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HomeMy WebLinkAbout2024-11-26 Merit Appeals Board MinutesREGULAR SESSION Merit Appeals Board Hilo Council Chambers Hawaii County Building 25 Aupuni Street, First Floor, Room 1401 Hilo, Hawaii November 26, 2024 (Tuesday) 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 Tuesday, November 26, 2024. Roll Call — Present Ms. Gabriella M. Cabanas, Chair Ms. Gay Mathews, Vice -Chair Ms. Suzi Bond, Member (via Zoom) Mr. Charles Kunz, Member Mr. David A. Wiseman (via Zoom) Also Present Mr. J Yoshimoto, Assistant Corporation Counsel, Office of the Corporation Counsel Ms. Sommer J. Tokihiro, Director, Human Resources Department Mr. James E. Halvorson, Deputy Attorney General, Department of the Attorney General (via Zoom) Mr. Justin C. Lee, Deputy Corporation Counsel, Office of the Corporation Counsel Mr. Mark Disher, Deputy Corporation Counsel, Office of the Corporation Counsel Ms. Sherilyn Tavares, Deputy Corporation Counsel, Office of the Corporation Counsel Mr. Stephen Pause, P.E., Director, Public Works Department Ms. Darlene Akamine, Senior Account Clerk, Public Works Department Mr. Ted. H. S. Hong, Esquire, Attorney at Law Mr. Lyndon P. K. Turner, Automotive Storekeeper (TA to Construction Equipment Repair Supervisor 11), Public Works Department Mr. Jonah Kaye, Water Safety Officer II, Fire Department Mr. Rocket Roque, Lead Construction Equipment Mechanic, Public Works Department Mr. Tony Enriquez, Appellant (via Zoom) Ms. Glynis Yamada, Secretary -Reporter, Human Resources Department Merit Appeals Board November 26, 2024 Call to Order (Item 1) CHR. CABANAS: Good morning, everyone, it's 9:00. I'm calling the Merit Appeals Board meeting to order on this day, November 26, 2024. We have three Board members present in the Hilo Council Chambers, at 25 Aupuni Street, First Floor, Room 1401, of the Hawaii County Building in Hilo. And appearing via Zoom are two other Board members that I'm going to introduce. First of all, I'm Gabriella Cabanas, I'm the Chair of the Merit Appeals Board. Appearing from Puna is Suzi Bond, our Board member. Good morning, Suzi. MS. BOND: Good morning, everyone. CHR. CABANAS: And appearing via Zoom from Kona is Mr. David Wiseman. Good morning, David. MR. WISEMAN: Good morning, all. CHR. CABANAS: And here with me —our Vice -Chair, to my left, is Ms. Gay Mathews. MS. MATHEWS: Good morning. CHR. CABANAS: And to her left, Mr. Charlie Kunz. MR. KUNZ: Good morning. CHR. CABANAS: We also have our Assistant Corporation Counsel, to my right, Mr. J Yoshimoto. MR. YOSHIMOTO: Good morning, everyone. CHR. CABANAS: Our Secretary -Reporter, seated in the back of us, is Glynis Yamada. MS. YAMADA: Good morning. CHR. CABANAS: Our Deputy Attorney General, who is our Legal Counsel for the appeal hearing scheduled today, is Mr. James Halvorson from the Attorney General's Office on Oahu. Good morning, Jim. MR. HALVORSON: Good morning. CHR. CABANAS: And in the Gallery, we have several individuals present: Mr. Justin Lee from the Office of the Corporation Counsel; Ms. Sherilyn Tavares from the Office of the Page 2 Merit Appeals Board November 26, 2024 Corporation Counsel; Mr. Mark Disher from the Office of the Corporation Counsel; our Director of Human Resources, Ms. Sommer Tokihiro; Mr. Ted Hong, Attorney; and we have two other individuals. If you could identify yourselves, please? MR. KAYE: I'm Jonah Kaye. CHR. CABANAS: Jonah Kayehi, Jonah. Good morning. MR. KAYE: (Inaudible) Ocean Safety. CHR. CABANAS: Ocean Safety. Great. And in the back, Rocket Roque. Okay, good morning to all of you. Addendum to Agenda (Item 2) CHR. CABANAS: There is no addendum to the agenda. Statements from the Public (Item 3) CHR. CABANAS: Any "Statements from the Public" at this time? No? Okay. 9:00 A.M.: HEARING RE COMMUNICATION NO. 24-14: 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, An Additional Hearing Will Be Scheduled Concerning The Merits Of The Appeal. Communication No. 24-14, Received On September 12, 2024, From Ted H. S. Hong, Esquire, On Behalf Of Appellant, Appealing The Following Action By The County Of Hawai`i's Fire Department: Recruitment And Examination; And Communication No. 24-14.01, Received On October 28, 2024, From Appellant, Regarding Appellant's Supplemental Exhibit "3" In Support Of Appellant's Appeal To The Merit Appeals Board Submitted On September 12, 2024; Exhibits "3"; And Communication No. 24-14.02, Received On October 29, 2024, From Appellee, Regarding Appellee's Statement Of No Opposition To The Jurisdiction Of The Merit Appeals Board To Hear This Appeal (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) Page 3 Merit Appeals Board November 26, 2024 CHR. CABANAS: We will proceed to the 9 a.m. hearing, Communication number 24-14, for Jonah Kaye regarding his appeal. You can yeah, come up to the dais —Ms. Tavares and Mr. Hong, with Jonah Kaye. (At this time Ms. Sherilyn K. Tavares, Deputy Corporation Counsel, Office of the Corporation Counsel; Mr. Ted Hong, Legal Counsel for Mr. Jonah Kaye; and Mr. Jonah Kaye, Water Safety Officer 11, Fire Department, came forward.) (At this time, Chair Cabanas read into the record Communications 24-14 through 24-14.02 listed above.) CHR. CABANAS: So, at this time, I think we'll start with Ms. Tavares. Do you have any statements to make at this time regarding Mr. Kaye's appeal? MS. TAVARES: No, Chair, we'll just submit on our filing of no opposition to the Board's jurisdiction to proceed. CHR. CABANAS: Okay. Mr. Hong? MR. HONG: Good morning, Madam Chair, Members of the Merit Appeals Board. No, I —other than our "Exhibit 3" that we would ask the Board to take notice of that the Hawaii Labor Relations Board has already ruled on this particular or similar issue. CHR. CABANAS: Mm-hmm. So noted. Okay. So, at this time, is there a motion for the Board to enter into executive session? MS. MATHEWS: So moved. MR. KUNZ: Second. CHR. CABANAS: Any discussion on the matter? If not, I would like MR. WISEMAN: Yes. Madam Chair? CHR. CABANAS: Yes. Yes, Mr. Wiseman? MR. WISEMAN: Yes. In view of the decision, "Exhibit 3," and there being no oppositionI don't see a need to go into executive session just to decide if we're going to continue with this hearing or not. CHR. CABANAS: Okay. Any other comments from the Board? Mr. Kunz? MR. KUNZ: Advice from Counsel? CHR. CABANAS: Okay. So, we can —okay, so are we going to withdraw the motion made? Page 4 Merit Appeals Board November 26, 2024 MS. MATHEWS: So moved. MR. KUNZ: Second. CHR. CABANAS: And so, we should vote on the withdrawal of the motion? No need to vote okay, very good. So, we will proceed with scheduling the hearing for Mr. Kaye. Our Secretary has checked on the availability of the Council Chambers, which is January 16'', 2025. It's a Thursday, at 9 a.m., here, in the Hilo Council Chambers of the Hawaii County Building, at 25 Aupuni Street, First Floor, Room 1401, in Hilo. MR. WISEMAN: Madam Chair? CHR. CABANAS: Yes, Mr. Wiseman? MR. WISEMAN: Yeah. I'm not sure —we can run it by Counsel —but I think we need a motion to go forward in hearing this appeal based on "Exhibit 3," the decision from the Human (sic.) Relation Board and there being no opposition. CHR. CABANAS: Mr. Halvorson, do we need a motion to schedule the hearingI was just reviewing the dates that our Secretary -Reporter provided? MR. HALVORSON: It's cleaner, if you do it by motion. CHR. CABANAS: We can do it by motion —okay. So, may I have a motion to schedule the hearing? MR. WISEMAN: Yes, I'll make a motion that in view of the "Exhibit 3," which is the required toa ruling and order from the Department of Human Resources, saying that the Merit Appeals Board does have jurisdiction, and there being no opposition from the other party— CHR. CABANAS: Excuse me, Mr. Wiseman. The ruling is from the Hawaii Labor Relations Board. MR. WISEMAN: I stand corrected. CHR. CABANAS: Yeah. MR. WISEMAN: So, in view of that, I make a motion that we accept the appeal and schedule the hearing dates. CHR. CABANAS: Okay, very good. Is there a second? Page 5 Merit Appeals Board November 26, 2024 MS. MATHEWS: Second. CHR. CABANAS: Any further discussion? Mr. Hong? MR. HONG: I'm sorry, and I know I don't —I'm not a Board member and I contribute to the discussion, but I would note that we're —Mr. Kaye and I are prepared to proceed this morning, if the Board wants to us to do that. We're ready to proceed. CHR. CABANAS: Okay. Mr. Hong notes that they are ready to proceed but Ms. Tavares may need additional time. Also, we would be providing you deadlines for you to submit your documents, exhibits, witness list, et cetera. So, I think the best is for us to schedule the hearing in January and allow both sides the County and Mr. Hong the time to provide the documents, which are exhibits, witness lists, any motions, any memorandums. I mean, it's nice that you are prepared but what —we also have to give the County their time to prepare as well. So, to make it fair to both sides. Okay, any other comments? We're still in the discussion phase of the motion. Okay, if not, I'll start a rollcall vote to schedule the hearing for January yes, Suzi? MS. BOND: She knew that there was a possibility that there would be the hearing today, right? CHR. CABANAS: No. MS. BOND: So, she could have been prepared, correct? CHR. CABANAS: No. The agenda was to discuss the jurisdictional issue and then, if we had the jurisdiction to hear the appeal, to schedule another hearing. Any other comments or questions at this time? Okay, if not, I'll start a rollcall vote with Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. MR. WISEMAN: Just a moment, Madam Chair? CHR. CABANAS: Yes, Mr. Wiseman? MR. WISEMAN: Voting "aye" for a meeting that will be after my resignation Page 6 Merit Appeals Board November 26, 2024 CHR. CABANAS: Oh, yes, that's correct. Thank you for noting that. MR. WISEMAN: So, I think I should abstain. CHR. CABANAS: Okay, you're abstaining. Okay. Because, just for the record, Mr. Wiseman has submitted a letter to Mayor Roth resigning from the Merit Appeals Board, effective December 31, 2024. Okay, so Ms. Bond, you voted —Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Abstain. CHR. CABANAS: And —okay, Mr. Kunz is abstaining. Today is his last meeting on the Merit Appeals Board, for the record. And my vote is "aye." So, we have three ayes, two abstaining motion carried to schedule the appeal hearing for Mr. Jonah Kaye on January 16'', 2025, at 9 a.m., here, in the Hilo Council Chambers. And, at this time, I'd like to give you the deadlines. So, the first deadline for both parties is December 12'', 2024. It's a Thursday. It's by 4:30 p.m. of December 12'h to submit your documentsexhibits, witness list, motions, memorandums. And this deadline is 15-calendar days prior to December 27 h, which is the next deadline. December 27 h, 2024, Friday, is the deadline for both parties to respond to provide your responsive pleadings by close of business, 4:30 p.m. And this deadline is 20-calendar days prior to January 16, 2025. The documents must be submitted to our Board's Secretary, who is Glynis Yamada, via email and regular mail or hand -delivered, and to the opposing parry. The documents that you submit must be 1-original and 8-copies for all submittals —and 1-copy to the opposing parry. For the Appellant, you must number and tab your exhibits. So, Number 1, 2, 3, 4, et cetera. For the Appellee, alphabetize and tab your exhibitsA, B, C, D, et cetera. The Merit Appeals Board will send a certified letter to the parties notifying them —or all of you notifying you of the date, time, location, and deadlines that I just read. So, may I have a motion to —well, we already approved the hearing date and time, but to approve the deadlines that have been established? MR. KUNZ: So moved. MS. MATHEWS: Second. Page 7 Merit Appeals Board November 26, 2024 CHR. CABANAS: Any discussion? If not, I'll start a rollcall vote with Mr. Wiseman. SPEAKER: He won't be here. CHR. CABANAS: No, but for the record, he's going —Mr. Wiseman, you're going to abstain, right? MR. WISEMAN: Yes, I abstain. CHR. CABANAS: Okay. Ms. Bond. MS. BOND: Yeah —yes. CHR. CABANAS: Okay. Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Abstain. CHR. CABANAS: Ms. Cabanas —aye. Three ayes and two are abstaining because they won't be on the Board in January. Okay, so we'll see you in January, Mr. Kaye, Mr. Hong, Ms. Tavares —and wish you all a Happy Holiday Season! MR. HONG: Just for the record, I just want to thank Judge Wiseman and Mr. Kunz for your service on the Merit Appeals Board. CHR. CABANAS: Thank you, Mr. Hong. Oh, your mic. MS. TAVARES: Likewise, the County would like to thank you for your service and Happy Holidays. CHR. CABANAS: Yes, we will miss Mr. Wiseman and Mr. Kunz. MR. WISEMAN: Thank you. CHR. CABANAS: Yes, Mr. Hong? Page 8 Merit Appeals Board November 26, 2024 MR. HONG: May I ask for a brief recess, and the reason is that I need to talk to my client, Mr. Kaye. But given the agenda, I actually scheduled my client, Turner, Lyndon, to come in at 10. CHR. CABANAS: Who's coming at 10? MR. HONG: My the second case that's on the Board's agenda. CHR. CABANAS: Oh. MR. HONG: I asked him to come in at 10. CHR. CABANAS: Oh, yeah —it's 9:15. MR. HONG: Right. Sorry, I didn't realize you'd get through the agenda this quickly. So, I apologize. CHR. CABANAS: Okay. We'll take a short recess at this time. MR. HONG: Thank you. CHR. CABANAS: Thank you. RECESS: The Chair called for a recess at 9:17 a.m. RECONVENE: The meeting reconvened at 9:33 a.m. in regular session. Note: At The Merit Appeals Board (Board) Hearing Held On October 4, 2024, It Was Established That The Appellant Desired To Obtain Legal Counsel Before Proceeding On The Jurisdictional Issue. The Board Agreed And Requested The Appellant Provide An Update On The Status Of Obtaining Legal Counsel At Its Next Meeting Scheduled For November 26, 2024 (A Future Hearing Date On The Jurisdictional Issue May Be Scheduled Conditional Upon Whether The Appellant Is Able To Obtain Legal Counsel). Communication No. 24-13: Received On July 25, 2024, From Appellant, Appealing The Following Action By The County Of Hawai`i's Office Of The Mayor: An Employment Action Taken Under Chapter 76, Hawai`i Revised Statutes; And Communication No. 24-13.01: Received On August 29, 2024, From Appellant, Transmitting Documents Entitled "Representation And Correspondence." The Appellant Requests The Following: 1) The Hearing Be Delayed Until The Appellant Can Obtain Proper Legal Counsel; And 2) Merit Appeals Board Chair, Gabriella Cabanas, Be Recused From Making Any Decisions Involving Appellants Appeal; And Communication No. 24-13.02: Received On August 29, 2024, From Appellee Regarding Appellee's Position Statement; Exhibits "A" — "H" (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 Page 9 Merit Appeals Board November 26, 2024 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: So, taking off from where we last discussed —Mr. Enriquez, you were going to obtain legal counsel. Were you able to find an attorney? (During this time, Mr. Tony M. Enriquez, Appellant, appeared via Zoom. Mr. Mark Disher, Deputy Corporation Counsel, Office of the Corporation Counsel, came forward.) MR. ENRIQUEZ: No. I contacted six attorneys —four of them said they couldn't take the case because they had other cases, I guess. Well, one of them, I went online `cause I was so desperate —and this person was a attorney consultant from Arizona, who's not licensed to practice law in Hawaii that I did not know when I first went on the website. So, she really couldn't help me. And the only one that's left is waiting for the EEOC what do they call that —it's the investigative file they're waiting for that, which they have until December 23rd to come back with. And once they obtain that, then they'll make an assessment if they'll take my case or not. MR. WISEMAN: Madam Chair, may I intervene for a moment? CHR. CABANAS: Yes, sure. Go ahead, Mr. Wiseman. MR. WISEMAN: The attorney consultant not licensed hereIat a glance I vaguely recall that a person doesn't have to be licensed being an attorney to assist someone at an administrative hearing. I'll defer to our attorney. CHR. CABANAS: Mr. Halvorson, your comments regarding Mr. Wiseman's statement? MR. HALVORSON: Yeah, that is my understanding is you don't have to be an attorneya licensed attorney to appear before Hawaii Labor Relations Board or Merit Appeals Board or Labor Industrial Relations Appeals Board. MR. WISEMAN: So, Madam Chair, in view of that —Mr. Enriquez, if he wants —wishes to pursue the consultant or another attorney, I make a motion we continue and give him some more time to find some representation. CHR. CABANAS: So, Mr. Enriquez, did I hear correct that you filed a complaint to EEOC and you're waiting until December 23rd for their response on your complaint? MR. ENRIQUEZ: Yeah. I'm requesting for their files CHR. CABANAS: Okay. Page 10 Merit Appeals Board November 26, 2024 MR. ENRIQUEZ: And I can't get their filesI guess, I filed a Section 83 and a FOIA application to obtain the records from them. And they responded back —said they have until December 23rd. So, the one attorney that I wanted to hire, wants to find that out first before anything further. So, that's the only one that I got response to besides the online consultation that I had. CHR. CABANAS: Okay. So, are you asking for further extension? MR. ENRIQUEZ: If possible. CHR. CABANAS: Okay. I'd just like to allow Mr. Disher to comment, if any —if you have any concerns at this point. MR. DISHER: The only concern I have is, if there is an EEOC case, that actually goes to my arguments regarding MAB CHR. CABANAS: I'm sorry, that goes to what —can you speak closer? MR. DISHER: It goes to my arguments of why MAB should not have this case, and it's another agency that is more equipped to handle the question. CHR. CABANAS: So noted. Did you hear what Mr. Disher said, Mr. Enriquez? MR. ENRIQUEZ: I understood what he said but, I mean, I heard what he said but I don't understand what he said. CHR. CABANAS: You don't understand what he said? MR. ENRIQUEZ: He's talking about somebody else who is going to take the case or something? That's what I understand he's saying. So, I don't know who he's referring to that's going to take the case. MR. DISHER: Mr. Enriquez, basically, I'm saying the EEOC is the better group to handle your complaint, then the MAB. And that was the basis of my jurisdictional motion. MR. ENRIQUEZ: Oh, you mean the Merit Appeals Board — MR. DISHER: Yes. MR. ENRIQUEZ: is that what you're saying? MR. DISHER: When I say "MAB" I mean Merit Appeals Board yes. Page 11 Merit Appeals Board November 26, 2024 MR. ENRIQUEZ: Okay, that's what I didn't understand what you were saying you were talking in acronyms so CHR. CABANAS: Yes, normally, Mr. Enriquez, if —this has happened in the past. If someone files an appeal to the Merit Appeals Board and they simultaneously files an appeal to EEOC EEOC is the higher power to address a discrimination complaint. So, they would take on the case. Same thing if you filed a two -prong complaint. Let's say you filed a complaint to Hawaii Civil Rights Commission and EEOC—simultaneously—one will take the discrimination complaint. In other words, one agency will defer to the other. So, it's same thing —well, not quite the same as Merit Appeals Board and EEOC, `cause EEOC is the higher level agency for discrimination complaints. MR. ENRIQUEZ: Yeah, `cause actually I filed the appeal with you folks first because the deadline was so narrow, right? So, I had, like, 7-days7-days, and then with you guys was, like, 20-days. I didn't file the EEOC until after the last hearing because, I guess, the person from the Attorney General's Office said not to wait because it would expire already. `Cause I think the expiration date was at the ending of October. And we wasn't going to see each other again until today. So, if I didn't file it, then it would be too late —so that's why the gentleman on the right screen, said to file it and not wait until it expired. So, that's why I filed it. So, I didn't do it simultaneously. I did you guys one first. So CHR. CABANAS: Yeah, and it doesn't really have to be simultaneously either. So, if you did —as you said —later filed to EEOC, again, they are still the higher level agency for discrimination complaints, rather than the Merit Appeals Board. So, having had this discussion with you thanks for explaining to us —is there a motion from the Board to allow Mr. Enriquez more time to secure his attorney and also see what happens with his file being given to the attorney from EEOC. MR. KUNZ: So moved. CHR. CABANAS: Is there a second? MR. WISEMAN: Second. MS. MATHEWS: Second. CHR. CABANAS: Any discussion? MS. MATHEWS: I do have a quick question. How would we —what obligation does Mr. Enriquez have to let us know that this needs to be back on the agenda. So, are we doing this indefinitely until he responds or how are we working that timeframe? Page 12 Merit Appeals Board November 26, 2024 CHR. CABANAS: Mr. Enriquez, I've been advised by our Secretary, can you submit a letter to the Merit Appeals Board sending it to our Secretary, explaining such, and requesting more time to secure the attorney. MR. ENRIQUEZ: Okay. CHR. CABANAS: That way we'll have written documentation for our files. MR. ENRIQUEZ: Okay. CHR. CABANAS: Thank you. MR. ENRIQUEZ: So, how long would I get —would I wait until after the holidays `cause that response from the EEOC was not —well, will not be available till at least December 23rd—it's what they said in the letter. So, they had twenty (inaudible) days from, I think Saturday is when they received it or Sunday —`cause I sent it certified and they responded back —said they received it but they have 20 business days to respond. So, they have until December 23rd if they not counting holidays and weekends. So MR. WISEMAN: Madam Chair? CHR. CABANAS: Mr. Wiseman? MR. WISEMAN: Mr. Enriquez, when you say you're waiting for the response —so they haven't made a decision to take the case or not, yet —is that right? MR. ENRIOUEZ: Who was that —the EEOC? MR. WISEMAN: EEOC they haven't made a decision as to whether you have a good claim or not. Is that right? MR. ENRIQUEZ: Well, they closed out the they closed out my case but before we find out what's inside the file, inside their file then, I'm supposed to get that information to the attorney to see if the attorney's going to take the case. MR. WISEMAN: I understand but —in closing the case —so they denied to hear it. Is that right? MR. ENRIQUEZ: Well, they closed it at intake, but I'm appealing that right now. I'm writing out an appeal because I felt that the closure was MR. WISEMAN: Okay. Again, I would have to defer to our Counsel but I know in court, you must wait till EEOC gives you they deny the claim and say, "Okay, you can go to court now." Page 13 Merit Appeals Board November 26, 2024 MR. ENRIQUEZ: Well, yeah, they gave me a letter saying that I have a right to sue —was, basically, what you said. MR. WISEMAN: All right. MR. ENRIQUEZ: Okay. MR. WISEMAN: Thank you. That's (inaudible). MR. ENRIQUEZ: Yeah. CHR. CABANAS: Mr. Enriquez, I'm getting a little confused because you filed a complaint to EEOC. So, did they provide you with a letter to why your claim —denied your complaint or MR. ENRIQUEZ: They didn't deny in my claim —complaint —they closed the case their case, but they gave me a right to sue letter. CHR. CABANAS: Okay. MR. ENRIQUEZ: So, they're not saying that it was justified or not justified. They just said that it was closed out and this is your right to sue letter. So, right now, I'm requesting what information they have in the file. So, whatever information they got from whoever investigated —if they get anything from (inaudible), that's the information I'm waiting for. CHR. CABANAS: Okay. Thank you for the explanation. Mr. Halvorson, can you advise the Board at this point? MR. HALVORSON: The fact that EEOC has given him a right to sue raises the issue of whether or not there's —Merit Appeals Board has jurisdiction to hear his case. If it's a discrimination case, his recourse at this point would be to sue in court. CHR. CABANAS: Okay. We do have a motion on the floor to allow an extension for Mr. Enriquez and we did not state a deadline for him to obtain legal counsel. Should we do that at this point? MR. HALVORSON: You're asking me? CHR. CABANAS: Yes. MR. HALVORSON: Yes. I think you should. CHR. CABANAS: And what would be the appropriate timeline to be fair to Mr. Enriquez and the County. Page 