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HomeMy WebLinkAbout2024-07-15 Merit Appeals Board MinutesREGULAR SESSION Merit Appeals Board Hilo Council Chambers Hawaii County Building 25 Aupuni Street, First Floor, Room 1401 Hilo, Hawaii July 15, 2024 (Monday) Call to Order (Item 1) The regular meeting of the Merit Appeals Board, County of Hawaii, was called to order at 9:00 a.m. by Chair Gabriella M. Cabanas, at the Hilo Council Chambers, Hawaii County Building, 25 Aupuni Street, First Floor, Room 1401, Hilo, Hawaii, on Monday, July 15, 2024. Roll Call — Present Ms. Gabriella M. Cabanas, Chair Ms. Gay Mathews, Vice -Chair Ms. Suzi Bond, Member Mr. Charles Kunz, Member Mr. David A. Wiseman, Member Also Present Mr. J Yoshimoto, Assistant Corporation Counsel, Office of the Corporation Counsel Ms. Sommer J. Tokihiro, Director, Human Resources Department Mr. Justin C. Lee, Deputy Corporation Counsel, Office of the Corporation Counsel Mr. Ted H. S. Hong, Esquire, Attorney at Law Mr. Lyndon P. K. Turner, Automotive Storekeeper, Public Works Department Ms. Glynis Yamada, Secretary -Reporter, Human Resources Department Merit Appeals Board Call to Order (Item 1) July 15, 2024 CHR. CABANAS: Good morning, everyone. The regular Merit Appeals Board meeting is called to order at 9 a.m., on this day, July 15�', 2024, which is a Monday. We have quorum. All five Board members are present. We are situated in the Hilo Council Chambers of the Hawaii County Building, at 25 Aupuni Street, First Floor, Room 1401, in Hilo, Hawaii. I'd like to introduce myself. I am Gabriella Cabanas, Chair, of the Merit Appeals Board. With me in the Hilo Council Chambers are my fellow Board members to my left, our Vice -Chair, Ms. Gay Mathews. MS. MATHEWS: Good morning, everyone. CHR. CABANAS: And to her left, Mr. Charlie Kunz. MR. KUNZ: Good morning. CHR. CABANAS: And to his left, Mr. David Wiseman. MR. WISEMAN: Good morning. CHR. CABANAS: And to my far right, Ms. Suzi Bond. MS. BOND: Good morning. CHR. CABANAS: And to my immediate right, Mr. J Yoshimoto, our Assistant Corporation Counsel. MR. YOSHIMOTO: Good morning, everyone. CHR. CABANAS: We also have our Director of Human Resources, Sommer Tokihiro. MS. TOKIHIRO: Good morning. CHR. CABANAS: And our Secretary -Reporter, Ms. Glynis Yamada. MS. YAMADA: Good morning. CHR. CABANAS: Good morning, everyone. Page 2 Merit Appeals Board Addendum to Agenda (Item 2) July 15, 2024 CHR. CABANAS: I understand from Glynis that we do not have any addendum to the agenda. Statements from the Public (Item 3) CHR. CABANAS: And there are no "Statements from the Public" on any of the agenda items at this time. Approval of Minutes (Item 4) May 3, 2024 CHR. CABANAS: Going on to the agenda, Number 4, "Approval of Minutes"—have you all had the chance to review the regular meeting minutes of May 3rd, 2024? Okay, Board members have acknowledged, yes, they have. And I'd like to just—in reading the meeting minutes, I think there were a typo. or two—let me see. I highlighted it as I read. On page 20, the second paragraph, last sentence"Anway"if we could add the "y" to the word "Anyway." And then on page 23, the third paragraph, Chair Cabanas says, "It's still not good." I think it should be a question mark because I'm responding to Ms. Mathews' statement up above where she says, "It's still not good." And I'm saying, "It's still not good?" It's a question mark. So, I think everything else was okay, unless you—anyone of you caught a typo.? MR. WISEMAN: I make a motion to approve the minutes. CHR. CABANAS: As amended. MR. WISEMAN: As amended. MR. KUNZ: Second. CHR. CABANAS: Thank you. Any discussion? I'll start a rollcall vote with Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Mr. Wiseman. Page 3 Merit Appeals Board MR. WISEMAN: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Ms. Cabanas—aye. July 15, 2024 Five ayes. Motion carried to accept the meeting minutes of May 3rd, 2024, as amended. Review of Executive Session Minutes May 3, 2024 (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matters, Pursuant To HRS Sections 92-4 And 92-5(a)(4), For The Purpose Of Consulting With The Board's Attorney On Questions And Issues Pertaining To The Board's Powers, Duties, Privileges, Immunities, And Liabilities. A 2/3 Vote Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting) CHR. CABANAS: Next is the review of executive session meeting minutes for May 3rd 2024. Have you all had a chance to review the executive session meeting minutes? Okay, they are acknowledging by a nod of their heads. MR. WISEMAN: Move to approve the executive minutes of May. MR. KUNZ: Second. CHR. CABANAS: Thank you. Any discussion? If not, I'll start a rollcall vote with Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Mr. Wiseman. MR. WISEMAN: Yes. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. Page 4 Merit Appeals Board CHR. CABANAS: Ms. Cabanas—aye. July 15, 2024 Five ayes. Motion carried to accept the executive session meeting minutes for May 3rd 2024. Director's Report (Item 8) MAB Quarterly Reports: April – June 2024: and MAB Monthly Divisional Activity Report: July 2024 (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matters, Pursuant To HRS Sections 92-4 And 92-5(a)(4), For The Purpose Of Consulting With The Board's Attorney On Questions And Issues Pertaining To The Board's Powers, Duties, Privileges, Immunities, And Liabilities. A 2/3 Vote Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting) CHR. CABANAS: We are now at the "Director's Report"—good morning, Sommer. (At this time, Ms. Sommer J. Tokihiro, Director, Human Resources Department, came forward. MS. TOKIHIRO: Good morning. MAB Quarterly Reports: April – June 2024 CHR. CABANAS: On the agenda is your presentation for the MAB Quarterly Report for April through June 2024. Have the Board members reviewed her report? Any questions for Sommer? While the Board members are reviewing the report, Sommer, I have a question for the Equal Opportunity/ADA Division. It says that the individual worked on 12 internal and external inquiries/complaints referring to ADA reasonable accommodations/modifications. Were these resolved because this statement is just a statement that there were inquiries or complaints. But I think it's beneficial for the Board to know that out of the 12, what was the outcome? Were they resolved? Were reasonable accommodations or modifications made—without going into detail. MS. TOKIHIRO: And it could be ongoing as well. CHR. CABANAS: Okay. MS. TOKIHIRO: So, I would have to clarify. Danny Patel is the Deputy Director—is filling in and completing those EO/ADA responsibilities in the absence of a manager, but I can follow-up with him and we can look at adding some clarifying details to the report. CHR. CABANAS: Okay. I think that would be helpful even for the internal inquiries/complaints relating to EO issues. Because I think, from an HR perspective, we would like to see—well, I'll speak for myself—but I would like to see that whatever the inquiry or complaint might be, that whatever it is, the issue was resolved—maybe a compromise was made Page 5 Merit Appeals Board July 15, 2024 or if a reasonable accommodation could not be made—something along those lines, just to kind of like paint a complete picture for our Board members. MS. TOKIHIRO: Okay. CHR. CABANAS: Okay. Anyone have questions? Mr. Wiseman, go ahead. MR. WISEMAN: Yes. First off, on the vehicle equipment chart and explanation—it's pleasing to know that it was reduced down to 50 for 2024. So, I'd like to know, what accounted for that nice reduction? MS. TOKIHIRO: So, this report actually is reporting a calendar year—so it's at 50 but we're only about halfway through the calendar year. MR. WISEMAN: I see. MS. TOKIHIRO: So, it I still hope that we don't have any more vehicle damages and that would be great. But, by the end of the year, we'll be able to assess if we're MR. WISEMAN: I see. My other concern or suggestion is when you paint parking lines in the parking lot, you have a cat walking on it, and then walk on all the cars MS. TOKIHIRO: Yes. MR. WISEMAN: Yeah—so something to think about. A solution to that. MS. TOKIHIRO: Maybe it should be, like, apply stripped as opposed to apply paint. MR. WISEMAN: Or some fast -drying paint. MS. TOKIHIRO: Yeah. MR. WISEMAN: Fast -drying paint—that's what you need. MS. TOKIHIRO: Right. I'll have to talk to the director MR. WISEMAN: You can't eliminates the feral cats but— MS. utMS. TOKIHIRO: Yeah, I'll have to talk to the Director of Public Works and DEM about that. MR. WISEMAN: That's, probably, one for the police—anyway. MR. KUNZ: Chair, can we go back to the EO matter? MS. TOKIHIRO: Sure. Page 6 Merit Appeals Board CHR. CABANAS: Please proceed. July 15, 2024 MR. KUNZ: Yeah. If I'm—and, Sommer, you can maybe clarify this. If I'm reading the graph correctly, though, it's stating the number of inquiries and complaints—and then, right next to that, the number say, "time resolved in days"—and it demonstrates out of the 1816 were—was resolved? MS. TOKIHIRO: Yes, so from that chart it looks 16 would have been resolved in less than 14 days. MR. KUNZ: Fourteen days—(inaudible). MS. TOKIHIRO: And then, there's still two pending which is probably they're probably trying to get clarifying information. MR. KUNZ: Would that not address what your question was, Gabe? MS. CABANAS: In part because I think we also should know that—okay, was reasonable accommodation provided in—what is it -16 cases? Well—yeah, 16. But then, here it says, "12"12 internal and external. MS. TOKIHIRO: That's why it's a combinationso, there were 18 total and (inaudible) 12 (inaudible). MS. CABANAS: Right. So, what happened? It was resolved but then, how was it resolved? Were reasonable accommodations provided? Were there modifications maybe to the work environment? Modifications to the job—some minor job duties? Just to, kind of bring to kind of paint that whole picture. Yeah? Okay. Is that okay, Mr. Kunz? MR.KUNZ: Yes, itis. I was just MS. CABANAS: `Cause it's not only the time element— MR. lement MR. KUNZ: Correct. But MS. CABANAS: —it's the matter at -hand. Yes, you want to be timely. You don't want it going on for months, but was the matter resolved? Were reasonable accommodations provided? MR. KUNZ: So, I was just curious as to what depth of detail that you wanted— CHR. CABANAS: Yeah. MR. KUNZ: `cause you said you didn't want details, so Page 7 Merit Appeals Board July 15, 2024 MS. CABANAS: No, not the specifics, `cause we have to be cognizant of the confidentiality for the employees but just was the matter—what happened in terms of the resolution? Yeah? Okay. Any other comments or questions for Sommer on any of the division—Ms. Mathews. MS. MATHEWS: It's more of a statement/question. You could have somebody that for whatever reason is flat being difficult. How would you be able to report that without saying that? `Cause I've seen this before. MS. TOKIHIRO: So, before the meeting started, J and I were having a discussion and I'll say that I would say you have to trust the process. And so, if we've gone through the process—in not every case, an accommodation or modification is found to be warranted. So, as far as if someone is being difficult, as you mentioned, I would probably report to the Board that we found that no modification was warranted. MS. MATHEWS: Thank you. MS. TOKIHIRO: Yeah. CHR. CABANAS: And I think a general statement, too, could be that reasonable accommodation and/or modifications were considered—yeah—and the situation—although it were considered, the accommodation request and/or modification request was not—you could say it was not—I'm trying to think of the right word—was not— MS. ot MS. TOKIHIRO: Could it be "substantiated?" CHR. CABANAS: Yes. Substantiated and not be a burden to the employer—I would stick to the language of ADA that it's a undue burden for the employer—yeah? So, I would stick to that and that it would not be warranted, yeah? So, at least we know that—okay, but it got resolved that way. MS. MATHEWS: Is there an appeal process by the employee that could make this continue? Or CHR. CABANAS: Sure, they could come before the MS. MATHEWS: They'd actually (inaudible). CHR. CABANAS: Well, it could go to—if the person is a collective bargaining employee, it goes through the internal complaint process. And, if not, then they would—or if they went through that process, then it comes to the Merit Appeals Board. If it's someone from outside of the County, it comes to the Merit Appeals Board. MS. MATHEWS: Okay, thank you. Page 8 Merit Appeals Board July 15, 2024 CHR. CABANAS: Going to the vehicle equipment