Nelson Befitel stood silently and sadly beside the governor before a room full of media gathered in the governor’s office waiting to hear what he had to say.

Befitel, the director of the Hawaii State Department of Labor and Industrial Relations, one of 16 cabinet member positions, had more than one reason to look down. He’s taken on one of the most difficult jobs reforming the troubled state labor department the department most complained about by local business owners and entrepreneurs, including many who blame that department for putting them out of business.

In fact, the department has such poor history and management that its policies and people were the number one complaint in the 1999 Small Business Task Force report issued by then Gov. Benjamin Cayetano’s Small Business Regulatory Review Board. The report, which compiled over three years the concerns of businesses operating in the state, documented more than 300 interviews with business owners who claimed the Department’s inspection division, the Hawaii Occupational Safety and Health Division (HIOSH), was the absolute worst problem businesses face. It wasn’t just the woman heading the division, Jennifer Shishedo, who was accused in the report as having a vendetta against certain business owners whom she retaliated against using the punitive power of fines to put them out of business. She and some of her staff also were documented as being the agents who wielded the power of then Gov. Benjamin Cayetano against his political enemies and opponents who owned or operated businesses, of which he had many. In other words, for businesses, this agency was the heart of the anti-business, anti-free-market, totalitarian beast.

So in comes Befitel in 2002 on the winds of change and the “New Beginning” that Republican Gov. Linda Lingle planned, including a fresh start for businesses who under 40 years of Democrat party domination watched the state become the worst place to operate a business in America.

He probably had no idea what he was getting into. The problems he’d face. The passion the people he’d deal with had to maintain the bureaucracy prior Democrat administrations had created, and the hate he’d face from some for being the agent attempting to change the culture perpetuated there for decades.

The first day on the job Befitel said he gathered all the employees together to get to know them and he talked about how there would be a new era of respect for all people within the community. One staff member then said: “We know you. You represent the enemy. You represented business.” And he had to explain to them there were no enemies, everyone would be treated fairly and business would be encouraged in the state, which would be the ultimate benefit for employees.

Not that all people in the department or in the inspection division referred to as HIOSH were hostile or resistant to change. In fact, the majority was cooperative. But a few in high ranking, union protected positions were and still are absolutely determined to see Befitel and Lingle fail and have done and will do everything and anything they can to see that happens.

And there is another factor involved that makes Befitel a particularly juicy target — he is a close family friend of the governor. So close, in fact, that when the governor moved to Hawaii many years ago, she lived with Befitel’s family on the island of Molokai.

But back to the capitol where Befitel, a labor attorney who has both public and private employment experience, is waiting to face what was likely one of the most difficult situations in his relatively young life.

The story begins weeks ago when Befitel asked the staff in HIOSH for access to some information in the database of OSHA, the U.S. inspection agency database. He’d been cleared to get the information from the federal agency, but one person in particular in the department, James Decker, decided to make the quest for information much more difficult just because he could. Befitel had been faced in recent weeks with angry business people wanting to see their inspection fines resolved, including many who still feel they are targets of a vindictive division head who uses poorly written administrative rules or the lack of any rules to implement the state’s laws how she sees fit. According to sources within the department, he was trying to manage the situation, deal with his managers who were attempting to undermine his authority and solve the problems for the business community.

Then July 23 rolls around and the problem with Decker, the manager of the Administration and Technical Support Branch of HIOSH, comes to an explosive head. In Befitel’s office for five to 10 minutes, Befitel continues to ask for the access and information he’s been authorized by people much higher than Decker, and yet Decker continues to refuse. Their discussion, according to a state investigative report issued yesterday, became heated and Decker was heard yelling “Please, stop pointing your finger at me, Please, stop pointing your finger at me.”

Moments later as Decker, a 6-foot-1-inch, 205 pound martial arts expert (he has an advanced level brown belt in koju-kan, in which he has trained for 4-1/2 years and an intermediate level green belt in jujitsu, in which he has trained for 2 years), Befitel, who is 5’8″ and 195 pounds, got up to stop him and put his hand on Decker’s arm as he reached the door. Decker claims Befitel grabbed him with one hand and blocked the door with two hands (that was his testimony) and in doing so ripped Befitel allegedly ripped Decker’s shirt. Befitel says he only placed his hand on Decker’s arm and did not rip his shirt.

Then a moment of truth: Decker, who is a Caucasian and retired military, yelled out to Befitel who is Filipino with dark skin, “Get your hands off me, Boy.” The term “boy” to many is considered a racial slur against dark-skinned people. Decker later denied he was being racist against Befitel and was simply referring to his age, though Decker also is relatively young as well.

Decker made the most of the opportunity to get at Befitel and Lingle. He filed a police report with the Honolulu Police Department, went to the media and filed a grievance with the union, all along saying he just wanted justice.

After an investigation by the Department of Human Services special assistant Francis Paul Keeno, who concluded in his report (found below) that Decker was the party responsible for the incident and had attempted, in essence, to set Befitel up. He also found that Decker had in fact exaggerated many of his claims, according to the evidence and witnesses on the scene, including the rip in his shirt.

However because Befitel touched Decker when he tried to leave, he was charged with “having committed an act of workplace violence” and was suspended for five days. The governor, who announced the suspension at yesterday’s meeting, said Befitel would be suspended without pay but asked to stay on in his position to continue the many needed reforms in the department.

Though Decker had created the situation according to the report, and used racial remarks and resisted in performing his work duties, he was not sanctioned in any way. This was surprising to people who worked in the department, especially those interviewed who said Decker was telling others in the office that he planned to take the Befitel incident as far as he could to ruin the governor and her reform plans.

The governor, responding to questions as to why Decker was not sanctioned, said she wanted to keep the focus and responsibility on those who she appointed and entrusted with her plan for a new beginning.

Decker, who told Hawaii media yesterday he is pleased the governor took action and says all he wants is to see justice served, says the police case and union grievance case are still pending.

When asked at the capitol yesterday how he felt about the situation and if he was in fact set up by Decker to further a political agenda, Befitel referred to the report issued yesterday and said he would not comment except to say the report speaks for itself. He also says he regrets the situation and he was grateful the governor had the faith in him to let him remain on the job.

Sen. Sam Slom, a member of the Senate labor committee, who has battled the state Department of Labor and its anti-business policies for more than 25 years in his role as president of Small Business Hawaii and in the senate, said he fully supports and respects the efforts of Nelson Befitel and admires his strength in this “contrived” incident.

“Mr. Befitel took on a job and a challenge that few in this community would accept. He is more than qualified and experienced for this task. But this incident shows the depth of the problem with certain holdover management personnel who have no desire to see meaningful change and reform. They actively work to oppose the policies of change of the governor and her appointees, and their claim of justice is no more than a siren call for continued agitation. They are not seeking to improve Hawaii’s business climate or its conditions for its working people, including small business owners who work as well as create jobs for others. Their’s is an agenda of failure. I trust Nelson Befitel and others like him in the Lingle administration will get the support they deserve and will have the strength to stay the course,” Slom says.

The full report issued yesterday by the state Department of Human Services is below.

August 12, 2003

INVESTIGATION REPORT INTO THE COMPLAINT FILED BY JAMES DECKER AGAINST DLIR DIRECTOR NELSON BEFITEL

I. INTRODUCTION

This is an Investigation Report into the Complaint filed by Mr. James Decker against the Director of Labor and Industrial Relations Nelson Befitel. Mr. Decker is the Manager of the Administration and Technical Support Branch of the Hawaii Occupational Safety and Health Division (HIOSH) of the Department of Labor and Industrial Relations (DLIR).

Mr. Decker

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