HomeMy WebLinkAbout2018-02-07 Merit Appeals Board Minutes
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MEETING OF THE
COUNTY OF HAWAI ʻ I
MERIT APPEALS BOARD
TRANSCRIPT OF PROCEEDINGS
held on February 7, 2018, at the Aupuni Center
Conference Room, 101 Pauahi Street, Suite 1, Hilo,
Hawai ʻ i, 96720, commencing at 9:27 a.m.
REPORTED BY: TERI HOSKINS, RMR, CSR #452
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APPEARANCES
2
ACTING CHAIR:
3
DAVID K. S. NAHUINA
4
5
BOARD MEMBERS:
6
LUAHIWA NAMAHOE
7
MITCH TAM
8
WILLIAM CHILLINGWORTH
9
10 ABSENT & EXCUSED: JULIE M. TULANG, CHAIR
11
DEPUTY ATTORNEY GENERAL:
12
JAMES E. HALVORSON, ESQ.
13
14
ALSO PRESENT:
15
GLYNIS YAMADA
16
WILLIAM V. BRILHANTE, JR.
17
LEE LORD
18
WIL OKABE
19 MITCHELL ROTH
20 BARBARA KOSSOW (via videoconference)
21 CLEMENT GUZMAN
22 KELLY MAYNE
23 DANIEL PANG
24 NORA NOMURA, HGEA CONSULTANT
25 MOANA HOKOANA, HGEA UNION AGENT
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CONTENTS
2
WITNESS PAGE
3
KELLY MAYNE
4
DIRECT EXAMINATION VIA STATEMENT 31
5
CROSS EXAMINATION BY MR. MUKAI 37
6
REDIRECT EXAMINATION BY MS. NOMURA 41
7
RECROSS EXAMINATION BY MR. MUKAI 45
8
EXAMINATION BY MS. NAMAHOE 46
9
10
DANIEL PANG
11
DIRECT EXAMINATION VIA STATEMENT 47
12
CROSS EXAMINATION BY MR. MUKAI 51
13
REDIRECT EXAMINATION BY MS. NOMURA 56
14
RECROSS EXAMINATION BY MR. MUKAI 60
15
16
CLEMENT GUZMAN
17
DIRECT EXAMINATION VIA STATEMENT 62
18
CROSS EXAMINATION BY MR. MUKAI 72
19
REDIRECT EXAMINATION BY MS. NOMURA 75
20
RECROSS EXAMINATION BY MR. MUKAI 76
21
EXAMINATION BY MR. CHILLINGWORTH 77
22
23
LEE LORD
24
DIRECT EXAMINATION BY MR. MUKAI 81
25
CROSS EXAMINATION BY MS. NOMURA 102
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CONTENTS
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WITNESS PAGE
3
LEE LORD (continued)
4
EXAMINATION BY MR. TAM 111
5
EXAMINATION BY MS. NAMAHOE 114
6
EXAMINATION BY CHAIR NAHUINA 118
7
EXAMINATION BY MR. HALVORSON 119
8
RECROSS EXAMINATION BY MS. NOMURA 120
9
10
MITCHELL ROTH
11
DIRECT EXAMINATION BY MR. MUKAI 122
12
CROSS EXAMINATION BY MS. NOMURA 134
13
EXAMINATION BY MR. HALVORSON 144
14
REDIRECT EXAMINATION BY MR. MUKAI 145
15
RECROSS EXAMINATION BY MS. NOMURA 147
16
17
WIL OKABE
18
DIRECT EXAMINATION BY MR. MUKAI 150
19
20
BARBARA KOSSOW
21
DIRECT EXAMINATION BY MR. MUKAI 154
22
23
24
25
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CHAIR NAHUINA: Call to order the Merit
2
Appeals Board meeting today, February 7th, 2018, at
3
9:27.
4
Thank everybody for their patience. Thank
5
you, Teri, for coming in so quickly.
6
I ask if there's addendums to the agenda
7
today.
8
None.
9
Any statements from the public?
10
There are no minutes for approval, and there
11
are no communications and, at this time, we have no new
12
business, so we'll move on to unfinished business,
13
which is the hearing.
14
At this time, I will ask the Appellants if
15
they would like an open hearing?
16
MR. GUZMAN: Yes.
17
MR. MAYNE: Yes.
18
CHAIR NAHUINA: Thank you.
19
I would like to introduce the Board Members
20
and our legal counsel. Today Julie Tulang, our Chair,
21
was unable to be here today. I'm David Nahuina, Vice-
22
Chair. I will be serving as Acting Chair in her
23
absence. I ask that Board Members introduce themselves
24
first.
25
MR. CHILLINGWORTH: William Chillingworth.
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MS. NAMAHOE: Luahiwa Namahoe.
2
MR. TAM: Mitch Tam.
3
MR. HALVORSON: And Deputy Attorney James
4
Halvorson, attorney for the Merit Appeals Board.
5
CHAIR NAHUINA: Thank you.
6
I see that both counsels are present. I
7
would like to ask if you would please introduce
8
yourselves.
9
MR. MUKAI: Thank you. John Mukai, Deputy
10
Corporation Counsel, on behalf of the Office of the
11
Prosecuting Attorney. Also present is Mitch Roth,
12
Prosecuting Attorney; and Lee Lord, also Business
13
Manager from the Office of the Prosecuting Attorney.
14
MS. NOMURA: Hi. Good morning. My name is
15
Nora Nomura. I'm also a consultant with HGEA. I
16
retired after 20 years with the union, and I'm here at
17
the request and with pleasure to represent our
18
bargaining unit members. I'm not counsel but I,
19
certainly, hope in this setting that I can lend
20
assistance to the process. Thank you.
21
MR. GUZMAN: I'm Investigator Clem Guzman
22
from the Hawai ʻ i County Prosecutor's Office.
23
MR. PANG: Hi. Good morning. My name is
24
Daniel Pang with the prosecutor's office, Investigator.
25
MR. MAYNE: Hi. Good morning. My name is
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Kelly Mayne. I'm also one of the Investigators from
2
the prosecutor's office.
3
CHAIR NAHUINA: Thank you very much.
4
This hearing is appeals filed by Mr. Clement
5
Guzman, Mr. Kelly Mayne, and Mr. Danny Pang at the Merit
6
Appeals Board meeting held on September 27th, 2017.
7
These three appeals were consolidated with no objection
8
from the parties.
9
The issue in this case has been identified as
10
did Employer, the Office of the Prosecuting Attorney,
11
and the County of Hawai ʻ i violate any statutes,
12
regulations, rules, or personnel policies regarding
13
their recruitment and examination actions concerning
14
their interview and selection procedures/process? If
15
the answer to the above is "Yes," then what remedy can
16
be awarded by the Merit Appeals Board?
17
The Board is in receipt of communication by
18
the County, Communication No. 17-04.07, to discuss the
19
motion to dismiss for lack of jurisdiction. We will
20
take this matter up first.
21
Are the parties prepared to proceed at this
22
time?
23
MR. MUKAI: Yes.
24
MS. NOMURA: Yes, we are.
25
CHAIR NAHUINA: The Board will now hear
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oral arguments on this motion.
2
Does either party have any additional
3
evidence?
4
So, County, if you would like to make your
5
oral argument.
6
MR. MUKAI: Thank you.
7
With respect to the appeal of Kelly Mayne, we
8
filed a motion to dismiss based on the Board's lack of
9
jurisdiction in this case. I'm anticipating the
10
argument that what the prosecuting attorney's office
11
did was a recruitment. And so, under 76-14, I would
12
agree that any person can seek remedy under 76-14.1
13
through the Merit Appeals Board, but we need to be
14
careful with making bright-line rules, because in
15
Mr. Mayne's case -- and I will segue into all appellants
16
as a whole -- in Mr. Mayne's case, he did, in fact, seek
17
remedy through the collective bargaining unit; and I've
18
attached as Exhibit F to my motion, and it's a letter
19
dated July 26, 2017, from Ms. Hokoana, union business
20
agent of the HGEA.
21
Now, what's interesting in this submission is
22
if the Board were to turn to the third page where
23
Ms. Hokoana states Article 13. And under Article 13 of
24
the HGEA Unit 13 collective bargaining agreement, there
25
is a remedy to be pursued in the collective bargaining
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agreement. It is the exclusive remedy because the
2
collective bargaining agreement is a contract. The
3
contract is between the Employer, the County of Hawai ʻ i,
4
and all counties in Hawai ʻ i and the State to abide by
5
certain rules and regulations. And where there is a
6
remedy provided in the collective bargaining agreement,
7
the Hawai ʻ i Revised Statutes Section 76-14 says that the
8
Merit Appeals Board shall refer to other authority for
9
the grievance procedure under a collective bargaining
10
agreement.
11
Here with respect to Mr. Mayne, he has elected
12
to seek his remedy under the collective bargaining
13
agreement and, rightfully so, because the promotion
14
provision, Article 13, in conjunction with Article 11,
15
provides the only process for him to get his remedy.
16
And so, with regard to Mr. Mayne, I believe the remedy
17
lies within collective bargaining unit exclusively and
18
not with the Merit Appeals Board. Now, as I'm
19
reviewing the case, I realize that the same holds true
20
for Mr. Guzman and Mr. Pang.
21
There are certain things here that are
22
undisputed. It's undisputed that all three members
23
sitting before us are HGEA Bargaining Unit 13 members.
24
It's undisputed. And it's undisputed that --
25
Mr. Guzman was Investigator V, Mr. Mayne was an
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Investigator V, and Mr. Pang was an Investigator IV --
2
all sought a promotion, a promotion, to an Investigator
3
VI position. It's undisputed. So, under those
4
circumstances, Hawai ʻ i case law and the Hawai ʻ i Revised
5
Statutes, it is clear that the only remedy that they
6
can seek is through the collective bargaining
7
agreement.
8
Now, there's a reference in Ms. Nomura's
9
submission that talks about 76-14.02, which talks about
10
denial or loss of a promotional opportunity.
11
MR. HALVORSON: Just a moment, Mr. Mukai.
12
Are you referring to the document that was just
13
distributed dated February 7, 2018?
14
MR. MUKAI: That's correct.
15
MR. HALVORSON: Glynis, has this been marked?
16
MS. YAMADA: It has not. We just received it
17
today, so there's no number.
18
MR. HALVORSON: So, what would be the next
19
exhibit number in order?
20
MS. YAMADA: It would be 17-04.08.
21
MR. HALVORSON: Did all the Merit Appeals
22
Board Members hear that?
23
MR. CHILLINGWORTH: So, 17-04.08.
24
MR. TAM: Yes.
25
MR. HALVORSON: I want to make sure we all
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were literally on the same page.
2
I'm sorry, Mr. Mukai, continue.
3
MR. MUKAI: Okay. So, again, it talks about
4
the loss of a promotional opportunity. Well, again,
5
when you talk about the loss of a promotional
6
opportunity, the remedy, once again, lies exclusively
7
within the collective bargaining agreement. For
8
those -- you're all familiar with, in labor, the
9
collective bargaining agreement is sacred. It is the
10
exclusive remedy for these individuals. And yes, I
11
agree, it's a recruitment; but in certain
12
circumstances, like we have here, it's undisputed that
13
they're seeking a promotion.
14
In the collective bargaining agreement
15
Article 13, it talks about the Rules of Civil Service
16
and how it should be applied. They have a right to
17
challenge the process. And that's what it is; it's a
18
challenge of the process. Was it conducted fairly, et
19
cetera, et cetera? That was done -- that must be done,
20
and the remedy has to be done, pursuant to the
21
collective bargaining agreement. And pursuant to HRS
22
76-14(c)(1), the Board has to defer this. And if there
23
is -- I would caution that if there's any further
24
hearing, it could potentially be violative of HRS
25
Chapter 89, because it would potentially interfere with
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the contractual rights that have been entered into
2
between the Employer and the HGEA.
3
Nothing further.
4
And, for the record -- I'm sorry -- I
5
filed the Employer's Motion to Dismiss for Lack of
6
Jurisdiction for all Appellants on -- I believe it was
7
Friday, February...?
8
MS. YAMADA: 5.
9
MR. MUKAI: 5.
10
MS. YAMADA: I'm sorry. Correction.
11
February 2.
12
MR. MUKAI: February 2. I apologize.
13
I would submit that this motion is
14
jurisdictional, so the question of jurisdiction can be
15
raised at any time. Okay.
16
CHAIR NAHUINA: At this time, I would
17
like to allow the Appellants to make their argument.
18
MS. NOMURA: Yes. I would like to speak on
19
behalf of the Appellants on this issue.
20
I did submit something to you, but I do want
21
to -- yes, HGEA did file a grievance on behalf of
22
Mr. Mayne on the issue of promotions. The union
23
contract does contain a promotions article on the basis
24
of seniority. That is its basis. It's not on
25
recruitment and examination, because that is the
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purview of the merit system, and that's why we're
2
before the Board today.
3
There's no doubt these people have standing
4
in this situation. There was an action by the
5
person -- not a disciplinary action, not a performance
6
evaluation action. This was an action of selection by
7
the County and, in this case, that is your jurisdiction
8
regardless of whether they're civil service employees,
9
bargaining unit members, or members of the public.
10
That is your purview. So, to make the argument that
11
because they're civil service employees and because we
12
have a promotions article, that's their avenue for
13
relief -- that is not true. I can tell you we filed
14
hundreds of promotions articles, and that comes up over
15
and over again. Recruitment exam -- that is civil
16
service. That is the Merit Principle. So, I think to
17
turn it around now and to say that this is properly in
18
the grievance process -- no, we don't agree.
19
MR. MUKAI: If I may briefly respond. We
20
have a letter specifically from Ms. Hokoana that says
21
"We've invoked the grievance process, Article 13."
22
Now, when Ms. Nomura talks about seniority
23
and that this is recruitment, this is specific to these
24
three individuals, and for them, Article 13 provides
25
the remedy -- and I would direct the Board to my
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Exhibit A -- seniority wins if everything is equal.
2
But what they are doing, whether it's here or in a
3
promotion grievance arbitration type setting, is
4
challenging the process.
5
Article 13(c) talks about the civil service
6
statute, rules, and regulations. They're saying that
7
the process was flawed. It's nothing that the selectee
8
did or did not do. It's, basically, that the Employer
9
did a process that was flawed. And so, that's the
10
remedy. It is their only remedy under the Hawai ʻ i
11
Revised Statutes and the collective bargaining
12
agreement.
13
CHAIR NAHUINA: And --
14
MS. NOMURA: Can I respond?
15
CHAIR NAHUINA: Of course.
16
MS. NOMURA: Of course, we can make any
17
argument we want to. Mr. Mukai is making arguments,
18
right now, to sway you to his perspective from the
19
Employer, but that doesn't mean that's going to prevail
20
any more than our arguments that a grievance level is
21
going to mean that we're going to prevail. We make the
22
arguments with whatever facts we have on hand. At the
23
heart of the issue is promotions and seniority. That's
24
it. We may bring in all other issues, but that's what
25
we're dealing with, because that is the limitation of
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our contract.
2
Now, when it comes to the Employer's
3
discretion on whether to go with an internal
4
recruitment, whether to go -- that's all the purview of
5
civil service. And we may point out those things in
6
the grievance process, but that doesn't mean that's
7
necessarily a violation of our contract. And that's
8
pointed out time and again.
9
So, I think in this arena, for the Employer to
10
say that they shouldn't be here, that they should be at
11
the griev- -- I don't think that's right. And if you
12
allow this to happen, you will cut off the rights of
13
civil service employees hereon -- and that's wrong.
14
MR. MUKAI: If I may briefly respond. This
15
case is very specific to these individuals. I agree
16
that if this was an open recruitment, yeah -- but,
17
again, we have to be careful of creating these
18
bright-line rules.
19
In this case, it's undisputed that they were
20
an Investigator V, an Investigator V, and Investigator
21
IV, and they sought a promotion to an Investigator VI
22
position. It's undisputed. The remedy is covered by
23
the collective bargaining agreement. That is their
24
sole remedy pursuant to statute and case law in Hawai ʻ i
25
that I have laid out in both motions to dismiss.
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CHAIR NAHUINA: Would you like to make a
2
statement?
3
MS. NOMURA: I just would like to clarify
4
that this was an open recruitment. This is not an
5
internal recruitment, unless I -- this was an open
6
competitive recruitment. So, there were members of --
7
the selectee was from outside the jurisdiction. So, I
8
don't think we're arguing an internal recruitment
9
situation where they're all, you know, civil -- they're
10
not all civil service employees that applied. And
11
these are not the only applicants to the position from
12
the Office of the Prosecutor. There were also others
13
who are not here today.
14
So, there are a lot of things, I think, the
15
Board needs to look at in this case; and that's why
16
we're before you.
17
MR. MUKAI: If I may briefly respond. For
18
one thing, the selectee was not a member -- was not
19
from outside the jurisdiction.
20
Number two --
21
MR. HALVORSON: Where was the selectee from?
22
MR. ROTH: University of Hawai ʻ i at Hilo.
23
MR. MUKAI: University of Hawai ʻ i at Hilo.
24
Now, if the selectee was not selected, I
25
would agree his remedy -- or a non-selected employee
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who is not part of the collective bargaining unit
2
agreement, who was not seeking a promotion as these
3
gentlemen are, then they would be properly before this
4
Board; but, specifically, to this case -- no. And they
5
must be deferral. There's Hawai ʻ i Revised Statutes and
6
existing case law.
7
MR. HALVORSON: So, you're not disputing
8
Ms. Nomura's assertion that this was an open
9
competitive recruitment?
10
MR. MUKAI: Yes.
11
MR. HALVORSON: And just to get the facts out
12
on the record, do you know how many applicants there
13
were?
14
MR. ROTH: I think there was --
15
MR. HALVORSON: And I'm not going to hold you
16
to an exact number.
17
MR. ROTH: 8? 9?
18
MR. LORD: Actually, there was about 12 --
19
but then, when they were called, only nine of them, or
20
eight of them, wanted to be.
21
CHAIR NAHUINA: Board Members, do you have
22
any questions? Anything?
23
MS. NAMAHOE: Not at this time.
24
MR. HALVORSON: So, if I can ask Mr. Mukai,
25
Ms. Nomura, do you see there being a difference between
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a promotion and a recruitment?
2
MR. MUKAI: Absolutely, because in this case,
3
these three individuals were seeking a promotion. I
4
would -- if there were -- we've heard that there were
5
approximately nine individuals who applied for the
6
position. And if they were not in their position
7
seeking a promotion, I would agree that their remedy
8
exists before this Board. But, specifically, for these
9
gentlemen who are covered by the HGEA Unit 13
10
contract, and the reference by Ms. Hokoana in her
11
letter and attachments that specifically talk about
12
promotions -- and she's right; that is their remedy.
13
MR. HALVORSON: So, Ms. Nomura, let me ask
14
you this question. And partly I'm asking these
15
questions because I'm going to have to write the
16
decision, or help write the decision. But is it your
17
position, because this was an open competitive
18
recruitment, that the collective bargaining agreement
19
with regard to seniority would not apply in this case?
20
MS. NOMURA: What we're saying is that we're
21
here today because we felt the recruitment and exam
22
process was flawed; and the remedy we're requesting of
23
this Board, which I think has come up before, is not
24
for a promotion for any of these employees. The remedy
25
we're seeking is that this be redone correctly because
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of those flaws that these employees saw.
2
MR. HALVORSON: But assuming that the process
3
was done correctly, are you conceding that the
4
provision with regard to seniority would not apply
5
because they would be comparing their seniority to
6
somebody who is not in the bargaining unit?
7
MS. NOMURA: If there was an issue of
8
seniority, yes, we would take that up with the
9
appropriate employee, and we would pursue a grievance
10
to the point where we got information that, in fact, a
11
violation of the contract did occur.
12
MR. HALVORSON: So, you're saying that even
13
though it was an open competitive recruitment, that the
14
seniority provision could still apply?
15
MS. NOMURA: It might apply but, again, it's
16
a separate issue from -- you know, I don't think it
17
precludes any employee from coming here today.
18
MR. HALVORSON: Okay. And I've got one more
19
question. What's the position of the parties with
20
regard to -- I'm looking at the Unit 13. It's
21
contained in Exhibit A of the motion, Article 13,
22
"Promotions," paragraph C. So, I'm asking the parties
23
what is your position with regard to the fact this
24
exists in the collective bargaining agreement, what
25
effect this has on the motion?
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MR. MUKAI: Well, that -- it's our position
2
that this provides their exclusive remedy. They have
3
to seek it through the collective bargaining agreement.
4
And Mr. Mayne has already sought that under
5
the collective bargaining agreement. But it applies to
6
each of the individuals. It is specific to them. They
7
are seeking a promotion. Therefore, the promotional
8
provision provides their remedy to challenge the
9
process.
10
MR. HALVORSON: But Mr. Mayne's grievance
11
focused on the seniority issue, not this on
12
particular --
13
MR. MUKAI: There's a reference to 13. And
14
it cannot be argued that they are seeking promotions.
15
They cannot call it different things and say, "Well,
16
now it's open recruitment, it's seniority." They are
17
seeking a promotion -- it's undisputed -- from Vs and
18
IV to an Investigator VI position; so, the remedy to
19
challenge the process is clear. And that's the
20
County's position.
21
MR. HALVORSON: Ms. Nomura, paragraph C?
22
MS. NOMURA: Again, this article deals with
23
seniority. We know that. We take grievances to the
24
Employer when it's an issue of seniority and a
25
promotion is involved, obviously; but in this case,
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whether it's a promotion or not, the issue is that it
2
should have gone to an internal recruitment, which
3
there were inconsistencies or things that were wrong in
4
the process. Those are all issues that are open to
5
anyone, including these employees, who feel that they
6
have been adversely affected by the action.
7
MR. MUKAI: Briefly. Thank you, Ms. Nomura.
8
She's just said it: They're challenging the process.
9
Article 13, Section C in their situation is the
10
exclusive remedy, so the Board must dismiss this case
11
for lack of jurisdiction.
12
MS. NAMAHOE: I, actually, would like to hear
13
from Ms. Hokoana. You were referenced a few times.
14
MS. HOKOANA: Yes.
15
So, I initially did file the grievance on
16
behalf of Kelly Mayne, with the assumption that he was
17
the most senior, and for discovery of what his scores
18
were in the interview.
