Dr Akenese appeals termination questioning legality of proceedings
Pago Pago, AMERICAN SAMOA — The hospital’s former Human Resources Director, and Director of the Office of Special Projects and Public Relations (OSPPR) Malopao Dr Akenese Nikolao has appealed her “wrongful termination” citing a number of issues.
She is represented by Meredith Sunia Law.
In early March, allegations of misconduct including LBJ financial records being “destroyed” and unfair hiring practices were the reasons behind the move by the hospital board to terminate the services of Dr Akenese.
This was confirmed in a letter dated March 4, 2023 addressed to Dr. Akenese and signed by the Acting Chief Executive Officer of the LBJ hospital, Dr Akapusi Ledua.
Dr Akenese’s letter of appeal and grievance dated March 15, 2023, addressed to Chairman of the hospital Board, Dr Malouamaua Tuiolosega cites “false allegations” against her.
The appeal document consists of 151 pages.
“In addition to the obvious query at hand as to whether the Board can fairly and impartially take this appeal, appellant notes for the record that the Board's heavy-handed participation in the appellant's investigations, placement on leave, and ultimate termination decision raise valid questions as to whether the legal requirement of separation of functions in administrative hearings can be satisfied.”
The former director questions the involvement of the board in the appeal process, as whose Mrs Akenese is questioning their decision to terminate her.
“It is questionable that the Board would hear an appeal of a termination decision such as this one, where it played a key role in directing the underlying investigations and perhaps, the decision itself.
Dr Akenese’s background outlines that she has more than fifteen years as an educator in Hawaii, Guam, California, and American Samoa, and that it was shortly after earning a EdD from the University of Southern California that she began her career with ASMCA (American Samoa Medical Center Authority) in November 2013 as the Human Resources Assistant Director.
According to the appeal she was Acting HR Director in December 2018, and was promoted to HR Director in January 2019.
“When Appellant travelled off-island for medical reasons in November 2021, the then-Compliance Officer was delegated authority over HR matters until Appellant’s return in March 2022.
“From May 2022 to June 2022, Appellant served as Acting Chief Financial Officer for ASMCA.
“In July 2022, Appellant was appointed OSPPR (Office of Special Projects and Public Relations) Director. While this position change was verbally described to Appellant as a promotion by the then-CEO prior to her acceptance of the role, the issue of whether this transfer constituted a legitimate promotion, an involuntary reassignment or unlawful demotion in-fact is currently the subject of a grievance filed by Appellant.
“In total, Appellant had director-level responsibility for the HR Department for approximately three years cumulatively (December 2018-November 2021 and March-May 2022) out of her nearly decade long ASMCA career.
“Appellant’s personnel file should reflect that, prior to last month, Appellant had a flawless disciplinary record with no documented performance issues or reprimands.”
The appeal states that Dr Akenese’s whistleblowing re Personnel Policy Violations by ASMCA Leadership started in 2022, where she noticed a developing power struggle between the Board and ASMCA management for control of day-to-day management of the hospital.
“In January 2022 the Board started emailing director-level managers, such as Appellant, for sensitive data and document requests, dismissing Appellant’s queries whether such requests should properly be routed through the CEO per past practice.
“In March 2022, Faumuina Taufete'e John Faumuina resigned as CEO and was replaced by Moefa’auo William T. Emmsley, by October 2022, the Board was circulating cryptic memos to ASMCA employees regarding the Board's powers and duties, attaching manipulated versions of the American Samoa Medical Center Act.”
UNFAIR HIRING PRACTICES
It’s alleged that on or around January 27, 2023, then-Acting CEO/ CFO Fala Sualevai-Lesa asked Dr Akenese, who was then OSPPR Director, to assist with hiring paperwork for the open CMO position, which job announcement had a closing date of February 10, 2023. On or around January 28, 2023, Appellant was copied on correspondence from the AHRD (Acting Human Resources Director) to Dr. Joseph Shumway that contained a “CMO/Consultant” offer letter addressed to Dr. Shumway.
“In a separate email chain including Board members and upper management, Appellant raised concerns about the offer letter’s mistaken identification of the Board as the CMO’s supervisor, instead of the CEO as provided by law.
“After Board Chairman Dr. Malouamaua Tuiolosega rejected the revision, Appellant then wrote to alert ASMCA leadership that the CMO job was open to applications until February 10 at 4pm and additional candidates were expected to apply.
At the time, Appellant was aware that several local physicians, including her partner, Dr. Ben Siatu’u, Chief of Eye-Ophthalmology and Vice Chief of Staff at ASMCA, were contemplating the submission of applications prior to the published deadline.
