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HomeMy WebLinkAbout2018-01-10 Merit Appeals Board Minutes Page 1 MEETING OF THE COUNTY OF HAWAI ʻ I MERIT APPEALS BOARD TRANSCRIPT OF PROCEEDINGS held on January 10, 2018, at the Council Chambers, 25 Aupuni Street, Hilo, Hawai ʻ i, 96720, commencing at 9:08 a.m. REPORTED BY: TERI HOSKINS, CSR #452 ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 2 1 APPEARANCES 2 CHAIR: 3 JULIE M.TULANG 4 5 BOARD MEMBERS: 6 LUAHIWA NAMAHOE 7 MITCH TAM 8 WILLIAM CHILLINGWORTH 9 10 ABSENT & EXCUSED: DAVID K. S. NAHUINA 11 DEPUTY ATTORNEY GENERAL: 12 JAMES HALVORSON, ESQ. 13 ALSO PRESENT: 14 WILLIAM V. BRILHANTE, JR., HR DIRECTOR 15 J YOSHIMOTO, DEPUTY CORP. COUNSEL 16 ALLAN YOKOYAMA, HR DEPUTY DIRECTOR 17 GABRIELLA CABANAS, HR MANAGER II 18 JOHN MUKAI, DEPUTY CORP. COUNSEL 19 MICHAEL KAGAMI, DEPUTY CORP. COUNSEL 20 BONNIE NIMS, LEGISLATIVE AUDITOR 21 LANE SHIBATA, AUDIT ANALYST 22 MAXINNE PACHECO, AUDIT ANALYST 23 GLYNIS YAMADA, SECRETARY-REPORTER 24 25 ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 3 1 CHAIR TULANG: Good morning. I'd like 2 to call the Merit Appeals Board to order. It's January 3 10th, and the time is 9:08. And I'll call the meeting 4 to order. 5 Are there any addendums to the agenda, Board 6 Members? 7 MS. NAMAHOE: None. 8 CHAIR TULANG: We will entertain 9 statements from the public. And I have one speaker, 10 Al Konishi. 11 MR. KONISHI: Does it matter which one? 12 CHAIR TULANG: No matter. Whichever one 13 you're comfortable with. 14 MR. KONISHI: I'm so bad at either one, so 15 what one would make me somewhat -- 16 CHAIR TULANG: You can bring the two 17 together. 18 MR. KONISHI: Yeah. 19 -- would make me sound articulate? 20 My name is Al Konishi. You know, I used to 21 be the County Clerk; also I have some experience with 22 the County; I was once the Director of Research and 23 Development; and for three terrifying days, I was the 24 Acting Mayor, in 1984, when everybody left town. 25 You know, I'm here to talk about agenda ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 4 1 item -- I don't recall what it is, but it involves the 2 county clerk's office. And I would say that, you know, 3 to me, it's a little personally distressing that, you 4 know, the clerk's office matter is here, because if -- 5 because the clerk's office runs elections. If there's 6 one office that has to be totally aboveboard, that 7 cannot show any kind of favoritism in any kind of 8 action, it has to be the clerk's office because, if 9 not, the public confidence in how they run -- if they 10 are going to cheat, they play favorites in that office, 11 you know, you destroy the public's confidence in how 12 they run the elections, et cetera. So, this is why 13 things have to be totally aboveboard in the clerk's 14 office, totally transparent, totally fair. Okay? 15 And I'm sad to say, if you look at the last 16 few years, the most-publicized employment problems 17 we've had in the County have been in the clerk's 18 office. We had a terrible fiasco involving the 19 elections office. Okay? So, already this office really 20 needs to go the extra mile to show that it's 21 transparent, all their actions are aboveboard, no 22 favoritism, no punitive action against people, et 23 cetera. Everything has to be on the merits. Okay? 24 And that's why, like I said, it's a little distressing 25 to me that matters are coming before this Board, ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 5 1 because it shows that maybe there are still some areas 2 that need work. 3 The next thing, you know, I guess 4 specifically I was asked to come to talk about the 5 Board of Registrations. And I had made a previous 6 statement. And I would say this to summarize because 7 I know I have only three minutes, the State and 8 counties have to run the elections in cooperation. The 9 County could never afford to conduct its own elections. 10 So, yes, there are certain things under law that are 11 supposed to be State, certain things supposed to be 12 County. If we ran it that way, there would be no 13 elections. The only way we can make it work is if we 14 cooperate. And sometimes the state guys take care of 15 the County stuff, sometimes the County guys got to help 16 the state guys out. If we went on strict 17 jurisdictional lines, it would never work. Okay? 18 Thank you. 19 CHAIR TULANG: Thank you. 20 MS. NAMAHOE: Thank you. 21 CHAIR TULANG: I don't have any other 22 requests for statements from the public, so we'll move 23 on. 24 We have no minutes to approve. 25 So, we will get into Communication 17-09, ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 6 1 received on December 1st, appealing a recruitment and 2 examination action (minimum qualified requirement 3 process) by the Department of Human Resources. If 4 you'll look at that. This is regarding James Levy 5 Makaio. Makaio? 17-0 -- 6 MS. NAMAHOE: Makaio. 7 CHAIR TULANG: Makaio. 8 MR. MUKAI: John Mukai, Deputy Corp. Counsel, 9 on behalf of the Department of Human Resources. 10 CHAIR TULANG: Thanks, John. 11 Okay. So, we just need to set a hearing date 12 for this particular appeal. So, looking at our 13 calendar, our next scheduled meeting, if I recall, is 14 the 7th -- 15 MR. HALVORSON: 7th of February. 16 CHAIR TULANG: -- of February. 17 MR. MUKAI: Ms. Tulang? 18 CHAIR TULANG: Yes. 19 MR MUKAI: I would request that the hearing 20 be scheduled in March, because there is a three-person 21 appeal before -- 22 CHAIR TULANG: Right, on the 7th. 23 MR. MUKAI: -- this Board on the 7th 24 regarding the prosecuting attorney's office. 25 CHAIR TULANG: Yes. Okay. ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 7 1 Okay. Generally we meet on the third 2 Wednesday. Is there a problem for anyone on the 21st 3 of March? 4 MR. TAM: No. 5 MR. MUKAI: No. 6 CHAIR TULANG: Okay, we will schedule 7 James' meeting for the 21st of March. At the moment, 8 time and location is to be determined. We will need to 9 check on places. 10 MR. MUKAI: Okay, thank you. 11 CHAIR TULANG: Thank you. 12 Moving on to New Business (for discussion and 13 appropriate action), discussion regarding the request 14 by Margery S. Bronster, Esquire, for appellant 15 mediation (individuals of the Hawai ʻ i County Fire 16 Department concerning an employment action re 17 compensation and benefits); Civil No. 16-1-0106. 18 MR. HALVORSON: It might be appropriate for 19 me to give the Merit Appeals Board some background. 20 I received correspondence from the Bronster 21 firm to sign off, and I said I cannot sign off on an 22 agreement to mediation without approval of the Merit 23 Appeals Board. 24 My recommendation is we simply submit a “no 25 objection.” That means the Corp. Counsel would be in ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 8 1 mediation with the Bronster firm. This is on the 2 Arbles appeal. And I would suggest that the 3 commission just have no objection and not actively 4 participate in mediation. 5 CHAIR TULANG: Discussion? 6 MR. CHILLINGWORTH: No problem. 7 CHAIR TULANG: A motion? Okay. 8 MR. MUKAI: For the record, John Mukai, 9 Deputy Corp. Counsel, on behalf of Honolulu Fire 10 Department -- 11 CHAIR TULANG: Hawai ʻ i County Fire 12 Department. 13 MR. MUKAI: Hawai ʻ i County Fire Department. 14 Sorry, I spent many years in that other place. I 15 apologize. 