report—the last sentence, "A vehicle window was scratched by someone with flashlight while trying to gain entry" where was that? Was that Aupuni Center? MS. TOKIHIRO: I'm not sure of the exact location but Aupuni Center would be a good guess as far as the number of vehicles damaged— CHR. CABANAS: It's just that—yeah, the other sentence says, it says basically Wailuku Pump Station or Honokaaso, I was just wondering. Any other— MS. MATHEWS: And would that have been determined based on a video feed of some kind? MS. TOKIIRO: It could have been. At the Aupuni Center, we do have cameras on the outside, so that could have been video footage for the MS. MATHEWS: Otherwise, it's incredibly specific without MS. TOKIHIRO: Yeah, so it's likely that they CHR. CABANAS: Well, you also have the security guards, right? MS. TOKIHIRO: We do. Yes. CHR. CABANAS: At night, too, right? MS. TOKIHIRO: Yeah, 24 -hours a day. CHR. CABANAS: Yeah. MS. TOKIHIRO: Between the two this site and across the street. CHR. CABANAS: I have one question for the "Social Media Outreach" on—in the Recruitment and Exam. Division report—it's page 2. It's the last paragraph"Social Media Outreach" "The Recruitment & Examination Division has continued with social media outreach and expanded strategies on facebook, instagram, and linkedin." Well, I see some of the postings on Facebook and InstagramI'm not sure what—what are the other strategies being utilized on those social media platforms? MS. TOKIHIRO: I think it's change primarily, changing how we're describing or advertising, like, a specific position. And then, I've also seen Michelle change it up a little and then advertise a whole list of continuous recruitments as opposed to just going, "Hey, it's Friday, are you interested in working for the County? We have this new Clerk III position, do you know anybody who has this much experience? Apply at our website." Page 9 Merit Appeals Board July 15, 2024 CHR. CABANAS: Okay, thank you, Sommer. Any success with LinkedIn? MS. TOKIHIRO: That one, we—well, I mean, she advertises on there but I don't know that we've gotten specific feedback that people have applied for positions based on those postings. That's got to be part of—we need to change the way we're soliciting feedback on the applications to see where exactly and specifically people are—got the information about the job and that caused them to apply. So, we'll be looking at that because we want I think we can ask a few more questions in the application process to get some clarification of a variety of things. So, we're going to be looking at that. CHR. CABANAS: Okay. And the other question I had is on a previous divisional report you mentioned ZIP Recruiter. What's happening with that? MS. TOKIHIRO: So, that was an initial 30 -day trial and they gave us 40 job slots. So, basically, for 30 -days we were able to, on a daily basis, identify which 40 jobs we wanted advertised through ZIP Recruiter. And, basically, what they would do is push our job listings to people that had advertised for similar openings. So, I'm not—and, again, because we need to change those clarifying questions in the application process, how people are finding us—we did initially see an increase in the number of applications that we received when we started that advertising campaign. Again, I'm not sure if that was all because of ZIP Recruiter or if it just so happened that we got this increase. But we did see an increase in applications but I wanted to explore other similar offerings through Indeed. We're also looking at radio campaigns because a lot of these recruitment sites—like ZIP Recruiter where they're sending out the job postings that's great. But that targets one type of audience. We need to make sure that we're reaching a variety of different audiences through a variety of different methods. So, we're exploring Indeed and looking at a partnership with them to see if we get different results. And then, also, looking at radio advertising. Again, that's not something that we've done recently, but we're trying to get the word out that way through a variety of stations. MR. KUNZ: Is the Zip Recruiter, I'm assuming, the 30 -days has lapsed already? MS. TOKIHIRO: Yes, it has. MR. KUNZ: And then, is the department in a position to pay for anything beyond—like, if you explore wanting to actually use those methods? Is the department—wrong word is "flushed" but does it have enough funds to cover that, for like a 6 -month period or something? MS. TOKIHIRO: Yes. We do have the funds—additional funds were added to the Recruitment and Examination budgets specific to advertising. So, that allows us to be able to try some of these different strategies and, certainly, if we found one that was successful, we could then renew for a significant I mean, several months, say. Page 10 Merit Appeals Board July 15, 2024 And then, also continuing our efforts through career fairs, community events the Recruitment and Examination staff just went to Tiger Fun Day at the Zoo. And then, they'll be participating in their Halloween events as well. So, just a variety of methods of getting out there. CHR. CABANAS: Okay. So—go ahead. MS. BOND: I know this is, sort of, cart after the horse. But why wasn't there anyone at the Revitalize Puna? MS. TOKIHIRO: I would have to ask Michelle. That's a good question. MS. BOND: Yeah, `cause there was an opportunity there on Saturday with couple 100 people there. There wasI noticed there was no one there from HR and there were a ton of other departments there. So MS. TOKIHIRO: Oh, there were? MS. BOND: Yeah. So, I know that that's supposedly the last one, but you might want to keep track with Ashley about what's coming up MS. TOKIHIRO: Sure. MS. BOND: because that's a large population that already isn't being served— MS. TOKIHIRO: Right. MS. BOND: —when they probably should be. MS. TOKIHIRO: Okay. Thank you. CHR. CABANAS: That's a good point, Ms. Bond, because I think whatever opportunity we have for staff to be out in the community—like, there's an upcoming career fair at the mall in August, so you folks are going to be there? MS. TOKIHIRO: Yes. CHR. CABANAS: Oh, okay, great. So, I'm going to go back to ZIP Recruiter. So, you had the trial period, are you—what's your plans now? Are you going to back? MS. TOKIHIRO: Rather than renewing the ZIP Recruiter I wanted to try a different platform because we want to see if their—if the results or the offerings are different. So, rather than just renewing with one, we're going to try an alternative first. CHR. CABANAS: Was ZIP Recruiter global? Page 11 Merit Appeals Board MS. TOKIHIRO: Yes. CHR. CABANAS: Or national? MS. TOKIHIRO: I believe it's global. CHR. CABANAS: It's global the outreach was global. July 15, 2024 MS. TOKIHIRO: And through their combination of algorithms and everything elseI mean, it would just instantly get (inaudible)—and I wasI would go on ZIP Recruiter but then I also went on other sites because ZIP Recruiter has a bunch of partners. So, once it—it wouldn't just be found on ZIP Recruiter they pushed it to these other partner sites. And so, the reach is broad but even for myself going on and just googling to see where it came up, I was pleased to see the jobs that we had identified out there. CHR. CABANAS: Okay, thank you. Any other questions or concerns for Sommer on the Quarterly Report for April through June 2024? Okay. If not, can I have a motion to accept and file the quarterly report— MS. eport MS. MATHEWS: So moved. CHR. CABANAS: Thank you. A second? MR. WISEMAN: Second. CHR. CABANAS: Thank you, Mr. Wiseman. Any discussion? If not, I'll start a rollcall vote with Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Ms. Cabanas—aye. Page 12 Merit Appeals Board July 15, 2024 Five ayes. Motion carried to accept the Director's Report for MAB's Quarterly Report April through June 2024. MAB Monthly Divisional Activity Report: July 2024 CHR. CABANAS: Moving along, we now have the Director's MAB Monthly Divisional Activity Report for the Month of July 2024. Sommer, do you want to go into executive session for this? MS. TOKIHIRO: Yes. CHR. CABANAS: Okay. So, let me read the Merit Appeals Board anticipates convening one or more executive meetings regarding the above matters pursuant to HRS Sections 92-4 and 92-5(a)(4) for the purpose of consulting with the Board's attorney on questions and issues pertaining to the Board's powers, duties, privileges, immunities, and liabilities. A 2/3 vote pursuant to HRS, Section 92-4, is necessary to hold an executive meeting. Board members, have you had the opportunity to review the divisional activity report for MS. MATHEWS: There needs to be a vote. MR. YOSHIMOTO: Motion and a vote. CHR. CABANAS: Oh, yes, I'm sorry, my apologies, I'm getting ahead of myself. So, may I have a motion for the Board to enter into executive session? MS. MATHEWS: So moved. CHR. CABANAS: Thank you. A second? MR. WISEMAN: Second. CHR. CABANAS: Thank you. Any discussion? If not, I'll start a rollcall vote with Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Mr. Wiseman. Page 13 Merit Appeals Board MR. WISEMAN: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Ms. Cabanas—aye. July 15, 2024 Five ayes. Motion carried for the Board to enter into executive session to discuss the MAB Monthly Divisional Activity Report for July 2024. RECESS: The Chair called for a recess at 9:25 a.m. CONVENE: The meeting convened at 9:26 a.m. in executive session. RECONVENE: The meeting reconvened at 9:59 a.m. in open session. MAB Monthly Divisional Activity Report: July 2024 CHR. CABANAS: And so, now may I have a motion to accept and file the Director's MAB Monthly Divisional Activity Report for July 2024. MR. KUNZ: So moved. CHR. CABANAS: Thank you. MR. WISEMAN: Second. CHR. CABANAS: Thank you. Any discussion? If not, I'll start a rollcall vote with Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. Page 14 Merit Appeals Board July 15, 2024 CHR. CABANAS: Ms. Cabanas—aye. Five ayes. Motion carried. Thank you, everyone. Thank you, Sommer. MS. TOKIHIRO: Thank you. CHR. CABANAS: Good morning, everyone. Good morning. So, the Merit Appeals Board is still in open session at 9:59 a.m. So, Board members, Mr. Thomason is our legal counsel for the appeal hearing, that's why exited. Mr. Thomason, can you hear me? MR. THOMASON: Hi, I can hear you. CHR. CABANAS: Oh, okay, great. Hi, Mr. Thomason. MR. THOMASON: (Inaudible.) 10:00 A.M.: HEARING RE COMMUNICATION NO. 24-03 (Note: The Hearing Concerns The Preliminary Issue Of Whether The Board Has Jurisdiction To Hear The Appeal, Under Section 76-14, Hawaii Revised Statutes. If It Is Determined That The Board Has Jurisdiction, The Hearing Will Continue Concerning The Merits Of The Appeal.): Communication No. 24-03, Received On May 1, 2024, From Appellant, Appealing The Following Actions By The County Of Hawai`i's Department Of Human Resources: Recruitment And Examination, And Classification Or Reclassification Of A Particular Position; And Communication No. 24-03.01, Received On June 10, 2024, Regarding Appellee's Motion To Dismiss For Lack Of Jurisdiction, Or In The Alternative, Hold Proceedings In Abeyance; Memorandum In Support Of Motion; Declaration Of Sommer Tokihiro; Declaration Of Justin C. Lee; Exhibits "A" – "V"; Certificate Of Service; And Communication No. 24-03.02, Received On June 10, 2024, Regarding Appellee's Witness List; Certificate Of Service; And Communication No. 24-03.03, Received On June 10, 2024, Regarding Appellee's Exhibit List; Exhibits "A" – "V"; Certificate Of Service (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matter, Pursuant To HRS Sections 92-4, 92-5(a)(2) And 92-5(a)(4), For The Purpose Of Evaluating An Officer Or Employee Of The County Of Hawaii, Where The Consideration Of Matters Affecting Privacy Will Be Involved And Consulting With The Board's Attorney On Questions And Issues Pertaining To The Board's Powers, Duties, Privileges, Immunities, And Liabilities. A 2/3 Vote Of The Members Present Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting) CHR. CABANAS: The hearing for Lyndon P. K. Turner is now starting at 10:02 a.m. on this day, July 15'', 2024. The Merit Appeals Board is seated in the Hilo Council Chambers of the Page 15 Merit Appeals Board July 15, 2024 Hawaii County Building. I'm looking for my agenda, there's so many papers hereat 25 Aupuni Street, First Floor, Room 1401, in Hilo, Hawaii. I'm Gabriella Cabanas, I'm the Chair of the Merit Appeals Board. And seated here with me here are my fellow Board members—Vice-Chair Gay Mathews; to my immediate left, Mr. Charlie Kunz. MR. KUNZ: Good morning. CHR. CABANAS: To her immediate left and to Mr. Kunz's immediate left, is Mr. David Wiseman. MR. WISEMAN: Good morning. CHR. CABANAS: My far right, is Ms. Suzi Bond. MS. BOND: Good morning. CHR. CABANAS: So, these are the Merit Appeal Board members. We have our legal counsel, via Zoom, Mr. Richard Thomason— MR. THOMASON: Good morning. CHR. CABANAS: —he's the Deputy Attorney General sitting in via Zoom, and our Secretary - Reporter seated in the back of us, Ms. Glynis Yamada. So, I'd like to call upon Mr. Justin Lee from the Office of the Corporation Counsel, representing the County of Hawaii. And, Justin, you can have a seat at the dais. And, Mr. Ted Hong, you can also have a seat at the dais with Mr. Lyndon Turner. Also present in the room is Ms. Sommer Tokihiro, our Director of Human Resources. (At this time, Mr. Justin C. Lee, Deputy Corporation Counsel, Office of the Corporation Counsel, and Ms. Sommer J. Tokihiro, Director, Human Resources Department, came forward. Also, Mr. Ted H. S. Hong, Legal Representative for Mr. Turner, and Mr. Lyndon P. K. Turner, Automotive Storekeeper, Public Works Department, came forward.) CHR. CABANAS: So, good morning to all of you. I'm going to let you get situated at the dais. While you're getting situated—so are there others appearing via Zoom—and, if there are, can you identify yourself for the record? I see Kaila Turner—is that your daughter, Mr. Turner? And is there someone elseoh, your wife, Mrs. Turner. Okay, thank you for sitting in via Zoom as well. For the record, we need to have all of the names present. Page 16 Merit Appeals Board July 15, 2024 Right now, the hearing is an open hearing in accordance with your appeal form. So, I'm going to ask you, Mr. Turner, do you want an open or closed hearing at this time? Because your appeal form states "open." You want it open? MR. TURNER: Yes, open. CHR. CABANAS: Okay. Which means that any member from the public walking in can sit in and listen or appearing via Zoom. MR. TURNER: Perfect. Thank you. CHR. CABANAS: Okay. All right. So, the hearing is on the appeal filed by Mr. Lyndon P. K. Turner, and I understand that Mr. Ted H. S. Hong, Esquire, will be representing you, Mr. Turner. Okay. The issue in this case has been identified as Number 1, did the Employer, the Human Resources Department of the County of Hawaii violate any statutes, regulations, rules, or personnel policies in the Appellant's statement of legal wrong regarding the following actions Recruitment and Examination, and Classification or reclassification of a particular position. And Number 2, if the answer to the above is "yes," then what remedy can be awarded by the Merit Appeals Board? Before we go any further, I need to make, as the Chair, a full disclosure. And this the disclosure is on two points. The first point being that I have worked with Mr. Ted Hong in his prior capacity as the Assistant Corporation Counsel, many years agoI believe it was in the nineties—Ted, when you started with the Office of the Corporation Counsel. And I, at that time, I worked for the Department of Human Resources and I was the Recruitment and Examination Manager. So, basically, he was newI trained him on recruitment and examination functions and he and I worked together on appeals, and I represented the department at appeal hearings. Okay, so that's my disclosure. The second disclosure is, I noticed in the exhibits provided by the County, Mr. Justin Lee, who's the attorney for the CountyI noticed that, without going into any specifics, that my name is listed on one of the exhibits. Okay. Having said that to all of you, I just want to ask all of you if you have any questions or concerns about me presiding over the hearing? And I just also want to state that in all the work that I have done for the Department of Human Resources, my career over 35 years with the department— I've epartmentI've been with the County over 37 years. I started in Public Works and then I went to Human Resources that I've always tried to be fair and objective reviewing the facts and then making Page 17 Merit Appeals Board July 15, 2024 my decision or recommendation to whomever I worked with—whether it was the Mayor, department head, deputy, employee, or member of the public. Mr. Wiseman. MR. WISEMAN: Yes. I find it hard to resist putting this on the not putting this on the record but I'd like to commend Chairperson in making this disclosure, which is very common in most litigation venues and hearing venues. Unfortunately, our United States Supreme Court doesn't find that appropriate and never make disclosures. Thank you. CHR. CABANAS: Thank you, Mr. Wiseman. Any comments or concerns? Mr. Hong, your light is on. MR. HONG: On behalf of the Appellant, we have no objection to your continuing to preside over the present proceedings. And I just want to apologize in advance `cause probably with all the training you provided me in the past didn't stick—so. CHR. CABANAS: Oh, there might be some refreshers during the hearing itself. Well, thank you for the vote of confidence. So, we will proceed. The Board is in receipt of communications by the Appellee, which is the County of Hawaii, to discuss the motion for lack of jurisdiction as well as communications from the Appellant in opposition to dismiss for lack of jurisdiction. We will take up this matter first. The Board will hear oral arguments on this motion. But before we do, I would just like to read that we did receive four communications from Mr. Ted Hong, Esquire, regarding the appeal. (Chair Cabanas proceeded to read Communication Nos. 24-03.04 through 24-03.07. These communications were not listed on the July 15 agenda, however, were distributed at the meeting.) Communication No. 24-03.04, received on July 9, 2024, regarding Appellant's Notice of Appearance of Counsel; Certificate of Service; and Communication No. 24-03.05, received on July 10, 2024, regarding Appellant's Memorandum in Opposition to Appellee's Motion to Dismiss for Lack of Jurisdiction, or in the Alternative, Hold Proceedings in Abeyance, Dated June 10, 2024; Exhibits "I"; Declaration of Appellant; Certificate of Service; and Communication No. 24-03.06, received on July 11, 2024, regarding Appellant's First Amended Declaration of Appellant in Support of Appellant's Memorandum in Opposition to Appellee's Motion to Dismiss for Lack of Jurisdiction, or in the Alternative, Hold Proceedings in Abeyance Dated June 10, 2024, Dated July 10, 2024; Certificate of Service; and Communication No. 24-03.07, received on July 11, 2024, regarding Appellee's Reply in Support of Appellee's Motion to Dismiss for Lack of Jurisdiction, or in the Alternative, Hold Proceedings in Abeyance; Certificate of Service. Page 18 Merit Appeals Board July 15, 2024 CHR. CABANAS: Mr. Thomason, do I need Board approval to enter these communications into the record for the hearing? MR. THOMASON: No. CHR. CABANAS: No? Okay, I can proceed? MR. THOMASON: Yes. CHR. CABANAS: Okay, thank you very much. Making sure I'm doing everything correct here. Okay MR. THOMASON: You've got Ted here so, we better be careful. CHR. CABANAS: Yes, I know, Mr. Hong, so MR. THOMASON: I know him well, too, and I'm very (inaudible) although I'm not really sure why. CHR. CABANAS: But I need, also, to be fair to the County of Hawaii and Mr. Justin Lee, so I have to put that knowledge of Mr. Turner—Mr. Hong on the side. Okay. So does either parry have any additional evidence at this time? MR. HONG: Madam Chair, and members of the Boardagain, good morning. From my perspective, what we wanted to do today was hear the motion to dismiss and in the event that the Board denies the motion to dismiss, I would be asking for an extension of time to present our case—only because as the Notice of Appearance indicates, I was retained on the 9h of July and we, certainly, didn't have the opportunity to identify witnesses or ask for the Board to issue subpoenas for County witnesses. So, in the event that the Board does deny the motion to dismiss, we will be asking for an extension. CHR. CABANAS: Okay. So noted. So, County of Hawaii, Mr. Justin Lee, would you like to make an oral argument at this time, for a motion to dismiss? MR. LEE: Sure, thank you. Madam Chair, members of the Board, just briefly, and I'd like the opportunity for rebuttal, if the Board is willing to grant it, I guess, depending on what the Appellant argues. But the way I see it, is two issues. The first is statute of limitations. It's the County's position that Mr. Turner's appeal was filed beyond the 20 days. We think the rule is pretty clear. It's 20 days from the action. There was a lot of discussion in our briefings with regards to notice. Page 19 Merit Appeals Board July 15, 2024 The County's position that was more for the sake of argument but there is a distinction between action and notice. Even so, entertaining the Appellant's arguments, the County's position is that sufficient notice was granted. The beginning date of that was the email from Human Resources to Mr. Turner on March 20'h indicating that the recruitment had been cancelled. Subsequent actions within the Appellant's own declaration attached to his opposition, indicate that he was also aware of some actions prior to the April 15'h date that he argues was his notice date. That'll be the discussions between his immediate supervisor, the Director of Public Works— MR. WISEMAN: I'd like to interrupt. I have a question on the recruitment issue. MR. LEE: Sure. MR. WISEMAN: He was beyond recruitment, wasn't he? MR. LEE: I did read that in the Appellant's yes. MR. WISEMAN: Wasn't he on probation with MR. LEE: So, that would be MR. WISEMAN: getting two letters of approval of his probationary (inaudible). MR. LEE: So, the—he would be under examination `cause he was on probation and there are relevant rules MR. WISEMAN: But the recruitment is determinative of the time the statutory time (inaudible) isn't it? CHR. CABANAS: Can I interject for a moment as the Chair. Mr. Thomason, I don't want to are we—without going into the merits of the case, are we allowed to ask those questions as Board members? Because our focus right now is on the motion to dismiss. MR. WISEMAN: But my question was on the motion to dismiss CHR. CABANAS: Correct. MR. WISEMAN: this is the basis of the opposition in the ground level of the motion. CHR. CABANAS: Right. But it's leading into recruitment and the definition of recruitment versus other—and probation—so I just want to get legal advice from Mr. Thomason. MR. THOMASON: I think this is broad enough to encompass this (inaudible) questions. Page 20 Merit Appeals Board CHR. CABANAS: Okay, thank you. MR. THOMASON: It's a mixture. We got a mixture of stuff going on. So, let's CHR. CABANAS: Okay. Mr. Wiseman. MR. THOMASON: Err on the side of allowing questions (inaudible). MR. WISEMAN: I'm through. I asked my question. CHR. CABANAS: Okay. Please proceed. July 15, 2024 MR. LEE: Thank you. So, it's the County's position that two actions occurred on—with regards to Mr. Turner's employment. There was a cancellation of recruitment, which the Appellant has focused his arguments on. But there was also the voiding of the appointment—both of which happened concurrently. Technically, the Appellant is correct. The recruitment ended once Mr. Turner was appointed. But upon the voiding of Mr. Turner's appointment, technically, the appointing body that would be the Director of Public Works—could go back to the eligible list and choose from that eligible list. So, the recruitment is technically ended when an employee is appointed and probationary (inaudible), it continues on. CHR. CABANAS: Mr. Lee, can you speak closer to the mic. so we can—'cause it's being recorded. Thank you. MR. LEE: So, the County's position is that—yes, the active recruitment is over during the probationary period, but when that probation period—either the candidate doesn't work out or it's voided or whatever the rules do allow for the appointing parry to go back to list of eligibles. However, given the situation of this case where the minimum qualifications wasn't able to determine whether either candidate was appropriate, then the recruitment would be cancelled. So MR. WISEMAN: But wasn't this—wasn't the catalyst to this decision based on the only other applicant for the position who made some derogatory comments about his qualifications? And that, sort of, was the catalyst for rolling it along? MR. LEE: Yes and no. I mean, there was an internal complaint that was filed MR. WISEMAN: Which was unfounded. Page 21 Merit Appeals Board July 15, 2024 MR. LEE: That was the determination of the internal complaint—yes. The—concurrently