Appellant made clear that “if a contract agreement is executed prior to the closing date of 10 Feb 2023, it may create havoc,” according to the document. In response to Appellant’s email, the Chairman replied, “Shumway is the Boards [sic] pick, since way back. What do you recommend?” Shortly after this email arrived, Appellant received a call from the CFO, who relayed a message from the CEO to “let it go”, according to the documents.
“Given that she had voiced her concerns and insubordination is conduct subject to discipline under the Manual, Appellant did as she was told.
“Upon information and belief, Vice Chief of Staff Dr. Siatu’u and at least one additional local candidate applied for the CMO position prior to the deadline.
“They were provided ‘interviews’ in mid-February, weeks after the CMO/ Consultant offer was accepted by Dr. Shumway. Later that afternoon, Appellant, in the presence of another colleague, asked the Board Chairman and Board Vice Chair Dr. Jean Anderson to confirm a rumor that another colleague had shared with her.
“Allegedly, the Vice Chair had recently stated that the Board was targeting management, and that ‘HR and Akenese’ would be the first to be removed.
“The Vice Chairwoman conceded that she may have said that the Board was targeting HR but maintained that she had not made statements targeting Appellant.”
Dr Akense noted this clearly provides that the CMO reports to the CEO, did not make the cut for the manipulated version of Title 13 circulated by the Board to ASMCA employees a few months prior.”
According to the appeal the February 3, 2023 grievance letter details numerous HR policy compliance issues and inconsistencies relating to Appellant’s recent promotion to OSPPR Director, the ASMCA Organizational Chart, and irregularities surrounding the announcement and hiring process for the newly vacant HR Director position.
“Despite being told by the then-CEO not to apply to the HR Director position because the Board was trying to get rid of her, Appellant applied prior to the deadline.
“To date, Appellant has not received any substantive response to the February 3 Grievance nor her application for the HR Director position.”
Another issue cited was public obstruction of office access and the start of “Administrative Leave”.
The Board and Moefa’auo Bill Emmsley mutually agreed to his resignation as CEO less than eight months after the Board appointed him to the position.
“On February 4, 2023, when the Appellant arrived at the hospital on a Saturday morning to work on an urgent matter, she was denied access to her office by an ASMCA safety officer and informed that her office locks were to be changed by order of the Board.
“Someone had covered the former CEO’s office with yellow caution tape. Without prior written or verbal notice, Appellant's access to her work email and computer were disabled.
“Since that date, ASMCA has barred Appellant from accessing her office, work files or her work email account. Appellant later heard that the two keys to her office were given to the Vice Chair of the Board per instructions given to a hospital safety officer.”
DESTRUCTION OF RECORDS
The next day the Acting CEO, Dr Akapusi Ledua, was appointed. He instructed Appellant to attend a meeting at his office on that Sunday afternoon.
“When she arrived, CMO Dr. Joseph Shumway, who is responsible for maintaining the quality of professional medical care at the hospital, was also present.
“The CMO stated he was present at the Board's request. Dr. Ledua handed Appellant a letter stating that she was placed on administrative leave from her duties as OSPPR Director immediately until further notice while an investigation is commenced into accounting irregularities including the destruction of the 2019 financial records.
“The Investigation Notice references a discussion at a meeting on the same date, but no substantive detail was provided about the scope or nature of the investigation or the allegations.
“Appellant expressed her shock at the allegations, noting that she did not work with financial records and had no knowledge regarding their destruction.” Dr Akenese was given two choices by the CMO, either resign or sign the Investigation notice.
“Given those choices, Appellant signed acknowledgment of the Investigation Notice, while maintaining her innocence. The appeal cited that administration leave is defined as leave, which is proclaimed by the Governor.
“This would cover such items as national days of mourning, natural disasters, power failures, etc. Only the Governor is authorized to grant.”
The vehicle and laptop were promptly returned later that afternoon without incident.
According to the appeal, there were two covert Investigations against Dr Akenese.
“On February 15, 2023, shortly after formally retaining and meeting with counsel, Appellant provided a voluntary statement regarding the scope of the investigation, as stated in the Investigation Notice.”
Consistent with her initial verbal response to the allegations on February 5, 2023, the Voluntary Statement confirmed that Appellant had no actual knowledge of the destruction of 2019 financial records. ASMCA never responded in writing to the voluntary statement.
“Appellant now understands that at some point, ASMCA closed the investigation into accounting irregularities after determining that the investigation was based on false information and that the 2019 financial records had never been destroyed.”