16 MR. HALVORSON: We won't hold it against you. 17 CHAIR TULANG: Okay. I'll entertain a 18 motion for no objection to having the County 19 represented. 20 MS. NAMAHOE: No objection. 21 CHAIR TULANG: Second? 22 MR. TAM: Second. 23 CHAIR TULANG: All in favor, "Aye." 24 (All members responded affirmatively.) 25 CHAIR TULANG: Opposed, same sign. ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 9 1 Motion carried. 2 MR. HALVORSON: All right. I will 3 communicate that to the -- 4 CHAIR TULANG: Bronster firm. 5 MR. HALVORSON: -- Bronster firm and to the 6 Intermediate Court of Appeals there will be no 7 objection to mediation, but we will not actively 8 participate. 9 CHAIR TULANG: Okay. Moving on to item 10 No. 7, Unfinished Business (for discussion and 11 appropriate action). This is Communication 17-01. At 12 this time, we'll call Dee Torres. 13 We will convene the hearing, but let me just 14 ask to see -- does the appellant want an open hearing? 15 MS. TORRES: I'm requesting a hearing, yes. 16 CHAIR TULANG: An open hearing? 17 MS. TORRES: Yes. 18 MR. HALVORSON: Do you understand we're 19 talking about "open hearing" means open to the public? 20 MS. TORRES: Sure. 21 CHAIR TULANG: So, I failed to introduce 22 ourselves. So, let me start with that. 23 I'm Julie Tulang, Chairman of the Board. 24 MS. NAMAHOE: Luahiwa Namahoe. 25 MR. TAM: Mitch Tam. ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 10 1 MR. CHILLINGWORTH: Wil Chillingworth. 2 MR. HALVORSON: And James Halvorson, Deputy 3 Attorney, advisor to the Merit Appeals Board. 4 CHAIR TULANG: Our court secretary. 5 And I'm sorry to say that another Board 6 member, David Nahuina, was unable to join us today, 7 so -- however, we have a quorum. 8 Both counsels are present and will be making 9 introductions to the proceedings as we go on. 10 So, this hearing is on the appeal of 11 Ms. Doreen "Dee" Torres. The issue in this case has 12 been identified as that the Employer, the County of 13 Hawai ʻ i, Clerk of the County of Hawai ʻ i, did violate any 14 statutes, regulations, rules, or personnel policies 15 when appellant's Step 2 decision was denied concerning 16 alleged policy violations? If the answer to the above 17 is “yes,” then what remedy can be awarded by the Merit 18 Appeals Board? 19 The Board has received a communication by the 20 respondent County to discuss the motion for lack of 21 jurisdiction. We will take up this matter first, and 22 the Board will now hear oral arguments; but before I 23 say that, let me acknowledge that we are in receipt of 24 two documents, the Board members, which was given to us 25 this morning, one from the County of Hawai ʻ i and the ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 11 1 other dated today from Ms. Doreen "Dee" Torres on the 2 motion to dismiss. 3 So, if we could have the County -- or let me 4 ask first does either party have any additional 5 evidence to what we received this morning? 6 MR. MUKAI: No. 7 MS. NOMURA: No. 8 CHAIR TULANG: Then we'll allow the 9 County to go first. 10 MR. MUKAI: Thank you, members of the Board. 11 John Mukai, Deputy Corp. Counsel, on behalf of the 12 Clerk's office in Ms. Torres's appeal. 13 As set forth in our motion to dismiss, 14 Ms. Torres' appeal on the Merit Appeals Board dated 15 January 6th, 2017 specifically arises out of the 16 November 7th, 2016 letter from the Hawai ʻ i County Clerk, 17 Mr. Stewart Maeda, that she was going to be 18 investigated for possible violations of the County of 19 Hawai ʻ i internet policy and ethics violations. 20 Now, that same day, Ms. Torres filed an 21 internal complaint which referenced Mr. Maeda's letter, 22 and we have attached that as Exhibit B. 23 Now, on December 20, Ms. Poindexter of the 24 County Council wrote to Ms. Torres and found that 25 management had the right to investigate possible ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 12 1 infractions of the County of Hawai ʻ i policies and 2 procedures; and that has been marked as Exhibit D to 3 our motion. And Ms. Torres' appeal was filed to the 4 Merit Appeals Board on January 6, 2017. 5 Now, we would submit initially that the 6 County of Hawai ʻ i, indeed, does have the right to 7 investigate possible infractions of the County of 8 Hawai ʻ i policies and procedures, which is the subject of 9 Ms. Torres' appeal; and the case should be dismissed on 10 these grounds alone. 11 However, in this case, Ms. Torres also 12 invoked the grievance process under the HGEA Collective 13 Bargaining Agreement, and that was represented by Union 14 Agent Moana Kelii. 15 Now, after the investigation of Ms. Torres' 16 actions, Ms. Torres was suspended for a total of four 17 days for violating the County's internet network and 18 e-mail policy. And we had provided to this Board a 19 March 10, 2017 letter from Mr. Maeda to Ms. Torres 20 which arose out of the November 7, 2016 notice of 21 investigation. 22 Now, on March 28th, 2017, Ms. Kelii of the 23 HGEA submitted a four-day suspension to the grievance 24 process, and we have attached that in our reply as 25 Exhibit E. ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 13 1 Now, again, Ms. Figueira has -- sorry -- 2 Ms. Torres has elected her remedy, and as set forth in 3 our motion and reply, the Board simply lacks 4 jurisdiction in this matter. 5 And we would also add that there was no 6 notice -- there was no challenge to the four-day 7 suspension. Ms. Torres' appeal is moot at this point. 8 Now, Ms. Torres has also submitted additional 9 arguments claiming that this is somehow a recruitment 10 and examination or classification or reclassification. 11 Well, we think that's not proper, and we have in fact 12 addressed it in our reply memorandum that this is 13 simply not a recruitment action, as it did, in fact, 14 arise out of the November 7th letter. 15 Thank you. 16 CHAIR TULANG: Appellant? 17 MS. NOMURA: Hello, Chair. I'm going to sit, 18 if that's okay. 19 CHAIR TULANG: You can sit. 20 MS. NOMURA: I fell off my bike a few days 21 ago, and so I'm having trouble -- not that it's your 22 concern -- but my name is Nora Nomura. I'm with HGEA. 23 I'm actually retired from HGEA and a consultant at this 24 point to HGEA. I help to train new union agents. 25 And this appeal, on behalf of Ms. Torres, was ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 14 1 provided to us, and at that point in time when we 2 looked -- or I looked at the facts of the case -- and 3 I -- and I grant you that when Ms. Torres did file the 4 appeal, it was the wrong box to have checked; but my 5 hope is that you want to look at this because I think 6 there's some serious violations of the merit principle 7 when you look in totality of what's happened to 8 Ms. Torres. It goes back to the fact that she's a 9 Council Services Assistant 1 and has been since 2003. 10 That's a long time to be at the clerical level in a 11 class where there is progression to the 2 and to the 3. 12 And normally what we see is that when a 13 person does not progress, there's something wrong with 14 their performance. We see this time and again. The 15 employer says, "Hey, you know what? You just don't 16 have what it takes to move on." We see it in the 17 performance evaluations. We see it in notices to 18 improve. We didn't see that in Ms. Torres' case, and 19 that caused us concern. 