with that—when an internal complaint is filed, the rules require that you try directly to perform their own administrative MR. WISEMAN: So, the complaint doesn't need any substantiation—someone can just make a comment and that's the complaint? MR. LEE: I guess, I'm not quite sure what the confines of your question are, but what happened in this case was that an internal complaint was filed and that triggered an Administrative Review by the Director. MR. WISEMAN: Okay. Proceed please. MR. LEE: Okay. So, I guess, thank you to Member Wiseman that action was both voiding of the appointment and the cancellation of the recruitment. At that point, the 20 days were triggered. Mr. Turner, in his declaration, indicates multiple instances of notice, prior to the April 15'h date—including him being placed on Temporary Appointment to his position. The question begs to be answered—why would he be—needed to be placed on temporary appointment if something wasn't happening with his probationary appointment to the Construction Equipment Repair Supervisor position? So, the County's position is, there was ample notice even if the Board was to take on the standard of notice. And we would refute the Appellant's assertion that the April 15'h is the (inaudible) date because it's not quite—as we point out in the reply that they're arguing they didn't have notice to that point. It's just that he realized that he had no choice at that point to file an appeal. He had gone through certain actions and was hoping that would be resolved without having to file a complaint. But he was well aware that he was removed from his CERSII position that he replaced back to a Storekeeper position. And that he was placed on temporary appointment back to the CERSIL That's it in a nutshell. MR. WISEMAN: I have one final question for you, Mr. Lee. When he's placed—when an employee is placed on probation, are the terms and conditions explained to that employee of the probationary period? MR. LEE: Am I allowed to defer to (inaudible). MR. WISEMAN: Yeah, sure. MS. TOKIHIRO: As part of the interview process, there's a disclosure that states that a new probationary period has to be completed before permanent status is granted. And that new probationary period is a period of six -months. MR. WISEMAN: But are the terms and conditions that can cancel that probation explained to the employee? Page 22 Merit Appeals Board July 15, 2024 MS. TOKIHIRO: No, because that's at the—I mean, it could be for a variety of reasons whether it was performance orso, as far as the specific terms and conditions—no—other than a new probationary period is six -months. MR. WISEMAN: Thank you. CHR. CABANAS: So, Mr. Lee, are you using—what date of official notice are you using? MR. LEE: Of notice? CHR. CABANAS: Of notice. MR. LEE: Of notice, we're using March 20''. CHR. CABANAS: And the decision date? MR. LEE: The actual date we're using is March 16''. And that's reflected in the Form 13 Personnel Action Form returning Mr. Turner to the Storekeeper position. For reference— CHR. CABANAS: Okay. Can you cite the exhibit number MR. LEE: Sure. CHR. CABANAS: that you are referring to—which Communication? MR. LEE: Thank you. The email that we're referring to—notice—is "Exhibit T" the Personnel Action Form that we're referring to is "Exhibit D." CHR. CABANAS: Okay. So, "Exhibit T" is to Mr. Turner and it's coming from the Director of HR telling him that the recruitment for the Construction Equipment Repair Supervisor 11 is cancelled—"A new recruitment will open in the near future, reflecting corrected information" this doesn't really explain to Mr. Turner that he is out of the position. MR. LEE: That's correct. It wasn't germane to our motion at the time but there was an internal memo that was communicated from the Director of Human Resource to the Director of Public Works indicating her action. That's dated prior—we don't have any paperwork or, I guess, paper trail you could say—of when the Director of Public Works informed Mr. Turner of that decision because the way the memo is written is the Director of Human Resources asks the Director of Public Works to inform Mr. Turner that the appointment is voided and the recruitment would be cancelled. And it asked Director Pause to inform Mr. Turner of that by March 8h. We did not include that in our motion because we could not—that was a communication only between the two directors. It didn't—it wasn't germane to Mr. Turner's notice. We'll have to Page 23 Merit Appeals Board July 15, 2024 leave it to Mr. Turner as far as when Director Pause—or we'll leave it to Director Pause as far as when they informed him of the action. But the County would put forth that there's sufficient circumstantial evidence with the other exhibits to note that Mr. Turner was aware that he was being removed from his CERSII position from his paystubs—from his temporary appointment as well as his own admissions in his declaration. CHR. CABANAS: But we're talking about "official notice" not awareness. "Official notice" to the Appellant. MR. LEE: I guess we return to the rule is pretty clear. It's date of action. We're referring to the Personnel Action Form of "Exhibit D." Mr. Turner indicates that he didn't have notice till he, I guess—we won't even go that far—but he didn't realize it was final until he received his paystub covering the section but I guess the County doesn't find that argument compelling because he was already placed in temporary appointment. So, if the Board is seeking something official notice, we would refer to "Exhibit U," which is the indication of—that Mr. Turner was placed on temporary appointment and the effective date for that was March 18''. CHR. CABANAS: March 18'h was the date of what? MR. LEE: When he began his temporary appointment to the CERSII position. For clarity, "Exhibit U" encompasses multiple pages. It would be the second page, it's a pink form. And in the there's a spreadsheet -looking area in the middle of the sheet and it says, "DATE(S)" and it begins March 18''. MR. WISEMAN: Mr. Lee, I haven't reviewed the exhibit in full but does it have—does it include any notice to the Appellant a time limit to appeal the decision? In other words, you have—"if you disagree with this decision you have 20 days" or something like that to appeal? MR. LEE: I'm sorry, I don't know off the top of my head. MR. WISEMAN: I see. Thank you. MR. LEE: I'd have to review it a little further. And I do apologize, it wasI just saw it right here, the memo I referred to was included as part of our exhibits—it's "Exhibit S"—but as I indicated, that's a communication between Director Tokihiro and Director Pause. It's not a communication to the Appellant, Mr. Turner. MR. WISEMAN: And you agree, it had no relevancy to us making a decision here? MR. LEE: No. I would disagree. First, because the rule requires the date of action. And two, it would be circumstantial as far as Mr. Turner receiving notice because the Director of Human Page 24 Merit Appeals Board July 15, 2024 Resources did indicate to the Director of Public Works that his appointment would be voided and that the Director of Public Works should inform him by March 8'. MR. WISEMAN: "Should" but we don't know if he did? MR. LEE: No. CHR. CABANAS: I'm confused by these exhibits because—okay, "Exhibit S" is a memo from the Director of HR to Stephen Pause, Director of Public Works. Ms. Tokihiro's saying, "As you know an internal complaint was filed as a result of the recruitment and selection for the above - referenced position" "Enclosed for your reference is a copy of the Response to Step II Appeal dated February 16" So, explain to me what's going on here—and to the Board—what's going on here? When you say during the Step II appeal process concerns were raised that suggested an error in the classification and requirements of the position. Basically, what Ms. Tokihiro is saying that Human Resources made a mistake that's what you're saying. MR. LEE: No. CHR. CABANAS: HR made a mistake and she's informing Mr. Pause of their mistake. MR. LEE: I guess, I'm hesitant to say "mistake" because I guess in view of the record, "mistake" refers to a discreet act with regards to Mr. Turner. There was a change in the CERSII minimum qualifications and classification specification that occurred in the nineties that omission, I guess, we could term that as a "mistake"—only came to light as a result of both, I guess, the combination of the other applicant's internal complaint as well as the Director's Administrative Review. CHR. CABANAS: Right. So, it's a "mistake." It's just a play of words but it's a "mistake." So, she is informing Mr. Pause—she uses the word, "an error"—and correction of the class specification is necessary. In other words, they wanted to correct their mistake and she's informing the Director of Public Works of the mistake. Now, when this occurred, did they inform Mr. Turner of this or she's expecting Mr. Pause to explain to Mr. Turner of the mistake? MR. LEE: If I could have a moment. CHR. CABANAS: Sure. MR. WISEMAN: Madam Chair, I'd like to proceed. CHR. CABANAS: Yes, Mr. Wiseman. Page 25 Merit Appeals Board July 15, 2024 MR. WISEMAN: Hear the opposition and then we can (inaudible) and ask more questions, if we have any. CHR. CABANAS: Yes. Mr. Lee, was conferring with the Director of Human Resources. So, Mr. Lee, would you like to respond, please? MR. LEE: Yes. First, I'd like to, I guess, apologize to the Board. I didn't mean to seem evasive. I didn't have time to really think about the implications of the word "mistake" but I would agree with the Board's characterization. Whether it happened in the nineties or with Mr. Turner's recruitment—yes, it was a mistake as far as the class specifications. To answer the Board's question with regards to communication between the Director of Human Resources and Mr. Turner the answer being "no" no communication occurred the explanation being that what's happening procedurally is the Director of Human Resources is overturning the appointing authority's decision—in this case, appointing authority is the Director of Public Works. So, it'd be perhaps not the nicest thing to do but the procedurally proper thing to do was to have the appointing authority inform Mr. Turner. The Director of Human Resources couldn't seem to be playing favorites and letting Mr. Turner know, I guess, personally what's happening because of where it's happening in the, I guess, chain of events. Because, at this point, Director Pause was the one that placed Mr. Turner in the position and it's the County's position that it fell to Director Pause to let Mr. Turner know. CHR. CABANAS: What was the Director's authority? What was the authority to overturn an appointing authority's decision to hire Mr. Turner? MR. LEE: I would refer to the Board to Human Resources Rules 3-19. CHR. CABANAS: Because the appointing authority, by law, is the official authority to hire and fire an employee in their own department. MR. LEE: That would be correct, but I would point the Board to Section 3-19 of the Human Resources Rules. At this point, it's the County's position that Mr. Turner— CHR. CABANAS: Do we have that? MR. LEE: I have a copy (SEE ATT. A). CHR. CABANAS: This is our Board Rules MR. LEE: Sure. CHR. CABANAS: Yes, please, I'd like to see that. Page 26 Merit Appeals Board MR. LEE: Okay. July 15, 2024 CHR. CABANAS: And I'm sure our Board members would as well—and a copy for Mr. Hong and Mr. Turner. MR. LEE: No, this is the Rules of the Human Resources Department. CHR. CABANAS: It's a department MR. LEE: Yes. If the Board would like me to wait till everyone has a copy (inaudible). CHR. CABANAS: Yes, that would be helpful. Why don't we take a little pause for a few minutes at 10:37 a.m. we'll pause. (At this time, Ms. Yamada received the document and exited the meeting room to make copies.) RECESS: The Chair called for a recess at 10:37 a.m. RECONVENE: The meeting reconvened at 10:48 a.m. in open session. CHR. CABANAS: Okay, everyone, is—okay, we are ready to resume our open hearing at 10:48 a.m. So, before us is a page from the Department of Human Resources Administrative Rules. So, I'm going to turn it over to Mr. Lee again. What—and my question was, what is the legal authority for the Director of HR to overturn a hire, as in this case, for Mr. Turner. What is the legal authorization that you are using? MR. LEE: Thank you. So, with the caveat, this is for Mr. Turner's case specificallyI will refer to the Board, the HR Rules 3-19. This is under the subchapter entitled, "Examinations." So I'll refer first so subsection "(a) Changes in an examination rating