14 Merit Appeals Board November 26, 2024 MR. HALVORSON: Well, you already got a hearing scheduled for January but that's a hearing on the merits. So, I don't know that you can do anything other than give him we require him to do a status report on the 16'h ofI think it's the 16'h of January? CHR. CABANAS: Yes. MR. HALVORSON: Or you could give him until your hearing date in February. CHR. CABANAS: Mr. Kunz? MR. KUNZ: Yeah, I was going to suggest since —well, I won't be here, but, sorry but you have a meeting scheduled on the W' that we can, at least, get a status on the 16''. CHR. CABANAS: On the 16''. Okay. We have a situation here, too, with the Merit Appeals Board in that we will not have Mr. Kunz and Mr. Wiseman on the Board for January —leaving only Ms. Bond, Ms. Mathews, and myself which is three is quorum, but that's what we will have until the new Administration submits nominees to the Council for successors to these current Board members. So, okay —we have a motion to allow Mr. Enriquez the extension and can we amend the motion to allow for the extension with a report from Mr. Enriquez at the January W' meeting? MR. KUNZ: So moved. MR. WISEMAN: Second. MS. MATHEWS: Second. CHR. CABANAS: Thank you. Any discussion? If not, I'll start a rollcall vote with Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. Page 15 Merit Appeals Board November 26, 2024 CHR. CABANAS: Ms. Cabanas —aye. Five ayes. Motion carried. So, Mr. Enriquez, we wish you the best of luck in finding representation for yourself, and if you could kindly submit a report to the Merit Appeals Board at the January 16, 2025, Board meeting. MR. ENRIQUEZ: You still want that letter that you asked for to the Secretary? CHR. CABANAS: Yes, I think that would be best. MR. ENRIQUEZ: Okay. CHR. CABANAS: Thank you for asking. Okay. Mr. Disher. MR. DISHER: I would suggest giving him a time to show up on the 16'. CHR. CABANAS: Good suggestion. So, our meeting on January 16'h—let me look at the timeliness to be determined by the Board. MS. BOND: It needs to start early so I can be out by noon. CHR. CABANAS: That's right. So, why don't we —why don't Mr. why don't we meet at 9 on January 16? Yes, we have Mr. Kaye's hearing at 9 on January 168:30? Eight -thirty, Ms. Bond? Okay. So, Mr. Enriquez, could you be available via Zoom at 8:30 on January 16''? MR. ENRIQUEZ: Let me see what day that is. Sixteenth is a Tuesday? CHR. CABANAS: No, it's a Thursday. MR. ENRIQUEZ: Thursday. CHR. CABANAS: Yeah. MR. ENRIQUEZ: I normally work at 11 in the morning, but I have to leave my house by 10. So, I guess it's okay. CHR. CABANAS: Okay. Okay, so 8:30 on January 16' MR. ENRIQUEZ: Eight -thirty —okay. CHR. CABANAS: Yeah. Okay. Thank you so much. Page 16 Merit Appeals Board November 26, 2024 MR. ENRIQUEZ: Thank you. CHR. CABANAS: Yes, we do need to vote. So, let me get my thoughts together. MR. ENRIQUEZ: Is the meeting confirmed or do I still have to remain (inaudible). CHR. CABANAS: No, it's confirmed, Mr. Enriquez. Thank you. MR. ENRIQUEZ: Okay, thank you. CHR. CABANAS: Thank you so much. Have a good day. Okay, so let me restate — MS. BOND: And I just put it in my brand new calendar. CHR. CABANAS: Okay, very good. Yes, have your 2025 calendar available. Okay, so, let's recap. So, we approved having a meeting on January 16'h with the Jonah Kaye hearing at 9:00. We did that. And now, for Mr. Enriquez to report back to the MAB—he's going to do that at 8:30, so our meeting will convene on January 16'h at 8:30 January 161, 2025, at 8:30 for three Board members —Ms. Bond, Ms. Mathews, and myself —here, in the Hilo Council Chambers of the Hawaii County Building, at 25 Aupuni Street, First Floor, Room 1401. Okay, so let's move on. HEARING RE COMMUNICATION NO. 24-03 (To convene following the hearing on Comm. No. 24-14) Note: At Its Meeting Held On August 28, 2024, The Merit Appeals Board (MAB) Voted To Hold This Matter In Abeyance And Refer It To The Hawaii Labor Relations Board (NLRB) For Their Decision Concerning Whether MAB Has Jurisdiction To Hear This Appeal. At Its Meeting Held On September 19, 2024, MAB Was Informed That HLRB Determined That The Board Has Jurisdiction To Hear This Appeal; However, MAB Will Await The Official Written Decision From NLRB. In Anticipation Of Receipt Of The Decision, A Hearing On The Merits Of The Appeal Was Scheduled For November 26, 2024. 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 Page 17 Merit Appeals Board November 26, 2024 Communication No. 24-03.03, Received On June 10, 2024, Regarding Appellee's Exhibit List; Exhibits "A" - "V"; Certificate Of Service; And 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 "l"; 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 (Note: The Above Matters Were Listed On The Agenda Or Presented At The Merit Appeals Board Meeting Held On July 15, 2024. The Merit Appeals Board Denied The Appellee's Motion To Dismiss For Lack Of Jurisdiction As Well As Its Motion To Hold The Proceedings In Abeyance); And Communication No. 24-03.08, Received On July 25, 2024, Regarding Appellee's First Supplemental Exhibit List; Exhibit "W"; Certificate Of Service; And Communication No. 24-03.09, Received On July 25, 2024, Regarding Appellee's Pre -Hearing Brief; Certificate Of Service; And Communication No. 24-03.10, Received On July 25, 2024, Regarding Appellee's Notice Of Filing Petition For Declaratory Ruling With The Hawaii Labor Relations Board; Exhibit "A"; Certificate Of Service; And Communication No. 24-03.11, Received On July 30, 2024, Regarding Appellant's Application For Issuance Of Subpoenas; Declaration Of Ted H. S. Hong; Exhibits "A" - "C"; Certificate Of Service; And Communication No. 24-03.12, Received On August 8, 2024, Regarding Appellee's Motion To Continue; Memorandum In Support Of Motion; Declaration Of Justin C. Lee; Exhibits "A" - `B"; Certificate Of Service; And Communication No. 24-03.13, Received On August 14, 2024, Regarding Appellant's Witness List; Certificate Of Service; And Communication No. 24-03.14, Received On August 14, 2024, Regarding Appellant's Exhibit List; Certificate Of Service; And Communication No. 24-03.15, Received On August 15, 2024, Regarding Appellant's Return Of Service Signed Applications For Issuance Of Subpoena's (Reference Communication No. 24-03.11); And Communication No. 24-03.16, Received On August 26, 2024, Regarding Appellant's Memorandum In Opposition To Appellee's Motion To Continue Dated August 8, 2024; Declaration Of Ted H. S. Hong (Note: The Above Matters Were Listed On The Agenda Or Presented At The Merit Appeals Board Meeting Held On August 28, 2024); And Page 18 Merit Appeals Board November 26, 2024 Communication No. 24-03.18, Received On September 20, 2024 Regarding Appellant's Second Application For Issuance Of Subpoenas; Declaration Of Ted H. S. Hong; Exhibits "D" — "E" • And Communication No. 24-03.19, Received On October 28, 2024, Regarding Appellant's Amended Exhibit List; Exhibit "10"; And Communication No. 24-03.20, Received On November 18, 2024, Regarding Appellant's Return Of Service Signed Applications For Issuance Of Subpoena's (Reference Communication No. 24-03.18); And Communication No. 24-03.21, Received On November 19, 2024, Regarding The Hawaii Labor Relations Board Declaratory Ruling And Order (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: Thank you, everyone for your patience. We now have the appeal hearing for Mr. Turner. (At this time, Mr. Lyndon P. K. Turner, Automotive Storekeeper (TA to Construction Equipment Repair Supervisor II), Public Works Department, and Mr. Ted H. S. Hong, Legal Counsel for Mr. Turner; and Mr. Justin C. Lee, Deputy Corporation Counsel, Office of the Corporation Counsel, and Ms. Sommer J. Tokihiro, Director, Human Resources Department, came forward.) CHR. CABANAS: Good morning, Mr. Turner. He is present with his attorney, Mr. Ted Hong; and the County's attorney is Mr. Justin Lee, from the Office of the Corporation Counsel, along with the Director of Human Resources, Ms. Sommer Tokihiro. For the record, I'd just like to note that we have other individuals sitting in the gallery. We have Ms. Darlene Akamine and Mr. Steve Pause, who I believe will be witnesses for Mr. Hong. MR. HONG: That's correct. CHR. CABANAS: Okay, thank you. Okay. So this hearing is regarding Communication number 24-03, the appeal filed by Mr. Lyndon P. K. Turner. At its meeting held on August 28, 2024, the Merit Appeals Board voted to hold this matter in abeyance and refer it to the Hawaii Labor Relations Board, known as "HLRB"—for their decision concerning whether MAB has jurisdiction to hear this appeal. Page 19 Merit Appeals Board November 26, 2024 At its meeting held on September 19, 2024, MAB was informed that HLRB determined that the Board has jurisdiction to hear this appeal. However, MAB will await the official written decision from HLRB, which we did receive. And so, a hearing on the merits of the appeal is scheduled for this morning, November 26', 2024, at 9:55 a.m. There are a whole number of Communications that were filed I'm not going to read them in verbatim, but it's Communication number 24-03 all the way through Communication number 24-03.21, as reflected and described in detail on the agenda. 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 two-thirds vote of the members present, pursuant to HRS, Section 92-4 is necessary to hold an executive meeting. I would just like to note that our Legal Counsel for the appeal hearing is Mr. James Halvorson, appearing via Zoom on Oahu, and he is with the Attorney General's Office. Okay. So, at this time, I'd like to, again, formally introduce our Board members. I'm Gabriella Cabanas, the Chair; Gay Mathews, to my left, is the Vice -Chair; Suzi Bond is appearing via Zoom from Puna; Mr. Kunz is here to the left of Ms. Mathews; and appearing via Zoom from Kona is Mr. David Wiseman. So, Mr. Turner, just for the record —and Mr. Hong —does the Appellant want an open or closed hearing your appeal form, Mr. Turner, states "open" and your past hearings were held in an open session, which means that anyone from the public can sit in and hear today's hearing. So, do you still want an open hearing? MR. TURNER: Yes. MR. HONG: We would prefer an open hearing. CHR. CABANAS: Okay. So noted. Thank you. Okay, so he wants an open hearing. This hearing is on the appeal filed by Mr. Lyndon P. K. Turner. The issue in this case has been identified as Number 1did the Employer, the Human Resources Department of the County of Hawaii, violate any statutes, regulations, rules, or personnel policies regarding the following actions: Recruitment and Examination, and Classification or reclassification of a particular position? And if the answer to the above is "yes" then what remedy can be awarded by the Merit Appeals Board. Page 20 Merit Appeals Board November 26, 2024 The Board received a copy of the Hawaii Labor Relations Board's Declaratory Ruling and Order, reference Communication number 24-03.21stating that the Board has jurisdiction to hear this appeal. So, we will proceed. Do the parties, at this time, have any statements or concerns in regard to the issue in this case? Mr. Hong. MR. HONG: No. Thank you. CHR. CABANAS: Okay. Mr. Lee. MR. LEE: No statements. This might be a good time to ask to exclude the witnesses before testimony statement. CHR. CABANAS: So noted. Mr. Lee is requesting that the witnesses not be allowed to sit in on today's hearing. And so, Mr. Hong, any objections to that? MR. HONG: I understand the exclusionary rule. We have no objections except, in terms of the order of our witnesses, we're going to call the two Public Works witnesses firstMr. Pause and then our other witness CHR. CABANAS: Ms. Akamine. MR. HONG: I'm sorry, Ms. Akamine, and then Lyndon Turner. CHR. CABANAS: Okay. So, you're the order of the witnesses are Mr. Steve Pause, the Director; followed by Ms. Darlene Akamine; followed by Mr. Lyndon Turner. Okay. MR. HONG: Right. `Cause my understanding is Mr. Pause has a 10:30 that he needs —or 11:0011:00 that he needs to be at. CHR. CABANAS: Okay, it's 10:00 now. So —okay, so you don't oppose you don't object to Mr. Lee's having them sit out? MR. HONG: Right. So, if Ms. Akamine, could step outside because we're going to call Mr. Pause as soon as you allow us to do that. CHR. CABANAS: Okay, sure. Okay. Yeah, so, Ms. Akamine, if you can just wait outside of the Council Chambers, yeah. So, strict rules of evidence will not apply in this hearing, however, the Board requests that all parties confine themselves to the matters connected with today's hearing and the issue before the Board. Page 21 Merit Appeals Board November 26, 2024 If witnesses are used —and they will be the opposite parties will be allowed to cross-examine the witness. Members of the Board may also question the witness after the witnesses testimony. Are there any questions? MR. HONG: No. Thank you. MR. LEE: No, thank you. CHR. CABANAS: Thank you. Are there —okay, so if no questions, we will begin. So, at this time, we're going to allow the Appellant, Mr. Hong and Mr. Turner, to make an opening statement, if you wish to do so; and then followed by the County, if you wish to make an opening statement. An opening statement is used to present a broad overview of the case to be presented before the Board. It is somewhat of a summary of the case to be presented. It's main purpose is to chart for the Board the presentations, facts, and arguments to be presented. And, normally, an opening statement is about 3-minutesnormally, for the Merit Appeals Board. And our Secretary will time your 3-minute opening statement. Remember, it's a broad overview of the case. So, we'll start with Mr. Hong, representing Mr. Turner. MR. HONG: Madam Chair, Members of the Board, good morning. My name is Ted Hong with me is Mr. Lyndon Turner, the Appellant. Brief overview or opening statement in this case is this has always been about a probationary appointment. And it was clear that it was a probationary appointment to the position of Construction Equipment Repair Supervisor II, to not only my client, Lyndon Turner —but also to the department director and also to other official —County officials. It wasn't until six or se —actually seven months into his service as a probationary appointment that now the only person that —in this room that believes that this was —we're still a recruitment, is the civil the Human Resources Director —and this was never a recruitment. By the time he was appointed, the evidence will show —he was a probationary employee. Recruitment ended once his —once he was appointed to the position. Thank you. CHR. CABANAS: Thank you, Mr. Hong. Mr. Lee. MR. LEE: In substance, the County will submit on its pre -hearing brief, which I think was Communication number 24-03.09 but, in summary, will submit that the Human Resources Director, upon Administrative Review after an Internal Complaint was filed —discovered a discrepancy in the class specifications of the position. Because of that discrepancy, corrective action was taken. So, the probationary appointment was voided and the recruitment was Page 22 Merit Appeals Board November 26, 2024 cancelled as we'll expound more in evidentiary —as the evidence that will come in the Director's actions were not only appropriate, they were required under the Human Resources Rules as well as the merit appeals principle. Thank you. CHR. CABANAS: Thank you, Mr. Lee. At this time, the witnesses will be sworn in. And so, Mr. Hong, do you want to call your first witness, please? MR. HONG: Yes, thank you. Our first witness is Stephen Pause. (At this time, Mr. Stephen Pause, P.E., Director, Public Works Department, came forward.) CHR. CABANAS: Mr. Pause, you can sit up here. So, Mr. Pause, you need to turn your mic. on, yeah, on the right button. Okay, I'm going to swear you in, so if you can raise your right hand. Mr. Steve Pause, do you swear to tell the truth, the whole truth, and nothing but the truth? MR. PAUSE: I do. CHR. CABANAS: Thank you. Mr. Hong, you have the floor. MR. HONG: Thank you. Sir, where are you presently employed? MR. PAUSE: I am employed by the County of Hawaii as the Director of Public Works. MR. HONG: And what are the duties and responsibilities of the Director of Public Works include? MR. PAUSE: How long of an answer do you want? So, briefly, it's a department of about 450 people. There are six divisions within the Department of Public Works the Automotive Division maintains vehicles for the islands' fleet; the Highways Division maintains roadways; the Engineering Division does projects; the Building Division maintains County buildings/issues building permits; the Administrative Division keeps track of our budget and does payroll; and who did I forget —Traffic takes care of all signs, markings, and traffic signals. MR. HONG: Are human resources a part of your duties or responsibilities? MR. PAUSE: We have human resources within our Administrative Division that manages our workers and then deals directly with main HR for the County. MR. HONG: You're familiar with my client, Lyndon Turner? Page 23 Merit Appeals Board November 26, 2024 MR. PAUSE: Yes, I am. MR. HONG: How are you familiar with him? MR. PAUSE: He is employed within our Automotive Division. MR. HONG: And are you familiar with his probationary appointment to the position of Construction Equipment Repair Supervisor II? MR. PAUSE: Yes. MR. HONG: Could you tell us how it began? MR. PAUSE: Yes. The position description was signed by myself in February of 2023, sent to HR, and that was subsequently approved by HR. And at the end of March of `23—and then it was not posted until October of 2023, it identified the duties and the minimum qualifications. We had held interviews on November 8th of 2023 there were two candidates. There was an interview panel of three interviewers. And after that interview process was completed, Mr. Turner was offered the job and he accepted it, subsequently —and he began in that role on December 1st of 2023. MR. HONG: Was the appointment as a probationary employee conditional? MR. PAUSE: It was conditional in a sense that all employees when they serve a new role in the County, have a 6-month mandatory probationary period. MR. HONG: How far did he get in his probationary period? MR. PAUSE: Well, customarily, a performance evaluation is performed at 3-months and then again at 6-months. So, at 3-months he had a PAR completed Performance Assessment Review —and at that 3-month period, which was done on March 4th, Mr. Lyndon scored "exceeds" or "meets" all of the expectations for his job performance. MR. HONG: Okay. And were you appraised of any problems with his appointment as a probationary employee, after he was serving in that position? MR. PAUSE: I became aware of an issue with HR on the 5t' of March it would have been right after he had his 3-month performance evaluation. MR. HONG: And, what if anything, did you do? MR. PAUSE: Well, I was informed that there was an error in classification requirements for the position and was informed by main HR that his appointment needed to be voided. So, subsequently, I submitted an emaila memo to main HR, to Ms. Tokihiro, on the 7th of March —and that memo just made a plea, disagreed with main HR's decision —and made a plea Page 24 Merit Appeals Board November 26, 2024 to allow us to continue to allow this employee, who is more than adequately performing his job duties, to continue. MR. HONG: And did anybody, at that point, tell you that they were going to cancel the recruitment that my client successfully was awarded? MR. PAUSE: I don't recall the exact terminology but they made the statement that they needed to make changes to the to that job description and send it back out for re -recruiting. MR. HONG: After you sent that memo or the email to the HR Director, what, if anything, happened? MR. PAUSE: I know I had subsequent follow-up conversations with the HR Director and I, again, plead my case to allow the well -performing employee to continue in this role. And the only thing that I would note was that she told me that —or I told her that it was unfortunate —and she told me that if, in fact, the employee had made it through his 6-month probation period, there wouldn't be anything that they could have done to remove him from the job and enforce the re - recruitment. MR. HONG: Did you have any meetings with the Mayor regarding this particular appointment? MR. PAUSE: I discussed this with the Mayor and plead with him to find out if there was something he could do and his comment to me was, "No" —that —"ultimately, it had to come before the Merit Board." MR. HONG: And in terms of what happened —was, at the —well, let me rephrase that question. Was he, subsequently —was my client, subsequently, demoted? MR. PAUSE: He was placed back into the position he held before he had taken on this one. Correct. MR. HONG: And in terms of the process before he was sent back to his original position, in your mind, was this still a recruitment or was he a probationary appointee? MR. PAUSE: While he was performing his duties, the first 6-months in that position that began on December I" of `23, he was a probationary employee. MR. HONG: Thank you. I have no further questions for this witness. CHR. CABANAS: Thank you, Mr. Hong. Mr. Lee? MR. LEE: Thank you. Good morning, Director. MR. PAUSE: Good morning. Page 25 Merit Appeals Board November 26, 2024 MR. LEE: So, Director, if you could, I'm going to try and stretch you out and navigate this binder that's to your left. If you see to Communication 24-3 03do you see that tab? MR. HALVROSON: I can't hear, Counsel. MR. LEE: I just instructed him to —if he could identify Communication number 24-3.3. MR. PAUSE: Okay, I think I have it. MR. LEE: Okay. If you turn to page —it should be titled, "Appellee's Exhibit List" —do you see that? MR. PAUSE: Yes. MR. LEE: Okay. I'm going to ask you to turn to, what's labeled "Exhibit S"—and, if you could turn to that page. MR. PAUSE: I'm sorry, "S" as in "Sierra?" MR. LEE: Yes. MR. PAUSE: Okay. MR. LEE: Okay. And does it say, "County of Hawaii - Department of Human Resources InterOffice Memo" at the top? MR. PAUSE: Yes. MR. LEE: Okay. And you see there on the date heading, "March 5'?" MR. PAUSE: Yes. MR. LEE: Okay. Did you receive this memo that was directed to you? MR. PAUSE: I believe. I recall. Yes. MR. LEE: Okay. I'll give you a moment, if you could read over it, and then tell me when you're ready. MR. PAUSE: Okay. MR. LEE: Okay. So, I'll direct your attention to the third paragraph. It started, "As the selectee for the Position... "do you see that paragraph? Page 26 Merit Appeals Board November 26, 2024 MR. PAUSE: Yes. MR. LEE: Okay. So that sentence ends by saying, "the selectee's appointment shall be voided and the recruitment cancelled." I'm going to continue to the second sentence. It says, "Please inform the employee by no later than March 8, 2024, that he will be returned to his last held permanent position... "do you see that sentence? MR. PAUSE: Yes. MR. LEE: Okay. Did you inform Mr. Turner that he would be returned by March 8 h? MR. PAUSE: I don't understand the question. MR. LEE: Okay. So, this memo asked that — MR. PAUSE: I —let me try —excuse me. I did inform him that he would be returned but it was not by March 8'. MR. LEE: Okay. Thank you. Was there a reason why you did not inform him by March 8 h? MR. PAUSE: I could speculate and say that at the time this memo was issued, I was not on island. I might have been out of the office and then I did have subsequent follow-up conversations with the Director of HR. MR. LEE: Okay. So, you recall having at least one meeting —how many meetings did you have with the Director of HR? MR. PAUSE: At least one, face-to-face; and, perhaps, a phone call. I don't recall. MR. LEE: Okay. Do you recall having a Zoom meeting with Director Tokihiro? MR. PAUSE: I don't recall. MR. LEE: Okay. MR. PAUSE: I recall a face-to-face meeting with the Director and other members of her staff. MR. LEE: Do you recall asking Director Tokihiro to wait on taking action so you could tell Mr. Turner in person? MR. PAUSE: That sounds like something I would have said yes. I, definitely wanted to have it a direct conversation with Mr. Turner and if there was —if I wasn't physically on -island that couldn't have occurred. Page 27 Merit Appeals Board November 26, 2024 MR. LEE: Okay. When did you tell Mr. Turner that he'd be returned to his previous position? MR. PAUSE: I believe I met with Mr. Turner on the 27 h of March. MR. LEE: Okay. And what did you tell Mr. Turner, to the best of your