On April 4, 2021, David Shapiro summarized the disturbing levels of corruption in the Aloha state. He wrote, “It’s infuriating to see federal prosecutors once again having to expose local public corruption that city and state authorities should have been on long ago.”
Earlier this week, ClearHealthLife received pleadings from a male, we’ll call John Doe, who’s about 63 years of age. He lost his employment as a Database Administrator / Analyst at Hawaiian Electric in February 2019, due to his active and legal medical cannabis use. He claims the company never informed him of a medical cannabis restriction — even when he asked.
4.20 Observation 2021
On this cultural tradition of 4.20, ClearHealthLife highlights the struggle employees face who use medical cannabis. A total of 36 states, District of Columbia, Guam, Puerto Rico and U.S. Virgin Islands have approved medical marijuana/cannabis programs. Neighbors, Canada and Mexico, both have authorized the medication. The U.S. federal government still just says no.
Uniquely, Mr. Doe is a former pro athlete. He’s a medically-trained opioid epidemic “warrior” tasked by the CDC to help reduce opioid use, counsel about opioid addiction, and educate individuals and the public about more safe alternatives to opioid medications. Men are more likely than women to use medical cannabis; they are also more likely to die from opioid overdose.
Opioid prescription drugs are associated with some 500,000 American deaths. ClearHealthLife featured the struggle of NFL Hall of Famer Brett Farve with opioid pain medications.
Due to the circumstances of his job loss, Mr. Doe filed a discrimination complaint with the Hawai’i Civil Rights Commission in April 2019 against Hawaiian Electric Industries, Inc., and Hawaiian Electric Company. He has been teaming with others to change the law. ClearHealthLife actively supports and encourages U.S. Senator Brian Schatz legislative efforts to protect our Veterans.
After two years, the Commission has refused to dismiss his charge. Two investigators initiated review and stopped. The Commission did not assign a third and his complaint has languished without action or progress for over a year.
As state law requires civil action to commence within two years of the alleged infraction, Mr. Doe needed to move forward by February 25, 2021 with related challenges. He believes the Commission delayed action to impede his ability to seek remedy in Hawaii’s courts, while supporting exemption for Hawaiian Electric from medical cannabis anti-discrimination legislation. See 2021 Session Senate Bill 64
Mr. Doe believes current Commissioner chair, Liann Ebesugawa, currently employed by CEO & President Connie Lau with Hawaiian Electric Industries, Inc. (HEI), and formerly employed by Hawaiian Electric Company (HECO), is putting her thumb on the scales of justice to the benefit her employer. Ebesugawa testified in support of S64.
Based on the documentation ClearHealthLife reviewed, we believe Ms. Ebesugawa should resign. However, we believe in due process and offer the Commissioner chair and Director Hoshijo an opportunity to respond.
UPDATE: We received a response from HCRC Director Hoshijo late on April 19th and post his letter in its entirety after redacting identifying information. Copies of testimonies mentioned in his letter were not attached. In sum, the director stated, “The story you plan to run on allegation of bias in the HCRC investigation and conflict of interest in the HCRC testimony on S.B. No. 64 has no basis in fact.”
ClearHealthLife received seven additional HCRC opinions from Chair Ebesugawa related to proposed legislative efforts in a follow up email. As the director claimed, Ms. Ebesugawa included language regarding differences in definition of “debilitating medical condition” in all statements between 2018-2020. Director Hoshijo failed to address the lengthy delay in Mr. Doe’s case.
HCRC Commission Background
The Commission has five uncompensated volunteer commissioners. All are appointed by the governor, with consent of the Senate, and based on their experience in civil rights matters and commitment to preserve the civil rights of all individuals. Ms. Ebesugawa appears more interested in protecting corporations than individuals.
HCRC Director William D. Hoshijo supported Chair Ebesugawa’s written testimony at the joint hearing of the Labor, Culture and the Arts (LCA) and Health (HTH) committees on February 19, 2021. The opinion negatively impacts Mr. Doe’s complaint and 31,000+ workers in Hawai’i like him, while assisting Ms. Ebusugawa’s employers in an active case against them.