19
So, based on the information that I received,
20
he was not the most senior, and his scores weren't
21
relatively equal to the selectee. So, therefore, we
22
didn't have a case when it came to the grievance
23
process because we didn't meet the provisions of
24
Article 13; so that's where I had directed Mr. Mayne to
25
move forward with his internal complaint.
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And that internal complaint now was then
2
filed with regards to the recruitment and examination
3
part of the internal complaint process or procedure and
4
with the remedy of having the recruitment redone as an
5
internal recruitment rather than an open competitive
6
recruitment. So, that would have been the remedy
7
through the internal complaint. The remedy seeked,
8
through the grievance, was based on the fact if he was,
9
in fact, the most senior and had relatively equal
10
scores with the selectee, that the remedy there would
11
be to have him placed -- selected and placed in that
12
position.
13
That's not what we're seeking today. We're
14
not seeking to get any one of these three candidates
15
selected and promoted into the position. What we're
16
seeking is to reveal that the process was flawed in
17
terms of the recruitment and examination. So, we have
18
no real case in the grievance. That wouldn't be the
19
venue for that.
20
MS. NAMAHOE: Thank you.
21
MR. MUKAI: Briefly, Ms. Hokoana talked about
22
challenging the process. And, again, under the
23
collective bargaining unit process, it's clear it's
24
their only remedy.
25
And, if the Board does not dismiss this for
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lack of jurisdiction, this is potentially a violation
2
of Chapter 89 for interference with the contractual
3
rights between the bargaining unit and the Employer.
4
So, if the Board is thinking about pursuing this case,
5
I would suggest -- and it's happened in the past, that
6
there's a substantial question about jurisdiction --
7
that this matter be taken to the Hawai ʻ i Labor Relations
8
Board for their determination of where the jurisdiction
9
is within the Merit Appeals Board.
10
CHAIR NAHUINA: Thank you.
11
Any other questions?
12
MR. TAM: No.
13
MS. NAMAHOE: Not at this time.
14
MR. HALVORSON: I'm going to ask that we
15
deliberate in Executive Session.
16
Can I hear a motion?
17
MR. TAM: I move that we go into Executive
18
Session.
19
MS. NAMAHOE: I second.
20
CHAIR NAHUINA: All in favor say "Aye."
21
(All Board Members responded affirmatively.)
22
CHAIR NAHUINA: Those opposed, same sign.
23
Ayes have it. We will be going into
24
Executive Session.
25
(Executive Session ensued from 9:56 a.m. to
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10:16 a.m.)
2
CHAIR NAHUINA: Thank you. It's 10:16.
3
We're out of Executive Session, and I would like to
4
announce that the Board has made a decision. By
5
unanimous decision, the Board has denied the County's
6
motion to dismiss, and we will be hearing this case on
7
its merits.
8
At this time, we would look to ask --
9
MR. MUKAI: Before we proceed, I would ask
10
that the Board issue a written decision that -- I have
11
to dig up Circuit Court --
12
MR. HALVORSON: Yes. I will -- been writing
13
that and drafting for the Board's approval a decision
14
in this case.
15
MR. MUKAI: I would ask that the decision be
16
written prior to us proceeding. I have strong feelings
17
against proceeding. I do think it's a violation of
18
Chapter 89 if the Board forces the County to proceed.
19
CHAIR NAHUINA: Your request is duty
20
noted, and the Board is going to decide to continue on
21
with this.
22
MR. MUKAI: Okay.
23
CHAIR NAHUINA: At this time, I would like
24
to ask if there are any additional opening statements
25
to be made.
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MS. NOMURA: Mr. Chair, I do have an opening,
2
and I didn't write it but it's, basically, what I
3
presented. May I share that with you?
4
CHAIR NAHUINA: Yes. Go ahead.
5
MR. HALVORSON: Ms. Yamada, this would be
6
17...?
7
MS. YAMADA: -04.09.
8
MR. HALVORSON: Thank you.
9
MS. NOMURA: Is it all right to proceed?
10
CHAIR NAHUINA: Yes, please. Thank you.
11
MS. NOMURA: First of all, I have to
12
apologize to Mr. Mayne. I keep mixing up his name.
13
And it's actually Kelly Mayne, and I put Mayne Kelly;
14
so that should be corrected.
15
As we noted previously, the Appellants are
16
civil service employees, and they are in the
17
Investigator IV and V positions covered under Chapter
18
76. And in the Office of the Prosecuting Attorneys,
19
they have appealed to you as a Board to address serious
20
violations to their rights in the recruitment and
21
examination conducted for the Investigator VI position
22
in the department of the Office of Prosecuting
23
Attorney.
24
The Appellants will share their experiences
25
of -- which regarded -- oh, I'm sorry. Is it okay if I
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leave it down?
2
MS. YAMADA: Can you hear sufficiently?
3
CHAIR NAHUINA: Yes, we can hear.
4
MS. NOMURA: The Appellants will share their
5
experiences of an interview panel which disregarded the
6
Employer's own established policy, procedures, and
7
guidelines of recruitment. They will share their
8
interview panel composition that was directly in
9
conflict with established guidelines, and the questions
10
did not address the experience needed to perform at the
11
Investigator VI level.
12
This appeal reveals that the recruitment
13
examination process for the Investigator VI vacancy
14
failed to provide recognition of significant past
15
experience of each of these employees. They possessed
16
experience as Investigators IV and V, working in the
17
same office, in the same series of classes, as the
18
vacant position. There was a total disregard of their
19
work experience as current investigators, which
20
provided them the best possible qualification to
21
perform the job at the VI level.
22
Each of the Appellants has significant
23
service time as investigators in this series or in
24
another jurisdiction in a related series; yet, the
25
recruitment process does not credit any of the
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Appellants for this critical work experience. The
2
Investigator VI recruitment chose to rate on the basis
3
of overall interview responses more than any proven
4
record of ability to do the jobs at a level directly
5
below the vacancy. This is a blatant disregard of the
6
Merit Principle.
7
Each of the Appellants can tell you that they
8
have received satisfactory performance evaluations and
9
have good records of conduct. Civil service in Hawai ʻ i
10
is based on a Merit Principle whereby employees are
11
retained on a demonstrated appropriate conduct and
12
productive performance. It's also intended to build a
13
career service and to provide incentives for competent
14
employees, whether through financial or promotional
15
opportunities. This was not done in this case.
16
The Investigator IV, V, and VI are related
17
classes of the same series, and this classification was
18
last approved by the Department of Human Services in
19
2014. Requirements for the Investigator VI include 23
20
knowledge of and ability to points. Of those, only
21
three are not the same as those required at the
22
Investigator V level. That's how closely related the
23
two classes are. Those three requirements that aren't
24
required at the V level relate to supervision,
25
organization, operation, and working with subordinates.
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That's understandable, because the only distinction
2
between the V and the VI level is the supervisory
3
responsibilities. However, 20 of the 23 knowledge and
4
abilities required at the Investigator VI level were
5
the same as required for the V level. 19 of those
6
critical knowledge and abilities are required at the IV
7
level. This reflects the close connection in
8
requirements between these classes in the series, which
9
should have been greatly considered in the recruitment
10
process; and that was not considered at all.
11
In the subject recruitment, the Investigators
12
V came into the recruitment process with the knowledge
13
and ability to do 87 percent of the job by virtue of
14
currently performing a job that required them to have
15
this percentage of knowledge and abilities. The
16
Investigator IV had the knowledge and ability to do 83
17
percent of the Investigator VI job. Yet, 83 percent or
18
87 percent credit was not given to these Appellants for
19
the performance of that portion of the Investigator VI
20
vacancy.
21
And what of the applicant who was temporarily
22
assigned to the Investigator VI level? Now, in
23
government, when you are temporarily assigned, you
24
carry out the major portions of that job. In fact,
25
Mr. Mayne did that in a class that is comparatively the
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same at the state level; yet, there was no credit or
2
recognition for actually doing the job.
3
Each of the Appellants will speak to you
4
today, but given their ability to do the major portions
5
of that Investigator VI job, I think, it's just clear
6
that they should have been given a chance -- and a fair
7
chance in this recruitment process. That is
8
established by the Merit Principle. And that's where
9
we see a gross violation in this recruitment and
10
examination process.
11
With that, I think Mr. Mayne will start.
12
CHAIR NAHUINA: Well --
13
MS. NOMURA: Oh, I'm sorry.
14
MR. MUKAI: Just very briefly.
15
We believe that the process was conducted
16
fairly. Recruitment is open --
17
MS. NOMURA: I'm sorry to interrupt, but is
18
it possible for -- I think we're -- it's just a
19
continuation of what I --
20
CHAIR NAHUINA: Of your opening statement?
21
MS. NOMURA: Yes. Or -- I'm sorry. Maybe
22
I'm -- I'm wrong. Not --
23
CHAIR NAHUINA: Go ahead.
24
MR. MUKAI: We believe the evidence will show
25
that the process was fair and impartial and that the
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selection of the individual was proper under the
2
circumstances. In fact, we would submit that the
3
person most qualified for the position was, in fact,
4
awarded the position. And we believe, through the
5
evidence, the documentary evidence and testimony, that
6
the selection of the person was fair, impartial, and
7
done pursuant to the Merit Principles under HRS 76-1.
8
CHAIR NAHUINA: Thank you. I appreciate
9
your opening statements.
10
At this time, I would like to -- the strict
11
Rules of Evidence will not apply in this hearing.
12
However, the Board requests all parties confine
13
themselves to the matters connected with today's
14
hearing and the issues before the Board. If witnesses
15
are used, the opposite parties will be allowed to
16
cross-examine the witness. Members of the Board may
17
also question the witness after the witness's
18
testimony.
19
Are there any questions? Okay. If not, we
20
shall begin.
21
The Appellants shall present your case.
22
MS. NOMURA: Thank you so much. We will
23
start with Mr. --
24
MR. MAYNE: Mayne. Kelly Mayne.
25
MS. NOMURA: Thank you very much.
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CHAIR NAHUINA: Mr. Mayne.
2
3
DIRECT EXAMINATION
4
MR. MAYNE: Good morning. I'm here today to
5
question the recruitment and examination process --
6
MR. HALVORSON: Before you --
7
CHAIR NAHUINA: Excuse me.
8
MR. MAYNE: Yes, sir.
9
MR. HALVORSON: You need to be sworn in.
10
MR. MAYNE: Ah.
11
CHAIR NAHUINA: I'm sorry.
12
13
KELLY MAYNE,
14
having been first duly sworn to tell the truth, the
15
whole truth and nothing but the truth, was examined and
16
testified as follows:
17
18
CHAIR NAHUINA: Thank you.
19
MR. MAYNE: Thank you.
20
I'm here today to question the recruitment
21
and examination process used by the Office of the
22
Prosecuting Attorney to fill the vacancy for the
23
Investigator VI position, No. 02985. The Investigator
24
VI position should have been filled through the
25
internal recruitment process.
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The law enforcement investigator job series
2
has extremely limited career advancement opportunities
3
in the civil service system throughout the State of
4
Hawai ʻ i. Rather than fostering promotion from within
5
pursuant to the Merit Principle, the Office of the
6
Prosecuting Attorney conducted an open external
7
recruitment.
8
On March 1st, 2017, the Investigator VI
9
position became vacant following the retirement of a
10
long-tenured County employee. At the time, some of the
11
my co-workers and myself, who were all qualified
12
potential internal applicants, expressed interest in
13
applying for the position.
14
In May 2017, the Office of the Prosecuting
15
Attorney used an external vacancy announcement to
16
recruit for the vacancy, and on June 27, 2017, I
17
interviewed for the vacancy. On July 11th, 2017,
18
Prosecuting Attorney Mitch Roth informed me by
19
telephone that I was not selected for the position.
20
I, subsequently, submitted an internal
21
complaint expressing my concerns regarding the
22
recruitment and examination process to Mr. Roth. My
23
complaint raised the following concerns: The
24
composition of the selected panel, violating the Office
25
of the Prostituting Attorney's interview and selection
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procedures for civil service positions policy in many
2
ways.
3
One of the selection panelists, Investigator
4
Patricia Breault's -- job classification was not equal
5
to or higher than the Investigator VI position being
6
filled. This violated the policy's Section 3,
7
"Guidelines for Selection of the Panel," at
8
subparagraph c. Also, the use of two non-departmental
9
employees on the panel, Mr. Adams and Mr. Weber,
10
violated the policy's Section 3 "Guidelines for
11
Selection of the Panel" at subparagraph b.
12
A number of the interview questions that were
13
used related to a specific single reference source.
14
The Policy's Section 3, "Guidelines for Developing
15
Interview Questions and/or Assessment Exercises" of
16
paragraph b, directs that the interview questions be
17
designed to elicit information regarding the
18
applicant's suitability for the position rather than
19
their technical knowledge.
20
The internal complaint recruitment and
21
selection process also violated the Merit Principle as
22
defined by the Hawai ʻ i Revised Statutes as well as the
23
Office of the Prosecuting Attorney's interview and
24
selection procedures for civil service policy. The
25
Merit Principle, in part, states the Merit Principle is
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the selection of persons based on their fitness and
2
ability for public employment and the retention of
3
employee based on their demonstrated appropriate
4
conduct and productive performance. It's the purpose
5
of this chapter to build career service in government
6
free from coercive political influences and to render
7
impartial service to the public at all times. The
8
Merit Principle further provides that it's the clear
9
policy of the State that the Human Resources within
10
each jurisdiction provide incentives for competent
11
employees, whether they be financial or promotional
12
opportunities, that encourage continuous improvement to
13
achieve superior performance.
14
On July 26, 2017, I met with Mr. Roth and
15
received written rejection of my internal complaint.
16
Mr. Roth informed me verbally and in writing that the
17
composition of the interview panel had been presented
18
to and approved by the Hawai ʻ i County Department of
19
Human Resources.
20
I asked Mr. Roth why an internal recruitment
21
was not used to fill the Investigator VI vacancy.
22
Mr. Roth stated that an external recruitment was the
23
only way he could fill the position. I stated that
24
pursuant to the Office of the Prosecuting Attorney's
25
policy and the Department of Human Resources policy, he
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could have conducted an internal departmental
2
recruitment or an internal county-wide recruitment.
3
Mr. Roth acknowledged that he could have conducted an
4
internal recruitment, but he stated he checked with the
5
Department of Human Resources and they approved the
6
external.
7
During my Step 1 internal complaint process,
8
I contacted my HGEA union agent, Ms. Moana Hokoana, to
9
seek advice. Ms. Hokoana revealed that she would file
10
a Step 1 grievance on my behalf. As part of the
11
grievance process, Ms. Hokoana requested information
12
from Mr. Roth. One of the documents provided by
13
Mr. Roth was the “Request to Fill” form that was
14
submitted by Office of Prosecuting Attorney Business
15
Manager Lee Lord through the Department of Human
16
Resources. This form bears handwritten notes made by
17
Human Resources Manager Gabriella Cabanas.
18
Ms. Cabanas' notes indicate that the justification for
19
selecting an open external recruitment was that there
20
was insufficient interest within the department for the
21
Investigator VI position.
22
Ms. Hokoana specifically asked for the reason
23
to have an external recruitment rather than an internal
24
recruitment with question 8 on the Step 1 grievance
25
dated July 26, 2017. Mr. Roth's response was
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"Insufficient interest within the department for chief
2
investigator position." This assertion of a lack of
3
interest for the vacancy was clearly untrue. Mr. Roth
4
contradicted this assertion in his July 26, 2017
5
written response to my internal complaint wherein he
6
states part of his rationale for having an additional
7
non-departmental interview panelist was because he knew
8
that "several of the applicants were from the
9
department."
10
Ms. Hokoana also, specifically, inquired with
11
question No. 20 of the Step 1 grievance dated July 26,
12
2017 if the interview panel had been approved, why the
13
County of Hawai ʻ i Department of Human
14
Resources/Mr. Roth's written response to question
15
No. 20 was "No." Mr. Roth's response directly
16
contradicts the verbal and written responses he
17
provided me on July 26, 2017. Mr. Roth's written
18
response to my internal complaint states in regards to
19
Ms. -- to Investigator Breault, Mr. Adams' and
20
Mr. Weber's presence on the interview panel, "This
21
decision was then approved by the Department of Human
22
Resources prior to the interviews."
23
I've been in continuous government service
24
for over 34 years. I've been a Journeyman Investigator
25
V for over the last 20 years. Nearly one year of that
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time I spent as a temporarily assigned Investigator VI
2
for a different agency. This is my first experience
3
with the internal complaint process or a grievance
4
process. I certainly hope that it's my last. I didn't
5
come here to debate my resume or promote any kind of
6
personal agenda. I came here to do the right thing.
7
The only remedy I have requested throughout this whole
8
affair is that an internal recruitment and selection
9
process be conducted in accordance with the Hawai ʻ i
10
Revised Statutes, the County of Hawai ʻ i, and Office of
11
the Prosecuting Attorney's policies.
12
I appreciate your time in listening to me
13
this morning and the time that you devote going through
14
all the information that's been presented for your
15
review. Thank you.
16
CHAIR NAHUINA: Thank you.
17
Cross?
18
19
CROSS EXAMINATION
20
BY MR. MUKAI:
21
Q. Mr. Mayne, my name is John Mukai. I just have
22
a few questions for you.
23
You would agree that the selection of the
24
person to be the Investigator VI at the Office of the
25
Prosecuting Attorney should be the most qualified
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applicant? You would agree with me, right?
2
A. I believe that it should have been conducted
3
through an internal recruitment and that the qualified
4
applicants from within the office should have been
5
afforded an opportunity for that.
6
Q. Would you agree with me that the person who
7
is selected, whether it is an internal or open
8
recruitment, should be the best candidate for the
9
position? Would you agree with me?
10
A. Yes.
11
Q. Now, let me ask you a little bit about the
12
people on the interview panel. Do you know who Larry
13
Weber is?
14
A. Yes.
15
Q. Do you know that -- well, what is he?
16
A. He's a civilian.
17
Q. Would you agree that he has knowledge as a
18
Hawai ʻ i County Police Department officer?
19
A. I don't know him that well. I know that he's
20
a retired police officer -- yes.
21
Q. Would you be surprised to know that he headed
22
the Investigative Unit at the Hawai ʻ i County Police
23
Department?
24
A. No.
25
Q. Did you know that?
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A. I don't think so, but I'll accept that.
2
Q. What about Doug Adams? Do you know who that
3
is?
4
A. I met him at the interview. That's the only
5
time I met Mr. Adams.
6
Q. Would it surprise you that Mr. Adams was a
7
retired colonel of the Army?
8
A. (Shook head).
9
Q. Would it surprise you to know that Mr. Adams
10
was a member of the Ethics Board?
11
A. No.
12
Q. Did you know that?
13
A. No.
14
Q. Do you also know that Mr. Adams was an
15
attorney?
16
A. No.
17
Q. Now, you remember doing an interview, right?
18
A. Correct.
19
Q. And you were asked questions by the panel.
20
Is that correct?
21
A. That's correct.
22
Q. Do you know what your score was relative to
23
the other person or persons?
24
A. Absolutely.
25
Q. Were you No. 1?
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A. No.
2
Q. Were you No. 2?
3
A. No.
4
Q. Were you No. 3?
5
A. I was No. 8. That's too far down the line.
6
Q. The person selected was a sheriff's deputy at
7
Riverside County Sheriff's Department. Did you know
8
that?
9
A. No, I didn't know that.
10
Sir, that's not why I'm here. I have nothing
11
to say to the selectee. I'm here because I believe
12
that the process that we went through for this hiring
13
was inappropriate --
14
MR. MUKAI: I will object as nonresponsive.
15
MR. MAYNE: Sir, may I complete --
16
MR. MUKAI: It's nonresponsive.
17
CHAIR NAHUINA: Mr. Mayne, just answer the
18
questions that are asked, please, on cross examination.
19
MR. MAYNE: All right. Thank you.
20
BY MR. MUKAI:
21
Q. Would it surprise you to know that the
22
selectee from 1988 to 2014 was also a police sergeant
23
at the Colton County, California Police Department?
24
A. No.
25
Q. Did you know that?
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A. That I knew.
2
Q. Did you know that prior to this appointee
3
being appointed to the Investigator VI position, that
4
this person was also an investigator at the University
5
of Hawai ʻ i at Hilo?
6
A. Yes.
7
Q. Now, again, you would agree with me that the
8
Investigator VI position, it's important in the
9
prosecutor's office, correct? Hawai ʻ i County
10
Prosecutor's Office?
11
A. Yes.
12
Q. Wouldn't you agree with me, then, that the
13
person who was selected should be the best candidate of
14
applicants who were selected?
15
A. Sure. Yes.
16
MR. MUKAI: Okay. Thank you.
17
CHAIR NAHUINA: Thank you.
18
Would you like to redirect?
19
MS. NOMURA: Yeah. I'd like to ask Mr. Mayne
20
some questions.
21
MR. MAYNE: Sure.
22
23
REDIRECT EXAMINATION
24
BY MS. NOMURA:
25
Q. Kelly, given what Mr. Mukai has asked you --
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you know, he's talking about other qualifications that
2
you don't know anything about, or you really don't care
3
about as far as who was selected or -- I think our main
4
concern is the fact that there were some very serious
5
transgressions in the process of this whole
6
recruitment.
7
What I wanted to ask you, though, is that as
8
an investigator in the office, having worked there, you
9
see the importance of working in that office. There
10
are certain procedures, certain ways of handling cases,
11
that you would only know by working in your office. Is
12
that correct?
13
A. That's correct. You certainly would not
14
obtain that experience and that knowledge level within
15
Riverside County, California and -- or even at the
16
University of Hawai ʻ i for whatever short period of time
17
that he happened to be there prior.
18
Q. You have been in the office for how long now?
19
A. I have been in the office since 2005, so I've
20
been there 12 years.
21
Q. Okay. So, you have been through another
22
supervisor --
23
A. Yes.
24
Q. -- before the current one?
25
A. Yes. That's correct.
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Q. Okay. And you do see how the job you do is
2
important to have that background before you go to that
3
supervisory level. I mean, you do know what the
4
supervisor does, obviously? You've worked with a
5
supervisor all this time?
6
A. Yes. Yes, that's correct. The judicial
7
circuits are all different throughout the State. My
8
prior employment had the opportunity to work in every
9
single judicial district within the State as well as in
10
the federal system. And every place is going to have
11
their own nuances and ways to do things that are going
12
to be unique to that situation. Locally here is no
13
different from that.
