmental, regulatory, and union activity;
• the November 17 and December 15 written notices to Human Resources;
• the limitations of the March 10 investigation;
• the evidence not disclosed before the March 25 pre-determination meeting;
• the constitutional due-process and potential federal civil-rights issues;
• the potentially comparable disciplinary outcomes;
• the prior HIOSH retaliation and pretext findings;
• the timing of the March 31 termination during pending proceedings;
• the completeness of the County's records and evidence;
• the full range of potential remedies and financial exposure; and
• the authority necessary to negotiate a meaningful and comprehensive resolution.
I respectfully request that the Council consider these questions during its confidential
consultation with Corporation Counsel and when determining appropriate settlement authority
for the July 31, 2026 Federal OSHA ADR mediation.
Respectfully submitted,
Alan Fukamizu
UPW Unit 168 Chief Steward
Former Wastewater Treatment Plant Operator II