may be made as a result of the discovery of errors in the rating or as a result of an administrative review." As previously refer to the filing of an internal complaint—whether merited or not—triggers an administrative review by the Director. That's when, as of now, willing to accept the word "error" the error with regards to the minimum qualifications and class specification for the CERSII position was discovered. And then, I'll refer the Board to subsection "(d)"well, before I move to subsection (d), to give the Board a practical affect—the minimum qualification we're talking about is the repair experience for the CERSII position. Page 27 Merit Appeals Board July 15, 2024 So, taking that into effect—that with as a minimum requirement for the CERSII, that would necessarily change the examination rating of both candidates. So, then I'll refer down to subsection "(d)" and it says, the "Changes in an examination rating shall not affect a certificate of eligibles already issued or invalidate an appointment"—"except that the appointment shall be voided when a person is found within the probation period to have failed the examination." So, it's the County's position that based on the changes to the examination rating, as a result to the Administrative Review in subsection (a)Mr. Turner no longer qualified and it was found to have failed the examination. MR. WISEMAN: Was he given an examination? MR. LEE: The examination is, basically, when somebody applies, they have a number of questions for the application form about the minimum qualifications. And I'll defer to Director—if there's any other, like, (inaudible). MS. TOKIHIRO: So, the examination is the review of the application to determine whether or not the applicant meets the minimum qualifications for the position. MR. WISEMAN: Which was approved? MS. TOKIHIRO: It was initially approved based on the incorrect or the minimum qualifications where the 2 -years of experience had been omitted. MR. WISEMAN: Okay, thanks. CHR. CABANAS: Okay. I'm very familiar with this section. This section 3-19 deals with changes in examination ratings. Okay. They're talking about—we're talking about either a rating from a written exam or—when I was working back then—it was called T&E. You might be calling it E&E now—Training and Experience or Education and Experience. It's a rating where it's a paper audit and you assign a score to each of the qualified applicants who meet the minimum qualification requirements. That's what this section means. You did a recruitment, you posted it, following the existing class specifications. There were applicants that appliedI'm assuming Mr. Turner was one and the other person who filed the complaint, was the other person. I don't know if there were others you folks can let us know if there were others. Public you established a list. Mr. Turner was on the list—maybe with others that qualified you'll need to let us know. The names were referred to Public Works, they did an interview, went through a selection process, and they selected Mr. Turner for a new probationary appointment, which is six -months. That's the flow. He had a scoreI don't know what the score was—you haven't told us, yet. He was hired. There was a Form 13 done, shows his promotion. He was hired. He was working. And then, Page 28 Merit Appeals Board July 15, 2024 you discover, "Oh, there's an error in the class specification" by looking at the historical information about the class specs. Your job posting was based on that class spec. that existed at the time. He's not at fault. The fault is with HR. Okay. And now, you want to change his examination rating? This is not the legal authority to overturn that. This deals with examination ratings. In the rating or as a result of an Admin. Review—and Admin. Review is—and I'm going to give you an instance, it's like MR. WISEMAN: Excuse me, Madam Chair, I must interrupt. I apologize for the interruption but we're not ready to make a decision, yet? CHR. CABANAS: No, we're not. MR. WISEMAN: I still want to hear the opposition. CHR. CABANAS: Okay. So, we'll stop—I'll stop right now and we'll turn it over to Mr. Ted Hong. MR. WISEMAN: Thank you. CHR. CABANAS: On behalf of Mr. Turner—let me read to you, Mr. Hong, you may make the oral argument on behalf of Mr. Turner. MR. HONG: Good morning, again, Madam Chair, members of the Board. I'd like to make three points in opposition to the motion to dismiss. Given the County's position, it illustrates the shifting sands that we've been having to deal with in trying to figure out what we are actually dealing with in this particular case. And I can only go back—go for reference, the records that were given to my client. So, my first point is that when you look at our "Exhibit 1," on page 6 -that's the May—excuse me—March 20'h email sent to my client. And all that email says is your recruitment is being cancelled. So, we look at, of the departmental rules, 3-10, which says cancellation of a recruitment can be done at any time and all applicants shall be notified. So, given the records and the documents, it appears that this has nothing to do with classification as they're saying today. This is actually having to do with recruitment. So, the County also brings up the point that we failed to file an internal complaint. And I would point out, again, under the Board's Rules-104-2(a)—there are two paths that individual employees can take to get to the Merit Appeals Board. One is through Internal Complaint if it was a departmental action, like, for example, in this case—if the Director had done something, with respect to my client—he would file an internal complaint and then you have the 20 -days. Page 29 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 Merit Appeals Board July 15, 2024 And under 76-14 we would ask you to exercise or look at these facts liberally, and take jurisdiction over this matter. Thank you. I have nothing further. If you have any questions, be happy to answer. MR. WISEMAN: Mr. Hong, one question. Subsequent to your client getting the notices, was he still doing the same job? MR. HONG: Yes. MR. WISEMAN: Thank you. CHR. CABANAS: So, Mr. Hong, you stated that there's aI guess, it's a grey area regarding the date of notice to him? That's what you're saying, right? MR. HONG: That's correct. CHR. CABANAS: Did they ever give him a letter from Mr.—did Mr. Pause ever give him a letter? MR. HONG: No. CHR. CABANAS: No letter? MR. HONG: The only thing that he got documenting what was happening to him three things. The March 20d' email that, basically says your recruitment is being terminated or cancelled. The second thing was his Personnel Action Form that shows that. But, again, during this period of time, not only was the Director talking to the Civil Service Director—but also the Mayor was talking to the Civil Service Director saying this is a mistake or this is wrong or reconsider. And until he got his paycheck, then he went, "Hook, my goodness"—and he looked at what he was paid—if that's what you can call it in that paycheck that's when he knew this was a reality that he needed to address, and that's why he filed his appeal to the Merit Appeals Board. CHR. CABANAS: Because the Personnel Action FormI need to look at it. MR. HONG: It's dated April 2nd CHR. CABANAS: Yes. It was signed April 2nd but they don't normally get it on April 2nd MR. HONG: Right. CHR. CABANAS: It comes later. So, he got his paystub first, right? MR. HONG: Right. Page 31 Merit Appeals Board July 15, 2024 CHR. CABANAS: And that's when he noticed there was a dollar difference? MR. HONG: A lot of dollars. CHR. CABANAS: A lot of dollar difference. And then, eventually, they TA'd Mr. Turner. MR. HONG: That's correct. CHR. CABANAS: Any questions, anyone? Comments? No? Okay. MR. WISEMAN: Madam Chair, if there's nothing further from the parties, I would make a motion to go into executive session to discuss this. CHR. CABANAS: Okay. Is there a second? MR. LEE: I'm sorry. CHR. CABANAS: Oh, Mr. Lee, do you have—want to add anything first? MR. LEE: Yeah, I did have a request to offer rebuttal if the—or will entertain but I'll defer to the decision of the Board. CHR. CABANAS: No, I'll allow a rebuttal. Go ahead. MR. LEE: Okay, thank you. Just to refocus the issue. I think a lot of what we discussed right now, there is some interplay between the timeline as far as the Statute of Limitations the actual substance. But the motion that we're entertaining right now is one of jurisdiction. And Mr. Turner's appeal form checked off "Recruitment and Examination," and "Classification and Reclassification" I'm going to infer that the Appellant is taking the position that this is a recruitment and classification issue not a classification—excuse me—recruitment and examination issue, not a classification and reclassification. But it is the County's position that it is the classification of the CERSII position that it was you could say the primary mover of this appeal, which would require the internal complaint process in order to get to the Merit Appeals Board. So, as I alluded in my original arguments, there are two issues for the Board right now—Statute of Limitations and whether this was a recruitment issue or a classification issue. If the Board feels it's a classification issue—well, the Board has to determine Statute of Limitations first. Only once the Board determines Statute of Limitations and whether Mr. Turner (inaudible) then the Board needs to determine whether it's a classification issue or recruitment issue. Page 32 Merit Appeals Board July 15, 2024 If the Board decides it's a classification issue, then that's another avenue which requires dismissal because Mr. Turner didn't file an internal complaint. So, there's two hurdles that Mr. Turner has to jump through. The 20 -day action requirement to file an appeal—not notice. And then, that this is actually a recruitment issue and not a classification issue. And I would also point out to the Board that there being, I guess, a question of jurisdiction, it's the County's position that this should be referred to the Hawaii Labor Relation Board for a determination of jurisdiction. MS. BOND: Can I ask a question? CHR. CABANAS: Go ahead. MS. BOND: What's the drop dead date on this—on his that you say he's supposed to file the appeal from? MR. LEE: Twenty days from the action. MS. BOND: And 20 -days from the action then so, we're going back and forth about what the date of action is, correct? MR. LEE: No, I would say the issue is—we're talking about notice because the Appellant isn't necessarily contesting the date of the action. They're contesting the date of notice, which is the County's position that is not the rule. CHR. CABANAS: So, you're saying date of action, is date of decision? MR. LEE: Correct. CHR. CABANAS: But he wasn't given a notice. MR. LEE: That's correct. And look, I guess I should address the moral issue here. Mr. Turner did get short -end of the stick here and I think the 20 -days from action rule is stringent—perhaps, too strict. But it's not—the rule is not notice—it's action. And the County takes the position that there was enough going on where Mr. Turner knew that something was happening. In his declaration, I'll refer to when he states that he was informed that his department director was attempting to intercede on his behalf. Presumably, there's no date attached to that statement. Presumably, that was before April 15'h before he got his paycheck. Page 33 Merit Appeals Board July 15, 2024 And he was being TA'd into that position previous to April 15''. So, he can't claim that it was only until he got his paycheck that he knew he had to take action. He already knew something was going on with his position. So, either way you want to cut it—whether it's by action or by notice—Mr. Turner had it. CHR. CABANAS: Mr. Wiseman. MR. WISEMAN: Yeah. As most of us know, the basic premise—constitution of premise of everyone in the Country, at least—are two things(inaudible) is the notice—entitlement of due process. Basic due process, which requires at its very core a notice and a right to be heard. And now that'sI just put that out there, `cause what you're saying is that, sort of, is not consistent with that basic premise. MR. LEE: Member Wiseman's point is well taken. I guess, I should just say, I think the rule might need to be changed to indicate notice and not action. But, at this point, the County is maintaining that notice occurred prior to April 15''. MR. WISEMAN: Madam Chair, can we hearI think Mr. Hong has a surrebuttal CHR. CABANAS: Yes. Mr. Hong. Go ahead, Mr. Hong. MR. HONG: I apologize, but these are new