INTERNAL AND EXTERNAL INVESTIGATION
“It was not until earlier this month that Appellant learned that the Board decided prior to or on February 6, 2023, to initiate an internal investigation and an external investigation into Appellant.”
“On or around February 10, 2023, certain ASMCA employees received correspondence regarding communications with former employees and media from ACEO Dr. Ledua.
“The letter advised employees to refrain from communicating with the media and employees whom have been placed on leave or have adverse employment actions taken against them, without authorization from the Chief Financial Officer, the CEO or Board of Directors.
“The letter closes with a warning of “disciplinary action up to and including termination.
“While Appellant concedes that ASMCA has an interest in maintaining confidential information, the full prohibition on contact between Appellant and her ASMCA colleagues inappropriately impedes her ability to access witnesses that have exculpatory evidence.
“In response to an inquiry from the Acting Governor as to why the Appellant was placed on leave, the Vice Chair makes no mention of the illusory investigation into accounting irregularities.
“Instead, the Vice Chair states that the Board placed Appellant on administrative leave pending completion of an internal investigation and external investigation.”
“Among the allegations causing concern to the Board, the Vice Chair references suspicious after-hours work by Appellant on ‘special projects’.
“Appellant’s position at this time was OSPPR Director, which was tasked to work on special projects under the direct supervision of the CEO.
“The launch of these additional two investigations was not timely disclosed to Appellant, and she has never been afforded the opportunity to address the allegations prior to her termination, let alone prior to her placement on leave.
“After Appellant's termination, on March 6, 2023, ASMCA provided her with a redacted version of an investigation report dated as of February 27, 2023, entitled Investigation Report LBJ Tropical Medical Center Human Resources Department (2019-2022).
“Appellant was instructed to keep the redacted Consultant Report confidential and was told only the Board and the ACEO had copies.
“Appellant later learned this representation was false. Among other suspected distributions, the Chairman enclosed an un-redacted copy of the Consultant Report with a letter to the Hon. Governor Lemanu Palepoi Sialega Mauga on February 28, 2023.”
The Chairman claims that the role of OSPPR Director was a non-existent position and ASMCA had no choice but to transfer her back to the HR Department, terminate her, or request her reassignment to another ASG Department.
“The assertion that the OSPPR Director position did not exist is inconsistent with grievance and the ASMCA Organizational Chart included with the ASMCA 2023 Budget.”
According to the appeal, as part of the investigation into potential wrong doing by members of the Finance Department, allegations surfaced that the individuals within the Human Resources Department may have violated LBJ Policies and Procedures through: (1) unfair hiring practices at LBJ Tropical Medical Center; (2) violations of the rules, procedures, and policies of the hospital’s Human Resources (HR) Department, and (3) misconduct by its former director, Dr. Akenese Nikolao-Mutini.
“The Consultant Report does not explain how an investigation into financial irregularities yielded the new allegations regarding HR related issues.
Assuming the statements are credible, the Board initiated the disclosed accounting irregularity investigation near-simultaneously with the two additional covert investigations in early February 2023.
“The Consultant Report also does not explain why the investigation involving HR issues was limited to only the period when Appellant served as HR Director.
“The Consultant Report also does not identify the human resources consultant that ASMCA contracted with to investigate and draft the Consultant Report, nor the consultant's qualifications and experience relevant to conducting a workplace investigation.
“Upon information and belief, consultant hired by the Board is Mr. Kenneth Kuaea. Of note, an invoice reveals that the consultant commenced the investigation with four hours of interviews on February 13, 2023, before any time was billed to designing an investigation plan, researching relevant policies and rules, or other tasks typically associated with the start of a workplace investigation.
“To date, ASMCA has refused to provide information relating to any perceived conflict of interest of the HR consultant, such as whether the he applied for the vacant HR Director position in competition with Appellant.”
Furthermore the appeal report says that the Board's Vice Chair, Dr. Jean Anderson, requested a report from the Acting Director of Human Resources in February 2023 as to the status of the HR Department.
“The Consultant Report does not contain a copy of the report resulting from the internal investigation [the Acting Human Resources Director’s Report (AHRD), but purports to include the findings of such report.
“These findings state in part: Employee files are outdated. Approximately 80% of the files are out of date. “The Consultant Report does not contain further context or detail on the methodology of this employee file review.
“To date, ASMCA has not provided Appellant with a copy of the AHRD Report, despite Appellant’s request for all documentary evidence informing the recommendation to terminate. “Indeed, the AHRD Report's findings are directly cited in the Termination Notice.