14
Q. You heard me say earlier that as a V, you
15
would have 87 percent of the knowledge and abilities
16
needed to do the VI level job. And I pulled that from
17
the job description -- from the class specs. on which
18
your job description is written. You're familiar with
19
your job description?
20
A. Yes.
21
Q. Have you ever had the employer tell you that
22
you're not doing your job --
23
A. No.
24
Q. -- right?
25
Have you ever had a notice to improve because
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you're not doing your job correctly?
2
A. No.
3
Q. You mentioned, I think, that you even did
4
temporary assignment to the higher level?
5
A. Yes. That's correct. I was with an
6
investigative agency. I was with the State. And that
7
was supervising a group of Investigator Vs.
8
Q. On a statewide basis?
9
A. On a statewide basis that were conducting
10
ongoing criminal investigations.
11
Q. And did the employer ever tell you that you
12
didn't do a good job then?
13
A. No.
14
Q. Okay. But the employer can tell you that?
15
They can tell you at any time that, "You know what?
16
You need to work on these areas because you're not
17
performing them correctly. You're not doing this
18
aspect of the investigator job correctly"? Isn't that
19
right?
20
A. That's correct.
21
Q. But that has never happened to you?
22
A. Correct.
23
MS. NOMURA: Okay.
24
CHAIR NAHUINA: Thank you.
25 MR. MUKAI: Briefly.
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RECROSS EXAMINATION
2
BY MR. MUKAI:
3
Q. Mr. Mayne, this was an open recruitment,
4
right?
5
A. Yes, sir.
6
Q. Now, you were offered the opportunity to
7
apply for this position. Is that correct?
8
A. Yes, sir.
9
Q. And Mr. Guzman was also given the opportunity
10
to apply for the position, correct?
11
A. Yes.
12
Q. Same thing with Mr. Pang; he was afforded an
13
opportunity to apply for the position, right?
14
A. I believe so.
15
Q. Now, did it restrict – did, somehow, this
16
restrict you or anyone else within the office from
17
applying for this position? Was there any restriction
18
on you applying for this position?
19
A. No.
20 Q. And, again, you would agree with me that the
21
most qualified person for the position should be
22
selected for the Investigator VI position, right?
23
A. You've asked that. Yes, sir.
24
MR. MUKAI: Thank you. Okay.
25
CHAIR NAHUINA: Thank you.
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At this time, I would like to ask if the
2
Board has any questions.
3
MR. HALVORSON: No.
4
MS. NAMAHOE: No, but thank you.
5
MR. CHILLINGWORTH: No questions.
6
CHAIR NAHUINA: I have no questions. So,
7
you can proceed with the next witness.
8
MS. NOMURA: Our next witness is Mr. Daniel
9
Pang.
10
CHAIR NAHUINA: Daniel, I'm going to swear
11
you in.
12
MS. NAMAHOE: Wait, wait, wait. I do have
13
one question before we go to Mr. Pang. Sorry. Beg
14
your pardon. Sorry.
15
16
EXAMINATION
17
BY MS. NAMAHOE:
18
Q. Sir, have you ever done supervisory work for
19
the government?
20
A. Yes, I have.
21
Q. So, you have -- only because when I hear about
22
83 and 87 percent, have you ever done the
23
supervisory -- in your resume, do you have supervisory
24
work that would be equivalent to what would be expected
25
out of someone who would be supervising this particular
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department?
2
A. Yes. Absolutely. And in the documentation
3
that I provided to you, I have my employment records
4
from my previous agency that documented every time-
5
frame when I was assigned as an Investigator VI, which
6
is the equivalent of this position I'm talking about.
7
MS. NAMAHOE: Thank you. No further
8
questions.
9
CHAIR NAHUINA: Thank you.
10
Would you like to redirect anything based on
11
the question?
12
MS. NOMURA: Not based on that.
13
MR. MUKAI: No.
14
CHAIR NAHUINA: Okay. Thank you.
15
At this time, we will move on, then, with the
16
next witness. And I'm going to swear you in.
17
18
DANIEL PANG,
19
having been first duly sworn to tell the truth, the
20
whole truth and nothing but the truth, was examined and
21
testified as follows:
22
23
DIRECT EXAMINATION
24
MR. PANG: Aloha, everybody. My name is
25
Daniel Pang. I'm an Investigator with the Office of
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the Prosecuting Attorney. Short background: I've been
2
11 years with the Department of Public Safety, five in
3
Corrections, six with the Deputy Sheriff, and been
4
employed since May 2015 for the Prosecutor's Office.
5
First off, I want to just say like I'm not
6
here to rant or complain about who got the job or
7
anything. I'm just here about -- I'm just here about
8
the process not being fair and equitable. After
9
working for the State for a total of 14 years this
10
month, I know that if I didn't come forward today,
11
other County employees would not be treated fairly in
12
the future.
13
I submitted to you guys the written documents
14
and the stuff that -- why I thought it was possibly
15
unfair. And you'll notice a lot of documents were
16
signed by administrators and managers to ensure the
17
process would be followed. So, I guess the first thing
18
that was kind of strange to me in this process was it
19
was an external posting; but if you look back at our
20
office, like we always had internal postings, including
21
supervisors' positions, you know, like -- we even had
22
like the IT guy -- the special projects manager is the
23
one that come off the top of my head. All internal
24
recruitment, even though there was only one guy
25
applying was internal. So, that kind of was strange to
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me at first.
2
And then, you know, got the letter from -- on
3
May 2nd -- the Request to Fill form stating
4
insufficient interest within the department for chief
5
investigator for the department, you know, initialed by
6
HMC, then just signed for business manager. And that's
7
what they submitted to you guys. You know, for me,
8
like how did they know like nobody would have interest?
9
Nobody ever -- for me, personally, nobody ever asked me
10
if I was interested or not. And I know there was a few
11
of my co-workers that, you know, submitted letters of
12
intent; so, there was interest within the -- just our
13
office.
14
And as for the six, ended up having four --
15
four of us qualifying. And, you know, like the letter
16
said, the letter -- Request to Fill, it said there was
17
no interest, but we had four applicants, so kind of
18
want to use discrepancy, huh? We went from nobody
19
wanting it to four guys being qualified, so...
20
The second, I don't have a problem with the
21
panel. Just, you know, had four people. And according
22
to the policy, you know, the one dated December 29th,
23
2016, Interview and Selection Procedures for Civil
24
Service Positions, page 3, Section f, "One member may
25
be from outside the department who is knowledgeable
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about the position," but there was two guys. There's
2
no doubt about their -- I mean, like Mr. Mukai said,
3
where they work. I have no doubt with that, but, you
4
know, more than two is -- just one, and you have two,
5
that's a big difference.
6
Then on page 6 under the selections -- the
7
guidelines for the selections of the panelists, you
8
know, section b -- a, about the panel, the number of
9
panel members may vary. One panel member may be from
10
other than the department, either internal, external,
11
or (unintelligible); so, I mean, had two guys. You
12
know, can do the math, so...
13
And then my notice of internal complaint
14
filed July 28, 2017, you guys have. The letter -- the
15
letter states the reasons the office violated the
16
policy was because there were several internal
17
applicants, so -- it also states the violation of the
18
policy was approved by Human Resources; however, that
19
is a false statement, because in the other documents
20
you guys had before stated it wasn't approved. And for
21
me, I was kind of wondering like does HR have the
22
approval to just say, "Oh, hey, you can break the
23
policy. That's all right." So, some questions I had.
24
And, if they did, who did they speak to? And if that
25
approval wasn't right, therefore, you can break the
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policy. It's cool.
2
In closing, I'd like to thank you guys for
3
your guys' time for listen to my statement. You know,
4
I love my job as a prosecuting attorney, and I enjoy
5
serving the community and the County of Hawai ʻ i. I'm
6
not here only for myself, but for all the Hawai ʻ i County
7
employees, to ensure that we have a fair and equitable
8
process. After -- I hope after today we can move
9
on -- move forward in a better and a more positive
10
direction for the County.
11
And I'm asking that, you know, at the end,
12
that this panel redo the hiring process, that we are
13
given a fair and honest chance, that the position
14
should have been open internally to the four of us that
15
applied internally in the beginning, and that we should
16
have -- be given a fair panel that -- provided by the
17
County hiring policies. Thank you, guys.
18
MR. MUKAI: I have a couple questions.
19
20
CROSS EXAMINATION
21
BY MR. MUKAI:
22
Q. Mr. Pang, how long have you been at the
23
Office of the Prosecuting Attorney?
24
A. May 1, 2015.
25
Q. So, two years?
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A. Yeah. Two-and-a-half, two-and-
2
three-quarters.
3
Q. When you say, well, it's always been
4
external -- or internal posting within the department,
5
that's your experience with two years at the
6
Prosecuting Attorney?
7
A. Well, the last couple promotions for the --
8
like the special projects and the manager and the IT
9
guy, yeah, was internal. I mean, that's what they said
10
when they get the bulletin, like, "Oh," you know, "good
11
news. So-and-so been elected from the internal
12
recruitment process." That's been my experience that I
13
have so far.
14
Q. So, your experience with the prosecutors is
15
only two years. Is that right?
16
A. Yeah. I mean, over two years. Two-and-a-
17
half years.
18
Q. Two-and-a-half.
19
Now, again, because this was an open
20
recruitment, you could apply, right? You applied?
21
A. Yeah.
22
Q. And there was nothing restricting you from
23
applying, correct?
24
A. No.
25 Q. And you would agree, again, that the best
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person for the Investigator VI position should be
2
selected for the position -- fair?
3
A. I don't think that ever came up in my -- in
4
my complaint or my grievance. Wasn't about who was
5
hired. It was about the -- from the beginning, to hit
6
the interview room, way before the four guys wen'
7
question us, I mean, that's the thing I had was like --
8
I mean, yeah, you knew it was hard no matter what, but
9
from the time that thing wen' post to the time we hit
10
the interview room, that was all wrong already.
11
Q. Well, let me ask you this. When you talk
12
about the interview, do you know where you scored?
13
A. Yeah, probably on the bottom, but I never
14
disputed my scores. I never did come here to say like
15
that. I never did say I deserve the job or I'm
16
complaining who got the job. Yeah, the guy who got the
17
job, he one good brother, but the point is -- my whole
18
thing is from the beginning, when the thing first
19
supposed to be internal to we at the interview, before
20
the first question was even asked, there was a lot of
21
things that was kind of fishy and strange already. So,
22
that was just -- that was -- that's my -- my questions
23
I had. Wasn't about who got the job or what I wen'
24
score, because I not going sit here and puff my
25
chest -- "Hey, brah, I need the job."
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Q. Did you tell your union about that?
2
A. I try go through internal complaint
3
because --
4
Q. No. When you applied for this Investigator
5
VI position, what was your position at the Prosecuting
6
Attorney's Office?
7
A. Investigator IV.
8
Q. You would agree that you went -- if you were
9
selected, it would be a promotion. Is that fair?
10
A. Yeah, probably.
11
Q. Okay.
12
A. From IV to VI, yeah.
13
Q. Okay.
14
MR. MUKAI: If I may ask Mr. Mayne just that
15
one question for the record.
16
CHAIR NAHUINA: Yes.
17
MR. MUKAI: Mr. Mayne, you were an
18
Investigator V. Is that correct?
19
MR. MAYNE: I am Investigator V -- yes.
20
MR. MUKAI: And when you applied for the
21
position of Investigator VI, would that be a promotion
22
for you?
23
Would that be a promotion for you?
24
MR. MAYNE: Yes.
25
MR. MUKAI: And you are an HGEA Bargaining
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Unit 13 member. Is that fair?
2
MR. MAYNE: Yes.
3
MR. MUKAI: And were you at the time you
4
applied for the promotion?
5
MR. MAYNE: What is your question, sir?
6
MR. MUKAI: Were you a HGEA Bargaining Unit
7
13 member at the time you applied for the promotion to
8
an Investigator VI position?
9
MR. MAYNE: Yes, sir, I was.
10
MR. MUKAI: And you are currently a
11
Bargaining Unit member of the HGEA Unit 13. Is that
12
correct?
13
MR. MAYNE: Yes, sir.
14
MR. MUKAI: Okay, thank you.
15
BY MR. MUKAI:
16
Q. Mr. Pang, one more question. At the time you
17
applied for this promotion to the Investigator VI
18
position, would you agree with me that you were a
19
member of the Bargaining Unit -- HGEA Unit 13 --
20
Bargaining Unit 13 member?
21
A. Yeah.
22
Q. And you're still an HGEA Bargaining Unit 13
23
member, correct?
24
A. (Nodded).
25
Q. And based upon your testimony that as an
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Investigator IV, the Investigator VI position at the
2
Prosecuting Attorney's Office would be a promotion. Is
3
that fair? Is that true? For you?
4
A. For me?
5
Q. Yes.
6
A. Yeah.
7
MR. MUKAI: Okay. Thank you. I have nothing
8
further.
9
CHAIR NAHUINA: Thank you.
10
Would you like to re...
11
12
REDIRECT EXAMINATION
13
BY MS. NOMURA:
14
Q. So, Daniel, I think when you went through the
15
interview process, there were, you said, already things
16
that were fishy to you. As far as the questions that
17
were asked, did it get to -- any of them actually
18
address your experience as an investigator in the
19
Prosecuting Attorney's Office? Because I talked
20
previously about --
21
A. Yeah.
22
Q. -- your having 83 percent of the knowledge
23
and abilities required --
24
A. You know what they asked about the office?
25
If the questioning attorney comes to you and says, "I
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need this -- this copy right now, what you going to
2
do?" That's the only -- what I can remember off the
3
top of my head was like the only question pertaining to
4
that was. "If you get someone come to you, 'Hey, I
5
need this copied right now,' as a supervisor, what you
6
going do?" That was the question that I remember being
7
the only thing about what we do.
8
Q. Okay. And as we said, you're Investigator
9
IV, and you applied for the Investigator VI because you
10
met the minimum qualification requirements, right?
11
Obviously --
12
A. Yes.
13
Q. -- because you were part of the --
14
A. Yes.
15
Q. -- applicant pool.
16
A. Yes, I met the qualifications.
17
Q. Right.
18
A. I mean, I not here for --
19
Q. Right.
20
A. -- to debate what he saying, who got the job
21
or the qualifications. It's just about, from the
22
beginning to hit the door was already -- I mean, if you
23
read the letter from my -- the letter I'm referring to,
24
they know already. The office knew they were breaking
25
those two things you mentioned but, then -- yet --
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Q. "Those two mentioned" meaning the internal --
2
they didn't go internal?
3
A. Yeah. And they said -- they referenced that
4
Human Resources wen' approve. So, my only question was,
5
well, who did 'em? Who -- who in HR wen' approve 'em?
6
And do they have that authority to grant that wish?
7
And if they was, was it in writing? Like, you know, if
8
they say like, "Oh, man over here wen' say can," and
9
poof, that's it, we're done," you know, it's kind of
10
like just stuff that I -- questions I had.
11
Q. Can I ask you to -- I think you referenced
12
the audit report that came out about hiring practices
13
in the County.
14
A. Yeah.
15
Q. Did that come to mind that this was kind of
16
like --
17
A. Yeah.
18
Q. -- the same thing?
19
A. Yeah, it's kind of. You know, I mean, as I
20
say, with the internal, if you look back, that audit --
21
you know, the only thing they get at was a lot of 'em
22
was internal. Went straight internal. And cannot
23
prove only had one. A couple of them I know only had
24
one, because I asked the guy, but, I mean, we get -- we
25
had four guys and we went external, but sometimes you
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got one guy and two guys and you go internal. You
2
know, to me, if you -- I mean, I not the smartest guy
3
in the room, but if you -- you can kind of figure out
4
who you looking for.
5
Q. And, Daniel, you know, you said you were
6
there from 2015, and that's two-and-a-half years. In
7
that time, did your supervisor or maybe the prosecutor
8
ever tell you that "You know what? You're not
9
performing at the level you should be, so you're not
10
doing this part of the job that you should be doing?"
11
A. Oh, no. I got praises because I'm taking on
12
more work and going outside of -- you know, we doing
13
more -- more proactive investigative work; so, it was
14
more like we getting one compliment, not just, "Hey,
15
good job." It was, "Hey, thank you for helping out and
16
doing more."
17
Q. And your conduct was never in question. You
18
never had a disciplinary action or --
19
A. No.
20
Q. -- any kind of charge of violating a policy
21
or anything like that?
22
A. No.
23
Q. Okay. Did you feel like, then, this was kind
24
of -- this whole recruitment process was kind of a
25
shibai?
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A. It could be. I mean, you know, I not going
2
blame -- I not going accuse nobody of nothing but, you
3
know, you add and subtract already and look at the
4
past -- you know, past practices what the County does.
5
I mean, I not going blame anybody because I cannot read
6
their mind, cannot prove that but, you know, it looks
7
like a duck, quacks like a duck, you can kind of make
8
that assumption.
9
CHAIR NAHUINA: Thank you.
10
MR. MUKAI: I have a couple more questions,
11
Mr. Pang.
12
13
RECROSS EXAMINATION
14
BY MR. MUKAI:
15
Q. Do you know who Doug Adams is?
16
A. On the panel.
17
Q. Do you know that he's a member of the Ethics
18
Board?
19
A. I never disagreed on anybody's
20
qualifications.
21
Q. I understand.
22
Okay. Now --
23
A. I don't think I would ever like question my
24
score, like, "Hey, the thing too old" or "This guy not
25
qualified." I never did say that or implicate that.
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It was just about the process, about from open
2
recruitment, the letter signed, intent to fill, the
3
people who walk in the door, the letter for denial
4
was -- we know had more guys, which we never have, and
5
we supposed to only have one; we get two. Just stuff
6
like that. I was just, you know, concerned.
7
Q. Mr. Pang, is it against the law for Mr. Roth
8
or the prosecutor to have a open recruitment for the
9
Investigator VI position?
10
A. Well, I don't know the law, if that...
11
Q. Again, you would agree that the person to be
12
selected into the Investigator VI position should be
13
the most qualified, right?
14
A. I don't think I ever questioned that; but
15
yeah, you want the best always.
16
Q. You also mentioned that you're challenging
17
the process, correct? Do you remember testifying to
18
that?
19
A. Yeah.
20
Q. And, again, we go back to you being a
21
Bargaining Unit 13 member, correct?
22
A. Yeah.
23
Q. As an Investigator V --
24
A. IV.
25
Q. IV.
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A. IV.
2
Q. -- to be selected into the Investigator VI
3
position would be a promotion, correct? For you?
4
A. I think I answered that one. Yeah.
5
MR. MUKAI: Okay, thank you. I have no...
6
CHAIR NAHUINA: Would you like to
7
redirect?
8
MS. NOMURA: No. I think it's fairly...
9
CHAIR NAHUINA: Thank you.
10
Any of the Board Members have any questions?
11
MR. TAM: None.
12
MS. NAMAHOE: Thank you.
13
MR. CHILLINGWORTH: No questions.
14
MR. HALVORSON: No questions.
15
MS. NOMURA: And, last but not least, we have
16
Mr. Guzman, who is going to present his statement.
17
CHAIR NAHUINA: Mr. Guzman.
18
19
CLEMENT GUZMAN,
20
having been first duly sworn to tell the truth, the
21
whole truth and nothing but the truth, was examined and
22
testified as follows:
23
24
DIRECT EXAMINATION
25
MR. GUZMAN: My name is Clement Guzman. I'm
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currently employed as a Investigator V in the Hawai ʻ i
2
County Office of the Prosecuting Attorney.
3
On May 14, 2017, a vacancy for the position
4
of chief investigator was announced, and I subsequently
5
applied for the position. At the time of my
6
application, I possessed nearly 27 years of experience
7
within the State and County of Hawai ʻ i, including 18
8
years of supervisory, managerial, and administrative
9
experience with the State of Hawai ʻ i Department of
10
Public Safety. At the time of my application, I had
11
been employed with the Office of the Prosecuting
12
Attorney for nearly six-and-a-half years, having worked
13
effectively in both the Kona and Hilo offices.
14
At the time of my application, I had been
15
working as an Investigator V, the grade right below the
16
Investigator VI position I was applying for, for over
17
five years. Throughout those five years as an
18
Investigator V, I consistently received favorable
19
performance evaluations, and there was never any
20
expression from management in any area in need of
21
improvement or anything that would suggest
22
unsuitability for advancement to the Investigator VI
23
position.
24
Throughout my career with both the State and
25
County, I cultivated invaluable relationships with
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various law enforcement, judicial, social service,
2
labor, and other related agencies throughout the State
3
that are critical to the performance of the duties of
4
the Investigator VI.
5
On June 27th, 2017, I was interviewed for the
6
vacant Investigator VI position. The interview panel
7
consisted of the following individuals: Investigator V
8
Patricia Breault, Victim Witness Program Director
9
Deborah Chai, Mr. Lawrence Weber, and Mr. Douglas
10
Adams. The composition of the interview panel was in
11
violation of the Office of Prosecuting Attorney
12
interview selection procedures for civil service
13
position on the following points: Patricia Breault's
14
Investigator V job classification was not equal to or
15
higher than the Investigator VI position being filled
16
as is required by the interview procedures. Two
17
non-departmental employees, Lawrence Weber and Douglas
18
Adams, were on the interview panel when the procedures
19
allow for only one member to be from outside the
20
department.
21
In addition to the violations concerning the
22
composition of the interview panel, three of the
23
interview questions referred to a specific source, a
24
Gilbert Investigation Manual, that is not generally
25
provided to candidates. The Office of the Prosecuting
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Attorney interview and selection procedures for civil
2
service positions guidelines for developing interview
3
questions and/or assessment exercises states that
4
questions should be designed to elicit qualities other
5
than technical knowledge. The questions regarding the
6
Gilbert source suggested inquiry into something that
7
goes far beyond technical knowledge.
8
Hawai ʻ i Revised Statutes Chapter 76-1, Merit
9
Principle, provides for the selection of persons based
10
upon their fitness and ability for public employment
11
and for the retention of employees based on their
12
demonstrated appropriate conduct and productive
13
performance. It was also the purpose of the chapter to
14
build career service in government free from coercive
15
political influences.
16
The chapter provides that in order to achieve
17
these purposes, it is the clear policy of the State
18
that the Human Resources program within each
19
jurisdiction be administered in accordance with the
20
following -- which I'm going to try to skim over
21
because I believe Mr. Mayne already addressed this --
22
equal opportunity for all in compliance with laws
23
prohibiting discrimination. Impartial selection of
24
individuals for public service, incentives for
25
competent employees within the service, and reasonable
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job security for competent employees.