issues that are coming up that I feel compelled to address. And I think that—forgive me for overhearing you served as a former Judge in the Federation State of Micronesia? MR. WISEMAN: In the U.S. Commonwealth Northern Mariana's. MR. HONG: Okay, well, then, obviously MR. WISEMAN: Out there, though. MR. HONG: you're entitled to (inaudible) I'm going to refer to Mr. Wiseman as "Judge Wiseman" but you're correct about the due process issue. I agree with that entirely. But, more fundamentally, agencies when interpretating their rules, the Supreme Court—our Supreme Court, Intermediate Court—says you can't interpret the rules that would (inaudible) to an absurd result. And the County's position would lead the Board to an absurd result because what they're saying is they can take action, they can hide it from an employee for 21 -days, their time to appeal is up, and they can come here to the Merit Appeals Board and say, "Hey, guys, you're too late" that would be absurd because that would foreclose all employees from actually filing or challenging a decision by their department or the Director of the Department of Civil Service. So, that would lead the Board to an absurd result. Page 34 Merit Appeals Board July 15, 2024 And the second point I wanted to make surrebuttal is point me out to any of the documents submitted in the motion to dismiss, where they're saying that now this is a classification issue? If you take the County at their word, this was a recruitment issue as of March 20'', 2024. It didn't change. Everything after that that they did—all the documents they produced shows that this is a recruitment issue. So, the suggestion that now, as we're sitting today this is a classification issueI have a difficult time to accept. And the reason is that, again, we're—it's shifting sands here. It's hard to fight a battle when I don't know what the battleground is that we're fighting. So, we ask the Board to dismiss this motion and let us proceed to hearing. But, and again, we would request additional time to—for the next hearing, only so because we have to subpoena witnesses. MR. THOMASON: Ted—can I ask Ted a question here? CHR. CABANAS: Yes, go ahead. MR. THOMASON: Yeah. If I understand correctly, you have pretty much a standing motion for additional time, correct? MR. HONG: That's correct. MR. THOMASON: Okay. And you would like that ruled on first as opposed to actually ruling on the merits one way or another. Is that correct? MR. HONG: That's correct. So, I'd like—as I had mentioned earlier I'd like the Board to decide the motion to dismiss and then if the Board feels that we need to get to a hearingor, obviously, we have to get to a hearing on the meritsI would ask for an extension only because I just came into this case on July 9h. MR. THOMASON: Well, are you asking for an extension of time before the Board rules on the issues of jurisdiction and/or all the other moving parts that are floating around in this case already? MR. HONG: No, I'm not. MR. THOMASON: Okay. MR. HONG: Thank you. CHR. CABANAS: Thank you, Mr. Hong and Mr. Thomason. Mr. Wiseman? MR. WISEMAN: Yeah, I'll renew my motion to go into executive session. Page 35 Merit Appeals Board July 15, 2024 CHR. CABANAS: Okay, is there a second? MS. BOND: I'll second that. CHR. CABANAS: Any discussion? If not, I'll start a rollcall vote with Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Ms. Cabanas—aye. Five ayes. Motion carried for the Merit Appeals Board to enter into executive session at 11:12 a.m. Going to ask that Mr. Hong, Mr. Turner, Mr. Lee, and Ms. Tokihiro remain outside of the Hilo Council Chambers; and the ZoomKaila Turner and Mrs. Turner—because the Board needs to go into executive session. Thank you. And Glynis will be securing the Council Chambers. Thank you, everybody. RECESS: The Chair called for a recess at 11:12 a.m. CONVENE: The meeting convened at 11:14 a.m. in executive session. RECONVENE: The meeting reconvened at 11:31 a.m. in open session. 10:00 A.M.: HEARING RE COMMUNICATION NO. 24-03 (Note: The Hearing Concerns The Preliminary Issue Of Whether The Board Has Jurisdiction To Hear The Appeal, Under Section 76-14, Hawaii Revised Statutes. If It Is Determined That The Board Has Jurisdiction, The Hearing Will Continue Concerning The Merits Of The Appeal.): Communication No. 24-03, Received On May 1, 2024, From Appellant, Appealing The Following Actions By The County Of Hawai`i's Department Of Human Resources: Recruitment And Examination, And Classification Or Reclassification Of A Particular Position; And Page 36 Merit Appeals Board July 15, 2024 Communication No. 24-03.01, Received On June 10, 2024, Regarding Appellee's Motion To Dismiss For Lack Of Jurisdiction, Or In The Alternative, Hold Proceedings In Abeyance; Memorandum In Support Of Motion; Declaration Of Sommer Tokihiro; Declaration Of Justin C. Lee; Exhibits "A" – "V"; Certificate Of Service; And Communication No. 24-03.02, Received On June 10, 2024, Regarding Appellee's Witness List; Certificate Of Service; And Communication No. 24-03.03, Received On June 10, 2024, Regarding Appellee's Exhibit List; Exhibits "A" – "V"; Certificate Of Service (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matter, Pursuant To HRS Sections 92-4, 92-5(a)(2) And 92-5(a)(4), For The Purpose Of Evaluating An Officer Or Employee Of The County Of Hawaii, Where The Consideration Of Matters Affecting Privacy Will Be Involved And Consulting With The Board's Attorney On Questions And Issues Pertaining To The Board's Powers, Duties, Privileges, Immunities, And Liabilities. A 2/3 Vote Of The Members Present Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting) CHR. CABANAS: Okay, we the Merit Appeals Board is back in open session at 11:31 after a brief pause. And so, I'd like to entertain a motion as we discussed in executive session. MR. WISEMAN: Okay. I would make a motion based on deliberations, a review of the submissions of the briefs of the parties with respect to the County's motion to dismiss for lack of jurisdiction—in the opposition to it and the arguments presented here today—for good cause, I make a motion to deny the motion to dismiss for lack of jurisdiction; and to grant the Appellant's motion for a continuance for a full hearing. MS. MATHEWS: Second. CHR. CABANAS: Any discussion? If not, I'll start a rollcall vote with Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. Page 37 Merit Appeals Board CHR. CABANAS: Ms. Cabanas—aye. July 15, 2024 Five ayes. Motion carried to deny the motion to dismiss for lack of jurisdiction and to grant the Appellant an appeal hearing for the near future. We want to, as a Board, want to move this quickly. So, if we could set a date. MR. WISEMAN: Madam Chair, before we go to that issue, I'd like to add that a written decision will follow. CHR. CABANAS: Oh, yes, of course. The written decision will come to both the County and to Mr. Hong, on behalf of Mr. Turner, from the Deputy Attorney General, Mr. Richard Thomason. Yeah? So, that would be coming. MR. LEE: Madam Chair, if I may? CHR. CABANAS: Yes? MR. LEE: With regards to the County's alternative to hold this in abeyance, I think the Board might need to make a record as to that. MR. WISEMAN: Yeah, I would make a motion to deny holding this in abeyance. MS. MATHEWS: Second. CHR. CABANAS: Any discussion? MR. WISEMAN: We have an employee here who's been—whose job is on the line and to refer to the Hawaii Board—hold in abeyance for some other board to take a look at it—will probably go, kind of, another year. And I don't think that'sI think there's some due process consequences here already. So, I don't I wouldn't `want to continue any more. CHR. CABANAS: No, we want to expedite this appeal hearing. Yeah. So MR. WISEMAN: So, the motion is to deny any request for abeyance. CHR. CABANAS: Is there a second? MS. MATHEWS: I did. CHR. CABANAS: Okay. And now, any discussion? More discussion? No? Okay, and then a rollcall vote with Ms. Mathews. MS. MATHEWS: Aye. Page 38 Merit Appeals Board CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Ms. Cabanas—aye. Five ayes. Motion carried. July 15, 2024 Okay. So now we're looking at scheduling the appeal hearing as soon as we can considering Mr. Lee's schedule and Mr. Hong's schedule. This is already July 25h. We do have to oh, I'm sorry, today's July 15''. It's correct. I'm getting ahead. Getting ahead of myself. MR. WISEMAN: And so, we need some proposed dates from—Mr. Hong, it's your request so CHR. CABANAS: Okay, so Glynis has informed the Chair that we have to allow both the County and Mr. Hong—we need to provide deadlines for submittal of documents. So, August might be a little too soon, although that would really be ideal considering Mr. Turner has been waiting for quite some time already. But—and we also have, like, three appeal hearings scheduled in August alone. So, is September okay with both sides? County and Mr. Hong? MR. HONG: I have no objection. The only caveat I have is for September 27h to October 191', I will be out of the country (inaudible). I'll just note that it's our 35h wedding anniversary, so I'm taking Terri to Canada. CHR. CABANAS: Oh, nice. Wow. MR. HONG: We're doing train travel across Canada from (inaudible) from Vancouver to Nova Scotia. CHR. CABANAS: September 27 to October MR. HONG: Nineteenth. CHR. CABANAS: Nineteenth—okay, you're out. Page 39 Merit Appeals Board July 15, 2024 MR. WISEMAN: Oh, for anniversaries, I'm doing my 50' to the Panama Canal cruise. MR. HONG: Wow. Panama Cana, that's— CHR. CABANAS: I'm trying to get myself organized—and I am organized but I have too many papers here. Okay, so we're looking at—our next Board meeting in September—is September 19'', which would allow for timely submittal of documents. And Glynis is going to help me because I need to give you the deadlines. So, the first deadline would be August 15'h and we will send certified letters to both parties notifying you of the date, time, location, and deadlines but just as a heads up already. August 15'h would be the deadline for both parties—County and Mr. Hong on behalf of Mr. Turner to submit a position statement—no, not a position statement. So, August 15'h deadline would be to submit all documents to the Board's secretary, which is Glynis Yamada, via email and regular mail. Instead of regular mail, it could be hand-delivered—and to the opposing parry. MAB requires 1 -original and 8 -copies for all submittals. So, if you have 10 submittals, it's the original and 8 -copies for each submittal. Mr. Thomason, what type of documents would the—both parties need to submit by August 151' Can you help me with that? It would be their exhibits, right? MR. THOMASON: Basically, their exhibits—yeah—declarations, whatever else—witnesses. CHR. CABANAS: And witness lists. MR. THOMASON: Yes. CHR. CABANAS: And the second deadline would be September 4—and that would be for responsive pleadings and it's by 4:30 p.m. for both deadline dates. Again, 1 -original and 8 -copies that's submitted to our Secretary -Reporter, and to the opposing parry. Any questions? Mr. Lee, you have any questions? MR. LEE: No. Thank you. CHR. CABANAS: Mr. Hong? MR. HONG: No. Thank you. CHR. CABANAS: You got it all. Okay. So—okay. So, the hearing is scheduled September 19''. And we usually start at 10 a.m.should we start earlier for the hearing? Yeah? Yes, Mr. Thomason. Page 40 Merit Appeals Board July 15, 2024 MR. THOMASON: I'm sorry. I have an arbitration in the middle of Septembera big, ugly one. So, I'm going to be pretty much dealing with that arbitration and probably until the week of the 26h of September. CHR. CABANAS: Wait, you're availableI have several people talking to meso you're available September 26h, is that what you said? MR. THOMASON: I would be available September 26' yes. CHR. CABANAS: Okay. Sorry, but the Council Chambers is not available. MR. THOMASON: When is it available? CHR. CABANAS: Glynis—September 10h. MR. THOMASON: No. CHR. CABANAS: Again, let's pick another date. MR. THOMASON: It's got to be a date that's the 27h and older or later. CHR. CABANAS: Mr. Hong is gone from September 27h to October 10 MR. THOMASON: I didn't hear that although I, kind of, got a little hint of it. Congratulations, Ted. MR. HONG: Thanks, Richard. CHR. CABANAS: Oh, gosh. Well, there's October. I mean, I hate to stretch it out like that. MR. WISEMAN: Madam Chair, I'm gone from October 10' to about November 10''. CHR. CABANAS: Mr. Thomason, can another Deputy Attorney General fill in? MR. THOMASON: I don't know the answer to that. CHR. CABANAS: Is that something you can check with Amanda? MR. THOMASON: Yes. CHR. CABANAS: I know you