“ASMCA has also not provided Appellant with a logical explanation as to why ASMCA seeks to assign full responsibility for the alleged file issues on Appellant more than a half-year after Appellant left the HR Department to work as OSPPR Director.”
APPELLANT’S WRONGFUL TERMINATION
The Termination Notice concedes that Appellant was placed on leave pending further investigation based on allegations that 2019 financial records had been destroyed, but states, however, during the course of that investigation further allegations were uncovered regarding (1) unfair hiring practices at the LBJ Tropical Medical Center and (2) violations of the rules, procedures, and policies of the hospital's Human Resources (HR) Department.
The Termination Notice contains no further detail regarding the cause for Appellant's termination from her position as OSPPR Director.
“As with the Investigation Notice, the ACEO did not offer Appellant any additional details supporting the allegations before serving Appellant with the Termination Notice.
“ACEO Dr. Ledua hugged Appellant, stating Akenese, we are still friends,” to which Appellant responded, you know this is not right.”
The appeal says that approximately three hours after the acting CEO served Appellant with the Termination Notice, Appellant received her first media inquiry about her termination, indicating that ASMCA either immediately leaked confidential personnel documents or disclosed their contents.
“That same day, Samoa News reported that it had received a copy of Appellant's Termination Notice, correspondence from the Board to the Governor about the investigation, and a copy of the Consultant Report.
“Joyetter Fa’apouli Feagaimaalii, LBJ Board alleges Human Resources Director Destroyed Records and Engaged in Unfair Hiring Practices.
“Articles containing unsubstantiated allegations and conclusions from these personnel documents have continued to run in Samoa News, as recently as yesterday.
“On March 8. 2023, Appellant, through counsel advised ASMCA that the hospital has a duty to determine who is leaking confidential information and all the circumstances thereto, and to administer the appropriate consequences to ensure the practice is not tolerated.
“ASMCA has yet to apologize for the leaks or express an intent to investigate them.
“On March 10, 2023. the CMO instructed Vice Chief of Staff Dr. Siatu’u, Appellant’s partner, to meet him in his office.
“The CMO asked the Vice Chief of Staff if he had communicated with Appellant's counsel, and advised him that the entirety of CME (Continuing Medical Education) meetings are strictly confidential. Dr. Siatu’u responded that he disagreed, stating that contents of CME meetings are expressly described as public information and should be considered non-confidential.
On March 13, 2023, the CMO again instructed Vice Chief of Staff Dr. Siatu’u for a meeting where he was informed by the CMO, he was being removed from the ASMCA sub-committee for new hospital planning, an initiative for which the Vice Chief of Staff was actively involved.
The appeal states that the ASMCA has not lifted the threat of disciplinary action in connection with communications between Appellant and her colleagues.
According to the document, the Appellant has requested and not received the following from ASMCA a copy of:
• any written recommendations to take specific adverse actions (e.g., investigation, involuntary leave, termination) against Appellant, including documentary or other evidence informing such recommendation;
• the confirmed identity of the author(s) of the Consultant Report, including their qualifications to conduct a workplace investigation, e.g. certifications accepted in the industry, specialized training, relevant experience, disclosure of conflicts-of-interest, etc.;
• any documentation regarding the scope of work and/or directions provided to the external investigator from ASMCA directors or officers, including the specific inquiries with which the investigator was tasked;
• a copy of the investigation plan, including a description of the specific allegations investigated and how the witness/ evidentiary list was developed;
• a list of any witnesses believed to have direct knowledge relating to the scope of the investigation that were not asked to participate in the investigation, declined to participate in the investigation or whose interview summaries were not incorporated into the Consultant Report;
• evidence reviewed but not included in the Consultant Report;
• a copy of the interview questions and procedures employed in the investigation, including those for note-taking and certifying accuracy of interview summaries with witnesses;
• a copy of evidence reviewed to corroborate allegations in internal reports, interviews and anonymous letters to the editor that were cited in the investigation report;
• any written analysis of the credibility of sources used to justify any of the adverse actions taken against Appellant;
• a copy of all 2023 correspondence from ASMCA to employees regarding their ability to communicate with former employees or employees facing adverse personnel actions;
• Board minutes relating to potential adverse personnel actions against Appellant and/ or the Consultant Report from the past calendar year; Appellant's full HR personnel records;
• any explanation/ rationale ASMCA has indicated through counsel that it will likely deny most of the requests, except perhaps for Appellant’s personnel file. This file has not been provided to date.