20 Now, we asked why she didn't file back in 21 2014 when she first was denied a promotion to the CSA2. 22 Now, if you look at the CSA1 class specs. versus the 2 23 class specs., the difference is one year of additional 24 general clerical experience. The additional is two 25 years of specialized experience, which you can get on ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 15 1 the job; you should get on the job. What concerns us 2 is in that recruitment, the selectees were from outside 3 the County, so how would they have that experience? 4 Ms. Torres, in addition to having worked 5 there now, since 2000- -- 15 years, but at that point 6 in time was 2014, so 11 years, and yet she did so badly 7 on the interview process that she couldn't get the job; 8 but where was it that there was consideration for the 9 fact that she was doing this job -- not just doing the 10 CSA1 position, but she TA'd, she was temporarily 11 assigned, for over two years to the CSA2, which means 12 that she carried out the major duties and 13 responsibilities of the CSA2 level for over two years? 14 And there was no consideration for that. 15 Now, as I said, it's unfortunate that the 16 appeal wasn't filed at that time. I think it was 17 untimely -- 18 CHAIR TULANG: Oh, I'm sorry. We're not 19 timing your -- the timing was for the public. 20 MS. NOMURA: What is that? 21 CHAIR TULANG: It just means you have to 22 stand up and exercise since you fell off your bike. 23 MS. YAMADA: It's something outside. 24 MS. NOMURA: Oh, outside. 25 CHAIR TULANG: Sorry. Continue. ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 16 1 MS. NOMURA: Thank you. 2 So, the appeal was filed -- and I think there 3 was a difference on these parts on the deadline. Dee 4 thought it was 28 working days, and it was actually 28 5 calendar days, and she missed the deadline, which was 6 really unfortunate. But then in 2016, they again 7 recruited for a CSA2, and she was not selected. 8 Now, during this exact same time, Dee is 9 going through all of these investigations, or two 10 investigations, one on using personal time for -- on 11 the computer. Well, what's troubling to me is that she 12 was almost singled out; nobody else is checked on their 13 use of internet. And they come up with all of this 14 documentation that Dee used her personal -- her 15 computer for personal work, but I would submit that we 16 all use, to some extent, our computers for some 17 personal time; that's a given. In addition, Dee was 18 doing work as a fitness counselor, and that was in 19 coordination with the previous mayor's fitness program. 20 Anyway, that was part of it, but -- not to 21 get into that, but our concern was that these issues 22 were coming up just at the time when she was, again, 23 submitting for a promotion. 24 The other reason I cite a classification is 25 that in every jurisdiction, including this one, when a ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 17 1 person meets MQs for the next level, it can be 2 reallocated. The position can be reallocated; you 3 don't have to wait for a vacancy. If you're a CSA1, 4 the employer can just as easily reallocate that 5 individual, through the position description 6 reclassification, to make that person the CSA2 and then 7 recruit for a CSA1. That makes sense; but that was not 8 done. And that's the kind of questions that I had as 9 far as how all of this came about. 10 In light of the fact that the County is now 11 looking -- and I really applaud this County because 12 I've seen it in other jurisdictions where the merit 13 principle is somehow forgotten, and when actions are 14 taken, particularly at hiring or promotion, that gets 15 left behind sometimes because the employer maybe just 16 feels like, “Hey, I have the best person for the job” -- 17 which is great, but that has to be justified because 18 we do have a merit system. 19 So, when someone has been working for 11 years 20 or 13 years in the position, there has to be 21 consideration for that. And barring any kind of 22 reflection in the performance evaluation of an employee 23 who is not productive or who can't do the job, then 24 that has to be serious consideration; in addition to 25 the fact that if someone actually performed the job, ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 18 1 then you shouldn't be going by an interview to guess 2 who would be better at doing the job when you actually 3 have someone who has performed the job. And I think 4 that's what became this very serious concern for us, 5 when this County was going through the issue of merit 6 principle in the civil service system. 7 So I think, given all of that, I would really 8 hope that the MAB would choose to look at this case and 9 see whether, in fact, the people who made the decision 10 in this situation were following the merit principle 11 because, I think, as I said, when I reviewed it, I had 12 very serious doubts about this particular situation 13 where this career employee has not been given the 14 opportunities that she should have. 15 Now, I grant you anytime the employer says 16 the employee can't perform the job, has not been 17 performing the job, that's a completely different 18 story; but barring that, I think that's the 19 responsibility of every jurisdiction in the State of 20 Hawai ʻ i to look at the merit principle. So, that's why 21 we're here today. 22 I appreciate the time. 23 CHAIR TULANG: County? 24 MR. MUKAI: Yes, thank you. 25 Briefly, for one thing, we're talking about ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 19 1 2014 and 2016. This has nothing to do with recruitment 2 and/or classification. And if that's the remedy in the 3 Merit Appeals Board, she's time barred. And what's 4 interesting is Ms. Nomura, who is a HGEA agent, should 5 be making this plea to an arbitrator selected under the 6 Collective Bargaining Agreement grievance process. 7 As we set forth under the rules of the Merit 8 Appeals Board, the Board simply shall defer to any 9 other authority if it is subject to the jurisdiction of 10 another appellate body, administrative agency, or the 11 grievance procedure under the Collective Bargaining 12 Agreement. 13 So under HRS 76-14(c)(1), it specifically 14 says that the Merit Appeals Board shall not act on an 15 appeal but shall defer to other authority if the action 16 complained of constitutes a prohibited act that is 17 subject to the jurisdiction of another appellate body 18 or the grievance procedure under a Collective 19 Bargaining Agreement. 20 Perhaps, Ms. Torres's remedy lies with the 21 HGEA and not with the Merit Appeals Board under these 22 circumstances. 23 Ms. Nomura's arguments perhaps should have 24 been brought before a mutually selected arbitrator; and 25 we would, again, point out that what this case arose out ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 20 1 of resulted in discipline, a four-day suspension; and 2 the HGEA did not pursue that, did not take that case to 3 arbitration. 4 I have nothing further. 5 CHAIR TULANG: Ms. Nomura? 6 MS. NOMURA: May I respond? 7 CHAIR TULANG: Yes. 8 MS. NOMURA: Thank you. 9 I think -- I understand Mr. Mukai's position. 