2
The filling of the vacant Investigator
3
VI Chief Investigator position within the Office of the
4
Prosecuting Attorney should have been an internal
5
recruitment. However, an open recruitment was
6
conducted, and the candidate selected came from an
7
outside jurisdiction. Rather than considering
8
promotion -- promoting from within the department, the
9
Office of the Prosecuting Attorney chose to go beyond
10
the jurisdiction of the County of Hawai ʻ i to make its
11
selection.
12
It is my understanding that the reason for
13
having an open competitive recruitment was based on
14
information that the Office of the Prosecuting Attorney
15
provided to the Department of Human Resources, stating
16
that there was insufficient interest within the
17
department for the Investigator VI position. As has
18
been mentioned before, that is a direct quote from the
19
Department of Human Resources request to fill form for
20
the Investigator VI position under the justification
21
for the open competitive recruitment option.
22
Contrary to what was represented to the
23
Department of Human Resources by the Office of the
24
Prosecuting Attorney, on March 8th, 2017, more than two
25
months prior to the May 14th, 2017 opening date for
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applications for the Investigator VI position, I
2
submitted a letter of intent to Prosecuting Attorney
3
Mitchell Roth and First Deputy Prosecuting Attorney
4
Dale Ross stating my intent to apply for the vacant
5
position and noting my aforementioned extensive
6
qualifications for the position. I'm also aware that
7
Investigator V Kelly Mayne here, present today, and
8
Investigator Breault, who subsequently chose not to
9
apply and ended up being placed on the interview panel
10
to choose the Investigator VI, her supervisor, also
11
submitted letters of intent to apply for the position.
12
Clearly, the assertion by the Office of the
13
Prosecuting Attorney that there was insufficient
14
interest within the department for the vacant position
15
was a false assertion and rather was meant to
16
facilitate the department's endeavor to exclude the
17
qualified individuals within the Office of the
18
Prosecuting Attorney in favor of a person of interest
19
hire from outside the jurisdiction.
20
In the course of the appeal of this matter,
21
other issues have been discovered. On July 25th, 2017,
22
I received a written notification from Office of the
23
Prosecuting Attorney Business Manager Lee Lord stating
24
that he had been assigned to conduct an investigation
25
into my Step 1 appeal of this matter. One day later,
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in a meeting with Mr. Roth, I received his written
2
response to my Step 1 appeal. And on July 27, 2017, I
3
made a follow-up request to Mr. Roth wherein I
4
requested, amongst other things, a copy of Mr. Lord's
5
written investigation report.
6
August 2nd, 2017, Mr. Roth responded, "It
7
wasn't a formal investigation. Mr. Lord did not give
8
me a formal report. I received information verbally
9
from him. That was all included in my response to your
10
internal complaint." This clearly indicates that the
11
Office of the Prosecuting Attorney administration
12
failed to properly consider and respond to my appeal;
13
and absent -- a written investigative report from
14
Mr. Lord, one is left wondering what exactly Mr. Lord,
15
if anything, did in the 24 hours or less time lapsed
16
between my receipt of the written notification of the
17
investigation and my receipt of Mr. Roth's written
18
response to my appeal which, in Mr. Roth's own words,
19
relied on verbal information given to him by Mr. Lord
20
from his so-called investigation.
21
Secondly, in his response to my Step 1
22
appeal, Mr. Roth, in attempting to justify Investigator
23
Breault's presence on the interview panel and the extra
24
non-departmental employee's presence on interview panel
25
states that both of those matters were approved by the
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Department of Human Resources.
2
First, approval to violate procedures does
3
not justify violating the procedures. The decision to
4
go ahead and violate the procedures lies solely with
5
Mr. Roth, and a decision to violate the procedures
6
cannot be justified by citing some alleged approval to
7
do so.
8
Furthermore, as has been mentioned before,
9
I'm aware that when a request for information was made
10
on Investigator Mayne's behalf, the Department of Human
11
Resources, asking for verification of the approval
12
given to violate the procedures, the response given was
13
that no approval had been given.
14
Thirdly, on August 8th, 2017, I had a meeting
15
with Deputy Managing Director Barbara Kossow regarding
16
my Step 2 appeal of this matter. During the meeting,
17
she showed me a copy of a document showing the scores
18
of all the candidates interviewed for the vacant
19
Investigator VI position. All names were redacted with
20
the exception of Alan Koaho, the selected candidate,
21
myself, and Investigator Mayne, and Investigator IV --
22
Daniel Pang -- who is also here present with me.
23
Upon viewing the scores, I noted to
24
Ms. Kossow that the unidentified top score scored 34
25
points higher than Mr. Koaho. A recommendation
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memorandum to Mr. Roth and Mr. Ross dated July 1st --
2
sorry, July 11th, 2017 -- from Ms. Chai, the
3
chairperson of the interview panel, on behalf of the
4
interview panel, recommends Mr. Koaho based on personal
5
references contained in a background investigation
6
while failing to provide any justification for not
7
recommending the top-scoring candidate; and while such
8
justification may not be specifically required, the
9
failure to provide justification for not choosing
10
someone who scored 34 points more than the selected
11
candidate clearly hints at impropriety.
12
Finally, also on July 11, 2017 -- I'm sorry.
13
Also, in the July 11, 2017 recommendation memorandum to
14
Mr. Roth and Mr. Ross, Ms. Chai, on behalf of the
15
interview panel, stated that the panel made a unanimous
16
decision to recommend Mr. Koaho for the position. On
17
the following date, in an Investigations Unit meeting
18
conducted by Investigator Breault -- acting as a
19
temporary assigned Investigator VI -- Investigator
20
Breault verbally stated that she was not in favor of
21
recommending Mr. Koaho for the position. Investigator
22
Breault's statement was witnessed by all Investigations
23
Unit staff members present at that meeting, both in
24
person at the Hilo office and in the Kona office via
25
videoconference.
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I again note that the recommendation
2
memorandum was written by Ms. Chai and, therefore, the
3
characterization of Mr. Koaho's recommendation as being
4
unanimous is her characterization; however,
5
Investigator Breault's statement that she was not in
6
favor of recommending Mr. Koaho clearly shows that the
7
recommendation was not unanimous. Even further, after
8
stating that she was not in favor of Mr. Koaho's
9
recommendation, all Investigator Breault could say on
10
behalf of Mr. Koaho was that he was personable.
11
Personable, not qualified and certainly not competent,
12
as incompetence has been the overriding theme of
13
Mr. Koaho's time as the chief investigator. So, when
14
Mr. Mukai brings up the subjects of the most qualified
15
candidate being selected, I think we really have to
16
look at who really was qualified.
17
In conclusion, it is abundantly clear that
18
the recruitment and selection for vacant Investigator
19
VI Chief Investigator position within the Office of the
20
Prosecuting Attorney was grossly flawed and
21
unjustifiably violated established policies and
22
procedures. The administration of the Office of the
23
Prosecuting Attorney clearly and deliberately
24
disregarded the Merit Principle and endeavored to
25
exclude highly qualified candidates within the
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department in favor of a person of interest hire from
2
outside the jurisdiction.
3
It is further clear that the administration
4
of the Office of the Prosecuting Attorney blatantly
5
engaged in dishonest practices in an attempt to justify
6
the flawed process and to achieving its shamefully
7
unethical goal. I am confident that this Merit Appeals
8
Board will see through the smoke screen of corruption
9
that the administration of the Office of the
10
Prosecuting Attorney has put up in this case and
11
rightfully reverse the improper recruitment and
12
selection process in this matter.
13
Thank you for your time here today.
14
15
CROSS EXAMINATION
16
BY MR. MUKAI:
17
Q. Okay, Mr. Guzman, my name is John Mukai.
18
A. Yes.
19
Q. I know we've met.
20
A. Yes.
21
Q. Now, you mentioned that the Merit Principle
22
should apply, correct?
23
A. That is my contention, yes.
24
Q. Okay. And you would agree that civil service
25
statutes should apply, correct?
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A. Yes.
2
Q. And with regard to your position at the time
3
you applied for the Investigator VI position, you were
4
an Investigator V. Is that correct?
5
A. That's correct. Yes.
6
Q. So, if you had received the Investigator VI
7
position, it would be a promotion in the Prosecuting
8
Attorney's Office, correct?
9
A. Yes, it would.
10
Q. Okay. Now, you also mentioned that you are
11
challenging the process, correct?
12
A. I'm alleging that it was improperly done,
13
yes.
14
Q. Again, civil service statutes, rules,
15
regulations, and procedures should apply, correct?
16
A. Yes.
17
Q. You are a member of the HGEA Bargaining Unit
18
13, correct?
19
A. Yes, I am.
20
Q. You were also a member of the HGEA Unit 13
21
Bargaining Unit at the time you applied for the
22
Investigator VI position, correct?
23
A. Yes, I was.
24
Q. And you are still a member of the HGEA Unit
25
13 Bargaining Unit. Is that correct?
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A. Yes, I am.
2
Q. In fact, you have HGEA representation here,
3
right, and behind you, fair?
4
correct. Yes.
A. That is
there anything illegal about having
5 Q. Now, is
6
an open recruitment for the Investigator VI position,
7
do you know?
8
A. No, there is nothing illegal.
9
Q. Now, you are also saying that there are
10
certain rules. Would it surprise you to say that these
11
certain rules and provisions that you cite would also
12
state "where applicable or appropriate"?
13
A. It would not surprise me, and I believe I'm
14
aware of that terminology, yes.
15
Q. Now, again, you were allowed the opportunity
16
for this promotion, correct?
17
A. Yes, I was.
18
Q. There's nothing that restricted you from
19
applying for the position of Investigator VI, which is
20
a promotion, correct?
21
A. No, there was not.
22
MR. MUKAI: Now, you know, I have to raise my
23
motion again. I think right now it is clear on the
24
record that for each of these members, they are covered
25
by the HGEA Unit 13 agreement governing promotions.
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It's clear on the record now, and I think anything
2
further might be improper and violative, potentially,
3
of HRS Chapter 89. So, again, I renew my motion to
4
dismiss.
5
CHAIR NAHUINA: Thank you. Are you done
6
with your cross examination?
7
MR. MUKAI: Yes. Yes.
8
CHAIR NAHUINA: You are done with your
9
cross examination?
10
MR. MUKAI: Yes.
11
CHAIR NAHUINA: Thank you.
12
Would you like to redirect?
13
MS. NOMURA: I think -- I think Mr. Guzman
14
and all of the -- all three Appellants --
15
MR. CHILLINGWORTH: Sorry, I can't hear you.
16
MS. NOMURA: I'm sorry. I think Mr. Guzman
17
and all three of the Appellants did speak from the
18
heart as to what they believe happened.
19
20
REDIRECT EXAMINATION
21
BY MS. NOMURA:
22
Q. I guess my question, again, to Mr. Guzman is
23
did you feel that the interview process gave you credit
24
for the experience you had which, according to the
25
class specs., are so intertwined with the Investigator
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VI? Did the interview process really get to that
2
experience and the qualifications you had as an
3
investigator in that office?
4
A. No. Absolutely not.
5
MS. NOMURA: Okay. That's all I have. Thank
6
you.
7
CHAIR NAHUINA: Thank you.
8
Mr. Mukai?
9
10
RECROSS EXAMINATION
11
BY MR. MUKAI:
12
Q. Mr. Guzman, you just stated just now again
13
that you believe the process was flawed, correct?
14
A. That's correct.
15
Q. Okay. And, again, for you, this would have
16
been a promotion, correct?
17
A. Yes.
18
MR. MUKAI: Okay. Thank you. I have nothing
19
further.
20
Again, I will once again raise -- I think the
21
record is absolutely clear right now. And I don't
22
think, based on Hawai ʻ i law, you can proceed, so I will
23
once again renew my motion to dismiss.
24
CHAIR NAHUINA: Thank you, Mr. Mukai. We
25
have already ruled on that motion.
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At this time, do you have any other witnesses
2
you would like to call?
3
MS. NOMURA: I would like to be able to speak
4
with -- is this going to happen? I don't know -- with
5
the prosecutor and -- are they being called as
6
witnesses? Are they going to be available to answer
7
questions? Because I think that's what's missing in
8
here.
9
CHAIR NAHUINA: Mr. Mukai, is it your plan
10
to --
11
MR. MUKAI: I was going to put on several
12
witnesses on the County's behalf.
13
MS. NOMURA: Then we can wait with our
14
questions.
15
CHAIR NAHUINA: So, at this time, are you
16
resting?
17
MS. NOMURA: Yes.
18
MR. CHILLINGWORTH: Sorry, can I ask a
19
question?
20
CHAIR NAHUINA: Oh, yes.
21
22
EXAMINATION
23
BY MR. CHILLINGWORTH:
24
Q. We haven't established for the record
25
Mr. Guzman was not the top-ranked applicant in this
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hiring process.
2
Can we clear that up, Mr. Guzman?
3
A. I was not, but I was highest ranked amongst
4
the internal applicants.
5
MR. CHILLINGWORTH: Okay. Thank you.
6
CHAIR NAHUINA: Any other questions?
7
MS. NAMAHOE: No, thank you.
8
MR. TAM: None.
9
CHAIR NAHUINA: And then, would you like
10
to redirect off of the question?
11
MS. NOMURA: No.
12
Again, I think the ranking of these
13
applicants individually, where they stood in this
14
process, again, we were not -- that wasn't our primary
15
focus. I think the focus was that it was so blatantly
16
unfair in every step of the way that we didn't see any
17
way that you could, you know, validate that this was
18
the best-selected candidate and that, given the breadth
19
of experience that all three of the Appellants had and
20
the question -- the basis of the interview -- I'm
21
sorry.
22
CHAIR NAHUINA: Thank you. I'm going to
23
mention this is not the time for argument here.
24
MS. NOMURA: Okay, sorry.
25
CHAIR NAHUINA: And I actually was amiss,
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and I apologize. I should have asked Mr. Mukai if he
2
wanted to redirect off of the question by the Board.
3
MR. MUKAI: No.
4
CHAIR NAHUINA: Thank you.
5
I think this will be a nice time to go to
6
recess and maybe go to lunch. 11:27.
7
Can I entertain a motion for recess?
8
MR. MUKAI: How long?
9
CHAIR NAHUINA: I apologize. It's 11:30
10
now. 12:00? 12:15? 45 minutes?
11
MR. MUKAI: Can you make it 12:30?
12
CHAIR NAHUINA: Yes.
13
MR. MUKAI: Just for scheduling purposes, is
14
there any idea when the Board plans to adjourn for
15
today?
16
CHAIR NAHUINA: I don't know that we set a
17
time. I don't have...
18
MR. TAM: I don't have any time.
19
CHAIR NAHUINA: We've had meetings go
20
beyond 4:00. I can't speak to this one. Is that a
21
possibility for this Board?
22
MS. NAMAHOE: Well, I do need to catch a
23
plane this afternoon, so...
24
CHAIR NAHUINA: So, let's put a --
25
MS. NAMAHOE: That we end by 3:30.
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CHAIR NAHUINA: So, 3:30 would be our time.
2
Okay.
3
MS. NAMAHOE: Thank you.
4
MR. TAM: I move that we go into recess.
5
CHAIR NAHUINA: Can I hear a second?
6
MS. NAMAHOE: Second.
7
CHAIR NAHUINA: It is moved and seconded
8
that we move into recess until 12:30.
9
All in favor say "Aye."
10
(All Board Members responded affirmatively.)
11
CHAIRMNAHUINA: Any opposed, same sign.
12
It is moved and seconded that we go into
13
recess. We will reconvene at 12:30.
14
(The hearing adjourned at 11:28 a.m.)
15
CHAIR NAHUINA: We're here to reconvene
16
the hearing. It is 12:35, and we will start off with
17
the County's presentation at this time.
18
MR. MUKAI: Thank you. We would call Mr. Lee
19
Lord as a witness.
20
21
LEE LORD,
22
having been first duly sworn to tell the truth, the
23
whole truth and nothing but the truth, was examined and
24
testified as follows:
25
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CHAIR NAHUINA: Thank you. Proceed.
2
MR. MUKAI: And for the Merit Appeals Board,
3
I will be referring to the County's exhibits which we
4
submitted previously to the witness for Mr. Lord and
5
Mr. Roth's testimony.
6
MR. CHILLINGWORTH: Mr. Mukai, can you ask
7
the witness to spell his last name, please.
8
9
DIRECT EXAMINATION
10
BY MR. MUKAI:
11
Q. Can you spell your last name, please?
12
A. Lord, L-o-r-d.
13
MR. CHILLINGWORTH: Thank you.
14
And I would ask that the court reporter swear
15
the witness.
16
MR. HALVORSON: The Chair did.
17
CHAIR NAHUINA: I've already sworn
18
Mr. Lord in.
19
MR. CHILLINGWORTH: Thank you.
20
BY MR. MUKAI:
21
Q. Mr. Lord?
22
A. Yes.
23
Q. What is your current position?
24
A. I'm the Business Manager for the Prosecutor's
25
Office in the County.
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Q. And how long have you held that position?
2
A. Since January of 2013.
3 Q. Can you describe for the Board what your
4
duties and responsibilities are at the Prosecuting
5
Attorney's Office.
6
A. I oversee and supervise the fiscal staff of
7
the prosecutor's office, the management information
8
staff, and the human resources clerk, and I direct -- I
9
don't supervise, but I direct Tammy, Mitch's private
10
secretary, in human resources duties also.
11
Q. Okay. Now, prior to your employment at the
12
Prosecuting Attorney's Office, what was your
13
occupation? What did you do?
14
A. My most previous position was as the division
15
manager for the County of Hawai ʻ i for Vehicle
16
Registration and Driver's Licensing.
17
Q. And, again, I guess, can you just briefly
18
describe for the Board what your duties were at the
19
County Motor Vehicle Registration.
20
A. I was there for five years, and I supervised
21
the supervisor of the motor vehicle registration,
22
driver's license, and periodic motor vehicle
23
inspections called safety checks; and I was
24
responsible for the fiscal, the human resources, and
25
the operations side. I, basically, did everything
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that needed to be done -- or oversaw and supervised
2
everything that needed to be done as far as operations
3
and human resources.
4
Q. Now, can you take a look at County's Exhibit
5
1.
6
A. Yes.
7
MS. NAMAHOE: 17-04.01?
8
MR. MUKAI: Is that correct? I'm not sure.
9
It's Exhibit 1 to the County.
10
MS. YAMADA: On the tabs.
11
MR. MUKAI: That's correct, 17-04.06.
12
MS. NAMAHOE: 06. Thank you.
13
BY MR. MUKAI:
14
Q. Now, at some point in time, there was a
15
vacancy at the Prosecuting Attorney's Office for an
16
Investigator VI. Is that correct?
17
A. Correct.
18
Q. What happened? Why was there an opening?
19
A. Mr. Dean Sumida previously occupied the
20
position. He retired.
21
Q. Now, with regard to Exhibit 1, can you
22
describe for the Board what this document is.
23
A. The Investigator V, these are the Department
24
of -- County -- sorry -- Department of Human Resources
25
for the County Investigator V. We call them specs.
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They are the -- it's on the County website maintained
2
at the Human Resources Department. And, basically, it
3
describes for the Investigator VI position the duties,
4
the distinguishing characteristics, examples of duty,
5
minimum qualification requirements, including training
6
and experience, supervisory aptitude, qualification for
7
firearm, license requirement, knowledge of, ability to,
8
and the physical age requirements of the physical
9
effort grouping light. And we would use this to create
10
or revise our job descriptions for the specific
11
positions that we had at our office. And that's what
12
we use it for.
13
Q. Okay. So, basically, what Exhibit 1 is, just
14
describes what the Investigator VI position is. Is
15
that fair?
16
A. At the County, yes. But our job description
17
at our office focuses and revises it a little bit for
18
our office.
19
Q. Okay. Take a look at Exhibit 2.
20
A. This is our organizational chart.
21
CHAIR NAHUINA: Excuse me, Mr. Lord. I
22
don't mean to interrupt. I apologize. I'm going to
23
ask would you like to look at the documents? They are
24
in front of you. You can find them if you would like.
25
The exhibit is right after the green papers in there.
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MR. LORD: Thank you.
2
CHAIR NAHUINA: Of course. Thank you,
3
Mr. Lord. I apologize for interrupting.
4
MR. LORD: No problem.
5
This is our current -- I don't know if it had
6
been revised at that point in time. This is one of the
7
pages of our organizational chart showing the
8
investigators unit with the Investigator VI at the top,
9
showing that there's two areas, Hilo and Kona, with
10
Investigators IV and V supervised on both sides. This
11
is maintained by us, and then changes need to be
12
approved by the Department of Human Resources.
13
BY MR. MUKAI:
14
Q. Take a look at Exhibit 3.
15
A. Yes. This is our position description for a
16
specific position -- position number is in the top
17
right corner -- 02985, which is the position that was
18
interviewed for, and it describes basic information
19
about the position, where it's at, what the number is,
20
and the major duties and responsibilities, duties
21
summary, description of duties and responsibilities.
22
Last page is the minimum qualification requirements.
23
Once again, the supervisory aptitude, qualification for
24
firearms licenses, knowledge, abilities, physical
25
requirements. And then, the very last page describes
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who this position supervises.
2
Q. Okay. Let me ask you, there's been some
3
testimony about certain applicants saying that, "Hey,
4
what about all my prior experience, my skills, and
5
abilities?" Do you have any comment about that?
6
A. When we make up the questions for the
7
interviews for the interview panel and the panel is
8
involved, we are trained by Human Resources to stick to
9
looking at skills, abilities, and experience. So, we
10
have to relate it back to our job description that we
11
have in our office so that our questions are geared
12
towards asking -- you know, are we asking about a
13
skill? Are we asking about ability? Are we asking
14
about experience?
15
Q. And would people have the ability to write
16
about their prior skills, abilities, and experience?
17
A. Yes. Whether it's an internal recruitment or
18
an external recruitment or an external recruitment
19
where people from internal also apply, they have to go
20
on our County website applicant application, and that's
21
where you fill out your previous experience, all your
22
skills, your education, all the information that you
23
want to share with the panel in writing. And then,
24
anyone is also welcome -- I think they can attach their
25
resume there or carry their resume to the interview
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panel.
