2024-07-15 Merit Appeals Board Minutes

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Merit Appeals Board July 15, 2024 But, in this case, based on the notification and what was being happening, it was the Civil Service Director who took action against my client. And so, under the last sentence of 104-2(a), that's an Administrative Review taken by the Director under Title 1 of the Rules of the Department of Human Resources—which 3-19 and 3-10 fall into play. He had 20 -days to file his appeal of the Director's decision. In this case, the question is now when he knew or should have known that he could file a complaint. You could go off of the Personnel Action Form or you go off of his paycheck. I would just point out that in his supplemental declaration, what my client says is that his department director was going to bat for him during this process, so he was kind of waiting. And then, on April 29', the Mayor went to the Civil Service Director to try and reverse what was happening. And I would point out under 76-11 of the Hawaii Revised Statutes, the Mayor is defined as the "Employer." So, now you have the Employer intervening to try and reverse what was happening and my client's waiting—and until he gets his paycheck indicating that he got dinged or suffered this adverse decision that's when he figured out he better file an appeal, which he did in this particular case. I would point out that the "Exhibit S" that the County relies on, that memorandum that internal memorandum there is no evidence that the Director Pause actually informed my client that he had to that his recruitment or classification or whatever—was going to be terminated. There's no evidence in the record—circumstantial or otherwise to show that that's the point of time where he knew or should have known. And, again, I would refer to the County, citing 3-19, dash -3-19 of the Rules. Section (d) says, "Changes in an examination rating shall not affect" the certificate—"a certificate of eligibles already issued or invalidate an appointment already made from the eligible list" which is what happened in this particular case. This Rule doesn't work for the County. This is straight up the department director—Civil Service Director decided "We made a mistake and this is how we're going to solve it" we're going to let him suffer—my client suffer for the mistake. And that's why we're here today. We were saying that, in terms of my client, the first time he's officially noticed that this is going to happen to him—despite the assurances he got from his department director, despite the assurances he got from the Mayor on April 29' then now he gets dinged in his paycheck to show that this is where—and our position is this is where my client knew and should have known that he can file an appeal. Under 76-14 you have to look at your jurisdiction liberally, which means that all things are equal—you should find in favor of jurisdiction. And that's what we're saying here. There's a conflict. There's a difference in terms of where we believe the point of counting—or when that race started to the Merit Appeals Board. We think that in terms of what we've shown you, it's a reasonable explanation of how my client was looking at it. Page 30