10 The problem in this case is that we are talking 11 classification or recruitment, and we recognize that is 12 the Employer's prerogative, but we also know that it 13 should be in keeping with the merit principle. And 14 that's why we're appealing to you in this situation, 15 because this isn't a one-time thing; this has been 16 ongoing. 17 At any point in time, the Employer could have 18 said, "You know what? The right thing to do is to 19 reallocate the employee because she has the 20 experience. She's done the job"; but that was not 21 done. And what we want to ask the Board to look at is 22 why, in a merit-based system, did that not happen? 23 Now, I understand -- because Ms. Torres did 24 file the appeal based on the employment actions that 25 were taken against her at that time, the investigation ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 21 1 on the e-mails and on the -- doing the Board of 2 Registration work. But even looking at that, you 3 wonder why was it taken up at that point in time? The 4 bigger issue for Ms. Torres all along the way has been 5 the promotion --- has been getting to that next level. 6 For career employees, that means a great deal, to move 7 up in the system. And I think when you deny someone 8 that, their remedy -- yeah, we could go to the 9 grievance process but, time and again, we're told 10 promotions, reallocations, that's management's purview. 11 And that's why we're here today. 12 The employment action, yes, on grievances, we 13 handle that; but on this bigger issue, on why 14 Ms. Torres can't get to that next level, I think is 15 something that we would like the MAB to really consider 16 and make the decision of. 17 CHAIR TULANG: Okay. I'm going to give 18 you the last round, County, and then Ms. Nomura. 19 MR. MUKAI: Again, I think we've laid out our 20 position, that this is just simply not the proper 21 forum. And the fact that Ms. Nomura, who is an HGEA 22 agent, is here kind of shows that she recognizes that 23 recruitments and examinations could have and should 24 have possibly been pursued through the grievance 25 process. And it happens all the time. I think the ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 22 1 Board simply just does not have jurisdiction to act on 2 Ms. Torres' appeal as it is filed and as it is before 3 you at this time. 4 CHAIR TULANG: Thank you. 5 Final statement? 6 MS. NOMURA: Again, I was a union agent. I'm 7 not a union agent now; but I do know that this isn't 8 right, and this isn't right in a merit-based system, so 9 that's why we're appealing to you today. 10 Granted, we have a grievance process. We can 11 go through the grievance process for issues such as 12 disciplinary actions, investigate -- that can be 13 handled. We have the right to file on the procedural 14 matters related to classification or on the recruitment 15 tools that are used that are fair; but at the end of 16 the day, the Employer makes that decision, and that's 17 why I think recruitment exams are before this Board and 18 classification is before this Board because it speaks 19 to whether the Employer took into consideration the 20 merit principle when they took those actions. 21 And what we're coming before you with is that 22 we really believe that somehow in this situation, that 23 didn't happen; so we really hope that you could look at 24 this matter. Thank you. 25 CHAIR TULANG: Thank you both. ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 23 1 Please stay. 2 Board members, any questions for Appellant or 3 County? Any clarification issues? Okay. 4 MR. HALVORSON: I have one. 5 CHAIR TULANG: Okay, go ahead. 6 MR. HALVORSON: I'm going to ask this 7 question simply because I need to make sure it's on the 8 record. 9 I want to clarify what the -- do you have 10 your Merit Appeals Board appeal up in front of you? 11 MS. NOMURA: Yes. 12 MR. HALVORSON: Okay. In box No. 6, it says 13 "Date notice of action was received by Appellant." It 14 lists December 21, 2016. Do you see that in box No. 6? 15 And I'm looking at attachments to your 16 appeal, and there's another letter from Valerie 17 Poindexter, County Council Chairwoman, dated 18 December 20th, 2016. is that what you're referring to 19 that you received on December 21st? 20 MS. TORRES: Yes. I have a "Received" date 21 stamp here. 22 MR. HALVORSON: Okay. So you received the 23 December -- it's dated December 20th, 2016, but you 24 received it on December 21st? 25 MS. TORRES: Yes. ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 24 1 MR. HALVORSON: And that's what you're 2 referencing in box 6? 3 MS. TORRES: Yes. 4 MR. HALVORSON: I just want to make sure that 5 I'm matching these two up. 6 Okay, thank you. I have nothing further. 7 CHAIR TULANG: I will entertain a motion 8 to go into Executive Session. 9 MS. NAMAHOE: I move that we go into 10 Executive Session. 11 MR. TAM: Second. 12 CHAIR TULANG: All those in favor, 13 "Aye"? 14 (All members responded affirmatively.) 15 CHAIR TULANG: Opposed, same sign. 16 I would ask you to go ahead and wait outside. 17 (Executive Session ensued from 9:40 a.m. to 18 9:52 a.m.) 19 CHAIR TULANG: The Merit Appeals Board 20 is reconvened. It is now 9:52. 21 And the question before us is Ms. Doreen 22 "Dee" Torres. 23 Board Members, we have a decision? 24 MR. CHILLINGWORTH: Madam Chair, I move that 25 the Board grant the County of Hawai ʻ i's motion to ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 25 1 dismiss appeal for lack of jurisdiction. 2 MR. TAM: I second. 3 CHAIR TULANG: All those in favor, 4 "Aye." 5 (All members responded affirmatively.) 6 CHAIR TULANG: Opposed, same sign. 7 Motion carried. Thank you very much for your 8 time. 9 Why don't we take, say, approximately a 10 ten-minute/nine-minute recess and reconvene at 10:00. 11 (Recess ensued from 9:52 a.m. to 10:00 a.m.) 12 CHAIR TULANG: It is 10:00, and we are 13 back on record. 14 We are now looking at Communication 17-07, 15 and I will call Myrlene Kaloi -- 16 MS. NAMAHOE: Kaloi. 17 CHAIR TULANG: -- Kaloi to the front. 18 Okay. I have to ask if the Appellant wants 19 an open hearing? 20 MS. KALOI: Yes, I do. 21 CHAIR TULANG: And you have all met us, 22 so here we are. And both counsels are present. 23 If you will introduce yourself. 24 MS. NOMURA: Myrlene Kaloi, Appellant Pro Se. 25 MR. KAGAMI: Good morning. Deputy Corp. ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 26 1 Counsel Mike Kagami for the Employer County. 2 CHAIR TULANG: Okay. For the record, 3 this hearing is an appeal filed by Ms. Myrlene Kaloi. 4 The issue in this case has been identified as did the 5 Employer, the Department of Human Resources of the 6 County of Hawai ʻ i, violate any statutes, regulations, 7 use, or personnel policies regarding the 8 reclassification of a particular position action 9 concerning a request by the Appellant for an audit of 10 positions at the Mass Transit Agency and compensation 11 for work performed? 12 So, what we will do is the Board is in receipt 13 of all the communications to discuss this motion for 14 lack of jurisdiction from the County. We will take up 15 this matter first, and the Board will now hear oral 16 arguments of that motion. And we will start with the 17 County of Hawai ʻ i. 18 MR. KAGAMI: Good morning. Basically, our 19 position is that Hawai ʻ i Revised Statutes, as well as 20 the Merit Appeal Board rules, require that the internal 21 complaint procedure be exhausted before the Merit 22 Appeals Board gets involved. That wasn't done here, so 23 that's why we're seeking a dismissal for failure to 24 exhaust those remedies. 