2
Q. Now, take a look at Exhibit 4. Can you
3
describe for the panel what that document is.
4
A. When a position becomes vacant, we, as a
5
Department, need to complete a Request to Fill form.
6
Tammy, Mitch's private secretary, completes this form
7
with the information that we provide to her. It gets
8
reviewed. The department head signs it. And we send
9
it to Human Resources to initiate the whole process of
10
hiring somebody.
11
Q. Now, I see that -- is that your signature at
12
the bottom of Exhibit 4?
13
A. Yes. I had permission in writing to sign for
14
Mr. Roth when he's unavailable.
15
Q. Okay. Now, and it says here -- this would be
16
an open competitive recruitment, right? Do you see
17
that? Right above your signature.
18
A. Yes.
19
Q. Okay. Now, there has been some reference to
20
this sentence regarding insufficient interest within
21
the department for chief investigator position.
22
What does that mean? What happened?
23
A. I know -- this was signed, I believe, by
24
Gabriella Cabanas -- Cabanas -- and my recollection at
25
the time was Gabriella called Tammy to ask why it was
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an open recruitment at this point in time; and we
2
provided her the information that we had only received
3
two written requests to be considered by the time this
4
was being filled out. One was from Pat Breault, who
5
verbally told us she did not want to be considered, and
6
then we did also receive an e-mail from one of our
7
internal applicants to Tammy who said, "I'm interested
8
in the position. What happens if I'm on vacation when
9
it gets announced?" And Tammy responded to make sure
10
that he would be included.
11
So, at the time, we only had two applicants,
12
one who had submitted an actual letter and one who we
13
knew he was interested because of the information in an
14
e-mail, which wasn't really a request.
15
Q. And was one of these that expressed interest
16
to Mr. Roth directly, was it Mr. Guzman?
17
A. Mr. Guzman sent in a letter to Mr. Roth,
18
which is how I think we always instruct internal
19
people, if they're interested, to express their
20
interest is to write it down and send it in.
21
Q. So, Mr. Mayne's e-mail was not to Mr. Roth.
22
Is that fair?
23
A. No. That was to Tammy Kaniho.
24
Q. And for the -- I'd like -- I don't know if --
25
I don't think it's part of my exhibit, but I would like
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to submit it next in order. It might be one of the
2
appellants' submissions. And I would like to submit
3
this as next in order.
4
MR. HALVORSON: Is it already in evidence?
5
MR. MUKAI: It might be. I think Mr. Mayne
6
may have submitted this.
7
MR. MAYNE: I can't see from here what -- it
8
probably is.
9
MR. MUKAI: Yeah.
10
MR. MAYNE: Yeah, that was me.
11
MR. MUKAI: But you submitted this?
12
MR. MAYNE: Yeah.
13
MR. MUKAI: So, it is part of the record.
14
MR. HALVORSON: It was part of Mr. Mayne's --
15
MR. MAYNE: Yes, sir.
16
MR. HALVORSON: -- submission?
17
What number is it in?
18
MR. MAYNE: My submissions are not tabbed out.
19
I'm sorry. But I did have a cover letter that has the
20
letter of my attachments, so it's listed as that.
21
MR. HALVORSON: It may not have been tabbed,
22
but what is your submission number?
23
MR. MAYNE: Oh, I'm sorry.
24
MR. HALVORSON: What tab are you looking at?
25
MR. MAYNE: This is tab Communication No.
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17-05, and then it's the sub-tab attachment 10.
2
CHAIR NAHUINA: Transition Planning?
3
MR. MAYNE: No. It's part of -- it's the
4
third page down under tab 10. There's five pages under
5
tab 10.
6
MS. NAMAHOE: Found it.
7
CHAIR NAHUINA: Dated Tuesday, March 7th,
8
2017, 8:45 a.m.? Is that the small print?
9
MR. MUKAI: I think it's 8:08.
10
MR. LORD: This one here?
11
MR. HALVORSON: Let's make sure we're on --
12
which communication number are we looking at? 17-what?
13
MR. MUKAI: Mr. Mayne's submission.
14
MR. MAYNE: 17-05.
15
MR. HALVORSON: That doesn't --
16
MS. NAMAHOE: 17-05.
17
MR. MAYNE: No. 10.
18
CHAIR NAHUINA: It's all the way in the
19
front, the appellants'.
20
MR. HALVORSON: Gotcha.
21
MS. NAMAHOE: And this is entitled "Regarding
22
Investigator VI Position." Is this the e-mail? Is
23
that what it is?
24
MR. MAYNE: Yes.
25
MR. TAM: So, this is dated March 7th, 2017?
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MR. MAYNE: Yes, sir.
2
MS. NAMAHOE: 8:41.
3
CHAIR NAHUINA: Okay, that's the one.
4
MR. MAYNE: And mine is --
5
CHAIR NAHUINA: So, it's tab 10?
6
MR. MAYNE: Yes.
7
CHAIR NAHUINA: That one right there. I
8
believe that one.
9
MR. MAYNE: And then, mine is the complete
10
e-mail string. The message that Mr. Mukai just showed
11
me was my outline with the first question, okay,
12
initiating the string.
13
MS. NAMAHOE: About what happened --
14
MR. MAYNE: Correct.
15
MS. NAMAHOE: -- if you go out --
16
MR. MAYNE: Because I was out on vacation for
17
a while.
18
MR. HALVORSON: Okay. I think we've got it
19
identified.
20
BY MR. MUKAI:
21
Q. Now, on the second page of Exhibit 4, what is
22
that?
23
A. On the Request to Fill?
24
Q. Correct.
25
A. We shared and confirmed with the Human
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Resources Department, and it's required on the Request
2
to Fill -- what desired experience and skill set is,
3
including the special recognition requirements,
4
familiarity with, must have, must be able, and
5
experience with for this position specifically.
6
Q. Take a look at Exhibit 5. And can you
7
describe for the Board what this document is?
8
A. Yes. This is the interview and selection
9
procedures for civil service positions specifically for
10
the Office of the Prosecuting Attorney, including
11
policies, applicability, definitions, appointing
12
authority, designation procedures -- it goes on for a
13
while -- guidelines for conducting an interview,
14
guidelines for selection of the panelists, guidelines
15
for developing interview questions, and assessment
16
exercises.
17
Q. Now, take a look at Exhibit 6. Can you
18
describe for the Board what this document is.
19
A. This is the Department of Human Resources
20
procedures for filling civil service positions for
21
recruitment and -- for the recruitment examination.
22
So, we have to follow these also for the County-wide
23
procedures. These apply to all departments.
24
Q. I'm sorry, Mr. Lord. Back on Exhibit 5 --
25
and I'd like to direct you to page 6 of Exhibit 5 --
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there is some testimony that said that Pat Breault --
2
is that her name?
3
A. Yes.
4
Q. -- doesn't qualify to be a panelist. Now,
5
can you address that?
6
A. One of the guidelines that we look at is,
7
under Guidelines for Selection of the Panelists -- and
8
if I look at letter c, when a County employee serves on
9
the panel, his/her job classification shall be equal to
10
or higher than that of the position being filled unless
11
it is determined by the appointing authority that this
12
is not practical.
13
Q. And do you have any reason to -- do you know
14
why Ms. Breault was, in fact, put on the panel?
15
A. Yes. We had a supervisor within the
16
prosecuting office who has lots of experience
17
interviewing and knows the process, who could be the
18
panel chair, and we needed somebody from within the
19
investigator unit to be on the panel because they know
20
exactly, kind of, what goes on as far as skills and
21
experience; and Pat Breault was currently, at that
22
point in time, serving as the -- she was TAing into the
23
Investigator VI position, and she at that point in time
24
was not applying for the position.
25
Q. Okay. Now, when you say "Ms. Breault was
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TAing into the position, do you have any idea how long?
2
Was it like one day or two days that she TAd into the
3
position? If you can recall.
4
A. You -- I don't know -- my -- I don't know.
5
My guess would be that from the time Mr. Sumida left
6
the position, she was TAing there, but I don't know
7
that for a fact.
8
Q. That's fine.
9
There's also been some questioning that oh,
10
you should only have one person from outside. Do you
11
have any thoughts on that?
12
A. Yes. On the same page 6, under "Guidelines
13
for Selection of Panelists," the letter B says the
14
panel should include a fair representation of ethnic
15
groups and gender, to the extent possible, that are
16
most knowledgeable of the position. The number of
17
panel members may vary. One panel member may be from
18
outside the department either internal or external to
19
the County. One panel member may be the immediate
20
supervisor of the position.
21
Q. Does it say anything about, well, you have to
22
have one panel member from the outside. That's it.
23
End of story?
24
A. No.
25
Q. Take a look at Exhibit 6. We were just on
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that. I apologize for going back, but on Exhibit 6,
2
can you describe for the Board what this document is?
3
A. As I said, this is the County-wide Department
4
of Human Resources recruitment and examination
5
sections, filling of civil service positions --
6
procedures that all departments have to follow,
7
including policy, definitions, responsibilities,
8
Department of Human Resources. I believe that's it.
9
Q. Okay. Take a look quick look at Exhibit 7.
10
If you can just describe for the Board what this
11
document is.
12
A. I am not sure where it's -- which state law
13
book this is from, but these are the, I believe,
14
state-wide rules that we have to follow for
15
examinations -- for scope and character of examinations
16
for interviews, including disqualification of
17
applicants, conduct of examinations, rating of
18
examinations, notification of examination result,
19
administrative review of examination ratings, changes
20
in examination rating, custody and protection of
21
examination material, records and reports of
22
examinations. And it ends where subchapter 4 starts.
23
Q. Okay. Now, take a look at Exhibit 8. Can
24
you describe for the Board what Exhibit 8 represents.
25
A. This is the job posting that Human Resources
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creates from our Request to Fill that they disseminate
2
-- however they disseminate it.
3
Q. So, did the Prosecuting Attorney's Office
4
create Exhibit 8, if you know?
5
A. No. I believe Human Resources creates this
6
using the information we provide.
7
Q. Take a look at Exhibit 9.
8
Before we get there, at some point in time,
9
there was a panel. That is correct?
10
A. Yes.
11
Q. And what is the purpose of this panel?
12
A. The purpose of the panel is to assess the
13
skills, experience, and abilities of applicants that
14
have been deemed appropriately to be -- and to provide
15
that recommendation for Mr. Roth to then make a
16
decision upon.
17
Q. What is Exhibit 9?
18
A. Prior to a panel starting interviews, we want
19
to make sure they're trained. And we're required by
20
Human Resources to make sure they're trained, so we
21
review a couple documents. This is one document just
22
talking about what their role is as an interview
23
panelist and that they won't discuss anything outside
24
of our interview panel process. It also includes the
25
protected classes as we cannot include in our
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assessment or in any of our notes when assessing an
2
applicant.
3
Q. Now, with regard to the panel members, does
4
the Prosecuting Attorney's Office just say, "Here's my
5
panel. That's it. I'm running with this," or did you
6
seek input or comments from the Department of Human
7
Resources, if you can recall?
8
A. I recall I -- Mr. Roth told me who the
9
make-up of the panel would be, and I asked him -- I
10
said, "We need to make sure, with the two outside panel
11
members, that Human Resources is okay with that." So,
12
I asked Mr. Roth to contact Human Resources.
13
He reported within a day, I believe, that he
14
spoke to Waylen Leopoldino at Human Resources, and
15
Waylen reported that he approved, you know, and said it
16
was okay to have the two outsiders on the panel and
17
that having Pat Breault on the panel was also
18
appropriate.
19
Q. Now, with regard to Exhibit 9, is it fair to
20
say that each member of the panel reviewed and signed
21
this document?
22
A. Yes. The panel chair is required to make
23
sure that everyone knows what is on here and sign it
24
and included all four signatures here.
25
Q. Okay. What is Exhibit 10?
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A. This is the brochure regarding the employment
2
discrimination, which describes the protected classes
3
and how, in an interview, it's not okay to discuss
4
those protected classes for any of the applicants. And
5
then it goes into exactly what it means by those
6
things, such as disabilities, marital status,
7
education, race, color, religion, age -- those types of
8
things.
9
And then -- go ahead.
10
Q. So, is this document, Exhibit 10, given to
11
every one of the panel members?
12
A. No. There's one, and we give the panel time
13
for each one to ensure that they're reading it.
14
Q. Take a look at Exhibit 11. What is this
15
document?
16
A. This is the specific affirmation from each of
17
the panel members, that by participating in the
18
interview, they have received a copy of the employment
19
discrimination pamphlet and reviewed its contents. And
20
there's one for each of the four panel members.
21
Q. Now, what is Exhibit 12?
22
A. These are the questions that are asked of
23
each applicant that -- the panel member gets a set of
24
these questions for each interview. So, each panel
25
member gets one set for each interviewee, and it
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includes, on the left-hand side, the category of the
2
question, the question itself, the rating guide, and
3
the scores on the right. And then, the last page is
4
where they compile their scores for the individuals --
5
for one individual.
6
Q. Okay. Now, I understand that you were not
7
involved in the actual selection of the person selected
8
to interview -- as the Investigator VI. Is that fair?
9
A. Correct.
10
Q. So, did Mr. Roth or anyone at the prosecutor's
11
office ever tell you that "We had it out" or "We don't
12
want to hire Clement Guzman”?
13
A. No.
14
Q. Did Mr. Roth or anyone at the prosecutor ever
15
say or tell you, "We don't want to hire Kelly Mayne”?
16
A. No.
17
Q. Did anyone at the prosecutor's office ever
18
say -- did Mr. Roth ever say, "I don't want to hire" --
19
"Don't hire Daniel Pang"?
20
A. No.
21
Q. Take a look at Exhibit 31. And what is this
22
document?
23
A. The rules of the interview process require us
24
to document from the panel chair to the department
25
head -- in this case to the prosecutor -- why the
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recommended selected applicant is recommended.
2
Q. Did you have any role in Exhibit 31?
3
A. My role was to make sure it gets done and
4
filed correctly, which I direct Tammy where to file it,
5
and I also direct the panel chair that they are -- they
6
are not supposed to talk about why they didn't select
7
other panelists. You know, we're not supposed to
8
degrade other people or write negative stuff, just
9
focus on "Why did you select this person?" And if
10
there's -- somebody else is selected that wasn't the
11
number one panelist, there's rules to follow, but they
12
don't include that in here. That's a verbal report to
13
Mr. Roth.
14
Q. Now, there's some testimony by Mr. Guzman
15
that says you were supposed to do an investigation.
16
What happened? Why didn't you do your investigation?
17
What was that all about?
18
A. I believe he was referring to his initial
19
internal complaint. And I believe I was probably the
20
one who said I would do an investigation. After I
21
spoke to Lee Botelho at the Human Resources Department,
22
who assists us with labor relations from the HR
23
Department, she told me it's not -- it's not an
24
investigation; it's not a formal investigation. And
25
so, I -- Mr. Guzman asked for specific documents and
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information. I gathered up those documents the same
2
day I got the notice of an internal complaint, and I
3
provided that information to Mr. Roth.
4
Q. Okay. So, you never did an investigative
5
report or anything like that, right?
6
A. No. I gave a verbal report to Mr. Roth that
7
I had collected all the information that Mr. Guzman was
8
requesting.
9
Q. So, you never really did an investigation. Is
10
that fair?
11
A. Not a formal investigation. That's something
12
different from Human Resources.
13
Q. Okay. So, Mr. Lord, based on your
14
involvement in this process, would you say that somehow
15
the process was flawed -- the way it was done?
16
A. No. I believe we followed all the rules that
17
we were expected to follow to the T.
18
MR. MUKAI: Thank you. I have nothing
19
further.
20
CHAIR NAHUINA: Thank you.
21
At this time, would you like to
22
cross-examine?
23
MS. NOMURA: Yes.
24
. . .
25
. . .
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CROSS EXAMINATION
2
BY MS. NOMURA:
3
Q. Mr. Lord, based on your experience both in
4
the Prosecuting Attorney's Office and previously in
5
DMV, I think you said you have experience with
6
recruitment, and you have been through this process
7
before, so you're an expert kind of in that field?
8
A. Yes, I have a lot of experience. Yes.
9
Q. Okay. So, you're looking at fashioning a
10
recruitment whereby it will be fair because you're
11
looking at the Merit Principle and you want to select,
12
as we heard previously, the person most fit for the
13
job, so you did consult the class specs for the VI.
14
Did you also look at the rest of the series?
15
A. I think we looked at the V because most of
16
our staff are V and that's who they're supervising.
17
Q. Right.
18
A. I did look at those specs., yes.
19
Q. Did you notice, when you looked at the V --
20
MS. NOMURA: And just for the record, I
21
thought the V was included in the exhibit, and I see
22
that it's not, so we would like to have the panel have
23
access to the V and the IV as well, because I did make
24
some statements about the relationship between those
25
classes. So, if we can provide that. Sorry, I don't
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have it in my documents.
2
MR. LORD: Can I clarify? I'm sorry. I said
3
I looked at the specs. That was your question.
4
BY MS. NOMURA:
5
Q. Right.
6
A. I looked at the job description for the V in
7
our office, in our department. I don't believe I went
8
back and looked at the specs. at the County, no.
9
Q. Okay. Because if you look the specs. -- I'm
10
just sharing what I see -- there is a really close
11
relationship because it's in the same series, right?
12
And you're familiar with series --
13
A. Yes.
14
Q. -- in the County jurisdiction, as in any of
15
the state jurisdictions, there is a really close
16
relationship. And as I stated, you know, in just my
17
review of the document, there are like 23 points in the
18
knowledges and abilities, and the V has 20 of them
19
required at their level, and the IV has 19 required.
20
So, the vast majority.
21
A. Uh-huh.
22
Q. So, where in the interview process was that
23
taken into account? Was there any kind of points given
24
for the fact that these applicants already were doing
25
this portion of the job? Do you know what I'm saying?
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It's like, hey, if I worked as an investigator doing
2
that job and the difference between the job I have and
3
the supervisor was the supervisory part, I understand
4
you're going to have to look at -- hey, who has the best
5
qualifications for the supervisory part, but in the
6
vast majority of the job, it's like, hey, I'm doing it
7
already, so where do I get credit for that? Or where,
8
I guess, in the interview process is there some kind of
9
acknowledgment? I don't see that, so maybe you can
10
share that with me.
11
A. My understanding is that yes -- many of the
12
duties are the same. And when I -- I believe that
13
that's the majority of the interview process and
14
purpose is to ask the questions so that we can look at
15
those who are doing the same job for longer periods of
16
time or less periods of time and using their responses
17
to the skills, experience, and ability. That's what
18
the panel has to decide, who's showing the best ability
19
to apply and use those skills as closest to the expert
20
for what we're looking for.
21
Q. But, Mr. Lord, when you're asking those
22
questions, you're asking someone what they're saying
23
they're going to do, right --
24
A. Uh-huh.
25 Q. -- versus knowing what they're going to do in
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the job. And wouldn't you say if somebody is doing the
2
vast majority of that job, as these applicants were --
3
because it's verified through their job performance
4
ratings that they're doing the job -- and their class
5
specs. require them to have, as I said before, that vast
6
majority of the knowledge and ability to do the job of
7
the VI, wouldn't that be something you would have to
8
figure in? Because, otherwise, I could come in there
9
and tell you whatever you want to hear, but you have no
10
idea of what the person will actually do on the job.
11
In this case, you know what they do on the job.
12
They're doing it for you.
13
CHAIR NAHUINA: Ms. Nomura, can I ask, is
14
there a question here for Mr. Lord?
15
MS. NOMURA: There is.
16
BY MS. NOMURA:
17
Q. Where was that accounted for in this
18
interview process -- or this examination process?
19
A. I'm really not sure what the question is,
20
once again. So, where is their experience accounted
21
for in this process and their abilities?
22
Q. Can I explain?
23
MR. HALVORSON: Let him -- let him --
24
MS. NOMURA: Okay.
25
CHAIR NAHUINA: Mr. Lord, are you asking
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for clarification from Ms. Nomura?
2
THE WITNESS: Yes.
3
CHAIR NAHUINA: Ms. Nomura, would you
4
please restate your question.
5
BY MS. NOMURA:
6
Q. The VI level and V level and IV level are
7
very close in knowledge and abilities required at each
8
of those levels. The VI level, it requires a majority
9
of the knowledge and abilities required at the V and
10
the IV level. So, where in the interview process for
11
the VI -- how do you capture the fact that someone has
12
done those things in their job, in their previous
13
position?
14
A. Okay. So, when everybody that applied had to
15
apply, you go on the website and you have to fill out
16
an application and describe all your experience, all of
17
your education, and all of your jobs that you have
18
done. So, you list it all there and you write it all
19
down. And we encourage people to write everything that
20
you have ever done down there. So that's number one.
21
And then, number two, in the interview, when
22
we're asking the questions, I feel it becomes inherent
23
in their answer, and that's what I've been trained by
24
Human Resources, to look for that experience in those
25
things. That's what we have to rely on; because if
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there's -- if I have knowledge of an outsider, I -- but
2
that's where we look at their experience. Just like
3
this applicant that might be working in the office has
4
to share all that information through that process, so
5
does this one that is not from the office. And that's
6
where we see it. That's what the interview process is
7
about.
8
Q. So, the number one step you talked about was
9
to qualify for the interview. Is that correct?
10
A. Yes.
11 Q. Because all of the skills that they put down
12
and experience that they put down is used to determine
13
whether they qualify?
14
A. Right. But the panelists also look at that
15
to see their experience because it's all listed there.
16
They have to list all their education and what their
17
duties were in those jobs and what their jobs were.
18
Q. Right. My question is what weight is
19
afforded that level of experience?
20
MR. MUKAI: Object to the form of the
21
question. I don't know if he would even know what
22
weight each panel member gave.
23
MS. NOMURA: Okay. I'll change the --
24
BY MS. NOMURA:
25
Q. Was there any weight given to that
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experience?
2
A. Absolutely.
3
We were told by Human Resources to look at
4
every applicant fairly, through fair eyes, hear what's
5
on the application and the duties and responsibilities
6
that they come to the table with, hear what they have
7
to say and how they answer the question, and correspond
8
them fairly and equally.
9
Q. So, in the interview process, in those
10
questions, you had, you know, what you were looking
11
for, I think, as I saw the questions and what were the
12
answers you were looking for.
13
A. Suggested answers, yes.
14
Q. Right.
15
So, if someone said, "I did it," does that
16
count for anything?