recollection? MR. PAUSE: I, essentially, reiterated what was in this memo that you just had me read that there's been an error and that he needed to be returned to his previous position. MR. LEE: Okay. At some point you made the decision to temporarily appoint Mr. Turner to the CERS II position? MR. PAUSE: That's correct. MR. LEE: Okay. When did you make that decision? MR. PAUSE: It would have been subsequent to when he was returned to his other position. MR. LEE: Okay. I'm going to ask if you can turn to the exhibit tabulated —identified as "U.), Are you there? MR. PAUSE: Yes. MR. LEE: Okay, thank you. So, this exhibit has multiple pagesI believe it's six pages. I'll just, kind of, briefly take you through it. On the first page there, on the top left —do you see where it says, "Timesheet Ending"? MR. PAUSE: Yes. MR. LEE: Okay. And it should say March 31 ", 2024? MR. PAUSE: Yes. MR. LEE: And then, I'll have you turn to the second page. Do you see on the left-hand side, there's a column labeled "DATE(S)"? MR. PAUSE: Yes. MR. LEE: Okay. And it's covering a period of what appears to be March 28' toI guess there's a handwritten note there but the best I can tell it saysI can't really tell —but it starts at March 18''? Is that correct? MR. PAUSE: Yes. Page 28 Merit Appeals Board November 26, 2024 MR. LEE: Okay. Down on the bottom right, it says there's a label here —"DEPARTMENT HEAD OR AUTHORIZED AGENT" you see that? MR. PAUSE: Yes. MR. LEE: Okay. Who's signature is that? MR. PAUSE: I don't recognize it. MR. LEE: Okay. So, that's not your signature? MR. PAUSE: Correct. MR. LEE: Okay. Can you see the date, March —excuse me —April 16''? MR. PAUSE: Yes. MR. LEE: Okay. I'll have you turn two pages after that. Do you see a subsequent column there for "DATE(S)" MR. PAUSE: Yes. MR. LEE: —April 1" to 15'', 2024? MR. PAUSE: Yes. MR. LEE: Okay. And on the bottom right, do you see the signature and the date there? MR. PAUSE: Correct. MR. LEE: Okay. And it says April W'? MR. PAUSE: Yes. MR. LEE: Thank you. You earlier testified that your decision to temporarily appoint Mr. Turner was subsequent to your discussion with him on March 27'? MR. PAUSE: Yes. MR. LEE: Okay. And you saw the signature as the approval of the department head indicated April 16''? MR. PAUSE: Yes. Page 29 Merit Appeals Board November 26, 2024 MR. LEE: Okay. So, is it fair to say that your decision to temporarily appoint Mr. Turner also occurred prior to the April 16'h dates? MR. PAUSE: I would say so —yes. MR. LEE: Okay. Does the decision to temporarily appoint an employee —is that a continuous decision? MR. PAUSE: I'm not sure I understand the question. MR. LEE: I'll be happy to clarify. Is that a decision you have to continuously make at a piratic intervals to, like, say, every month or every pay period to say, "I'm going to continue him in this position?" MR. PAUSE: No. Typically, it's made and until that position is posted and it goes out for recruitment, and there's candidates identifiedit, typically, just continues. MR. LEE: Okay. So, is Mr. Turner still temporarily appointed to the CERS II position? MR. PAUSE: My understanding is yes. MR. LEE: Okay. So, recruitment for that CERS 11 position has not gone out? MR. PAUSE: I don't know for sure but, I guess, the fact that he's continuing to temporarily assigned to it would mean that's the case yes. MR. LEE: Okay. I have no further questions. Thank you. CHR. CABANAS: Mr. Hong? MR. HONG: Thank you. So, Mr. Pause, is it your understanding that in order to be temporarily assigned to another position, that the individual has to meet all the minimum qualifications for that other position? MR. PAUSE: Not necessarily. MR. HONG: Could you explain that? MR. PAUSE: WeI have a really good example. I've got a temporarily assigned person working in HR, who does not meet the minimum qualifications, but she's capable and able to perform the functions of her job. If she couldn't, then we would temporarily assign someone else who could. MR. HONG: In terms of the approval for temporary assignment, does that also have to be routed through HR? I mean, the Department of Human Resources? Page 30 Merit Appeals Board November 26, 2024 MR. PAUSE: No, that gets made at the department decision —at the Public Works Department decision for temporary assignments. MR. HONG: Okay. All right. In terms of my client, did he meet all the minimum qualifications for the position? MR. PAUSE: My understanding is yes. MR. HONG: Thank you. Nothing further. CHR. CABANAS: Mr. Lee, any further questions of Mr. Pause? MR. LEE: Thank you. I'll limit it to Mr. Hong's redirect. You just testified that to your knowledge, Mr. Turner met the qualifications of the CERS II position, correct? MR. PAUSE: To my knowledge, yes. MR. LEE: Okay. Are you referring to the qualifications as you understand them to the CERS II position before the change was made? MR. PAUSE: I was not involved in the recruitment or the details of what was submitted for his application. I would testify that he ishe has performed and is capable to do the job that he is required and asked to do. MR. LEE: Are you aware of the change that was made to the minimum qualifications to the CERS II position? MR. PAUSE: I'm aware in the sense that I did read it. Yes. MR. LEE: Okay. Can you tell me what your understanding of the change was? MR. PAUSE: Well, I can go back and read the memo —which item? MR. LEE: Oh, it was "Exhibit S"? MR. PAUSE: Letter? MR. LEE: Oh, I'm sorry —letter "S." MR. PAUSE: "S." Yeah, there was additional qualifications were added —two years of work experience as a journey level mechanic and the repair of overhaul of medium and heavy construction equipment. MR. LEE: No further questions. Page 31 Merit Appeals Board November 26, 2024 MR. HONG: If I could follow-up. Take —if you look at "Exhibit S" third paragraph, second line the line begins with"... selectee's appointment..." you see that line? Third paragraph, second line from the left—"... selectee's appointment... "— MR. PAUSE: Yes. MR. HALVORSON: I'm having trouble hearing Counsel, again. MR. HONG: Sorry. Sorry, Mr. Halvorson. I'm looking at "Exhibit S" third paragraph, second line that begins with "...selectee's appointment... "—do you see that line? MR. PAUSE: I do. Yes. MR. HONG: And at the end of the line it says, "...and the recruitment cancelled." —do you see that? MR. PAUSE: Yes. MR. HONG: In terms of March 2024, what more recruitment did you have to do to fill that position? MR. PAUSE: It was my understanding that the candidate that we originally recruited and offered the job to in December of `01 or December I" of 2023—met those requirements that was my understanding. MR. HONG: Thank you. Nothing further. MR. WISEMAN: Madam Chair? CHR. CABANAS: Yes, Mr. Wiseman? MR. WISEMAN: Yeah, I assume Counsel was finished questioning. I have a question. Sir, have you ever had a similar experience to this with respect to an employee on probation? MR. PAUSE: No. I've been the Director for two -and -a -half years —and subsequent to that, I was the Deputy Director for a year. So, in three -and -a -half years I've not run across a situation like this. MR. WISEMAN: All right. And in your tenure at the department, have you ever been aware of HR waiving any requirements of —such as a classification or MR. PAUSE: I would answer that question by saying no, I'm not aware of that occurring. Page 32 Merit Appeals Board November 26, 2024 CHR. CABANAS: I need to —excuse me but I need to remind everyone, they need to speak close to the mic. because, otherwise, it's not going to be picked up on our recording for Glynis to transcribe. So, just, if you could kindly be cognizant of that. Mr. Lee, did you have any more questions of Mr. Pause? MR. LEE: No. Thank you. CHR. CABANAS: Okay. Thank you. I'm going to open it up to the Board. Mr. Kunz, any questions? MR. KUNZ: No questions. CHR. CABANAS: Ms. Mathews? MS. MATHEWS: No. Thank you. CHR. CABANAS: Ms. Bond, any questions of Mr. Pause? MS. BOND: No. Thank you. CHR. CABANAS: Okay. I have one question. So, you met with Mr. Turner on March 27 h to inform him of the error made by the Human Resources Department. But according to the TA records, he was on TA from March 18'h to the position the Supervisor II position? MR. PAUSE: Okay. Yes. CHR. CABANAS: So, did —so the TA was being —was done at the division level without your knowledge? MR. PAUSE: No, not exactly. So, there was —from the time that the original notification went out in early March —and as I testifiedI believe I was off -island at the time. And there was a lot of conversations, there were meetings, there were conversations about resolving this —and I had asked, specifically, is there something we could do? Is there something that we could do to maybe allow Mr. Turner to continue on the job while we, sort of, work through our objection with main HR. So, there was the payroll records that are here presented here there was —it wasn't really clear. Mr. Turner continued to do his job up until the time that I informed him that this had occurred and I —like I said, that didn't occur until the 27 h of March. So, whatever is reflected here, is probably indicative of the fact that we were dealing with some timeschanges that occurred —but during that time period, Mr. Turner continued to do the work in that position. Page 33 Merit Appeals Board November 26, 2024 CHR. CABANAS: But you were placing him on TA and you met with him on March 27 h. So, the division placed him on temporary assignment from March 18'', and you met with him on March 27 h. So MR. PAUSE: But, again, there was some level of confusion at our department level in terms of the correspondence with HR, because it was my understanding that the actual physical change in payroll wouldn't occur until after I met with him but then it turned out that —no, it actually he got shut out of the original appointment on the 15'h of the the payroll period began on the 16''. There are two payroll periods —first of the 15'h and 16''. So —and I don't know if it happened —it was back -dated or how it happened, but from a payroll standpoint, Mr. Turner continued to do his job up until I had to sit down, physical, one-on-one conversation with him on the 27 h of May of March. CHR. CABANAS: So —okay, I have another question. So, when the error was discovered and you were informed by the HR Director of the error, did anyone think of bringing in Mr. Turner to explain to him not only with you but by the HR Director that HR made the error? MR. PAUSE: Again, what I've testified is that the best of my recollection, I was off -island when the original note went out and there was a period of, like, maybe a week to 10 days that we also had back and forth with my HR folks as well as main HR trying to resolve this without actually going to Mr. Turner and saying, "HR made an error and you can no longer have the position that you were awarded." CHR. CABANAS: Okay. Thank you, Mr. Pause. MR. PAUSE: Thank you. CHR. CABANAS: Mr. Hong? MR. HONG: Nothing further. Thank you. CHR. CABANAS: Okay. So, if there are no other questions of Mr. Pause —Mr. Pause can be excused and you may call your next witness. MR. HONG: Our next witness is Darlene Akamine. CHR. CABANAS: Thank you, Mr. Pause. (At this time, Ms. Darlene Akamine, Senior Account Clerk, Public Works Department, came forward.) CHR. CABANAS: Hi, good morning, Ms. Akamine. So, if you could raise your right-hand and I'm going to swear you in. Do you expect —not do you expect —excuse me. Do you swear to tell the truth, the whole truth, and nothing but the truth? Page 34 Merit Appeals Board November 26, 2024 MS. AKAMINE: I do. CHR. CABANAS: Thank you. Mr. Hong. MR. HONG: Could you state your full name and spell your last name, for the record please? MS. AKAMINE: Sure. My name is Darline AkamineA k a m i n e. MR. HONG: And where are you presently employed? MS. AKAMINE: I am presently employed for the Public Works Automotive Division. MR. HONG: And in what capacity are you employed there? MS. AKAMINE: I am the Senior Account Clerk. MR. HONG: Do you know my client, Lyndon Turner? MS. AKAMINE: Yes. MR. HONG: How do you know him? MS. AKAMINE: He works with me. He's my co-worker. MR. HONG: Do you recall attending any meetings regarding Mr. Turner's appointment to the supervisory position? MS. AKAMINE: Yes. MR. HONG: Who does —who were those meetings with? MS. AKAMINE: The first meeting was with the Mayor and the Managing Director —and the second meeting was the Mayor, Managing Director, Sommer the Director of HR—and the Deputy Director, DannyI don't know his full name. MR. HONG: And why were you attending the meetings? MS. AKAMINE: I guess, Randy takes me along to take notes or, I guess, be a second ear to him. MR. HONG: And when you say "Randy" that's "Randy Riley?" MS. AKAMINE: Randy Riley. Yes. Page 35 Merit Appeals Board November 26, 2024 MR. HONG: And he's the Deputy Director of the department? MS. AKAMINE: He's the superintendent —Automotive Superintendent. MR. HONG: Oh. And tell us what happened at the first meeting? MS. AKAMINE: I don't remember exactly in detail but we brought up the issue on, I guess, Lyndon's position being cancelled. MR. HONG: And what were you told? MS. AKAMINE: We were told that possibly we could set up a meeting to talk to Sommer. MR. HONG: And did that —was that the second meeting? MS. AKAMINE: Yes. MR. HONG: And what happened tell us what happened at the second meeting? MS. AKAMINE: WeRandy, the Superintendent Randy Riley —had some arguments or some facts that he wanted to state, I guess, countering or saying what had happened to Lyndon wasn't fair and we, kind of, tried to come to an agreement, I guess —or some understanding of what transpired with Lyndon. MR. HONG: And was any agreement reached? MS. AKAMINE: No. They just stated that what was done, was done, and that they were they weren't going to change anything —meaning HR. MR. HONG: Do you recall when that meeting occurred that second meeting? MS. AKAMINE: I don't remember, it's been many months ago but I think it was around March, was the first one? I —maybe a month or so later the second? I don't remember exactly. MR. HONG: All right. Thank you, Ms. Akamine. I have no further questions of this witness. CHR. CABANAS: Thank you, Mr. Hong. Mr. Lee? MR. LEE: Thank you. Hi, Ms. Akamine. MS. AKAMINE: Hi, Mr. Lee. MR. LEE: I guess, we've put it on the record previously, but I'll state it again. We have a relation —our mothers are cousins, correct? Page 36 Merit Appeals Board November 26, 2024 MS. AKAMINE: Yes. MR. LEE: Because of that relation, will your testimony change? MS. AKAMINE: No. MR. LEE: Okay. So, I want to set the stage for the —we're talkI want to ask you about the first meeting. You said that the Mayor and the Managing Director were there? MS. AKAMINE: Like I said, it's many months ago but I do believe yes. MR. LEE: Okay. And yourself and MS. AKAMINE: Yes —Randy Riley. MR. LEE: Randy Riley? MS. AKAMINE: Yes. MR. LEE: Was anyone else besides those four people there? MS. AKAMINE: I don't think so. I can't remember. MR. LEE: Okay. Who set up that meeting? MS. AKAMINE: Randy did. MR. LEE: Okay. No further questions. CHR. CABANAS: Mr. Hong, any further questions of Ms. Akamine? MR. HONG: No. Thank you. CHR. CABANAS: Okay. Thank you. MS. AKAMINE: Okay. CHR. CABANAS: Oh, wait, the Board might have questions for you, Darlene. MS. AKAMINE: Okay. CHR. CABANAS: Mr. Wiseman, any questions of Ms. Akamine? Mr. Wiseman? MS. BOND: Un-mute. Page 37 Merit Appeals Board November 26, 2024 MR. WISEMAN: No. CHR. CABANAS: Okay. MR. WISEMAN: No. Thank you. CHR. CABANAS: Ms. Bond, any questions? MS. BOND: No. Thank you. CHR. CABANAS: Thank you. Mr. Kunz? MR. KUNZ: No questions. CHR. CABANAS: Ms. Mathews? MS. MATHEWS: Nothing. Thank you. CHR. CABANAS: Darlene, I have a question. So, did the TA forms and the timesheets pass through you? MS. AKAMINE: Not through me CHR. CABANAS: Not through you? MS. AKAMINE: Not unless I'm on TA. CHR. CABANAS: Oh, okay. MS. AKAMINE: Which I am, right now, presently because Randy's on vacation. CHR. CABANAS: Okay. But you don't process these forms at all? You don't see them at all? MS. AKAMINE: We do have an Account Clerk that's under me and she does all the timesheets. CHR. CABANAS: Okay. Thank you. MS. AKAMINE: You're welcome. MR. KUNZ: Madam Chair, I do have one question. Are you able to determine, looking at the time records, whose signature that is? It has not been identified as Mr. Pause'sso I wanted to know who (inaudible). MR. AKAMINE: Yes. Page 38 Merit Appeals Board November 26, 2024 MR. LEE: Yeah, it might help to give you a frame of reference —if I may, Madam Chair? CHR. CABANAS: Go ahead, Mr. Lee. It was "Exhibit U." MR. LEE: If you could turn to —if you can see the tab "Communication 24-3-3? You might already be open to that page? Is the sheet you see there, say "exhibit list?" MS. AKAMINE: Oh, it is, I think. MR. LEE: Okay. MS. AKAMINE: This is the one (inaudible). MR. LEE: Okay. So, then we'll just turn to "Exhibit U." MS. AKAMINE: I'm sorry? MR. LEE: Oh, turn to the tab "U" MS. AKAMINE: "U." MR. LEE: Letter "U." Thank you, Madam Chair. MS. AKAMINE: That is my signature but that's —let me clarify. Timesheets do pass through me when I'm on TA, like I said —which when Randy Riley is not there. MR. KUNZ: And the MS. AKAMINE: Oh, the TA sheet? MR. KUNZ: second page and the fourth page? CHR. CABANAS: The TA forms. MS. AKAMINE: Oh, the TA formI'm sorry that does look like Randy's signature. MR. KUNZ: Okay. Thank you. I have nothing else, Madam Chair. CHR. CABANAS: The TA form and the timesheet signature —it looks like the same signature, though? MS. AKAMINE: Okay, which timesheet are you referring to? CHR. CABANAS: The —let me go back a little. The first timesheet, the March 31", `24, timesheet looks like you. Page 39 Merit Appeals Board November 26, 2024 MS. AKAMINE: Yes. CHR. CABANAS: "D a"I can make that out. Then we go to the TA form that's Riley that's Randy Riley's signature? MS. AKAMINE: Yes. CHR. CABANAS: Okay. Yeah, `cause that signature is the same for some of it. Okay. Who is checkingI have another question. Who is checking these timesheets with the Form 13s? MS. AKAMINE: That would be at the administrative level in DPW payroll CHR. CABANAS: Oh, payroll section? MS. AKAMINE: section. Yes. CHR. CABANAS: Okay. Thank you. MS. AKAMINE: You're welcome. MR. KUNZ: Does Randy's signature mean he concurs with the appointment? The temporary appointment? Do you know that to be true? MS. AKAMINE: I would believe soI don't know. Yeah. MR. KUNZ: Okay. Thank you. CHR. CABANAS: I was just comparing the signatures. Mr. Hong, your light is on. Do you have any questions? MR. HONG: No further questions. Thank you. CHR. CABANAS: Board members, any other questions for Ms. Akamine? Okay. Thank you, Darlene, very much. Have a good day. Mr. Hong, your next witness. MR. HONG: Our third and final witness is Lyndon Turner. (At this time, Mr. Lyndon Turner, Automotive Storekeeper (TA to Construction Equipment Repair Supervisor II), Public Works Department, came forward.) Page 40 Merit Appeals Board November 26, 2024 CHR. CABANAS: Okay, Mr. Turner. You can put your mic. on. So, I'm going to swear you in. This is for Lyndon P. K. Turner —do you swear to tell the truth, the whole truth, and nothing but the truth? MR. TURNER: Yes. CHR. CABANAS; Thank you. Okay, Mr. Hong, you have the floor. MR. HONG: Thank you. How old are you? MR. TURNER: Forty-four. MR. HONG: And what's your present address? MR. TURNER: I live MR. HONG: And are you married? MR. TURNER: Yes. MR. HONG: To whom? MR. TURNER: My wife, Dawn Turner. MR. HONG: And how long you guys been married? MR. TURNER: December will make 23 years. MR. HONG: And do you have any children? MR. TURNER: Yes, we have three. MR. HONG: What is there names and ages? MR. TURNER: Kaila is the oldest. She's 22. She's studying her masters, right now, on the Youth Commission. We got Dodge Turner, he's 20. He's in his sophomore year at college. And then, our youngest, MR. HONG: Can you tell us about your educational background? MR. TURNER: Graduating from Waiakea High School in 1998. Got the opportunity to attend the University of Nevada at Reno. I ran out of money, so I had to go and look for a job. I got the opportunity to work for one of the biggest commercial tires company in Reno, Nevada, called Les Schwab Tire Center. Worked my way up from tire installer to assistant manager through their hiring within process. Page 41 Merit Appeals Board November 26, 2024 We decided to move home back in 2006, where I started work at Kamaaina Motors as a service writer. I had the other opportunity to work at Caterpillar Hawthorne in 2010. So, I left the dealership the Dodge dealership for Kamaaina Motors, and I became a parts and slash/warehouse in 2010 for Hawthorne. Climbed the ladder and became the senior parts clerk. Continued my journey —an opportunity became the Branch Manager there. And we went to venture back into the tire companies. Somebody found out that I used to work at Les Schwab and started courting me back in 2015. It was short-lived. And decided I wanted to go back to heavy equipment —missed that, loved it, had fun with it. When I got back, I had the opportunity to become the branch manager, so I did that for several months —almost a year. The Hawthorne decided that we were failing behind sales as far as parts and service and decided to give me another role and be a product support lead to where I was flying to Maui to help merge parts and service together. And got to explore Maui, explore Oahu, and the Big Island —ended up here. MR. HONG: Okay. When did you start working with the County? MR. TURNER: Became employed at the County in 2021. It was January 4 h, 2021. MR. HONG: And what position? MR. TURNER: Got in at the Automotive Storekeeper. MR. HONG: And what do you do for the —as a —what did you do as a storekeeper? MR. TURNER: Our job was to order parts for the technicians —have a working relation to all the technicians in the Hilo Baseyard and Waimea and Kona. I had to keep track of back order parts for the 21 technicians. We had to sign procurement competitive quotes, delegate through that, and inform when parts was —or have arrived (inaudible) backorder. MR. HONG: And were you given any job performance appraisals? MR. TURNER: Yes. MR. HONG: And did you receive any negative evaluations? MR. TURNER: No. MR. HONG: How long did you continue that position? MR. TURNER: Until `23 of, I think, it was October or November when the CER 11(sic.) came out. Page 42 Merit Appeals Board November 26, 2024 MR. HONG: And what's the difference between the position you had, Storekeeper, and the CER (sic.) II position? MR. TURNER: It's more of a supervisor role where it includes managing, delegating, working with smaller the construction site equipment technicians. MR. HONG: And prior to your applying for the position, had you ever been subject to any discipline in your posiin your County employment? MR. TURNER: No. MR. HONG: Let's talk about the Construction Equipment Repair Supervisor II position. How did you find out that it was coming open? MR. TURNER: I seen it on the County website. And then, I think the Automotive Department posted internal jobs. MR. HONG: Okay. And what did you do when you saw that posting? MR. TURNER: I put in my application. MR. HONG: Did you —did anyone qualify you as meeting the minimum qualifications for the CERS II position? MR. TURNER: Yes. MR. HONG: Who did? MR. TURNER: HR. MR. HONG: HR within the department or HR the Human Resources Department. MR. TURNER: I'm not sure just human resources in general. MR. HONG: Okay. What was the next step after you cleared or you were found that you met the minimum qualifications? MR. TURNER: We got to interview. MR. HONG: And who did you interview with? MR. TURNER: It was a panel of three and the HR Representative. MR. HONG: And what was the result of the interview? Page 43 Merit Appeals Board November 26, 2024 MR. TURNER: I got awarded the position. MR. HONG: Let me show you what's required for identification —as "Exhibit 1 "—and that's in Communication 24-03. wait MR. HALVORSON: I can't hear. MR. HONG: It's Communication number 24-03.13. MR. HALVORSON: Thank you, Ted. MR. HONG: Yeah, it's way in the back. MR. LEE: Sorry, Ted, I think it's .14. MR. HONG: One -four? Yeah, Mr. Lee's correct —it's 14 that'sI need new glasses, I think. MR. TURNER: What is it 24 dash —okay. MR. HONG: It's 24-03 14 that's our "Exhibit List." Let me show you what's been marked for identification, "Exhibit L" Do you recognize that document? MR. TURNER: That's the