25 CHAIR TULANG: Okay. Appellant? ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 27 1 MS. KALOI: I do have three concern that I 2 would like to address, first off, if that's 3 permissible, just to ensure consistency and clarity of 4 this case. 5 Appellant requests the record reflect that 6 Appellant's complaint is filed against no other party 7 other than the former Human Resources Director Sharon 8 Toriano, who defaulted on Appellant's request for an 9 audit of positions and requests for compensation, and 10 with further regard to Ms. Toriano's performance and 11 non-performance of said requests in relation to her 12 powers, duties, appointment, and authority as Human 13 Resources Director. So, no one else in this case is the 14 complaint against other than Ms. Toriano. 15 The other item is that I wanted to ensure 16 that Communication No. 17-07.18, received on November 17 20th -- I informed the Board secretary yesterday of 18 this omission to the agenda and wanted to ensure the 19 Board was informed of this request for the agenda, 20 17-07.18. 21 CHAIR TULANG: 07.18. 22 MR. HALVORSON: And what is that? 23 MS. KALOI: There was a letter of transmittal 24 that I had transmitted along to the Board with this 25 pleading. And there was a request -- ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 28 1 MR. HALVORSON: Stay with the pleading so we 2 make sure we're on the same document. 3 MS. KALOI: Yes. 4 CHAIR TULANG: Okay. It's dated 5 November 20th? Is that it? 6 MS. KALOI: Yes. 7 CHAIR TULANG: Last page under 17-07.18. 8 MS. KALOI: Yes. 9 CHAIR TULANG: The last letter of 10 communication. 11 MR. HALVORSON: Okay, thank you. 12 MS. KALOI: Thank you. 13 And with the Board's permission, I wanted to 14 know if I could move out of the agenda order 15 Communication No. 17-07.23. That's the motion to 16 continue hearing, as I'm not -- I have no 17 representation, I request a consideration to have this 18 motion brought to the Board to obtain legal counsel on 19 my behalf. 20 CHAIR TULANG: Okay. So, we acknowledge 21 the three requests. 22 MS. KALOI: Yes, please. 23 CHAIR TULANG: Okay. Any other 24 statements you would like to make at this time? 25 MS. KALOI: No, not at this time. ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 29 1 CHAIR TULANG: Okay. 2 County of Hawai ʻ i, any statements? 3 MR. KAGAMI: No response. 4 CHAIR TULANG: Okay. Board members, any 5 questions for the County or the Appellant? 6 MR. TAM: None. 7 CHAIR TULANG: Okay, then -- 8 MR. HALVORSON: I got one. 9 CHAIR TULANG: Go ahead. 10 MR. HALVORSON: So, Ms. Kaloi, did you file 11 an internal complaint prior to your filing this appeal? 12 MS. KALOI: No, I didn't. I did that 13 recently, though, in December. 14 MR. HALVORSON: And that's your Communication 15 17-7-23? That's what you are referencing? 16 MS. KALOI: No. I did file a formal 17 complaint with Mr. Brilhante, internal -- I'm sorry, an 18 internal complaint with Mr. Brilhante. 19 MR. HALVORSON: Do we have that? 20 MS. KALOI: Yes. 21 MR. HALVORSON: Which correspondence is that? 22 Take your time. I know there's a lot of documents. 23 MS. KALOI: Okay. This would be in the 24 Appellant's hearing statement; and that would be 25 Communication 17-07.26. ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 30 1 MR. HALVORSON: 26? 2 MS. KALOI: Yes. That's Exhibit 18. 3 CHAIR TULANG: Read off that number 4 again. 5 MS. KALOI: The communication number? 6 CHAIR TULANG: Yeah. 7 MS. KALOI: 17-07.26. I'm sorry. 8 MR. HALVORSON: And attached to that would 9 you say was Exhibit 18? 10 MS. KALOI: Yes, in the hearing statement. 11 MR. KAGAMI: I believe it's -- 12 MS. KALOI: Oh, 25 -- 13 MR. KAGAMI: 25. 14 MS. KALOI: -- is -- I'm sorry, 25. 15 MS. NAMAHOE: Which is the exhibit list? 16 MR. KAGAMI: Yes. And No. 18 is the last 17 one. 18 MR. HALVORSON: And Exhibit 18 is the letter 19 to William Brilhante, Acting Director, dated 20 December 12, 2017? 21 MS. KALOI: Yes, it is. 22 MR. HALVORSON: Okay. I just want to make 23 sure I'm clear with what we're referring to. Thank 24 you. 25 MS. KALOI: Yes. Thank you. ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 31 1 CHAIR TULANG: Any other questions? 2 MS. NAMAHOE: I do have one. 3 Ms. Kaloi, are you a bargaining or 4 non-bargaining employee? 5 MS. KALOI: I am a union employee, yes. 6 MS. NAMAHOE: Civil service? 7 MS. KALOI: Yes. 8 MS. NAMAHOE: Oh, thank you. 9 MS. KALOI: And I was also told by the union 10 that they weren't able to represent me in this matter. 11 CHAIR TULANG: They weren't? 12 MS. KALOI: No. That's why I'm pro se. 13 CHAIR TULANG: Any other questions, 14 folks? 15 Any comment from -- 16 MR. KAGAMI: No. 17 CHAIR TULANG: Okay. I will entertain a 18 motion to go into Executive Session. 19 MR. CHILLINGWORTH: So moved. 20 MS. NAMAHOE: Second. 21 CHAIR TULANG: All those in favor, 22 "Aye." 23 (All members responded affirmatively.) 24 CHAIR TULANG: Those opposed, same sign. 25 Motion carried. ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 32 1 So, I will ask you to please leave us. 2 (Executive Session ensued from 10:11 a.m. to 3 10:33 a.m.) 4 CHAIR TULANG: The Merit Appeals Board 5 is back on record on the case of Ms. Kaloi. And a 6 decision has been made. If we can -- 7 MR. CHILLINGWORTH: Madam Chair, I move that 8 the Board grant the motion of the County of Hawai ʻ i to 9 dismiss the appeal for lack of jurisdiction. 10 MR. TAM: I second the motion. 11 CHAIR TULANG: All those in favor? 12 (All members responded affirmatively.) 13 CHAIR TULANG: Opposed? 14 Motion carried. 15 Ms. Kaloi, we would like to talk with you a 16 little bit, and counsel will run you through some 17 thoughts. 18 MR. HALVORSON: Yeah, I have been authorized 19 by the Merit Appeals Board to elaborate a little bit. 20 I mean, while your current case is being 21 dismissed for lack of jurisdiction, we have noted that 22 you have a request for an audit pending before the 23 director of Human Resources. We don't know what day 24 the ultimate response by the director is, but somewhere 25 along the line, you may have an opportunity to apply ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 33 1 for a promotion, or you may have an opportunity to 2 request reclassification of your position. 3 If you request -- if you apply for a 4 promotion and that's somehow denied, you might be able 5 to grieve that under the Collective Bargaining 6 Agreement. If you request reclassification based upon, 7 I think, what you have been arguing about your current 8 work and where you are currently classified, that may 9 be something that you may be able to file, an internal 10 complaint with the Department of Human Resources. And, 11 if that internal complaint is denied, then you may be 12 able to come back to this Board on the reclassification 13 issue, if your request for reclassification is denied, 14 but right now, you haven't got there; you're not at 15 that point yet. 16 All you've got is a request for an audit. If 17 they don't comply with your request for an audit -- and 18 you may -- you can consult with your union 19 representatives about this as well because they may be 20 able to help you technically -- but you can request 21 reclassification; and that's a decision by the director 22 of Department of Human Resources. If the director 23 denies your request for reclassification, then you may 24 be back in the ballpark of filing an internal complaint 25 and then coming back to this Board, and we might have ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 34 1 jurisdiction at that point. 