On March 14, 2023 ASMCA provided Appellant with the Board's appeal hearing procedures whereas the appellant objected.
“First, the Board has not produced evidence that they were properly promulgated pursuant to the territorial Administrative Procedures Act; also the hearing procedures are patently problematic and do no comport with basic norms of due process.
“Of note, the provisions appear designed to (i) curtail Appellant's right to representation in a hearing where the subject matter concerns constitutional interests, (ii) insulate the Board from failure to adhere to its own procedures. (iii) provide the Board the power to deny hearing testimony from witnesses Appellant believes has relevant testimony, and perhaps most egregiously; (iv) bar the appellant from hearing the testimony of other witnesses or questioning other witnesses.
“The BOD Hearing Procedures seem inconsistent with the guidelines for contested case administrative hearings outlined in the APA. See A.S.C.A. § 4.1026 ("All parties should be afforded the opportunity to respond and present evidence and argument on all issues involved, and to conduct such cross-examination as is necessary for a full and true disclosure of the facts.”)
Appellant is a career service employee and, accordingly, she has constitutional rights protecting her against adverse employment actions, including discipline and termination of her public employment, without due process.
“ASMCA’s termination of Appellant is unlawful because ASMCA seeks to take Appellant's property interest and liberty interest in her employment without providing procedural due process or substantive due process.
“The Appellant has a Property Interest and a Liberty Interest in her Employment. “The High Court of American Samoa has recognized that certain public employees possess property interests and liberty interests in their employment that cannot be taken by the state without due process.
“In the present case. the controlling statutes and regulations make clear that Appellant, like all ASMCA permanent employees, has career service status and is entitled to the protections afforded by just-cause requirements under the law.”
According to the appeal, the ASMCA has never afforded Appellant with an opportunity to clear her name and directly respond to the allegations waged against her.
Furthermore the appeal states that the conclusions of incomplete, rushed and sloppily executed investigations cannot serve as justification for a for-cause termination.
“ASMCA’s shocking decision to exclude Appellant from the investigations resulting in the AHRD Report and the Consultant Report leave ASMCA with report findings that have no real value because they do not reflect all available facts.
“Even if ASMCA proved the alleged misconduct, which it does not, ASMCA further fails to address the obvious fairness issues inherent to a just-cause analysis in line with the Manual.
“First, it does not appear as if termination is being pursued for the stated causes. ASMCA failed to discipline the Appellant for any conduct during the past decade.
“If ASMCA had a real reason to discipline Appellant in July 2022 or earlier, ASMCA should have acted then while relevant evidence and witnesses were available.
“Second, termination is not the minimum penalty assessed that can correct the Appellant and maintain discipline and morale among other employees. When ASMCA has failed to so much as provide Appellant with a letter of reprimand in the past, it is not credible that termination would be deemed the only available option now.
“Third, the circumstances suggest that rather than termination being used as a corrective action for bad conduct, the Board's sudden dedication of substantial time and resources to the investigation of Appellant looks like an attempt to create a pretextual case for termination.
“After all, Appellant no longer works in the HR Department, so the termination is not remotely linked to corrective action.
“Appellant has not had responsibility for HR files or procedures for more than six months; however, ASMCA launched investigations less than one day after Appellant served ASMCA with her February 3 Grievance, and less than a week after Appellant raised concerns about the CMO hiring process.
“Fourth, ASMCA does not seem to utilize termination as a disciplinary measure for employees who have the same conduct as that alleged of Appellant.
“Indeed, this Appeal involves repeated violations of the Manual by ASMCA leadership.
Finally, the termination just does not appear fair or justified for good cause based on the totality of the circumstances. The fact that three investigations were launched so close to Appellant's whistleblowing actions, and so far from the timeline of the alleged misconduct, raises serious flags.
To put it succinctly, ASMCA claims it terminated Appellant for misconduct relating to (i) the mismanagement of personnel documents and (ii) failure to adhere to the Manual with respect to hiring practices.
“Not only does ASMCA fail to substantiate these allegations after expending exorbitant funds and time into three investigations of Appellant, but in pursuing its thinly veiled retaliation campaign against Appellant for whistleblowing, ASMCA arguably commits the same or similar conduct with respect to ® the mismanagement of personnel documents (i.c., the leaking of Appellant’s confidential documents) and (ii) failure to adhere to the Manual, as noted throughout this Appeal.
“Accordingly, ASMCA's termination of Appellant is unlawful and she must be immediately reinstated as OSPPR Director.