"It is noteworthy that the HRS § 329-121 definition of 'debilitating medical condition' is not identical to the HRS § 378-1 and HAR § 12-46-182 definition of 'disability,' so not every registered qualifying medical cannabis patient will necessarily be a person with a disability entitled to a reasonable accommodation (and not every person with a disability has a debilitating medical condition)." Chair Liann Ebesugawa
Liann Ebesugawa
Current HCRC Commissioner chair, with term recently extended by Governor Ige through 2024, is Assistant General Counsel for Hawaiian Electric Industries, Inc.
Ms. Ebesugawa previously served as an Associate General Counsel for Hawaiian Electric Company, Inc., where she provided legal support to personnel and management and advice in obtaining regulatory approvals for various projects.
We share the history of John Doe and open discussion for the resignation of Chair Ebesugawa. If this is not local public corruption, the behavior certainly gives an appearance of malfeasance.
ClearHealthLife reached out to Director Hoshijo and Ms. Ebesugawa seeking comments. We also contacted Raymond Griffin, Jr., director of the EEOC Honolulu office. The EEOC responded stating they will neither “confirm nor deny” the existence of a complaint on this matter.
Summary of Incident
HECO recruited Mr. Doe from Kaua’i as a contract employee in August 2018. The company provided (only) HEI Corporate Code of Conduct regarding a drug-free workplace policy. Appears their substance use information (Section d below) is outdated.
Local attorney, Joseph A. Ernst, cautioned employers that changes in national and state medical cannabis legislation have made it critical to update internal policy. HEI CEO & President Connie Lau did not refresh her November 20, 2017 code. Hawaiian Electric pledges to live ‘imi pono ~ to strive to be righteous.
In a 2017 Connecticut case, Noffsinger v. SSC Niantic Operating Company, LLC, the court dismissed the federal prohibition of cannabis argument. They ruled federal statute does not address employment or prohibit employment for medical cannabis patients.
Therefore federal policy cannot be cited as justification to preempt state medical cannabis laws that protect users. HEI and HECO claim federal law mandated the testing and removal of Mr. Doe. Wobbly argument.
DOT regulations published in 2009 only specify “safety sensitive” employees to be included in their regulations for mandatory testing. Mr. Doe, an IT worker, would be classified a “non-safety sensitive” employee.
Novel drug-free workplace legislation passed the U.S. Congress in November 1988. Department of Labor employment policy was released 1990. Participating companies are required to maintain an on-going drug-free awareness program to inform employees, which Hawaiian Electric did not provide to Mr. Doe, including:
- dangers of drug abuse in the workplace,
- grantee’s drug-free workplace policy,
- available drug counseling, rehabilitation, and employee assistance programs, and
- penalties for drug-abuse violations occurring in the workplace.
Hawaii’s legislature was the first in nation to courageously defy the federal government and compassionately legalize medical cannabis in 2000. They amended the “329” statutes in 2015:
(b) For the purposes of medical care, including organ transplants, a registered qualifying patient's use of marijuana in compliance with this part shall be considered the equivalent of the use of any other medication under the direction of a physician and shall not constitute the use of an illicit substance or otherwise disqualify a registered qualifying patient from medical care. [HRS § 329-125.5]
Based on HEI and HECO written policy, Mr. Doe’s “legal” and “prescribed” medication did not violate corporate drug-free workplace policy. Although Mr. Doe specifically inquired February 14, 2019, the company did not provide him additional information or notify him his medication was reason to worry.
ClearHealthLife has commented extensively about the outdated DLIR system. There appears to be a pattern of poor leadership by both government and industry in Hawai’i. State Senator Roz Baker, who introduced SB 64, recognized decades of failure to clarify policies. This negligence is not the fault of workers and employees:
"The legislature further finds that the ongoing conflict between state and federal medical cannabis laws causes confusion for employers, who are unsure whether state medical cannabis laws supersede their power to enforce drug-free workplace policies against employees." State Senator Roz Baker
HECO acknowledges Mr. Doe informed them February 14th of his legal and active medical use. Mr. Doe says he disclosed his injuries and disability in a phone call with their HR rep, and that his prescription authorized medical use only at night prior to bed and never before or during work. HECO notified him he had been selected for the new position February 20th and would start on the 25th.