2 So the Board, I think, was concerned that -- 3 we didn't want to just say, "We don't have jurisdiction 4 and you have to go away." I want to make sure that you 5 understand that this is still in play; you just have to 6 make sure you go through the right process. 7 Do you have any questions? 8 MS. KALOI: Yes, because the -- I didn't 9 receive any type of response from the internal 10 complaint. 11 MR. HALVORSON: Well, your request for an 12 audit is not an internal complaint. And, besides, that 13 is long after you filed this appeal. So, right now, 14 it’s a request for an audit. And if you don't get a 15 response for that, then I think your next step is -- if 16 you are not applying for a promotion because there's no 17 promotion opportunity, you can request a 18 reclassification of your position, and you use the same 19 arguments, I think, that you have been preparing to do 20 in this case, of what you do compared to where you are 21 currently classified; and you can request a 22 reclassification. 23 If that is denied, then you are back in play. 24 Then you can file an internal complaint or request for 25 administrative review based upon that denial. And then ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 35 1 if the internal complaint doesn't bring you 2 satisfaction, then you may be in a position to come 3 back to the Merit Appeals Board. And, at that point, 4 we would likely have jurisdiction to hear your case. 5 Does that answer your question? 6 MS. KALOI: I understand classifications, but 7 is it just the audit of the positions? 8 MR. HALVORSON: The audit is separate. Your 9 request for an audit -- 10 MS. KALOI: Yes. 11 MR. HALVORSON: -- is a preliminary matter in 12 that --- let's say, if you don't get a response on the 13 request for audit, then you're free to go ahead and 14 request reclassification. And you might -- as I say, 15 you might want to ask for -- you're a HGEA member, 16 right? 17 MS. KALOI: Yes. 18 MR. HALVORSON: You might want to check with 19 your business agent. They may be able to help you out 20 on the reclassification request. 21 MS. KALOI: Okay. 22 CHAIR TULANG: Okay. County, any 23 questions? 24 MR. KAGAMI: No. Thank you. 25 CHAIR TULANG: Thank you both. ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 36 1 We're a little after 10:30, and it's not 2 quite on the agenda, per se, put we're going to divert 3 and go back to the audit that was conducted by the 4 legislative auditor. And they are here today, so if 5 you'll come forward and give us the update to your 6 report. 7 If you can introduce yourself and give us a 8 little background. 9 MS. NIMS: Sure. My name is Bonnie Nims. 10 I'm the Legislative Auditor. With me I have Lane 11 Shibata and Maxinne Pacheco who actually did the audit 12 of the hiring practices of the County. 13 So, did you want a summary of the audit 14 done? Is that what you're looking for? 15 CHAIR TULANG: Yes. 16 MS. NIMS: Okay. Basically, we did an audit 17 to evaluate the hiring practices of the County just to 18 make sure that the County's practices, the processes, 19 are in place to ensure equitable, uniform, and 20 transparent hiring practices; and then we went through 21 and tested those practices at the different 22 departments. 23 We initially looked at seven departments. 24 From that, we narrowed it down to four, based on 25 preliminary work we did. We found the original three ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 37 1 had adequate controls, so we went down to four 2 departments. We then focused on four of those 3 positions within those departments that was selected 4 using risk-based criteria. 5 Basically, we looked at the amount of 6 vacancies/the amount of turnover in certain position 7 classes and focused our attention on that. The reason 8 we do a risk-based analysis instead of like a 9 statistical sample is it's proven to get the biggest 10 bang for your buck, you know. We don't waste a lot of 11 time and effort looking at things that are okay. 12 The point of our audit is to find the 13 discrepancies between best practices and criteria and 14 what is actually going on. And so, it's not beneficial 15 to the County, necessarily, to go through and look at 16 things that are okay. And that's why we do give credit 17 to the departments that were okay. 18 Based on those testing that we did, we did 19 find substantial errors. We did find 91 percent -- I 20 think 42 out of 46 positions -- there was something 21 wrong, either interviews weren't conducted, the same 22 amount of vacancies that were available were 23 interviewed, documentation wasn't retained, et cetera. 24 And that's all spelled out in the report. 25 Based off of those conditions, we identified ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 38 1 the cause, why that happened. One of the major reasons 2 that we determined was that there was a fear of 3 retaliation. There's no independent -- the process 4 starts with going through your supervisor, if you have a 5 complaint. It's not necessarily an independent person 6 that can look at the situation objectively. And there 7 was a lot of complaints by the people that were talked 8 to, and citizens, that they didn't feel they had 9 anybody to go to. And so, we thought implementing a 10 whistle-blower hotline or some independent process to 11 hear complaints can help rectify situations before they 12 become an issue. 13 We also noted that the SRC would sometimes be 14 involved and had, probably, inappropriate involvement 15 in the hiring decisions at some departments. The 16 current -- 17 CHAIR TULANG: Give us the acronym. 18 MS. NIMS: Oh, I'm sorry. Staffing Review 19 Committee. Sorry, it's been too long. The Staffing 20 Review Committee that was started by the prior 21 Administration and the Department of HR to assist in 22 the hiring practices. The way the current -- the 23 process was during 2016 was they had some involvement 24 where we, looking at the process as a whole, did not 25 believe that it was appropriate. It was disbanded in ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 39 1 2017 with the current Administration. 2 So, we just recommend in the future that the 3 hiring decision be in line with the hiring manager, not 4 an independent person/group of people that may not 5 understand who the best-qualified person is for that 6 position. We also recommend that the Department of 7 Human Resources be more proactive and more active in 8 monitoring the different departments to make sure that 9 departments are following policies and procedures. We 10 found, generally, that the policies and procedures were 11 appropriate and adequate and in line with best 12 practices; the problem was that the departments weren't 13 necessarily following them. And since HR has the 14 ultimate responsibility for the hiring processes in the 15 County, we felt it's their responsibility to monitor -- 16 at least spot-check periodically -- the departments to 17 make sure they're actually following the policies and 18 procedures. 