congratulation appointment awarding me the position. MR. HONG: And is that a fair and accurate copy of the letter that you received? MR. TURNER: Yes. MR. HONG: So, we offer into evidence what's been marked for identification is "Exhibit L" CHR. CABANAS: I believe we need to enter the exhibits into the record. We haven't done that. MR. HONG: So, we're offering to enter into evidence what's been marked for identification as "Exhibit L" CHR. CABANAS: All of your exhibits. MR. HONG: Oh, okay. CHR. CABANAS: Yeah. MR. LEE: I mean, Mr. Hong and I had a discussion at a previous hearing where we would stipulate to all exhibits —if Mr. Hong is okay with that —we can just stipulate to its entry before the Board. Page 44 Merit Appeals Board November 26, 2024 CHR. CABANAS: Okay. Thank you. MR. HONG: So, "Exhibit 1" in evidence. Let me show you what's been marked or entered into the record as "Exhibit 2." And what is "Exhibit 27 MR. TURNER: I believe this is the Personnel Action Form —Form 13. MR. HONG: Okay. And in terms of the Form 13, what is it —when did you start as the Probationary Construction Equipment Repair Supervisor 11? MR. TURNER: I believe it was December 1st the letter saying —stated. MR. HONG: Okay. And how much —does it show in this form, "Exhibit 2"—how much you were being paid a month? MR. TURNER: Sixty-nine, twenty two for the CERS II. MR. HONG: Turn to "Exhibit 3." And what is "Exhibit 37 MR. TURNER: This is my performance review. MR. HONG: And was this done when you were still on probation? MR. TURNER: Yes. MR. HONG: And is this from the period of December 1" through January 2nd of 2024? MR. TURNER: I believe so. Correct. MR. HONG: Let me show you what's been introduced into evidence or stipulated —excuse me —into evidence as "Exhibit 4." Do you see that? MR. TURNER: Yes. MR. HONG: How did you get this particular document? Was it mailed to you or emailed to you? MR. TURNER: Emailed. MR. HONG: Who is Megan Oshiro? MR. TURNER: I guess, the clerk for HRI'm not too sure. MR. HONG: Before you received this email, did you receive any other notice that the recruitment you completed was going to be cancelled? Page 45 Merit Appeals Board November 26, 2024 MR. TURNER: No. MR. HONG: What did you do after receiving this email? MR. TURNER: Freaked out. MR. HONG: I'm sorry? MR. TURNER: I was a little worried. MR. HONG: Okay. What if, anything, did you do? MR. TURNER: I got I called Randy, he's our direct supervisor, asking him what was going on. I believe Randy was on vacation. He called me back and said, "Steve's on vacation but he's going to talk to you (inaudible) shortly about this." So, I was, kind of, left in limbo. MR. HONG: Okay. And let's take a look at "Exhibit 5" in evidence. You recognize that? MR. TURNER: Yes, that's my performance review. MR. HONG: That's the second performance appraisal? MR. TURNER: Yes. MR. HONG: And the date of this was March 4 h of 2024 in "Exhibit number 5." MR. TURNER: Yes. MR. HONG: And this is when you were still on probation? MR. TURNER: Yes. MR. HONG: Before this probaexcuse me before this performance appraisal review was completed and given to you —did anyone tell you that the recruitment that you completed was going to be cancelled? MR. TURNER: No. MR. HONG: Let's take a look at "Exhibit 6" Personnel Action Form. What is this particular document show —"Exhibit 67 MR. TURNER: This is the form stating that I have to go back to the Storekeeper position. Page 46 Merit Appeals Board November 26, 2024 MR. HONG: And in terms of "Exhibit 6" is the loss of pay documented in Boxes 4 and 6? So "4" talks about pay grade/step. MR. TURNER: Yes. MR. HONG: And then Box 6 says pay grade and step? MR. TURNER: Yes. MR. HONG: And that reflects the difference in salary, correct? MR. TURNER: (Inaudible.) MR. HONG: In Box 11 of "Exhibit 6" it refers to --it says, "Authority" and it says, quote, "DHR Memo dated 03/05/24. DHR Admin Rules 3-19(d)"—did I read that correctly? MR. TURNER: Yes. MR. HONG: And did you ever receive a copy of that "DHR Memo dated 03/05/24."or "DHR Admin. Rules 3-19(d)?" MR. TURNER: No. MR. HONG: Anybody ever talked to you about it —the contents of that memo? MR. TURNER: No. MR. HONG: Anybody ever talked to you about the Rule that was cited there the DHR Admin. Rule? MR. TURNER: No. MR. HONG: Let's take a look at "Exhibit 7." Do you recognize that document? MR. TURNER: Yes. MR. HONG: And what is that? MR. TURNER: This is the paystub for April 15' MR. HONG: Is that the first time you actually saw that the position you were hired into, as a probationary employee, was now cancelled? MR. TURNER: This is when I realized that this was real the cancellation of the recruitment was in full effect. Page 47 Merit Appeals Board November 26, 2024 MR. HONG: Before that, was anybody telling you that they were going to try and work something out with HR? MR. TURNER: No. I mean, Steve told me March 27' and he said he was going to do something this is wrong It's not right. MR. HONG: So Steve said —Mr. Pause said he was going to do something? MR. TURNER: He was going to try. MR. HONG: Did anyone tell you what happened in terms of Steve —did Mr. Pause tell you what happened to his attempts to try and work this out? MR. TURNER: That he failed, basically. He couldn't do anything. MR. HONG: Did you ever speak to Mayor Roth? MR. TURNER: No. MR. HONG: So, when was the first time you found out that Mr. Pause's and Randy Riley's attempts to help you were unsuccessful? MR. TURNER: Beginning part of AprilI can't remember the exact date. MR. HONG: Did —other than them telling you, you had to be demoted or go back to your original position —did anybody else explain to you what was happening and why it was happening? MR. TURNER: No. MR. HONG: In terms of the cancelled recruitment, how has that affected you financially? MR. TURNER: It was tough. My wife got diagnosed with Stage 3 cancer in November, when I got the letter —and she said that, "You got to take off work" —so when I got the letter saying that I got awarded the job, we were happy —`cause I know that it was going to help out significantly —with her taking time off for treatments, it was just going to supplement her income. And then, going through this whole cancellation deal, it was —Amen, it took a toll on me, my family. I had to borrow money. I had to retain new debt, likeso, yeah, it was tough. MR. HONG: Can you give us a ballpark figure how much you've lost? MR. TURNER: Seems like 15 to 20 grand already with attorney fees and Page 48 Merit Appeals Board November 26, 2024 MR. HONG: In terms of MR. TURNER: Lost —stuffs. So —yeah —can't pinpoint the number exactly but —yeah, it's tough. MR. HONG: In terms of the HR Director —she's sitting here in the room this morning with us could you tell the Merit Appeals Board how this incident has affected you personally your family and as a County employee. MR. TURNER: I think we just, as a family, we just push through put our head down and just keep going and figure out what we can dowhatever's in our control. As far as decisions-makingI just wish somebody would —had notified me so I could prepare for stuff like this just talk to me or my family, too. I mean, it affects everybody not just myself. It affected my family. I think, at one point, my wife had to go to treatment, I had to rely on my adult children to take her because we were trying to figure this all out. MR. HONG: And your career with the County, has anything like this ever happened to you before? MR. TURNER: No. MR. HONG: In terms of your appointment —so, there was a recruitment, then you get to be a probationary employee —did anybody ever tell you that you being a probationary employee was conditional that you could go back? MR. TURNER: No. MR. HONG: So, Lyndon, what do you want for all of this? MR. TURNER: I'd like to get the job that I was awarded to permanently —`cause as Stephen stated up here, I was TA'd into the spot —I've been TA'd into the position for months already and past my probationary period. I think that ended June 1st or it should have ended June 1st And we're way past that. Any financial fees for my attorney fees and borrowing money to stay afloat would be great. As far as getting back in emotional stuff, there's you can't put a price tag on that. MR. HONG: Okay. Thank you, Lyndon. I have no further questions. CHR. CABANAS: Thank you, Mr. Hong. Mr. Lee? MR. LEE: Thank you. Good morning, Mr. Turner. Page 49 Merit Appeals Board November 26, 2024 MR. TURNER: Good morning. MR. LEE: So, Director Pause had testified that he spoke to you on March 27 h is that also your recollection? MR. TURNER: Sounds about right —it was towards the end of March. MR. LEE: So, I'll have you turn to —same exhibits we were talking to, but "Number 4"—and you can let me know when you turn to that page. Are you there? MR. TURNER: Is that the cancellation letter? MR. LEE: Yes. MR. TURNER: Okay. MR. LEE: You see there on the date it says, "March 20, 20247 MR. TURNER: Correct. MR. LEE: Is that the date you received that letter? MR. TURNER: In the emailI'd have to go back in my email. MR. LEE: (Inaudible) email, but I guess my question is did you receive it the same day it was dated? MR. TURNER: I —like I said, I would have to go back to the email but it seems about right `cause I believe that was a Friday. MR. LEE: Okay. MR. TURNER: March 20t'. MR. LEE: And Director Pause testified that when he spoke to you on March 27t' he told you that you your position —or excuse me your appointment would be voided and you'd be returned to the your previous position. Is that correct? MR. TURNER: Correct. MR. LEE: Okay. And when Director Pause told you that, that was the first indication you had that you would have to return to your previous position? MR. TURNER: Yes. Page 50 Merit Appeals Board November 26, 2024 MR. LEE: So, Randy Riley never informed you of that previously? MR. TURNER: Randy was still on vacation at the time. MR. LEE: Okay. To your knowledge, when were you first temporarily appointed to the CERS II position? MR. TURNER: It was that same day that Director Pause came and informed me what would happen and he said I would want to have you continue into this spot as a temporary appointment. MR. LEE: Okay. So, he told you on March 27 h? MR. TURNER: On that Monday, yeah. MR. LEE: And you've continued to be temporarily appointed to the present day? MR. TURNER: Correct. MR. LEE: Okay. I want you to turn to "Exhibit 7." And on the top right, it says, "Gross pay 10.00" After this paycheck, did you continue to receive only $10.00? MR. TURNER: No. MR. LEE: Did it turn back to what you received as a CERS 11? MR. TURNER: As a temporary assignment —yes. MR. LEE: Okay. But the amount you received was the same? MR. TURNER: Correct. MR. LEE: Okay. So, it was only this paycheck that where you received a $10.00? MR. TURNER: Yes. MR. LEE: Okay. No further questions. CHR. CABANAS: Mr. Hong, your light is on. MR. HONG: Thank you. So, turn to —go back to "Exhibit 4" that's the email. You back at "Exhibit 47 MR. TURNER: Yes. Page 51 Merit Appeals Board November 26, 2024 MR. HONG: So, was that absolute? I mean, that was it? End of story? Close the book? Or did somebody in the department promise you that they were going to try and do something to help you? MR. TURNER: Director Stephen, he was asking around to meet. When I informed Randy, I got the letter —Randy said he was going to try and come back or when he got back —and talk to Sommer and the Mayor —and try to get this resolved and figure out what was going on. MR. HONG: And so, when you met with Stephen Pause on the 27 h of March 2024—did he say end of story, that's it, you got to go back, we can't do nothing for you period? Or was there there was a more saying, "We're going to keep trying for you?" MR. TURNER: He said when Randy gets back —him and the —he was going to try and get a meeting with the Mayor and Sommer and try and figure this all out. MR. HONG: And when you look at "Exhibit 7" MR. TURNER: Right. MR. HONG: That big $10.00 paycheck —is that the first time you figured out that whatever efforts were being made on your behalf were, basically, unsuccessful? MR. TURNER: Correct. MR. HONG: Nothing further. Thank you. CHR. CABANAS: Thank you, Mr. Hong. Okay. Mr. Wiseman, any questions for Mr. Turner? MR. WISEMAN: Yes. Mr. Turner, good