are all short-staffed there but MR. THOMASON: Yes. And I have arbitration the first two weeks of October as well. CHR. CABANAS: September 6h? Page 41 Merit Appeals Board July 15, 2024 MR. THOMASON: I'm sorry—what? CHR. CABANAS: September 6h? MR. THOMASON: I'm going to be working at home that arbitration in that week. It's going to take at least two weeks. MR. WISEMAN: We should be able to get someone else. CHR. CABANAS: How's August 28h or 29h? MR. THOMASON: I'm sorry, what? CHR. CABANAS: August 28h or 20? I know, that might be compressing the deadlines a little bit. MR. WISEMAN: You should be able to get someone to sit in for you, huh? CHR. CABANAS: Oh, he has to check with his Supervising Deputy Attorney General, which is Amanda. MR. THOMASON: August—what date? CHR. CABANAS: Twenty-eight or 20. MR. THOMASON: That's okay. CHR. CABANAS: Okay. Mr. Lee? Mr. Hong? Board members, everybody's available? I need everybody on board—and plan for the whole day, okay? If you have things, don't plan don't schedule it for that day. MR. WISEMAN: Well, we should CHR. CABANAS: As much as possible. MR. WISEMAN: What about starting a little earlier? CHR. CABANAS: Doing it earlier? MR. WISEMAN: Instead of 10:00 maybe 9:30? CHR. CABANAS: Oh. Well, it depends on the availability of our—Mr. Thomason. MR. WISEMAN: Oh, he's okay with 9:30, huh? Page 42 Merit Appeals Board July 15, 2024 MR. THOMASON: Oh, yeah, that's fine. CHR. CABANAS: Nine -thirty. Okay. Let's pick a date, everybody, August 28h or 29h? The 28'h is a Wednesday -29h is a Thursday. Twenty-eight 28 h, Mr. Thomason? MR. THOMASON: Yeah, that's fine. CHR. CABANAS: Mr. Hong? MR. HONG: Yes. CHR. CABANAS: Okay, August 28h at 9:30, here in the Hilo Council Chambers. What about the deadlines—okay, wait now, I got to change it. Wait. Okay, so let me amend the deadline dates. For the first submittal of documents is July 25h by 4:30 p.m. to Glynis Yamada, our Secretary -Reporter. The second deadline is August 14'', 4:30 p.m. to Glynis Yamada. And the hearing is August 28h, 9:30 a.m. On behalf of all Board members, I want to thank Mr. Turner, Mr. Hong, Mr. Lee, and Ms. Tokihiro for coming in front of the Board today—and, of course, Mr. Thomason—for helping us with this matter. And we'll see all of you on August 28h. MR. HONG: Thank you. CHR. CABANAS: You're very welcome. MR. THOMASON: Okay. MR. LEE: Thank you. CHR. CABANAS: What's the Board's thoughts would you like a break and break for lunch now? It's 11:45. Pardon me? No, no napping. No siestas. MR. KUNZ: How long is this next section going to take not that long, huh? CHR. CABANAS: Well, we still have to discuss—let me get back to where I was. MR. WISEMAN: Or we can have a working lunch. MR. KUNZ: The evaluation's CHR. CABANAS: It's discussing Number 7 and then -7A and 7B. I mean, if you want, we can just go through and yeah? Okay, shall we do that? But let's take a pause. RECESS: The Chair called for a recess at 11:48 a.m. Page 43 Merit Appeals Board July 15, 2024 RECONVENE: The meeting reconvened at 11:57 a.m. in open session. CHR. CABANAS: Okay. Our Merit Appeals Board meeting is now back in session. Communications (Item 5) CHR. CABANAS: And there are no "Communications" for us to consider. New Business (Item 6) A) FY 2024-2025 Annual Performance Evaluation Of The Director Of Human Resources (HR) Process: Presentation By The Director Of Human Resources, Sommer J. Tokihiro, Concerning The Department's Goals And Objectives For FY 2024-2025; And Proposed Timeline To Distribute Surveys And Deadline For Responses; And SurveyMonkey Questions For FY 2024-2025 (Line Department Survey); And SurveyMonkey Questions For FY 2024-2025 (Employee Survey); And Merit Appeals Board's Evaluation Tool For The Director Of HR For FY 2024-2025; And Define Target Audience/Survey Participants (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matter, Pursuant To HRS Sections 92-4, 92-5(a)(2) And 92-5(a)(4), For The Purpose Evaluating An Officer Or Employee Of The County Of Hawaii, Where The Consideration Of Matters Affecting Privacy Will Be Involved And Consulting With The Board's Attorney On Questions And Issues Pertaining To The Board's Powers, Duties, Privileges, Immunities, And Liabilities. A 2/3 Vote Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting CHR. CABANAS: So, we are now on "New Business" for discussion and appropriate action 7A. I believe we will be going into executive session yeah, Sommer, with your consensus. (At this time, Ms. Sommer J. Tokihiro, Director, Human Resources Department, came forward.) MS. TOKIHIRO: Yes. CHR. CABANAS: Yes, yeah? So, Sommer, thank you for meeting with us again. MS. MATHEWS: Don't we have to take a motion and a vote? CHR. CABANAS: Oh, yes, that's right—hello. Thank you, Vice -Chair. MS. MATHEWS: It's a team effort. CHR. CABANAS: Yes, thank you. Yes—so may I have a motion and a second for the Board to enter into executive session? Page 44 Merit Appeals Board MS. MATHEWS: So moved. CHR. CABANAS: Thank you. MR. WISEMAN: (Inaudible.) CHR. CABANAS: Thank you. Any discussion? MS. MATHEWS: Yes, could he say that on the microphone? CHR. CABANAS: Oh, yes. MR. WISEMAN: Second the motion. CHR. CABANAS: Thank you. Any discussion? No? I'll start a rollcall vote with Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Ms. Cabanas—aye. July 15, 2024 Five ayes. Motion carried for the Board to enter into executive session at 12:01 p.m. So we will secure the Hilo Council Chambers and also the Zoom capability. RECESS: The Chair called for a recess at 12:01 p.m. CONVENE: The meeting convened at 12:02 p.m. in executive session. RECONVENE: The meeting reconvened at 1:10 p.m. in open session. CHR. CABANAS: So, we're in open session. MS. BOND: Wait, they have to do something with the computer. Page 45 Merit Appeals Board July 15, 2024 A) FY 2024-2025 Annual Performance Evaluation Of The Director Of Human Resources (HR) Process: Presentation By The Director Of Human Resources, Sommer J. Tokihiro, Concerning The Department's Goals And Objectives For FY 2024-2025; And Proposed Timeline To Distribute Surveys And Deadline For Responses; And SurveyMonkey Questions For FY 2024-2025 (Line Department Survey); And SurveyMonkey Questions For FY 2024-2025 (Employee Survey); And Merit Appeals Board's Evaluation Tool For The Director Of HR For FY 2024-2025; And Define Target Audience/Survey Participants (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matter, Pursuant To HRS Sections 92-4, 92-5(a)(2) And 92-5(a)(4), For The Purpose Evaluating An Officer Or Employee Of The County Of Hawaii, Where The Consideration Of Matters Affecting Privacy Will Be Involved And Consulting With The Board's Attorney On Questions And Issues Pertaining To The Board's Powers, Duties, Privileges, Immunities, And Liabilities. A 2/3 Vote Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting CHR. CABANAS: Okay, so we are now back in open session and we had a great discussion on the Fiscal Year 2024 to 2025 Annual Performance Evaluation process of the Director of Human Resources. So, in summary, we heard Ms. Tokihiro's department's goals and objectives for Fiscal Year 2024 to 2025 with a proposed timeline to distribute surveys and deadline for responses—having two surveys—one for line departments and one for our HR employees. And a discussion of the evaluation tools used that will be used for the next evaluation next year with the defining of our target audience and survey participants. So, with that, may I have a motion and a second to approve the overall annual performance evaluation for the Director of Human Resources process? MR. KUNZ: So moved. MR. WISEMAN: Second. CHR. CABANAS: Any discussion? No? I'll start a rollcall vote with Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Mr. Wiseman. MR. WISEMAN: Aye. Page 46 Merit Appeals Board CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Ms. Cabanas—aye. Five ayes. Motion carried. B) Discussion Concerning Appeal Forms For Individuals Who File An Appeal July 15, 2024 CHR. CABANAS: We are now on "713"—discussion concerning appeal forms for individuals who file an appeal. And this is a result of one of our Board members' concern about having additional forms attached to the appeal form. And she was looking—Ms. Mathews, wanted—what—templates, correct? Template forms. Can you help refresh my memory. MS. MATHEWS: Yes. What happened earlier today was a good example of, had the gentleman not had an attorney with him there's a whole lot of legalese that is being spouted over there and nothing against your profession but it's a language all its own. And I think it's really unfair for an employee to be expected to not only be able to generate that and to understand it, but you've got depth to the number of people that sit in that chair. Where that's an individual that had to go out and spend their own resources. And, from my perspective, along with all the other things we talked about, about hiring (inaudible), et ceteraagain, not directed at you, please. I think there needs to be something that does a better job of helping the employee navigate the process, which includes templates. If you go on the website right now, you can get a divorce, you can do child custody, you can do all kinds of stuff—but you don't have any forms there to help you navigate this. And there all these deadlines and expectation, et cetera, there's no clean methodology for people that want to go through the process. MS. BOND: When that memo was sent to him on March 20'', it should have hadideally, in a perfect world, a thing that says, "Look, here's your options. If you don't agree with this decision, attached is the link to a set of forms that you can fill out to start an appeals process" that gives them some kind of a leg up. Rather than—because, otherwise, how does he know that in 20 days his whole thing goes to hell in a bucket and there's nothing he can do about it. MR. WISEMAN: Yeah, I would concur with the statements from my colleagues. And the forms, I'm sure there's so much (inaudible) with other jurisdictions on this. I mean, for example, if you take the IRS which I'm always getting—"you have the right" your rights (inaudible) your following rights to appeal and so on, so on. So, that can be the template and, perhaps, the legal the attorneys here can prepare something. It's not complicated. It's just a very simple Page 47 Merit Appeals Board July 15, 2024 CHR. CABANAS: I think at this process, we kind of have to be careful because we have appeals on the horizon—appeal hearings on the horizon. It's not really a matter for MAB to develop these forms but we can recommend that the department— MR. epartment MR. WISEMAN: Yeah. CHR. CABANAS: with the help of Corporation Counsel, look into a possibility of appeal form templates, but it's not to take the place of the appeal form. MR. WISEMAN: Right. CHR. CABANAS: But, if you're looking at templates for motions or a template form for witness list— MR. ist MR. WISEMAN: No, no, no. I don't think we're talking about that. We're talking about what was expressed if an employee, like today's example, gets it—it should be some clarification this is your notice of termination and you have 20 -days to appeal and here's a form you can fill out for the appeal. CHR. CABANAS: Well, it depends on what part of the—what process you're talking about because there's really multiple tracks for someone to file—whether it's an internal complaint process and then going to MAB—or someone straight going to MAB. MR. WISEMAN: Yeah. CHR. CABANAS: So, there's two there's really like two different tracks. MR. WISEMAN: So, like you said, I would suggest that it be a recommendation to the department to work with legal counsel to develop something simple. CHR. CABANAS: Yeah. MS. BOND: Yeah, just to make it so that when you get that thing that says that—which already makes you go, "dude"—and your brain shuts down. Then at the bottom it says, "Look, you have rights, check with somebody now. These are your options." MS. MATHEWS: So, Mr. Corp. Counsel, how is it we can actually just toss this problem into the lap of the Corp. Counsel since they're the attorneys? MR. WISEMAN: I think it has to go through the department, though. CHR. CABANAS: Yeah. I think it needs to go from HR and that would be like a motion—from HR to work collaboratively with the Office of the Corporation Counsel to look into this matter. Page 48 Merit Appeals Board July 15, 2024 MS. MATHEWS: But isn't that, potentially, a conflict of interest if we're asking Corp. Counsel, who represents the County CHR. CABANAS: No. We're asking the HR— MS. MATHEWS: I know, but she's still having to ask