17
A. If they just sat there and said "I did it" in
18
an interview, that really doesn't count for much at
19
all.
20
Q. Despite the fact that you know they did it?
21 A. Right. Because somebody that works at -- I'm
22
just making this up -- McDonald's or another place
23
outside our agency could come in and say "I did it"
24
also; and in the interview, we're taught by Human
25
Resources to look at the answers and how they're
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answering. And maybe – so, I do know what these guys
2
have done before and how great they are at their job,
3
but that would be unfair at times to the McDonald's guy
4
if the McDonald's guy didn't write it down and put it
5
there, and all of a sudden I'm just not counting that,
6
or I would start counting that because I know from
7
outside where the McDonald's guy is and I start scoring
8
him higher for something he didn't write down or talk
9
about. We're not allowed to do that.
10
Q. Okay. You talked about 31, the justification
11
of the selectee.
12
A. From Ms. Chai, yes.
13
Q. Right.
14
So, you said, I think, that you didn't have
15
anything to do with the justification. Is that
16
correct?
17
A. No, I just -- I instructed her how to write
18
the letter -- not how to write the letter -- what the
19
letter is required to have.
20
Q. Okay. So, it talks about -- I'm just trying
21
to understand this better because it talks about the
22
candidate with the highest -- I'm looking at the third
23
or fourth line down. "Because we felt he understood
24
what this position entailed and believe that he had the
25
leadership skills necessary to supervise the
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Investigator Unit as well as the investigative skills.
2
His answers were thoughtful, thorough, and showed a
3
high work ethic, integrity, and commitment to
4
community."
5
So, these are the kinds of attributes that
6
the panel got as a result of answers that this person
7
was given?
8
A. I believe so.
9
Q. In the case of the Appellants, you know what
10
their history is; you've seen it in the job performance
11
reviews. I guess I'm trying to weigh how that fits in
12
there, these answers versus what you've seen people
13
actually perform -- I guess I'm still asking the same
14
thing. I don't see how this justifies the selection
15
when you have people who have actually done the job.
16
A. I don't think I can answer that question.
17
It's Mr. Roth's decision. He's the one that uses this
18
information. He might be able to answer it better.
19
MS. NOMURA: Thank you.
20
CHAIR NAHUINA: Mr. Mukai, do you have any
21
redirect?
22
MR. MUKAI: Oh, no. Thank you.
23
CHAIR NAHUINA: So, at this time, do the
24
Board Members?
25
. . .
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EXAMINATION
2
BY MR. TAM:
3
Q. I had a question about why it was a open
4
recruitment versus internal. It's my understanding,
5
according to what is in front of us, there was
6
insufficient interest in the position? Is that
7
correct?
8
A. That's what Gabriel Cabanas wrote, correct.
9
Q. And I think you testified that there were two
10
inquiries prior to that decision?
11
A. There was one written notification to
12
Mr. Roth saying, "I'm interested in the position," and
13
then there was one e-mail that alluded to "I'm
14
interested in this position," and then there was a
15
third letter that was retracted before we did this
16
recruitment.
17
Q. Okay. And, in your opinion, how many
18
applicants or interest would you have needed in order
19
for this to be a closed recruitment, considering you
20
have, what, eight positions in -- eight investigators?
21
Seven investigators?
22
A. Twelve.
23
Q. Twelve.
24
So, just curious how many -- you had three,
25 and then one later retracted, but I think that person
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retracted after, right?
2
A. Yes.
3
Q. So, at the time, you had three applicants
4
and -- or possible applicants.
5
A. No. We had one that wrote a letter and one
6
who alluded to it in an e-mail at that point in time
7
when the paper went to Human Resources to open up the
8
interview process.
9
Q. I think the e-mail was about that person going
10
on vacation --
11
A. Yes.
12
Q. -- what would happen, right?
13
A. So --
14
Q. And that was in March?
15
A. Yes.
16
Q. And the recruitment -- the decision to make
17
it a closed -- open recruitment was May?
18
A. Yes.
19
And as far as your answer goes, I don't think
20
I have an answer. Every one has been different, and
21
it's at the discretion and pleasure of the department
22
head and/or the prosecutor whether it's open or closed.
23
Q. Okay.
24
A. So, I would have to probably call Lee Botelho
25
at Human Resources that was asking me is there a
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specific number because I have never heard a specific
2
number either way.
3
Q. And you may not be qualified to answer this,
4
but if an external applicant is hired, is that
5
considered a promotion?
6
A. No.
7
MR. TAM: No.
8
Okay, thank you. No other questions.
9
CHAIR NAHUINA: Did you have something
10
more? You had a second thought. Did you want to
11
finish your thought?
12
MR. LORD: I don't -- I'm not -- I said no,
13
I'm not sure if somebody comes from the State -- you
14
know, from outside, if it's from the police department
15
and they're an investigator there and they come to our
16
office, is that a promotion? I think if they are
17
already in the County, it is. I'm not sure if somebody
18
coming from the State or the federal government, and
19
they carry all of their benefits and sick time with
20
them to our office when they come in, I would have to
21
call Human Resources and ask if that's a promotion or
22
not.
23
MR. TAM: Thank you.
24
MR. MUKAI: I think for the record, for
25
example, Mr. Lord talked about someone coming in from
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the police department, and say he's a police officer or
2
whatever. It's -- it's a potential cross-bargaining,
3
so, they are not -- it would not be considered to
4
promote as these individuals would be.
5
MR. TAM: But if it's an open recruitment,
6
how is that considered a promotion if they're following
7
the same process as an external applicant?
8
MR. MUKAI: Okay. For the external
9
applicant, it is a recruitment. I agree. If the
10
person who was selected was not one of these -- say one
11
of these gentlemen was selected to the position, the
12
person who was denied does not have the bargaining unit
13
right, so that person would have a right -- and I would
14
agree -- in that situation would be able to have his
15
appeal heard at the Merit Appeals Board.
16
MR. TAM: Okay, thank you.
17
CHAIR NAHUINA: Any other questions?
18
MS. NAMAHOE: Just a few.
19
20
EXAMINATION
21
BY MS. NAMAHOE:
22
Q. Okay. I just wanted to get clear that in
23
order of high scores to low -- that one, the scores came
24
as a result of the matrix that's in the back here that
25
we were looking at. Is that correct? Who created that
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matrix?
2
A. It's the responsibility of the panel chair,
3
but she delegated Tammy Kaniho -- the panel chair
4
usually does -- to make the actual document on the
5
computer, and then the panel chair signs off that --
6
yes, those were the scores.
7
Q. Okay. So, it's from this matrix that we
8
learned earlier -- I heard -- and I just wanted to get
9
it clear for my ears -- there was a top candidate, then
10
34 points later, there was Mr. Koaho, and then there
11
were the Appellants in various degrees, with Mr. Guzman
12
at the top of that? Is that correct?
13
A. Yes. I didn't count if it was 34 after the
14
top score and Mr. Koaho but, yes, I believe that's in
15
general, yes.
16
Q. So top, Koaho, and then in order --
17
A. Yes.
18
Q. And I'm just trying to remember.
19
MS. NAMAHOE: You said you were No. 8?
20
MR. MAYNE: Correct. Yes.
21
BY MS. NAMAHOE:
22
Q. Okay. I did have another question here about
23
the interpretation of the Guidelines for Selection of
24
Panelists which was in the Section 5 that you had
25
alluded to earlier, Guidelines for Selection of
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Panelists, Section B and Section C, because I'm trying
2
to understand, one, the composition of the interviewing
3
panel and, two, I'd like to know that you said that
4
that panel was cleared through Mr. Leopoldino from HR,
5
right?
6
A. That's what Mr. Roth told me, yes.
7
Q. Okay. So, I just want -- so the panel should
8
include -- Section B, the panel should include a fair
9
representation of ethnic groups and gender, to the
10
extent possible, that are most knowledgeable of the
11
position. And so, the four panelists here had some
12
knowledge of this type of position. Whether they
13
worked -- whether they performed this position in the
14
prosecutor's office or not, all four of these panelists
15
had knowledge of what that position would entail -- a
16
VI would entail, right? An Investigator VI? That was
17
how they were chosen. The number of panel members may
18
vary. One panel member may be from outside the
19
department, either internal or external to the County.
20
And so, you took that one as a generic noun,
21
not as a numeric ceiling?
22
A. Yes.
23
Q. That's how you understood that?
24
So, it didn't -- so the reason why I'm asking
25
that is because when I read this sentence, "one panel
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member may be," I'm seeing that as a singular term.
2
I'm not seeing that as a broad noun, which is typical
3
for third-party English. Then I would expect "Panel
4
members may be from outside the department" versus "One
5
panel member may be from outside, either internal or
6
external to the County." Is that what you took to
7
Mr. Leopoldino to get clarified --
8
MR. ROTH: Yes.
9
BY MS. NAMAHOE:
10
Q. -- and then he was the one who signed off to
11
say --
12
MR. ROTH: I'll answer that if...
13
BY MS. NAMAHOE:
14
Q. Okay. One panel member may be the immediate
15
supervisor of the position, but in this case, none of
16
the four panel members were either immediate
17
supervisors, and two were outside of the County.
18
MR. ROTH: That's not exactly correct.
19
MS. NAMAHOE: Okay.
20
MR. ROTH: I'll explain that in a few
21
seconds.
22
MS. NAMAHOE: All right. Because I'm --
23
thank you.
24
CHAIR NAHUINA: Thank you.
25
MR. CHILLINGWORTH: Thanks.
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CHAIR NAHUINA: I have one.
2
MR. HALVORSON: Go ahead.
3
4
EXAMINATION
5
BY CHAIR NAHUINA:
6
Q. Okay. I think you commented that there were
7
two people who showed interest, and I'm just curious,
8
how was the interest solicited? I mean, how did he
9
know to send an e-mail? How was it done? How was it
10
done in this case?
11
A. And I'm not sure I -- usually it's verbal,
12
but in the past three years, we have been sending out
13
e-mails and informing people. But if it was to be an
14
internal recruitment and it was decided it was going to
15
be internal, Mr. Roth sends out an e-mail saying "Anyone
16
interested in internal recruitment, please let me
17
know." These people sent their written interest in the
18
position prior to any posting of the position at all.
19
Q. So, is it possible that there were other
20
people interested beyond these two?
21
A. It's possible. If they were, they all had --
22
I believe everyone knew that you need to let us know if
23
you're interested.
24
CHAIR NAHUINA: Thank you.
25
. . .
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EXAMINATION
2
BY MR. HALVORSON:
3
Q. There was some allusion to this before, but
4
how many total applicants did you have?
5
A. That we interviewed was nine.
6
Q. No, total applicants.
7
A. Twelve.
8
Q. And you ended up interviewing only nine?
9
A. Yes. The other three, when they were finally
10
contacted, had either gotten another job or decided
11
they didn't want to move to Hawai ʻ i or turned down the
12
interview.
13
Q. So, none of the 12 that initially applied were
14
found not qualified?
15
A. Correct.
16
Of those 12?
17
MR. ROTH: That were forwarded to us.
18
MR. LORD: That were forwarded to us. Yes,
19
our department didn't disqualify any of the 12 that
20
were referred to us.
21
BY MR. HALVORSON:
22
Q. So, there may have been additional applicants
23
received by HR?
24
A. By HR. They look at do they meet the minimum
25
requirements -- skills and requirements before they
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refer them to us. And, if somebody doesn't meet the
2
minimum requirements, then they don't get referred to
3
us, and they have a chance to appeal that and offer
4
more information to Human Resources.
5
Q. But you have no idea if there were any such
6
people?
7
A. No. We just get the 12 that they approved to
8
send to us.
9
Q. So, all the 12 you got were qualified?
10
A. Yes.
11
MR. HALVORSON: Okay. thank you.
12
CHAIR NAHUINA: Thank you.
13
At this time, last chance, County.
14
MR. MUKAI: I have no further questions for
15
Mr. Lord.
16
17
RECROSS EXAMINATION
18
BY MS. NOMURA:
19
Q. Yes, I do -- based on Mr. Tam's question about
20
the people who did ask to be considered for the
21
position. And I think it was clarified to some extent,
22
but I wanted to ask if the Employer got notification
23
from others or heard of others, they could have gone to
24
an internal recruitment at that point, right?
25
MR. MUKAI: Object to the form of the
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question. That misstates all --
2
MS. NOMURA: I'm sorry.
3
BY MS. NOMURA:
4
Q. I'm just asking could they have changed their
5
mind and gone internal?
6
A. Whether it's an internal or external
7
recruitment is always at the pleasure of the
8
prosecutor.
9
MS. NOMURA: Okay.
10
CHAIR NAHUINA: Thank you.
11
MR. PANG: I've got a question.
12
MR. MUKAI: He can't ask a question.
13
MR. PANG: You asked if we had a question for
14
Mr. Lord.
15
MR. HALVORSON: You can ask your attorney.
16
BY MS. NOMURA:
17
Q. The question is whether you sent out an e-mail
18
about any interest on this position to your staff.
19
A. I don't -- I don't believe we did. It was
20
not an internal recruitment. Everyone knew that Dean
21
had left. That's what prompted people who were
22
interested to send us interest. But when the decision
23
was made it was going to be external, there was no
24
reason to send an e-mail out.
25
MS. NOMURA: Okay.
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CHAIR NAHUINA: Thank you.
2
Your next witness would be Mr. Roth?
3
4
MITCHELL ROTH,
5
having been first duly sworn to tell the truth, the
6
whole truth and nothing but the truth, was examined and
7
testified as follows:
8
9
DIRECT EXAMINATION
10
BY MR. MUKAI:
11
Q. Please state your name for the record,
12
please.
13
A. Mitchell Roth.
14
Q. What is your position?
15
A. I am the Prosecuting Attorney for the County
16
of Hawai ʻ i.
17
Q. And how long have you held that position?
18
A. As the elected prosecuting attorney, five
19
years now.
20
Q. Okay. Let's just start out with this. Why
21
is it that the person who was selected -- person who
22
scored the highest was not selected?
23
A. So --
24
Q. If you know.
25
A. I do know. What I do as a matter of practice
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is I have a panel that does the interviews. The panel
2
comes back with a recommendation, and I think every
3
time I've gone with the recommendation of the panel to
4
make it, you know, clear that I am not, you know,
5
trying to influence who gets selected. In this case,
6
my understanding was that the person that had the
7
highest score also was not from Hawai ʻ i, was living in
8
New York, that he was a liquor investigator is what I
9
understood; but the panel recommended this person for
10
the reason they state in that letter, which is 31.
11
I want to make a correction, though. The
12
person that we did select and has been in the position
13
for the last six months was not from outside the
14
jurisdiction; it was from inside the jurisdiction.
15
So...
16
Q. When you say "inside the jurisdiction" --
17
A. He was from Hawai ʻ i. He was from this island.
18
He was living on this island. He was working on this
19
island at that time.
20
Q. Now, let's talk a little bit about the panel.
21
It seems like, according to the Appellant, these panel
22
members were just guys off the street, McDonald's
23
workers; and I don't know what they're talking about.
24
Can you explain to the Board who each
25
individual was and what their background and knowledge
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indication was?
2
A. Sure.
3
Let me start with the two from outside. One
4
was Larry Weber, who was a major in the police
5
department. He had prior experience as the captain in
6
the investigations unit. We felt that it was important
7
that we had someone with police investigative
8
experience on this -- on this panel. And so, that was
9
one of the reasons that we had him.
10
Doug Adams is a retired lieutenant colonel
11
from the Army. He is a local attorney, has knowledge
12
of the law, and he was also a member of the County
13
Ethics Board. And he and his wife write leadership
14
books. I thought it was really important that we have
15
someone with really good leadership skills to pick the
16
next leader of the investigative unit.
17
Deborah Chai is a -- she's the head of our
18
Victim Witness Unit. She has extensive experience
19
working with investigators in our office. Oftentimes
20
they will do interviews with the witnesses, the victim,
21
victim witness counselor, and attorney, and the
22
investigator; so, she has experience working with
23
investigators and knows, kind of, what they need to do.
24
As a policy, if I'm hiring for a position, I
25
try to have someone – generally, it's going to be the
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leader of that unit is going to be interviewing. At
2
that time, Pat Breault was TAd into the SAVI -- the
3
Investigator VI position, so she was technically at the
4
level -- the same level as the position that was being
5
hired into. There was a question on that, and so I
6
went to Waylen Leopoldino, and what Waylen did is we
7
went into his office, he pulled up the -- our
8
procedures that we provided, and we went through that
9
question. It said, "where applicable." I don't know
10
if you have the wording there. We felt that because she
11
was at the VI level, even in that TA position, she's
12
hiring to a -- into that position, and also because it
13
was important to have an investigator on that who knew
14
what the investigators did; it was important to have
15
her or someone in that ability to do that. So that's
16
why -- that's why we chose her.
17
Q. And then, I think there's one more. Oh, you
18
did talk about Ms. Breault.
19
A. Yes. She was the last one I was talking
20
about.
21
Q. Now, let's talk about these guidelines that
22
you talked to Human Resources about. And I'm
23
specifically referring to --
24
A. What number?
25 Q. -- Exhibit 5, page 6.
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So, what happened on -- it was more informal
2
than anything. I was hoping that Gabriella was there.
3
She wasn't there. Waylen was there, and he pulled it
4
up. Waylen, to my understanding, was a manager at HR
5
at the time. He looked, and it's page 6. Is that
6
correct?
7
Q. Uh-huh.
8
A. We read through, we looked through it, and I
9
think you'll see when the -- a County employee serves
10
on the panel, his or her job classification should be
11
equal to or higher than that of the position being
12
filled unless it is determined by the appointing
13
authority, which is me, that this is not practical.
14
Wouldn't have been practical to have someone outside --
15
in my opinion, at that time, wouldn't have been
16
practical to have somebody outside the investigative
17
unit hiring this position, especially in light of the
18
fact that we had someone TAing into that position, was
19
at that level, and was not going to be applying for
20
that position.
21
Q. And can you describe for the Board how long
22
Ms. Breault was TAing into the position of Investigator
23
VI at the Prosecuting Attorney's Office?
24
A. So, I think Dean Sumida officially left the
25
office on February 21st. I'm not sure if he took a
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couple of weeks off prior to that. So, she probably
2
would have been TAd into that position at that time.
3
But somewhere in February, until the new investigator
4
was hired six months ago, she was in that position.
5
And at the time of the interview, there were several
6
months that she had already been in that position.
7
Q. Now, there was some discussion or some
8
testimony -- I think there was some questions about a
9
person's previous experience, the descriptions, their
10
prior experience, if these people were Investigator Vs,
11
"We've done everything, so why not just take me?" Why
12
not take them? What -- what --
13
A. So --
14 Q. Would you respond to that?
15
A. -- you know -- and this -- I'll say it. This
16
case has had me do a lot of soul-searching. I believed
17
at that time that one of these guys probably -- one of
18
the four people from my office who applied, when I
19
found out who was going for it, I thought that we would
20
probably get one of those guys.
21
When the scores were so -- there was such a
22
big disparity between the top group and the group from
23
the office, I could have made a decision to hire way
24
down lower, but that would have definitely created a
25
situation that the Merit Appeals Board -- because I
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wasn't going by, one, my policy that we have, two, I
2
think the County policy that talked about the levels
3
there. So, I think that was another thing.
4
I think the other thing that was built into
5
here are the actual questions that were asked during
6
the interview. And I think the questions -- if you
7
look at them in No. 12, I think it gave the three
8
investigators here maybe an unfair advantage, so I was
9
really quite surprised that their scores came out the
10
way they did.
11
Q. So, let me ask you this. And I would direct
12
your back to Exhibit 12.
13
A. Okay.
14
Q. For example, look at the first question and,
15
I guess, all the questions as a whole. And if you can
16
describe for the Board what these questions represent
17
in terms of the need and the qualifications and skills
18
required for the Investigator VI position.
19
A. I think all of these go to, you know, your
20
knowledge, skills, their ability to lead. The first
21
question, for example: This position is for an
22
Investigator VI/Supervisor within the Prosecutor's
23
Office. What do you see as the primary role of the
24
prosecutor? Having again -- they are looking -- we're
25
looking for knowledge of the prosecutor's role and
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function being in the office. I figured that these
2
guys would have pretty much an unfair advantage on that
3
question.
4
Interest in position is the second -- goes to
5
the second: Why are you interested in this position?
6
How does it meet your long-term goals? General skills,
7
work style, ability to handle stress. What are three
8
of your strengths? How do you think this will be
9
utilized as Investigator VI/Supervisor in the
10
Investigative Unit? Again, these are things that goes
11
to their skills, but they should have an advantage.
12
What are your weaknesses? What have you done to
13
compensate for them? If you felt overwhelmed by the
14
work, how would you handle the situation? 6: A deputy
15
prosecuting attorney brings you a disk with pictures on
16
it at 3:00 p.m. for trial tomorrow. The deputy tells
17
you they need to be produced ASAP. How do you feel,
18
and what do you do? Again, this goes to, you know,
19
normal questions.
20
I'm going to skip down because I think the
21
questions that they had the biggest problem with in
22
their response today were those relating to Gilbert.
23
Gilbert is a national authority. But if you look at
24
14, for example, according to Gilbert -- okay, the
25
investigator must be persistent to a degree beyond that
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of an average person. Persistence can be defined as
2
continue in the face of opposition or refusing to give
3
up when faced with an adverse situation. The overall
4
task of an investigator is not easy, particularly when
5
confronted with a difficult case. Here's the call of
6
the question. It's not asking you to know about
7
Gilbert. It's not asking you about specialized skills.
8
It's saying to what end should an investigator persist
9
in his investigation? If you listen to that question,
10
all of the answers are given to you according to
11
Gilbert, what's in there.
12
Q. Now, for the Board's information, again, what
13
is Gilbert?
14
A. He's kind of a national -- a national
15
authority on investigative skills. Kind of like for
16
attorneys, we have Black's Law Dictionary, Herman
17
Winchell on Evidence for those in Hawai ʻ i, Bowman on
18
Evidence. The questions about Gilbert, you don't have
19
to have specialized knowledge about Gilbert so much as,
20
you know, what you need to know as an investigator.
21
Q. Okay. Do you know if any other law
22
enforcement agencies use or rely on Gilbert?
23
A. My understanding is these questions actually
24
came from the Hawai ʻ i County Police Department as part
25
of their assessments for their investigators.