19 Some other minor recommendations and causes 20 that we saw was the NeoGov. Are you familiar with 21 NeoGov? The Human Resources -- 22 CHAIR TULANG: Oh, NeoGov. 23 MS. NIMS: -- information system component 24 isn't being fully utilized to track an employee or a 25 potential employee from recruitment to hire. And so, ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 40 1 we're recommending using that tool to the best of its 2 advantage. 3 MS. NAMAHOE: So, you're saying the database 4 was underutilized? 5 MS. NIMS: Correct. Exactly. 6 Also providing mandated HR training. You 7 know, it's great to provide training, but if nobody 8 goes, it doesn't do a whole lot of good. 9 Using continuous open recruitment for 10 difficult-to-fill positions. There's -- if it's 11 difficult to fill, it makes more sense just to go out 12 when you need that position filled versus a 13 non-difficult-to-fill position. If it's open all the 14 time, the eligibility list got so large that the 15 departments couldn't manage it. We saw lists with 16 300-plus people; and, you know, trying to manage a 17 300-person list and get it down to one person is 18 difficult. And we didn't see a need to have that open 19 continuously when that list became so long. 20 And, finally, just clarifying the policies 21 and procedures to clearly define prohibited personnel 22 practices. You know, it's a lot easier if it's spelled 23 out, "This is what you cannot do. These are the No's," 24 versus if it's silent. And so, just clarifying the 25 policies and procedures and during the training, you ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 41 1 know, what are the prohibited personnel practices? 2 CHAIR TULANG: You're saying this is for 3 HR personnel? 4 MS. NIMS: That's for HR. That was the 5 subject of our audit is HR. 6 And so, basically, by the time we concluded 7 the audit, many of these recommendations had already 8 been implemented. And HR has done an excellent job at 9 being very proactive at, we'll say, falling in step. I 10 hate to use that term, but they expressed they are very 11 aware of the situation. They understand it now and the 12 importance of, like, the monitoring and clearly defining 13 their prohibited practices. And from what we've heard 14 through the grapevine and what we've had to go through 15 for our own hiring practices, we can see that a lot of 16 these recommendations have already been implemented; so 17 I've got to give kudos to them for being very 18 proactive. 19 CHAIR TULANG: Any questions, Board 20 Members? 21 MS. NAMAHOE: None at this time. 22 CHAIR TULANG: Just going back, HR 23 should be monitoring hiring practices, policy, 24 procedures, and do the ongoing training so that you see 25 that that's been corrected and being done? ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 42 1 MS. NIMS: Without actually going in and 2 testing it, yes, it appears that it is being done. I 3 always have to give my caveat. Sorry. We haven't 4 actually audited it. 5 CHAIR TULANG: But you have experienced 6 it through your -- 7 MS. NIMS: But we have experienced it. 8 CHAIR TULANG: Okay. 9 Any other questions, folks? 10 Thank you for the time. 11 MS. NIMS: Thank you very much. 12 CHAIR TULANG: And I appreciate your 13 brief. And if we have any other questions, I hope 14 you'll be available. 15 MS. NIMS: Of course. Thank you very much 16 for your time. I appreciate it. 17 MS. NAMAHOE: I do want to make one 18 statement, though. 19 CHAIR TULANG: Sure. 20 MS. NAMAHOE: I do want to make one 21 statement. 22 Thank you. What I appreciate about the audit 23 was it illuminated the strengths and weaknesses of how 24 the County currently handles HR between its departments 25 and agencies, how much is -- the size of resources ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 43 1 available in pure HR versus the resources that are in 2 the different departments. 3 I read this with a few different eyeballs. 4 I've had different impressions of the document each 5 time I read it. I thank you very much, and I look 6 forward to perhaps talking to you at another time about 7 this as well as if the efforts were required to come up 8 with this, that it become not a one-time thing, but 9 that it be a constant production so that we all 10 understand that this is the natural ebb and flow of 11 checks and balances for our County. 12 So with that, thank you. 13 MS. NIMS: Thank you. 14 CHAIR TULANG: Any other words of 15 wisdom? 16 I thank you, again. 17 MS. NIMS: Thank you very much for your time. 18 I appreciate it. 19 CHAIR TULANG: Director? Although 20 you're not on my agenda, you might want to say "Happy 21 New Year." Can you give us an update on where you are 22 right now? 23 MR. BRILHANTE: Good morning, Chair Tulang 24 and Board Members. William Brilhante, I'm Acting 25 Director, Department of Human Resources. ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 44 1 All I'm requesting is just a brief 2 opportunity to respond to the audit report and just an 3 update from a departmental perspective, if it may 4 please the Board. 5 CHAIR TULANG: Sure. Confined to the 6 audit report? 7 MR. BRILHANTE: Yes, directly confined to the 8 audit report. 9 You know, first and foremost, I've had, you 10 know, numerous meetings with the mayor and the current 11 administration, and, you know, there's been discussions 12 regarding the findings of the audit. And I just want 13 to ensure this Board that the primary goal of the 14 Department of Human Resources is to ensure that the 15 recruitment process is fair and equitable to all. And 16 the reason that's so imperative to us is because we 17 want to be able to continue to maintain the public 18 trust, not only just trust of the public at-large, but 19 also the trust of our employees, that they are -- you 20 know, the County hiring process is fair and equitable. 21 So, that's our primary goal. 22 As you are well aware, the audit, you know, 23 pre-dates my tenure as a deputy director or acting 24 director. From a personal perspective, I look at the 25 audit as being a positive. It's the opportunity for us ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 45 1 to better ourselves as a department. It will allow us 2 to go from a good department, to a better department, to 3 the best department we can possibly be; and that's, you 4 know, my primary goal. We welcome the findings. 5 If you look at the audit, incorporated in the 6 audit was a letter from our department where we didn't 7 dispute the findings of the audit. We enveloped it and 8 we sat down, we had numerous discussions, and we came 9 up with an affirmative response to ensure that we 10 comply with all of the recommendations that the 11 auditor's office put forth in the audit. 12 To that effect, I just want to touch on each 13 of the recommendations just real briefly. 14 First off, the Staffing Review Committee, 15 which was alluded to in the audit, has been disbanded. 