Mr. Doe claims HECO fired him February 25th. Says they demanded he immediately collect this belongings and exit the building. Mr. Doe contends he “passed” the drug screen based on HEI rules the company provided him.
It was company tradition to honor departing contract or internal employees by taking them to lunch. Serving competently for over six months, Mr. Doe’s manager declared their unit had never selected anyone “with the synergy and positive energy that you bring with you. I believe you have had the greatest influence in our success.”
Mr. Doe didn’t get lunch. Hawaiian Electric gave him the boot.
Mr. Doe sought ho’oponopono to resolve the matter amicably. Ignored. The HR director spoke with him February 27th, but refused appeals for reconsideration; denied his plea to reapply for the position; and claims the HR director reasserted he was a “danger to coworkers, the company and general public.
HEI Corporate Code of Conduct demands all employees “should endeavor to deal fairly with the Company’s customers, suppliers, competitors and your fellow employees.” [11. Fair Dealing]
Also, “the Company may waive application of the policies set forth in the Code only where circumstances warrant granting a waiver, and then only in conjunction with any appropriate monitoring of the particular situation.” [15. Guidance and Reporting Potential or Suspected Violations, Waivers of the Code]
Under the circumstances, it’s a stretch to say HECO treated Mr. Doe professionally and fairly. Mr. Doe complained to Director Hoshijo about bias favoring Hawaiian Electric in October 2019. He believes the Commission protected Hawaiian Electric throughout the process. Director Hoshijo has refused to provide Mr. Doe with a Right To Sue letter unless he end his criticisms.
Questions about Conflict of Interest and Allegations of Bias
ClearHealthLife’s concern is the possible conflict of interest, allegations of bias, and public policy activities of Chair Ebesugawa relative to SB 64, while an active case withered before the Commission. Ms. Ebesugawa is an unpaid commissioner, who’s compensated as a legal representative by her employer HEI, and associated with her former employer, HECO.
We forwarded the following questions to Director Hoshijo and Chair Ebesugawa on Saturday. We’ve received no response. We sent the summary and questions to the EEOC yesterday. EEOC reached out by phone, but we have not been able to discuss this matter.
1. Why was Doe’s case initiated, but stalled without an investigator for over a year?
2. Why did Chair Ebesugawa and Director Hoshijo support SB 64, which excludes HEI and HECO from the anti-discrimination employee protections, while Doe’s case was active?
3. We are not aware of such support in 2018, 2019, 2020. Why this year?
4. Chair Ebesuagawa wrote in support of SB 64, “It is noteworthy that the HRS § 329-121 definition of ‘debilitating medical condition’ is not identical to the HRS § 378-1 and HAR § 12-46-182 definition of ‘disability,’ so not every registered qualifying medical cannabis patient will necessarily be a person with a disability entitled to a reasonable accommodation (and not every person with a disability has a debilitating medical condition).”
- (a) Similar to our concerns in Q2, why this year and at this time, as this relates to Mr. Doe’s case?
- (b) The “329” statutes legalized medical cannabis in 2000; 2015 amendments strengthened anti-discrimination protections. The Commission seems not to have been concerned until Mr. Doe submitted his case. Can you explain?
5. Mr. Doe stated he requested a right to sue letter some time ago, but has been denied. We have seen his modified request. In our opinion, Mr. Doe was justified to demand to withdraw under the circumstances.
- (a) Mr. Doe provided copy of letter October 2019 to Director Hoshijo concerned about bias. Why was an investigator attempting to remove HEI from the charge when CEO & President Connie Lau signed and authorized the Corporate Code of Conduct?
- (b) Why did the Commission deny Mr. Doe’s initial request for RTS?
- (c) Why does the Commission demand Mr. Doe sign a non-coercion form when it appears Mr. Doe is being forced to withdraw?
- (d) Isn’t the Commission now “coercing” Mr. Doe by demanding he change his request in order to withdraw?
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