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Q. Now, at some point, you were made aware of
2
the selectee. Is that correct?
3
A. Yes.
4
Q. I direct your attention to Exhibit 31.
5
A. Yes.
6
Q. Before I ask you questions on Exhibit 31,
7
have you ever deviated from the recommendation of the
8
panel?
9
A. Not -- not that I can recall.
10
Q. Again, back to Exhibit 31. Can you describe
11
for me what this document is.
12
A. This is the recommendation letter from the
13
panel for the people that we selected to do this work.
14
And I -- you know, I just want to say we try to make
15
this, again, as transparent as possible and as fair as
16
possible.
17
Q. Okay. Based on what the panel tells you,
18
they didn't select Mr. Guzman, right?
19
A. That's correct.
20
Q. And they never selected Mr. Mayne?
21
A. That's correct.
22
Q. And they never selected Mr. Pang. Is that
23
correct?
24
A. That's correct.
25
Q. Now, let me ask you this. Did you have it
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out for Mr. Guzman?
2
A. I did not.
3
Q. Did you have it out for Mr. Pang?
4
A. Did not.
5
Q. Same question with Mr. Mayne.
6
A. Did not.
7
Q. Did you ever tell anyone you don't want them
8
hired as the Investigator VI?
9
A. I did not.
10
And let me just take that one step further.
11
If that was the recommendation of the panel, to hire
12
these guys, both of these guys, I would have happily
13
done that. Happily done that.
14
Q. Now, the gentleman selected was Koaho?
15
A. Alan Koaho.
16
Q. Is he a personal friend?
17
A. At that time, I didn't really know him at
18
all. I've met him -- to be fair and completely honest,
19
I met him at a community event one time, and he came up
20
and introduced himself to me. And that was probably
21
maybe six months before all this happened.
22
MS. NAMAHOE: Not to interrupt, but I need to
23
know, because I have read it so many times as Koaho.
24
Is it Kaoho or Koaho?
25
MR. ROTH: K-o-a-h-o.
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MR. MUKAI: I'm sorry?
2
MS. NAMAHOE: Means new Koa tree. All right.
3
Sorry. I just -- go on.
4
MR. MUKAI: Thank you.
5
BY MR. MUKAI:
6
Q. Based on the process that your office did as
7
prosecuting attorney, do you believe that the selection
8
of Mr. Koaho --
9
MS. NAMAHOE: Koaho.
10
MR. MUKAI: Yes.
11
BY MR. MUKAI:
12
Q. -- was fair with the circumstance?
13
A. I believe it was very fair under the
14
circumstances.
15
MR. MUKAI: Okay, thank you. I have nothing
16
further.
17
CHAIR NAHUINA: At this time, I would want
18
to suggest we take a recess before cross. And can I
19
hear a motion?
20
MS. NAMAHOE: I make a motion we go into
21
recess.
22
CHAIR NAHUINA: Second?
23
MR. CHILLINGWORTH: Second.
24
CHAIR NAHUINA: All in favor say "Aye."
25
(All Board Members responded affirmatively.)
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CHAIR NAHUINA: All opposed, same sign.
2
It's been offered and seconded that we take a
3
recess. We'll take a ten-minute recess before cross
4
examination.
5
MS. NOMURA: Thank you.
6
(Recess ensued from 1:47 p.m. to 1:57 p.m.)
7
CHAIR NAHUINA: Thank you. It's 1:57, and
8
we'll come out of recess and continue with the hearing.
9
At this time, I would like to invite the
10
Appellants' cross examination.
11
MS. NOMURA: Thank you. We just have a few
12
questions for Mr. Roth.
13
14
CROSS EXAMINATION
15
BY MS. NOMURA:
16
Q. I think Mr. Lord said in his testimony that
17
he -- or that Mr. Roth sent out an e-mail asking for
18
anybody who was interested in the position --
19
A. I don't -- I think we -- we -- yeah. So, what
20
happens generally, if it's internal, we will send
21
something out. This generally comes from my
22
secretary -- will send, you know, a letter out, or from
23
our HR specialist she'll send something out. So,
24
there's generally a letter comes out when it's just an
25
internal.
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Q.
2
When it's an internal recruitment?
3
A. When it's an ex- -- when it's open, we also
4
send something out stating that.
5
Q. But it didn't happen in this time?
6
A. It happens every time. When there's a
7
recruitment out, that letter always goes out.
8
Q. Okay. Because --
9
A. So, let me make sure we're talking about the
10
same letter.
11
Q. Yeah.
12
A. So, any recruitment, whether it's for a
13
position in our office, whether it's -- so there's
14
three different levels, right? You have internal,
15
internal County, I guess, and then internal -- or --
16
you know, open recruitment.
17
So, whenever there's a recruitment that is
18
open, there will be an e-mail that goes out. So, if
19
it’s a recruitment, for example, for Parks, that -- you
20
know, we send that out -- HR sends -- that will go out.
21
If there's a recruitment for a position in our office,
22
there will definitely be that recruitment that will go
23
out.
24
But I think you're asking something
25
different, so I want to make sure we're talking about
26
the same thing.
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Q. No, I think we just wanted to clarify whether
2
you send out an e-mail soliciting anybody to apply if
3
they're interested.
4
A. So, I -- again, whenever there's an HR
5
recruitment -- I think maybe Mr. Guzman can explain.
6
Q. Right.
7
But I thought there was a comment about an
8
e-mail. I thought there was a comment about an e-mail
9
going out to staff to let them know about the
10
possibility that they can -- or soliciting.
11
A. So, occasionally, there are -- when
12
internals -- you know, that sometimes will happen. And
13
I can't say it happens all the time, but there's
14
something like that. When somebody leaves, we send a
15
letter to the staff basically saying that somebody has
16
left the office as well. That did happen.
17
I'm not sure if a letter -- be more
18
specific -- if a letter saying, "Hey, does anybody want
19
to apply for the investigator supervisor?" go out. Did
20
that go out? I'm not sure that happened.
21
Q. No, we're not talking about a letter. We're
22
asking about an e-mail.
23
A. Right. And when I'm saying "letter," I'm
24
talking about an e-mail. We currently send everything
25
by e-mail.
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Q. And you're saying that didn't happen in this
2
case?
3
A. Not to my knowledge.
4
Q. When we talked about the Request to Fill form
5
and there was an indication that there was an interest
6
in the department, I think you explained that there
7
were only two people who expressed interest in the
8
position at that point?
9
A. So, when you talk about the form, I know that
10
Mr. Lord handles more of the HR stuff. So, at that
11
time, I think we did have something from Mr. Guzman.
12
We had something -- an e-mail that we saw earlier from
13
Kelly Mayne to Tammy Kaniho, my secretary, and then Pat
14
Breault had -- at one point, to my understanding, she
15
put something in, but then she decided she was not
16
going to go forward with that.
17
Q. Okay. So, if you had -- I'm asking. Did you
18
have four internal applicants?
19
A. We had four internal applicants get
20
interviewed.
21
Q. At the point in time that you knew there were
22
four applicants, internal applicants, why wouldn't you
23
go to an internal recruitment?
24
A. So, at that time, there were four people on
25
the list that we got from HR.
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Q. Yes. So, why didn't you go from an open to an
2
internal?
3
A. I don't know if we can do that once we put it
4
out. Once we have those names come in and everybody
5
else has been -- I don't know if we can go from an
6
external to an internal.
7
Q. I appreciate that.
8
But, in any case, I wondered why you didn't
9
consider that. Because I think I remember you saying
10
twice that if they had been -- it had been an internal
11
and they were on the list, that you would have gladly
12
picked from one of them.
13
A. Let me say this. I think what I said -- just
14
clarification -- if they were chosen from the group
15
that got interviewed as the top candidate, or even if
16
they were in that range of really close, I probably
17
would have gladly picked them.
18
Q. So, you didn't have any problem with going
19
internal recruitment?
20
MR. MUKAI: Object to the form of the
21
question. I think it's argumentative, misstates
22
evidence, and I think it's --
23
MS. NOMURA: Tell me how to ask the question.
24
MR. ROTH: Let me see if I can answer -- let
25
me see -- I wouldn't have had any problem selecting if
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they were chosen.
2
BY MS. NOMURA:
3
Q. Right. Okay. So, you could have gone to the
4
internal recruitment?
5
A. I --
6
MR. MUKAI: Objection. This is asked and
7
answered.
8
CHAIR NAHUINA: I don't believe that that
9
was the question that you asked.
10
MS. NOMURA: Okay.
11
CHAIR NAHUINA: So, maybe you want to
12
reform the question so he can answer it specifically.
13
BY MS. NOMURA.
14
Q. Why didn't you go internal?
15
A. You know, I think that's probably a really
16
good question. At the time, I was listening to, you
17
know, what was going on in HR. I know that we had some
18
letters, you know, some of the things that we looked
19
at, that there was only a certain number of people that
20
put interest in. And it's easier to get the process
21
going than have to go back and forth.
22
I had a -- Mr. Mayne talked about a
23
conversation that he had with me, and it really made me
24
think about that, and I subsequently went internal, and
25
I had to reevaluate again whether I was going to do
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that because it was very possible that we weren't
2
going to get enough people. And keeping our office
3
fully staffed is an issue, but it takes a long time.
4
So, initially, let's put it out there. Let's get the
5
best person or the most -- the person with the most
6
merit, the most capable person for the job. I guess
7
that's my best way of answering that question.
8
Q. Ultimately, do you decide whether --
9
A. Ultimately, the decision comes to me, yes.
10
Q. Did you ever tell the panel that you
11
preferred to hire one person over another person?
12
A. Absolutely not. Absolutely not. And --
13
Q. You didn't talk to anyone about that?
14
A. Not about who they selected. I wanted the
15
best person out of there. And, again, I was kind of
16
surprised -- you know, looking at it, I was surprised
17
that -- the scores and where our people scored on that.
18
And I expected them to be at the top.
19
Q. You talked about the interview questions. Do
20
you agree, though, that people have different
21
communication skills, and do you agree that in some
22
cases, the person who maybe communicates the best
23
answers may not actually be the one that's doing the
24
best job? Is that a possibly?
25
A. Can you restate that question?
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Q. Yeah.
2
Is it possible that somebody interviews very
3
well but doesn't have experience to actually do the
4
job?
5
A. Is that possible? Yeah, that possible. If I
6
didn't have to go through the HR rules and everything,
7
I may have been doing it a little bit differently; but
8
we try to follow our rules, you know, the best we can.
9
Q. As far as you know, was there any credit
10
given to these employees for having done the vast
11
majority of the duties required of this job?
12
A. Do they get separate credit compared to
13
everybody else?
14
Q. Other than their answers on the interview.
15
A. I think I have to go with their answers on
16
the interview. The fact they qualified for the
17
position is -- you know, they get that credit, and
18
then, like I said, if they were in a position with
19
their scoring, if they came, you know, pretty high, I
20
probably would have went to that level.
21
Q. But, again, just to clarify, their scoring
22
was based completely on their answers to interview
23
questions?
24
A. I don't know if I can say completely or not.
25
To a great extent.
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Q. Can I ask to what extent, then?
2
A. I would say at least 90 percent.
3
Q. And the 10 percent was on...
4
A. I think there's some other stuff that -- when
5
I look at the letter -- because the highest person --
6
if you look in here, the highest person didn't get
7
offered the position. The highest person wasn't
8
selected by the panel. And, you know, I think, in
9
looking at this, there's maybe some questions that that
10
person communicated -- just what you're saying, they
11
communicated really well the answers, but it didn't
12
come off as, you know, what the panel was looking at.
13
Q. How was that determined?
14
A. That's the panel. The panel made that
15
decision.
16
Q. So, you're not sure how they determined that?
17
A. Well, according to their letter that they
18
sent me, it kind of states the reasons. And you read
19
that earlier.
20
Q. Right.
21
So, it didn't raise any question in your mind
22
that, based on what the panel said, as far as the
23
interview, there was no doubt in your mind that it was
24
appropriate to hire the selectee?
25
A. We did hire -- hire this person.
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I believe that you have got to trust the
2
people you put in there to do the position. They were
3
on a panel. They had to make a decision. They made a
4
decision. I looked at some of the things and said, you
5
know -- so I had some questions, "How come," you know,
6
"this guy had a higher score?" for example.
7
Q. Okay. If you look at the score -- I think
8
this is Exhibit 19 -- those show the scores of each of
9
the interviewees. And I guess the question is where is
10
that 10 percent we're talking about?
11
A. So -- and this is why, you know, it's hard
12
for me to give a number. The numbers are here. It
13
shows you what the scores were. The highest score was
14
348, but the one that the panel came up with was 314.
15
So, they had discretion. So, it's not 100 percent.
16
They can't just say, "Okay, highest score wins."
17
They have to have that discretion to, you know,
18
look at who was most fit for that job and not just
19
go by a set of numbers.
20
Q. So, if the panel were to say, "I like this
21
person better," that's it? That would be justification
22
enough for you, or...
23
A. No. You know, you look at the letter. They,
24
actually, have to articulate reasons -- so it's not, you
25
know, I'm just saying "Okay, I'm going to take
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numbers." It's not just, "This guy dressed the nicest"
2
or something like that. They have to articulate a
3
reason for me to look at something that's outside that
4
score as well. And it's interesting because on this
5
panel, that's what they did; they came up with some
6
reasons on why they believed that this person was the
7
most fit for -- you know, most applicable position, had
8
most merit.
9
Q. But you can't quantify that?
10
MR. MUKAI: Objection, asked and answered.
11
MR. ROTH: I don't think we can quantify it.
12
MS. NOMURA: Okay. Thank you.
13
CHAIR NAHUINA: All right. Thank you.
14
Would you like to -- does the Board have any
15
questions?
16
MR. TAM: None.
17
MS. NAMAHOE: None.
18
MR. CHILLINGWORTH: None.
19
CHAIR NAHUINA: I have none.
20
MR. HALVORSON: I just want to clarify one
21
thing just to determine...
22
23
EXAMINATION
24
BY MR. HALVORSON:
25
Q. You mentioned that the applicant was from
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this jurisdiction. By that, you meant from the island
2
of Hawai ʻ i?
3
A. Yeah. He was living on the island; he was
4
working on the island.
5
Q. You weren't referring to the term of art used
6
in collective bargaining where the jurisdictions are
7
State of Hawai ʻ i, various counties, Hawai ʻ i Health
8
System Corporation? Those are all considered
9
different jurisdictions.
10
A. Okay. No, I was --
11
Q. You were using a generic term?
12
A. A generic term. And I think, by the way --
13
it's my belief he's also -- he was at that time an HGEA
14
member, too.
15
Can I just state one other thing? Well, I'll
16
let my attorney...
17
18
REDIRECT EXAMINATION
19
BY MR. MUKAI:
20
Q. Okay, Mr. Roth, you mentioned you've got to
21
state one more thing. Can you again describe for the
22
Board -- I know this is a tough process. Your office
23
is being accused of now rigging this whole process and
24
fixing it, corruption. I heard the term "corruption."
25
What do you think about all that?
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A. I was trying to make this as fair, as
2
transparent, as possible. If you look at the people
3
that I put on this -- you know, this panel, I -- you
4
know, I haven't heard any critiques about, you know,
5
the character/the quality of people. You know, having
6
an ethics, you know, officer on the board to make sure
7
that, you know, nothing funny is being done, I think
8
that was kind of important. I wanted to have a fair
9
process because the position of the investigative
10
supervisor is important to the office and important to
11
our County; so, I wanted to get the best and the most
12
merit-based, I guess that secret word you have there.
13
And, you know, I got to say I've had
14
committees -- and these investigators know that not
15
everybody in my office sometimes will side with me on
16
things. When I ran for election, I had people that
17
were on the other side, one of which was the previous
18
investigative supervisor. I put him on those panels
19
even after, and there wasn't a single decision that he
20
made that I went against.
21
I think it's important that you have a fair
22
process, and that's what I try to do.
23
MR. MUKAI: Okay.
24
CHAIR NAHUINA: Thank you.
25
MS. NOMURA: One question for Mr. Roth.
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RECROSS EXAMINATION
2
BY MS. NOMURA:
3
Q. I'm referring to Communication No. 17-04.02.
4
And this was in Mr. Mayne's appeal. It's a response to
5
questions -- I guess it's one, two, three, four, five,
6
six pages in, and it's question No. 20. The question
7
is: Was the panelist approved by the County of Hawai ʻ i
8
Department of Human Resources?
9
And the answer to that question is found
10
further down.
11
MR. MUKAI: Ms. Nomura --
12
MR. ROTH: Where are you?
13
MR. MUKAI: -- I'm sorry, where are you?
14
MS. NOMURA: Mr. Mayne's submittal.
15
MR. MUKAI: Okay.
16
MS. NOMURA: And it's in response to the
17
grievance that was filed on Mr. Mayne's behalf.
18
MR. ROTH: I'm sorry. So what number is it?
19
MR. MUKAI: No. 20.
20
MS. NOMURA: Yeah, question No. 20.
21
MR. ROTH: I don't have a question. I
22
just...
23
MS. NAMAHOE: 17-04.02? Which page? Because
24
it's voluminous.
25
MS. NOMURA: It's actually one, two, three,
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four, five, six, seven -- the seventh question.
2
MS. NAMAHOE: Thank you.
3
MR. ROTH: So --
4
BY MS. NOMURA:
5
Q. And after that comes your answer.
6 A. Okay.
7
Q. And I just want to verify that your answer is
8
"No."
9
A. So, let me clarify. When I talked to
10
Mr. Leopoldino, I didn't say no, I'm going to pick Pat
11
Breault; I'm going to pick Deborah Chai; I'm going to
12
pick, you know, Doug Adams; I'm going to pick Larry
13
Weber. I just asked them if this is okay. And he
14
brought the procedures. We looked them up. And
15
that's -- so the panelists -- that is correct -- the
16
names of panelists, no, that wasn't approved.
17
MS. NOMURA: Thank you.
18
CHAIR NAHUINA: Any redirect?
19
MR. MUKAI: No, thank you.
20
CHAIR NAHUINA: So, at this time, do you
21
have any more witnesses --
22
MR. MUKAI: Yes.
23
CHAIR NAHUINA: -- you would like to call?
24
MR. MUKAI: Can we take a quick break? I'm
25
just going to -- can we go off the record?
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CHAIR NAHUINA: Do we need to have a
2
motion?
3
At this time, we're off the record.
4
(Off the record.)
5
CHAIR NAHUINA: Back on the record. It's
6
2:19.
7
MR. MUKAI: We call Wil Okabe.
8
MR. HALVORSON: I think this is already in
9
the record.
10
MR. MUKAI: Probably, but just for the
11
panel's -- so...
12
MR. HALVORSON: So, we don't have to fumble?
13
MR. MUKAI: Right.
14
I'll call Mr. --
15
MR. HALVORSON: Glynis, what number is that?
16
MS. YAMADA: 17-04.10.
17
MR. HALVORSON: Thank you very much.
18
CHAIR NAHUINA: Thank you.
19
20
WIL OKABE,
21
having been first duly sworn to tell the truth, the
22
whole truth and nothing but the truth, was examined and
23
testified as follows:
24
25
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DIRECT EXAMINATION
2
BY MR. MUKAI:
3
Q. Please state your name for the record,
4
please.
5
A. Wil Okabe, Managing Director for the County.
6
Q. Now, Mr. Okabe, at some point in time, you
7
were tasked with reviewing Mr. Roth's decision at the
8
Prosecuting Attorney's Office regarding the selection
9
of the Investigator VI. Do you remember that?
10
A. Yes.
11
Q. And can you describe -- well, let me ask you
12
what do you do at the County of Hawai ʻ i?
13
A. Managing director is in charge of all
14
departments in the County. The mayor has instructed me
15
to do all complaints and all personnel issues in the
16
County. Everything.
17
Q. Now, with regard to Mr. Daniel Pang, who
18
applied for the Investigator VI position at the Office
19
of -- the Prosecuting Attorney's Office, at some point
20
in time, do you remember doing a review of the
21
Prosecuting Attorney's Office and its process regarding
22
the selection of the Investigator VI position?
23
A. Yes.
24
Q. And can you briefly describe for the Board
25
what it is you did?
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A. By the time it gets to my office, it has gone
2
through a certain process; so, I think they meet with
3
the department first, and then after the department
4
comes to the managing director to render any decisions
5
in regards to, if we concur with the person who is
6
making the complaint, or if we want to just refer it to
7
the Merit Appeals Board.
8
So, if that were the case, I just was able to
9
just make some calls in regards to HR and to find out
10
if the process was fair and to be sure that the
11
employee was given an opportunity to apply for the
12
position.
13
Q. Now, take a look at the County's exhibits,
14
County 1 through 13. If you could just take a look
15
through that. And I would ask if those were documents
16
that you believe you reviewed.
17
A. Yes. There was a lot of material in this
18
particular case. But I would just like to add, you
19
know, when we took over -- myself -- Harry Kim and
20
myself took -- December 5th, we had made some changes
21
with regards to the hiring process of the County. So
22
as far as trying to look at the process, making sure
23
that the people did the -- whoever did the interview,
24
we required them to go through some training and
25
ensuring that the process was basically fair.
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So, in this case, as I'm listening to it on
2
the outside now, you know, there was a lot of words
3
that were being used. There was no person of interest
4
from the mayor's office in regard to this particular
5
complaint.
6
Q. Did you see any corruption?
7
A. No. That -- when I heard that today, that
8
concerns me because this administration has done
9
everything we could to try to make sure that the
10
process was fair. Now, I'm very concerned about that.
11
And --
12
Q. Now, it's not like you met and re-interviewed
13
everybody who applied, right?
14
A. No.
15
Q. Okay. So, what was your conclusion in terms
16
of what the prosecuting attorney did in its hiring of
17
the Investigator VI position?
18
A. In my opinion, I thought that everything was
19
done professionally, and I felt that the process was
20
done fairly. And I felt that the next process was
21
going to -- because this has happened before -- that I
22
reviewed some complaints, and it was our office who
23
decided if it was going to sustain the recommendation
24
by the prosecutor's office.
25
Q. Okay. Now we're going to hand you what has
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been marked next in order. I think it's already in
2
evidence, but just for the panel's information, I've
3
handed out to the union as well as panel members what's
4
been marked as an exhibit already. It's an
5
August 17th, 2017 letter.
6
What is this letter?