16 It's no longer in place. And that was effective 17 December 5th. 18 As to continuous recruitments, we have 19 discontinued all continuous recruitment but for a 20 difficult-to-fill position. An example of that would 21 be like a school crossing guard, which we find very 22 hard to fill because of the limited hours, the pay 23 associated with it, and, you know, just the secondary 24 components that, you know, comport with that job. 25 We've also incorporated and initiated a ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 46 1 training program that, with the buy-in from the 2 Administration, is now mandatory. We have mandatory 3 interview training for all department heads as well as 4 the HR staff. And we also have mandatory skillset 5 training -- and the reason that -- we have those two 6 trainings is, without this type of training on your 7 record, an individual won't be allowed to sit on an 8 interview selection committee. So, not only is it 9 mandatory, but it's also a prerequisite in order to sit 10 on a selection committee. 11 So, we're hoping that through the mandatory 12 training, which is identified in the audit, we can move 13 forward and make sure that everybody is on the same 14 page, you know, going forward, there's no 15 misunderstandings, there's no, "Oh, I didn't know it 16 was supposed to be that way" or “No, it's clear, 17 this is the way it's supposed to be.” And Ms. Cabanas 18 has been real diligent and dedicated to ensure that 19 those trainings are offered on numerous occasions and, 20 you know, pretty much both on the east side and the 21 west side. So, we've had pretty good response with 22 that. We've had classes of nearly, you know, 50 23 individuals at a time. 24 We're currently developing what we call “best 25 practices,” you know, again, which was alluded to, and ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 47 1 the do's and the don'ts, which was alluded to in the 2 audit, and prohibited personnel hiring practices. 3 Again, it's not something that can be done overnight. 4 We're working on it. We've had numerous discussions 5 regarding it. 6 And we've had discussions with other 7 jurisdictions, and we're just compiling everything 8 together. And once we're done and we have kind of a 9 draft, we're going to sit down and we're going to 10 approach the Administration. And then once we get 11 Administration buy-in, then we're going to go and 12 unveil it and ensure that all the departmental HR reps. 13 are understanding and able to move forward with our 14 best practices. 15 And not only are we just going to do it for 16 Recruitment --- but at our last weekly managers meeting 17 this past Monday, Ms. Cabanas recommended that all the 18 divisions within our department come up with a best 19 practice. And we kind of incorporate a best practice 20 for every division, whether it be recruitment, or 21 whether it be ADA, or whether it be labor relations, 22 you know, just ensuring that quality and fairness in 23 dealing with the County employees, as well as the 24 public, is effectuated. 25 In our supplement alternative budget request, ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 48 1 we've identified and we submitted a request wherein we 2 are requesting an additional position in recruitment. 3 That position will primarily be able to help satisfy 4 the demands of our department conducting internal 5 audits of each of the department's hiring practices. 6 So, again, as was alluded to in the audit, 7 we'll incorporate policy and procedures for continuing 8 auditing of the departmental interview and selection 9 process to ensure that standards are being met. And, 10 again, that was incorporated in our supplemental budget 11 request. We're hoping to gain that position from 12 county council moving forward. And that will be -- you 13 know, it's part of the Administration's overall budget. 14 And, if that's approved, we should have that position 15 in place by July 1st. 16 Last, but not least, we're also -- as alluded 17 to in the audit, we're also taking steps to ensure that 18 the County personnel are clearly aware of the resources 19 available to them through the state Whistleblower 20 Protection Act so that, you know, if in the future, you 21 know, an employee sees something that maybe, you know, 22 might be problematic -- I think part of what we heard 23 from the audit was, you know, people were afraid of 24 retaliation, or they didn't know, you know, if they 25 would be blacklisted or blackballed; but, you know, the ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 49 1 federal government as well as the state government 2 identifies those type of situations. They put a lot of 3 credence to it. So there's a specific act in the HRS, 4 the Whistleblower's Act, and we're ensuring that the 5 County employees have a better understanding of that 6 and better understanding of the process and the 7 protections afforded. So, you know, that's the last 8 item that, you know, the audit identified. 9 Again, we appreciate the opportunity to 10 address the Board as it relates on the audit findings. 11 We appreciate the hard work that Ms. Bonnie Nims and, 12 you know, her staff, Lane and Maxinne, have done with 13 the audit, and we accept it, and we are moving forward, 14 and we will continue to provide updates and happy to 15 answer any additional questions. Thank you. 16 CHAIR TULANG: Board, are there any 17 questions? 18 No? 19 MS. NAMAHOE: No questions, but thank you so 20 much for wrapping up what they presented. Thank you. 21 MR. BRILHANTE: You're welcome. 22 CHAIR TULANG: Thank you. 23 Okay. Our next issue item on the agenda is 24 item No. 8. Our next meeting is on January 16th, 25 10:00, in the HR conference room, and this will be ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 50 1 confined to addressing hiring the HR director and 2 reviewing the procedure and steps. 3 Are there any questions? Okay. I'll 4 entertain a motion to adjourn. 5 MR. TAM: I move to adjourn the meeting. 6 MS. NAMAHOE: Second. 7 CHAIR TULANG: All those in favor. 8 (All members responded affirmatively.) 9 CHAIR TULANG: Opposed, same sign. 10 Thank you. Thank you all very much. I'll 11 see you next week. 12 (The meeting concluded at 10:58 a.m.) 13 14 15 16 17 18 19 20 21 22 23 24 25 ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Page 51 1 STATE OF HAWAII 2 ss. 3 COUNTY OF HAWAII 4 5 I, TERI HOSKINS, a certified court 6 reporter in the State of Hawaii, do hereby certify 7 that the foregoing pages are a true and correct 8 transcription of the proceedings in the above matter. 9 10 Dated this 23rd day of January, 2018. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ISLAND COURT REPORTING & TRANSCRIPTION SERVICES (808) 933-9800 Ms. Teri Hoskins, Certified Court Reporter, transcribed the aforementioned proceedings of the Merit Appeals Board at its meeting held on January 10, 2018. Glynis Yamada, Secretary, Merit Appeals Board, had incorporated some minor formatting/housekeeping revisions throughout the transcript. Respectfully Submitted, iltbimcycapiak Glynis Yamada, Secretary APPRO ED: Julie M. Tulang, Chair Merit Appeals Board PUBLIC STATEMENT REGISTRATION FORM MERIT APPEALS BOARD COUNTY OF HAWAII HILO, HAWAII Date: # / I (Please print clearly) Support Oppose Comment Please list the item(s) you will be speaking on: Communication No. 17 — or �urre Appy,I Subject/Topic: Name: kA \ S t4'A Representing: (Please indicate whether Self or Organization) ***For official use only: Speaker No.