the Corp. CHR. CABANAS: Yeah, that's within her responsibility as the HR Director. MS. MATHEWS: But her attorneys CHR. CABANAS: No, it's going to be a different attorney. MS. MATHEWS: Oh, okay. CHR. CABANAS: She has another attorney from the Office of the Corporation Counsel. MS. MATHEWS: Okay. CHR. CABANAS: Yeah. It's not going to be the Assistant, `cause he's like the Deputy. He's Deputy level, yeah. He's higher than the attorney that sat there. He's the second in command. Okay. MS. BOND: But it would be something as simple, like, a signature the bottom (inaudible). CHR. CABANAS: So, it'd be more appropriate for the HR Director to follow-up on this matter. Collaborate MR. WISEMAN: So, I'll make a motion. CHR. CABANAS: Okay, thank you. MR. WISEMAN: Make a motion for the HR Director should follow-up on making templates/forms in consultation with the Corporate Counsel. CHR. CABANAS: That's not to replace the existing appeal form. MR. WISEMAN: Right. Right. CHR. CABANAS: Yeah. MR. WISEMAN: This had nothing to do with the appeal form, it's just notices, et cetera, to inform an aggrieved party— MS. BOND: What the steps are. Page 49 Merit Appeals Board July 15, 2024 CHR. CABANAS: Of their appeal rights. MR. WISEMAN: Right. MS. TOKIHIRO: I'm going to have to confer with Corp. Counsel because I don't know that that's within DHR's authority. MR. WISEMAN: Yeah, well, we're just recommending, so MS. MATHEWS: And that's what (inaudible). CHR. CABANAS: But the appeal form itself, Sommer, is from HR. Okay. That's a—it's a Labor Relations component. MS. TOKIHIRO: Right, so CHR. CABANAS: That Corp. Counsel helped MS. TOKIHIRO: but that's different than the other templates that were potentially talking about. CHR. CABANAS: Well, basically, it's just the notice of their rights leading them—okay, so let's give an example. So, let's say you have John Q. Public who applied for a Park Caretaker position and went for an interview, didn't get selected. He's not a member of the County. He's not an employee. As non -selection, under recruitment, he can file straight to MAB. Okay? So, the department could use that template, non -selection, "If you want to file an appeal you have 20 calendar days to file to the Merit Appeals Board" that's a template. Versus an existing employee in collective bargaining represented by a union, should go through the Internal Complaint Process. Okay? If it's somebody on Initial Probationary Period, they don't go through a initial they don't go through an internal complaint process, they go straight through MAB. MR. WISEMAN: And this has been—my motion was never seconded, so CHR. CABANAS: Yes, so is there a second? MR. WISEMAN: I'll withdraw my motion to make— CHR. CABANAS: You want to reword it? Page 50 Merit Appeals Board July 15, 2024 MR. WISEMAN: I prefer someone else do this. CHR. CABANAS: Okay. MS. MATHEWS: So, actually, I was looking for templates because there are a bunch of things that were out there and I find it a little horrifying that he had to hire an attorney to do to try to correct something because it wasn't getting corrected. And the only way he's going to get through that process is by having—if he's doing it on his own—would be by having those templates—like you do for a divorce or an adoption or a name change or anything like that. Because it's all boiler -plate on your computer. You can't tell me that you guys generate new stuff every time you start. You're taking some boiler -plate and you're starting to do this. That's what I'm looking for is where are those basic forms, whether it's child support or whatever it might be those forms exist. CHR. CABANAS: There is no boiler -plate. MS. MATHEWS: There is. CHR. CABANAS: No, there isn't. Been there, done that—there's no boiler -plate. MS. TOKIHIRO: There isn't because every situation is going to be unique, right. CHR. CABANAS: Yeah. But you could have one template form where it's a checklist and it would be you check off the box that is appropriate for that particular track. MR. WISEMAN: Okay, I have a new motion. CHR. CABANAS: Okay. MR. WISEMAN: Okay. I move that the Board recommend to HR Department to look into the feasibility of providing templates with respect to employee actions—adverse actions to process notice and in consultation with the Corporate Counsel. MS. MATHEWS: Second. CHR. CABANAS: Any discussion? Suzi, you want to say something? MS. BOND: Yeah, but I don't know what it is I want to say. My whole thing is that I think that as soon as you get sent a notice that says that you're something your classification or something is done that you do have that at the bottom it says, "You have rights, you might want to look into what they are." So that they're not—it takes you 20 days to figure out that all of a sudden you've got to send an appeal and by then it's too late. MR. WISEMAN: Well, again, that's what the motion would do. Page 51 Merit Appeals Board MS. BOND: Okay. July 15, 2024 MR. WISEMAN: HR to discuss the feasibility with Corporate Counsel with respect to informing, giving notice to the aggrieved employees. MR. KUNZ: I think the dialogue would flesh out some of those things. CHR. CABANAS: Yeah. And so, the wording, Sommer, is really feasibility, yeah? And then, if—okay, so, we're still on the discussion phase. Can we add to that, that the Director report back to the Merit Appeals Board at the next regular meeting? MS. TOKIHIRO: It might take a little more time than that. MS. BOND: Yeah. Right. MS. TOKIHIRO: Yeah. MS. BOND: I agree. MS. TOKIHIRO: Yeah, I mean, I think figuring this out CHR. CABANAS: Well, but give us a preliminary report, if you can. MS. BOND: Or maybe in a couple of meetings, `cause we have about 12 of them in the next month. MR. WISEMAN: Yeah, we can do that. CHR. CABANAS: No, but we have a regular meeting. MR. WISEMAN: But that can be done just informally that the HR Director keeps us CHR. CABANAS: Yeah. MS. BOND: Maybe in September. MR. WISEMAN: Yeah. MS. BOND: Well, how about by September—it gives her at least a couple months to deal with it. MS. TOKIHIRO: `Cause I actually—it's a lot of things like notices that are sent by departments for selection or non -selection. Those don't come from the Department of Human Resources, Page 52 Merit Appeals Board July 15, 2024 those come from the individual department. So, wanting to make sure that all the language is figuring out the format for how we would notify everybody consistently, right—you want to MR. WISEMAN: Well, again, the motion is to look into the feasibility in consultation with the Corporate Counsel. CHR. CABANAS: Yeah. So, basically, I'm thinking that it would just be a very basic form and it could cover a whole range of things. But it's a checklist—non-selection, pricing, re -pricing, classification matter, other employment action—and whether you are a collective bargaining member or member of the public—and then you could have, like, if you checked -off "yes" to this, then file directly to the Merit Appeals Board within 20 calendar days. If you check -off this, then pursue through the internal complaint process within so many days—whatever that might be. Something like that, so that all departments use that. You can even name it "Form"—and it can be from DHR"Form DHR" whatever"310" whatever. All departments use that. So, something like that. MR. WISEMAN: I move for the previous question. CHR. CABANAS: Okay. So, we have a motion with a second, and we are discussing it. Ready for the vote. MR. WISEMAN: Right. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Ms. Cabanas—aye. Five ayes. Motion carried for the Director to pursue the feasibility of a template form or forms with the Office of the Corporation Counsel to provide due process notice to employees and for members of the public regarding Page 53 Merit Appeals Board July 15, 2024 MR. WISEMAN: Regarding aggrieved employees receiving notice. CHR. CABANAS: What should I say—regarding— MS. TOKIHIRO: And it's not just employees. MR. WISEMAN: Yeah. CHR. CABANAS: regarding the above matter—something like that. Because the "above matter" would be identified up above, whether it's recruitment, classification, et cetera. I don't know. Anyway. MS. TOKIHIRO: Clear as mud. But I will provide an update. CHR. CABANAS: We appreciate your help. Okay, is there any other discussion regarding these forms? I don't think so. Unfinished Business (Item 7) CHR. CABANAS: "Unfinished Business"—none. Announcements (Item 9) CHR. CABANAS: Yes, Mr. Wiseman. MR. WISEMAN: Yes, I have something. CHR. CABANAS: Okay. MR. WISEMAN: I'd like to request the Chair to write a follow-up to Richard Thomason. CHR. CABANAS: Okay. MR. WISEMAN: On the status of his decision on that first appeal we had two -three months ago? CHR. CABANAS: Glynis can you report on that? Has Mr. Thomason report back? MR. WISEMAN: Yeah, I know these attorneys that work in the corporate office now, they're very busy and if you don't push something, it stays in the bottom of the huge pile. You got to get it to their attention. The last time we were here, the mentioned that— CHR. hat CHR. CABANAS: Yes. Page 54 Merit Appeals Board July 15, 2024 MR. WISEMAN: he was working on—he had some problems at home with water and stuff. But, anyway, just a simple polite follow-up. CHR. CABANAS: Okay. MR. WISEMAN: Yeah. CHR. CABANAS: We will do that. MR. WISEMAN: Just following-up on the decision status—something like that. CHR. CABANAS: I will do that. Okay, anything else? MR. WISEMAN: I move to adjourn. CHR. CABANAS: No, we're not there yet. MR. WISEMAN: Yeah, we are. Schedule Next Meeting Date (Item 10) The Merit Appeals Board Will Convene Its Next Meeting On Monday, August 12, 2024, (Time To Be Determined) At The Hilo Council Chambers, Hawaii County Building, 25 Aupuni Street, First Floor, Room 1401, Hilo, HI 96720 CHR. CABANAS: Scheduling next meeting date. MR. WISEMAN: Oh. CHR. CABANAS: The Merit Appeals Board will convene its next meeting on Monday, August 12'', time to be determined, at the Hilo Council Chambers, Hawaii County Building. Yes, I think so—nine-9:00? Nine o'clock is the meeting with the hearing at 10, at the Hilo Council Chambers, Hawaii County Building, at 25 Aupuni Street, First Floor, Room 1401, in Hilo, Hawaii. Okay, that's August 12''. Adiournment (Item 11) CHR. CABANAS: May I have a motion to adjourn today's meeting. MR. WISEMAN: Motion to adjourn. CHR. CABANAS: Thank you. MS. BOND: Second. Page 55 Merit Appeals Board July 15, 2024 CHR. CABANAS: Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Ms. Cabanas—aye. Five ayes. Motion carried. Meeting is so adjourned at 1:31 p.m. Respectfully submitted, Glynis amada, cretary-Reporter APPROVED: itcu,;tiu& s-- Gabriella M. Cabanas, Chair Merit Appeals Board Page 56 to be on the eligible list. ry' (d) Eligibles shall be placed on open-competitive lists in order of their examination rating plus creditable veterans' preference points. Veterans' preference points shall be awarded for the periods and conditions authorized by law to applicants who meet the minimum passing score of the examination. [Eff. 07-01-02] (Auth: HRS §§76-17, 76-103) (Imp: HRS §§76-17, 76-18, 76-103) §3-17 Notification of examination results. Applicants who participate in an examination shall be given written notice of their test results. [Eff. 07-01-02; am 03-01-15] (Auth: HRS §76-17) (Imp: HRS §§76-17, 76-18) §3-18 Administrative review of examination ratings. (a) An applicant may request an administrative review of a rating assigned in an examination within seven days following the date the notice of examination results was sent. The applicant may be required to submit written information to the director to substantiate the request. (b) A request for administrative review shall not delay, prevent, or invalidate the certification of names from the eligible list nor the appointment of a person from the list. [Eff. 07-01-02; am 03-01-15] (Auth: HRS §76-17) (Imp: HRS §§76-17, 76-18) §3-19 Changes in examination ratings. (a) Changes in an examination rating may be made as a result of the discovery of errors in the rating or as a result of an administrative review. (b) Examination rating errors may be corrected throughout the life of the eligible list. (c) Applicants whose examination ratings are changed shall be notified. (d) Changes in an examination rating shall not affect a certificate of eligibles already issued or invalidate an appointment already made from the eligible list, except that the appointment shall be voided when a person is found within the probation period to have failed the examination. [Eff. 07-01-02] (Auth: HRS §76-17) (Imp: HRS §§76-17, 76-18) 3-9 ATT. A