7
A. This is a letter that -- it's basically a
8
standard letter. It's informing the party that we
9
concur with the decision made by the department and
10
that if the Complainant had a disagreement, they could
11
proceed to go to the Merit Appeals Board.
12
Q. And that's your signature?
13
A. Yes.
14
MR. MUKAI: Okay, thank you. I have nothing
15
further.
16
CHAIR NAHUINA: Thanks.
17
Ms. Nomura, do you care to cross-examine?
18
MS. NOMURA: No questions.
19
CHAIRMNAHUINA: Board Members? Any
20
questions?
21
MS. NAMAHOE: None.
22
MR. TAM: None. Thank you.
23
MR. CHILLINGWORTH: None.
24
CHAIR NAHUINA: I have none.
25
Thank you very much.
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MR. MUKAI: Okay, thank you.
2
We would call Ms. Barbara Kossow.
3
CHAIR NAHUINA: Barbara Kossow.
4
(Whereupon Ms. Kossow was called on the
5
speaker phone.)
6
CHAIR NAHUINA: Hello, Barbara. This is
7
David Nahuina. I'm the Chair. I'd like to swear you
8
under oath today.
9
(Whereupon Chair Nahuina attempted to
10
administer the oath to Ms. Kossow.)
11
MR. TAM: She might not be able to hear you.
12
CHAIR NAHUINA: Barbara, can you hear me?
13
Barbara, can you hear me?
14
MS. KOSSOW: Yeah, I can hear you now.
15
CHAIR NAHUINA: Okay.
16
17
BARBARA KOSSOW,
18
having been first duly sworn to tell the truth, the
19
whole truth and nothing but the truth, was examined and
20
testified as follows:
21
22
DIRECT EXAMINATION
23
BY MR. MUKAI:
24
Q. Ms. Kossow?
25
A. Yes.
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Q. This is John Mukai. I just have some
2
questions for you.
3
Could you please -- she's been sworn?
4
CHAIR NAHUINA: Yes, she has.
5
BY MR. MUKAI:
6
Q. Ms. Kossow, could you please describe for the
7
Merit Appeals Board your name and your position?
8
A. Okay. Barbara Kossow, Deputy Managing
9
Director.
10
Q. And can you briefly describe for the Board
11
what your duties are?
12
A. My duties are pretty much anything that is
13
assigned to me by the mayor to handle, so...
14
Q. Okay, I understand.
15
Now, at some point in time -- and to make
16
this go quicker, I'm going to ask about both Mr. Guzman
17
and Mayne at the same time.
18
Ms. Kossow, at some point in time, you were
19
involved in the review of the prosecuting attorney's
20
hiring of an Investigator VI. Is that correct?
21
A. Yes.
22
Q. And do you remember at some point meeting
23
with Mr. Clement Guzman?
24
A. Yes.
25
Q. And it appears that on the same date, you met
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with Mr. Kelly Mayne?
2
A. Yes.
3
Q. Can you briefly describe for the Board what
4
steps you took or what you did in your review of the
5
prosecuting attorney's decision regarding the hiring of
6
the Investigator VI position?
7
A. Okay. I received the file regarding both
8
gentlemen, and I called -- I called Human Resources
9
before I started reviewing it, and I needed to know
10
what the guidelines were and if we were in compliance
11
with the guidelines. So, that's the reason why I called
12
HR.
13
Q. And for the same -- see, you're not here, but
14
I believe you -- did you review the County's Exhibits 1
15
through 13 in your review of the process?
16
A. Yes.
17
Q. It is not like you went in and did your own
18
interview of any of the prospective applicants. Is
19
that correct?
20
A. That's correct.
21
Q. What did you find after you performed your
22
review of the hiring of the Investigator VI by the
23
Office of the Prosecuting Attorney?
24
A. Okay. So, you're asking me after I reviewed
25
the paperwork and also my talking with both gentlemen?
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Q. Yes.
2
A. Okay. When I went through the process, I
3
could not see that we -- that anything was out of line.
4
I also reviewed the test scores. Of course, I didn't
5
see any names. And I had discussions with both
6
gentlemen regarding that part of it and listening to
7
them talk about this particular investigation.
8
Q. With respect to Mr. Guzman, did you find that
9
the Office of the Prosecuting Attorney did anything
10
improper regarding the process or the selection of the
11
Investigator VI position?
12
A. No, I didn't see that.
13
Q. And, in fact, on August 10, 2017, you wrote a
14
letter to Mr. Guzman, and that details your review. Is
15
that correct?
16
A. That's correct.
17
Q. And for the Board and for the opposing side,
18
I have made this available as either the next exhibit
19
in order, or it is probably in evidence.
20
Same question with regard to Kelly Mayne.
21
A. Uh-huh.
22
Q. After your review of the prosecuting
23
attorney's selection of the Investigator VI, did you
24
believe that there was anything proper with regard to
25
Mr. Mayne's complaint to you?
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A. Okay. You said "improper," right?
2
Q. Yeah, was there anything improper after your
3
review --
4
A. No.
5
Q. -- of what the prosecutor --
6
A. No.
7
Q. After --
8
A. No.
9
Q. -- what the prosecuting attorney did?
10
The answer is "No," right? Is that correct?
11
A. No. That's correct.
12
Q. And, in fact, on August 10, 2017, you also
13
wrote a letter to Mr. Mayne, which --
14
A. Correct.
15
Q. And this letter details your review of what
16
the prosecuting attorney's actions were in the
17
selection of the Investigator VI position. Is that
18
fair?
19
A. Yes.
20
MR. MUKAI: Okay, that's it. I have nothing
21
further.
22
MR. HALVORSON: Again, just to make sure the
23
record is clear, the two documents you just submitted,
24
I guess, would be next in order? They would be
25
17-04.11 --
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MS. YAMADA: Correct.
2
MR. HALVORSON: -- and 1704.12?
3
MS. YAMADA: Well, I have 1704.10 for the
4
Daniel Pang --
5
MR. HALVORSON: Right.
6
MS. YAMADA: -- letter, and so the Kelly Mayne
7
letter would be 17-04.11.
8
MR. HALVORSON: And then the Guzman letter
9
would be?
10
MS. YAMADA: The Guzman letter would be .12.
11
MR. HALVORSON: .12. Okay.
12
And I think you're right. I think they are
13
already in evidence, but since you put it again, I want
14
to make sure we have a number, so...
15
CHAIR NAHUINA: Thank you.
16
MS. NOMURA: Are we still on?
17
CHAIR NAHUINA: Yes, we are.
18
MS. NOMURA: I don't have anything.
19
CHAIR NAHUINA: Thank you.
20
Any questions by the Board?
21
MR. TAM: No.
22
MS. NAMAHOE: No.
23
CHAIR NAHUINA: I have none.
24
MR. MUKAI: I have nothing.
25
Ms. Kossow, thank you.
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MS. KOSSOW: Yes, thank you.
2
MR. MUKAI: That's it.
3
CHAIR NAHUINA: At this time, do you have
4
anything further?
5
MR. MUKAI: No.
6
CHAIR NAHUINA: At this time, do you have
7
any rebuttal evidence?
8
MR. MUKAI: No.
9
MS. NOMURA: We would like to say something.
10
MR. HALVORSON: We're just talking about
11
evidence.
12
CHAIR NAHUINA: Just evidence. And you
13
will have the opportunity for closing.
14
MS. NOMURA: And I do have the specs. for the
15
V and the IV.
16
CHAIR NAHUINA: Would you like to enter
17
that?
18
MS. NOMURA: Yes.
19
CHAIR NAHUINA: So, that would be -- you
20
would like to introduce them as an exhibit?
21
MS. NOMURA: Yes.
22
CHAIR NAHUINA: Did you make copies?
23
MR. HALVORSON: Did you make copies?
24
CHAIR NAHUINA: Did you make copies?
25
MS. YAMADA: I can make copies now.
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MR. HALVORSON: Well, in the interest of
2
time, maybe you can just show them to Mr. Mukai.
3
MS. NOMURA: I don't think there's any
4
dispute. It is what it is.
5
MR. HALVORSON: We can clean up the record
6
later by putting in copies, but please show them to
7
Mr. Mukai.
8
MS. NOMURA: Sure.
9
MR. MUKAI: I don't have any objection.
10
CHAIR NAHUINA: All right. We need to
11
have a number for that. Glynis?
12
MS. YAMADA: So, the investigator specs. for
13
what item?
14
MS. NOMURA: IV and V.
15
MS. YAMADA: IV would be Communication .13,
16
and then the V position would be .14.
17
CHAIR NAHUINA: Thank you.
18
Is there any additional evidence or exhibits
19
to be entered into the record at this time?
20
MS. NOMURA: No.
21
CHAIR NAHUINA: Then we'll be moving into
22
closing arguments. And the Appellants -- you will be
23
presenting first.
24
MS. NOMURA: Thank you.
25
You know, I think what we've presented today
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is that there were real considerations that should have
2
been made for employees who were working -- I told you
3
that it's such a -- it's such a close relationship in
4
the classification of the jobs that there's no way that
5
you can completely ignore that in the process. I know
6
the scores go to the interview process, but there
7
should be something in there other than asking
8
questions to give the employee or the applicant, who
9
happens to be an employee, credit for actually having
10
done the majority portions of the job. And that's
11
lacking.
12
Mr. Roth stated that he could have gone --
13
that was his discretion -- he could have gone to an
14
internal recruitment. And that would have been fair.
15
He stated twice that he would have picked one of these
16
applicants, internal applicants, if that internal
17
recruitment had occurred. So, the question is why
18
didn't he? Why didn't he do that? And that's the
19
basis.
20
We've seen a lot of things that we questioned
21
as whether it was fair, whether it was appropriate, in
22
the panel designation -- not who the panel -- I know
23
Mr. Mukai has said a couple of times it wasn't somebody
24
from McDonald's. We never, ever intimated that we had
25
a problem with the persons who were on the panel. It
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was strictly on the process and procedures that were
2
outlined by the County and by the department on who
3
should have been on the panel. And that, I think, is a
4
serious consideration, that there were two people from
5
outside the department, there was one person who was at
6
the same level as the applicants -- who was really
7
selecting her boss. So, you know, those are real
8
inconsistencies that shouldn't just be brushed aside.
9
The fact that, you know, they had a document
10
that shows that the persons were not -- they weren't
11
adequate -- there wasn't adequate interest from within
12
the department -- and that was wrong. There turned out
13
to be four applicants. I think at any point, the
14
department could have chosen to go internal, and that
15
would have been fair. So, we didn't see things
16
happening that should have happened, if this was a fair
17
interview and selection process.
18
So, that is the concern of each of the
19
applicants here. You know, they're just trying to get
20
what they thought was supposed to happen in the civil
21
service -- the opportunity for advancement. Yeah, they
22
were allowed the opportunity to apply, but if they're
23
not given credit for the work that they've been
24
performing, if they're not even given that, the civil
25
service merit system means nothing as far as in the
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area of recruitment. And that's where this action was
2
so wrong.
3
For that reason, we're asking -- we're really
4
appealing -- to you to redo this, to make it right.
5
We'd like a new interview, a new selection process,
6
based on an internal complaint recruitment that we feel
7
should have been done that would have answered all the
8
questions we're here with today.
9
Now, it shouldn't be based on today and who
10
applies today. It should have been who applied at that
11
point in time, who applied internally at that point in
12
time, and for the department to look at these people as
13
the most qualified for that job and give them credit
14
for that as is their due in the merit system. We're
15
not saying they have to hire one person, that one
16
person should be promoted, but they should have been
17
given a fair opportunity. That didn't happen. Not in
18
this case. So, we're asking a redo going back to that
19
point in time, and the four people who internally
20
applied for the position, they should be considered and
21
an interview process should be held. There is some
22
urgency to this because there's a list. They are
23
eligible for this list now. That expires in May. So
24
it has to happen -- if it's going to be fair, it has to
25
happen before that. That's what we're asking for.
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That's one thing.
2
The other thing is this is -- you know, it
3
took a lot, I think, for these people to come to you,
4
because they're going up against their department. And
5
not to say anything against Mr. Roth or -- that is not
6
the point, but it's really difficult for a subordinate
7
to speak out against his boss, much less the big boss,
8
but they were willing to do it because they really
9
believe this is wrong. And when they came to the union
10
and explained their case, we believed that it was
11
wrong. I really feel that this is something that
12
should not have happened. So, we ask that you take care
13
of it, but also that we want to convey that we hope
14
that there isn't any kind of retaliation against these
15
employees for coming forward because that would really
16
send a message to people not to come to you, and we
17
don't want that to happen. And we're not accusing the
18
department of anything, but it's just something, I
19
think, that has to be said because they are speaking
20
out against their bosses, and we know that shouldn't
21
happen, but sometimes it does. So, we really ask
22
that -- we want to make that statement and -- you know,
23
make it to the department, that we would hope that
24
there isn't any kind of retaliation against the
25
employees or any kind of adverse action as a result of
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this.
2
But beyond that, we thank you for your time,
3
and we hope you really will consider this in the way
4
that it should be. Thank you very much.
5
MR. MUKAI: Okay. Briefly. Thank you.
6
Ms. Nomura just talked about challenging the
7
process. The union, HGEA, looked at it; they want to
8
challenge the process. Again, the process is via the
9
collective bargaining agreement. That's the reason
10
she's here. They have union representation. They
11
should have gotten it through the promotion provision
12
under the collective bargaining agreement.
13
The problem in a case like this is if the
14
person who has been selected is now told, "Oh, by the
15
way, you're out. You're out now," it's not fair. That
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is not how this process works. That's why we have the
17
collective bargaining agreement.
18
Now let's talk a little bit about selection
19
of the best available candidate. The evidence is
20
clear. Pursuant to HRS 76-1, the Merit Principle is
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the selection of persons based on their fitness and
22
ability for public employment and is based on their
23
demonstrated conduct and performance. And it's also
24
about discrimination in the examination and the
25
appointment.
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The selection is impartial -- and it was
2
impartial. The prosecuting attorney has discretion
3
whether or not to submit it to internal or external
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recruitment. And what happened at the time, there was
5
only one letter from Mr. Guzman saying, "I have
6
interest in the position." There was also an e-mail to
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the secretary saying, "Let me know when this position
8
opens up." And another investigator withdrew their
9
application for the Investigator VI position. Under
10
these circumstances, it is more than reasonable to open
11
up the recruitment to an external recruitment. In
12
fact, there were 12 candidates that were screened and
13
met the minimum qualifications and eligible to
14
participate in the interview process.
15
The interview process was fair. Doug Adams'
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testimony is -- he's a former investigator with HPD.
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MR. ROTH: Weber.
18
MR. MUKAI: I'm sorry. Mr. Weber was a
19
former investigator with HPD -- I'm sorry, I can't read
20
my notes -- and retired as an investigator. He
21
provides (unintelligible) and provides a basis to
22
evaluate each person who interviewed for the position.
23
There's nothing that prohibited these three gentlemen
24
from applying. In fact, they were urged to apply. You
25
heard Mr. Roth say, "I wish one of them would have
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gotten it."
2
Mr. Roth does not play politics and favor --
3
and that's clear. He recommended -- he was recommended
4
to another individual by an unbiased board who
5
conducted the interviews and evaluation of all the
6
candidates and, unfortunately, they were not selected.
7
Mr. Adams is the Ethics Board person; so,
8
obviously, there is going to be nothing untoward or
9
illegal going on. The word "corruption" -- you know,
10
basically, after review of this case and my review of
11
what happened, I think it's just offensive to the
12
County to make that assertion. The process was fair,
13
and the Merit Appeals Board is urged to render a
14
decision accordingly.
15
CHAIR NAHUINA: Thank you.
16
Ms. Nomura, do you have a rebuttal argument
17
in closing?
18
MS. NOMURA: No. I think I said enough.
19
Thank you.
20
CHAIR NAHUINA: Thank you, both parties.
21
This hearing is ended. The Board will now enter into
22
deliberations. Thank you very much.
23
Do I need a motion for Executive Session?
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MR. TAM: I move that we enter into Executive
25
Session.
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MS. NAMAHOE: Second.
2
CHAIR NAHUINA: It is moved and seconded
3
that we go into Executive Session for deliberations.
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All those in favor say "Aye."
5
(All Board Members responded affirmatively.)
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CHAIR NAHUINA: All those opposed, same
7
sign.
8
Move into Executive Session.
9
(Executive Session ensued from 2:48 p.m. to
10
3:16 p.m.)
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CHAIR NAHUINA: Thank you very much. It
12
is 3:16, and we are back out of Executive Session.
13
As the Chair, I would like to recommend
14
denial of the appeal. Do I hear a motion?
15
MR. CHILLINGWORTH: Mr. Chairman, I move that
16
the consolidated appeals of Mr. Guzman, Mr. Mayne, and
17
Mr. Pang be denied.
18
MR. TAM: I second.
19
CHAIR NAHUINA: It's moved and seconded.
20
All those in favor say "Aye."
21
(All Board Members responded affirmatively.)
22
CHAIR NAHUINA: All opposed, same sign?
23
Motion carries.
24
MR. HALVORSON: For the parties, a written
25
decision will be issued shortly. It will be available
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for your review.
2
When I say "shortly"...
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MR. MAYNE: Thank you.
4
MR. PANG: Thank you.
5
MR. GUZMAN: Thank you.
6
(The Appellants and Ms. Nomura exited the
7
room.)
8
CHAIR NAHUINA: At this time, we're going
9
to move on to unfinished business.
10
We have a request to reschedule our hearing
11
March 21st.
12
MR. MUKAI: I can represent to the Board that
13
Mr. Makaio called me. He is also in receipt, and he is
14
not -- as I said, I will not be available, I think,
15
from the period April 18 through the 26th, or something
16
like that; but he is agreeable to May, whenever the
17
Board meets in May. And I said I can make that
18
representation and that he not show up -- Mr. Makaio.
19
MS. NAMAHOE: There's a high likelihood I
20
will not be able to make any date of May because it is
21
a strong open enrollment time for me, some of my
22
(unintelligible).
23
MR. HALVORSON: Do you want to meet on
24
Saturday or Sunday?
25
MS. NAMAHOE: Right?
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Just May is a difficult month.
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MR. MUKAI: Okay, that's fine. I leave it up
3
to the Board whether you schedule it in May.
4
CHAIR NAHUINA: As I look at my schedule,
5
the first two weeks of May are better for me -- are
6
okay for me. The last two weeks I cannot.
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MR. CHILLINGWORTH: So, early May?
8
CHAIR NAHUINA: Early May. Are you open?
9
MR. TAM: Right now, I am.
10
CHAIR NAHUINA: The 1st through the 8th.
11
May Day is the 1st.
12
MR. TAM: What day? Oh, we're looking at a
13
Tuesday?
14
CHAIR NAHUINA: Tuesday, yes.
15
MR. TAM: Oh, Tuesday is tough for me.
16
CHAIR NAHUINA: We should go the second,
17
right? The second Wednesday? Glynis?
18
MR. TAM: It's usually the second Wednesday,
19
right?
20
MS. YAMADA: Yes.
21
CHAIR NAHUINA: That would be the 9th,
22
back on tradition.
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Will we have a place --
24
MS. YAMADA: Normally, MAB meets the third
25
Wednesday --
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CHAIR NAHUINA: Oh, third Wednesday.
2
MR. HALVORSON: But that's getting into your
3
difficulty.
4
CHAIR NAHUINA: That is, so --
5
MR. TAM: We can do May 9th.
6
CHAIR NAHUINA: May 9th?
7
MR. TAM: Yeah.
8
MS. NAMAHOE: I cannot.
9
CHAIR NAHUINA: We'll have quorum. We
10
will. May 9th.
11
All right, so let's schedule that for May
12
9th.
13
MS. YAMADA: Location to be determined.
14
And deadline?
15
CHAIR NAHUINA: Deadline for submission
16
two weeks prior, so that will take us April 25th.
17
MR. TAM: Good.
18
MR. HALVORSON: Submission of exhibits and
19
witness lists?
20
MR. TAM: Yes.
21
CHAIR NAHUINA: Yeah.
22
MR. HALVORSON: Glynis, will you make sure
23
that the Appellant knows about that?
24
MS. YAMADA: I'll send him a certified
25
letter, as well as to Mr. Mukai.
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CHAIR NAHUINA: Any other...
2
So, I just want to announce our scheduled
3
meeting dates. Merit Appeals Board will convene
4
meetings on the follows dates: We have special
5
meetings, Merit Appeals Board, on Monday, February 12th
6
at 9:00, Puna Conference Room. Also, on Thursday,
7
February 15th, at -- excuse me, there is a correction.
8
Monday, February 12th will be at 10:00, right? And
9
then Thursday, February 15th, is at 9:00 in the Puna
10
Conference Room, County Building, 25 Aupuni Street.
11
And on Wednesday, February 21st, 2018 at 10:00 at the
12
Department of Human Resources conference room.
13
Any other additions?
14
MR. TAM: Nope.
15
MS. YAMADA: Just a question. What time will
16
the hearing be for Mr. Makaio on May 9th?
17
CHAIR NAHUINA: 9:00.
18
MR. HALVORSON: 9:00.
19
CHAIR NAHUINA: 9:00.
20
Any other unfinished business?
21
Do I hear a motion to adjourn?
22
MR. CHILLINGWORTH: So moved.
23
MS. NAMAHOE: Seconded.
24
CHAIR NAHUINA: Moved and seconded.
25
All those in favor say "Aye."
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(All Board Members responded affirmatively.)
2
CHAIR NAHUINA: Opposed, same sign.
3
Motion carried. Meeting adjourned. And it's
4
3:23.
5
(The Merit Appeals Board meeting concluded at
6
3:23 p.m.)
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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 22nd day of February, 2018.
11
12
13
R, CSR No. 452
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ISLAND COURT REPORTING & TRANSCRIPTION SERVICES
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Ms. Teri Hoskins, Certified Court Reporter, transcribed the aforementioned proceedings of the
Merit Appeals Board at its meeting held on February 7, 2018.
Glynis Yamada, Secretary, Merit Appeals Board, had incorporated some minor
formatting/housekeeping revisions throughout the transcript. (The following individuals were
also present at the meeting: Mitchell Roth, Barbara Kossow, Clement Guzman, Kelly Mayne,
Daniel Pang,Nora Nomura, and Moana Hokoana.)
Respectfully Submitted,
lit /I Ina;
Glynis Yamada, Secretary
APPROVED:
David K. S. Nahuina, Acting Chair
Merit Appeals Board