morning. MR. TURNER: Good morning. MR. WISEMAN: How long —about how long have you worked for the County of Hawaii? MR. TURNER: It'll be three years come January 4 h of 20 I mean, four years of January `25. MR. WISEMAN: That's your total employment with the County itself, right? MR. TURNER: Yes. MR. WISEMAN: Okay. And during this —after this incident, did you ever talk to HR directly or tried to? MR. TURNER: I spoke to one of the HR—and just, kind of, getting clarification on this $10.00 paycheck because, I mean, having a $10.00 paycheck kind of puts you in a frazzled moment. Page 52 Merit Appeals Board November 26, 2024 And they asked me what it'llI guess, because I got removed and put back to my former position, there's a lag in pay payroll. So, I was, like, wow, that's a big lag. MR. WISEMAN: In other words, a $10.00 you're saying a $10.00 paycheck, right? MR. TURNER: Yes. MR. WISEMAN: And this wasso, apparently, they took off all the pay that was to the other position down to your position? MR. TURNER: Yes. MR. WISEMAN: (Inaudible.) MR. TURNER: I'm sorry? MR. WISEMAN: They paid themself back that money? MR. TURNER: Correct. MR. WISEMAN: I see. I have nothing further. Thank you. CHR. CABANAS: Yes, to answer your question, Mr. Wiseman, if you look at his payroll form, there's a retro pay adjustment that they minused from his pay. MR. WISEMAN: Yeah, I understand that. CHR. CABANAS: Yeah, okay. Ms. Bond, any questions? MS. BOND: No. CHR. CABANAS: No —okay. Mr. Kunz? MR. KUNZ: No questions. CHR. CABANAS: Ms. Mathews? MS. MATHEWS: Nothing at this time. Thank you. CHR. CABANAS: I don't have any questions, either. Thank you, Mr. Turner. MR. TURNER: Thank you. MR. HONG: So, Madam Chair, we have no further witnesses or evidence, and we rest. Page 53 Merit Appeals Board November 26, 2024 CHR. CABANAS: Okay, thank you. Mr. Lee? MR. LEE: Madam Chair, before we convene with the County's side, if we could take a short recess —maybe five minutes? CHR. CABANAS: Okay. Sure. MR. LEE: Thank you. CHR. CABANAS: Okay, we'll take a five-minute recess. We'll be ack at 11:16. RECESS: The Chair called for a recess at 11:11 a.m. RECONVENE: The meeting reconvened at 11:18 a.m. in open session. CHR. CABANAS: Okay. We are now back from our short recess. It is 11:18 a.m. And, Mr. Lee, you have the floor. MR. LEE: Thank you, Madam Chair. (At this time, Ms. Sommer J. Tokihiro, Director, Human Resources Department, came forward.) MR. LEE: Good morning, Director Tokihiro. SPEAKER: (Inaudible.) CHR. CABANAS: Yes, I willI'm the "someone." Okay, so —Ms. Tokihiro is your only witness, Mr. Lee? MR. LEE: Yes. CHR. CABANAS: Okay. So, Ms. Tokihiro, I'm going to swear you in. If you can lift your right hand? Do you swear to tell the truth, the whole truth, and nothing but the truth? MS. TOKIHIRO: Yes. CHR. CABANAS: Thank you. Mr. Lee, you have the floor. MR. LEE: Thank you, Madam Chair. Good morning, Director. MS. TOKIHIRO: Good morning. MR. LEE: If you could please state your name, for the record, and spell both your first and last name. Page 54 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: Sommer TokihiroS O M M E R T O K I H I R O. MR. LEE: Thank you. What is your current position? MS. TOKIHIRO: I'm the Director of Human Resources for the County of Hawaii MR. LEE: Okay. And how long have you held that position? MS. TOKIHIRO: Since November 16, 2023. MR. LEE: Okay. CHR. CABANAS: Can we pause for a moment? I'm not sure if Ms. Bond is back. MR. LEE: Okay. CHR. CABANAS: Suzi, are you there? MS. BOND: Yeah, I'm here. CHR. CABANAS: Okay, just checking, `cause I didn't see you. MS. BOND: I know, I'm eating pie —sorry. CHR. CABANAS: Oh, okay. Okay, that's good. Okay, Mr. Lee, I'm sorry, go ahead. MR. LEE: That's quite all right. Thank you, Madam Chair. We're here because of Mr. Turner's appeal. When did you first become aware of the issue with Mr. Turner? MS. TOKIHIRO: I initially became aware ofI'm sorry, I want to the issue with Mr. Turner —I became aware of concerns that were raised in a Step 11 meeting with the Managing Director, based on an internal complaint that was filed by another parry. So, I received an email from the Managing Director on February 16'', 2024, where she the Managing Director had actually copied me on the email. The email was to our Classification and Pay Manager, Jamielyn Martines. The Managing Director shared that at the time of the Step 11 meeting regarding the internal complaint, questions were raised regarding the minimum qualifications for the CERS II position. MR. LEE: Okay, I'll stop you right there. Page 55 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: Okay. Sorry. MR. LEE: No, that's fine. So you first became aware of Mr. Turner's, I guess, issues in the context of an internal complaint that was made? MS. TOKIHIRO: Correct. MR. LEE: Okay. And you mentioned an email from Managing Director —is that Managing Director Deanna Sako? MS. TOKIHIRO: Correct, yes. MR. LEE: Okay. And what was the issue she raised? MS. TOKIHIRO: She said that it appeared that the minimum qualifications for the Construction Equipment Repair Supervisor II position, were less than the requirements for the Construction Equipment Repair Supervisor I position. MR. LEE: Okay. So, after you received that email or was copied on that email, what did you do? MS. TOKIHIRO: So, I followed -up with Jamielyn Martines, the Manager for our Classification and Pay Division. And Jamie went back and pulled the actual physical file regarding the Construction Equipment Repair Supervisor II position —and going through the documentation in the file, we became aware that the requirement for the two -years of journey level experience which was documented in the file —was not documented on the Class Specification. MR. LEE: Okay. So, I'm just going to break that apart a little bit. You're referring to two -years of journeyman mechanic repair experience? MS. TOKIHIRO: Yes. MR. LEE: And so, that, to your understanding was the issue that Managing Director Sako brought up? MS. TOKIHIRO: She didn't note that specifically. She was noting requirements in the "knowledge of an ability to" section but in comparing when we went through and evaluated the whole class specification and compared the CERS I to the CERS IIwe noted this discrepancy. MR. LEE: Okay. To your knowledge the Internal Complaint Procedure requires you to perform an Administrative Review when a complaint is filed? MS. TOKIHIRO: Yes. Page 56 Merit Appeals Board November 26, 2024 MR. LEE: So, I'm going to go back to that discrepancy we talked about —the two years repair experience. So, for the position that was posted for Mr. Turner, what it —what was the requirement? MS. TOKIHIRO: So, I believe the requirement was graduation from high school and then two years of supervisory experience. MR. LEE: Okay. And as a result of your investigation, what did you find as far as when that repair experience was removed? MS. TOKIHIRO: So, in there was documentation from August 5 h, 1994, which was when the Construction Equipment Repair Supervisor position was amended and retitled to Construction Equipment Repair Supervisor II and there was a new class of work created, which was Construction Equipment Repair Supervisor I. So, that documentation noted the requirements. It shows the career ladder and training and experience progression amongst, I believe, four positions —where the level of experience and the training requiredI guess, gets greater as you move further up the career ladder. So, that Construction Equipment Repair Supervisor I positionI believe that class was created to create that career ladder progression to enable someone to then, qualify later for the Construction Equipment Repair Supervisor II position. MR. LEE: I see. So, in 1994 the change happened because the CERS I position was created? MS. TOKIHIRO: Correct. MR. LEE: Prior to 1994, did the CERS II position require that repair experience? MS. TOKIHIRO: I believe prior to 1994, it was just called "Construction Equipment Repair Supervisor" and it did have an experience requirement that was beyond just the supervisory experience. MR. LEE: Okay. I'm going to have you turn to the County's Exhibit List —that's under the tab "Communication number 24-3.3." And, specifically, I'll have you turn to "Exhibit I" —and you can just let me know when you're there. MS. TOKIHIRO: Sorry, letter? MR. LEE: Letter ' L" MS. TOKIHIRO: Okay. Page 57 Merit Appeals Board November 26, 2024 MR. LEE: So, I'll have you turn to the second page of "Exhibit I" —and at the bottom there, you seethe date "January 15, 19817 MS. TOKIHIRO: Yes. MR. LEE: Okay. And then, I'll refer you to the top of that page under "Training and Experience." So, it says there, "...two years of work experience as a journey level mechanic in the repair and overhaul of medium and heavy construction equipment, which shall have included two years of supervisory work experience in the repair and overhaul of construction equipment." Do you see that? MS. TOKIHIRO: Yes. MR. LEE: Okay. So, we already established the date as 1981. To your knowledge, that minimum qualification for the two years repair experience continued until 1994? MS. TOKIHIRO: Yes. MR. LEE: Okay. So, I'm going to have you turn to "Exhibit F which is the next exhibit over. Are you there? MS. TOKIHIRO: Yes. MR. LEE: Is that the memo you were referring to? MS. TOKIHIRO: Yes. MR. LEE: Okay. And then, I'll have you turn to "Exhibit K"—and I'll have you turn to the second page of "Exhibit K." Do you see the date there on the bottom? MS. TOKIHIRO: Yes. MR. LEE: "September 15, 1994" MS. TOKIHIRO: Correct. MR. LEE: Okay. So there's a paragraph right above that date. It says, "This is an amendment and retitling" which I'll skip over "...which was approved on January 15, 198L" So, does that paragraph means that this was the first change since 1981 to this proposition? MS. TOKIHIRO: Yes. MR. LEE: Okay. And I'll have you look at the "Training and Experience" section at the top of this page. And if you could compare that with "Exhibit I" the "Training and Experience" —and you can let me know when you're ready. Page 58 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: Yes, I'm ready. MR. LEE: So, the two years' work experience as a journey level mechanic was deleted. MS. TOKIHIRO: Yes. MR. LEE: Okay. What makes you think that that was inadvertent? MS. TOKIHIRO: I believe it was inadvertent because of the documentation from August 51', which documents that there was actually discussion in HR, in the time —at that time among our Recruitment and Examination Division as well as Classification and Pay —and the reference is to the T&E. So, on that August 5 h memo, the first paragraph says, "Please review the attached Construction Equipment Repair series. After my discussion with you, I discussed the progression of the T&E with Gabe and Walter Lucas and came up with the following" —and so, from this memo and from my understanding of HR processes, as the Director, they were outlining the career ladder series and had reviewed the Training and Experience requirements both with Classification and Pay, the Director of HR at the time, and also with Recruitment and Examination to make sure that the Training and Experience requirements were clear and that the progression followed this career ladder that they were creating. MR. LEE: Okay. Did you also compare the class specifications with other positions within the County? MS. TOKIHIRO: Yes. So, once it became —once we started to see that this had been omitted and in the research to see if it had been omitted intentionally or if it was unintentionally omitted, we reviewed other positions within the Automotive Division currently, looked at other class specifications, and then looked at class specifications for positions in other jurisdictions that are deemed to be equivalent to the CERS II position. And what I wanted to see was if that work experience requirement —the actual repair experience requirement —had been moved to another position that made the CERS II position —one that was purely supervisory as opposed to being, kind of the working supervisor, with that background work experience as a qualification. And the information from Kauai and Maui, reviewing the equivalent classes, showed even more experience required at the journey level repair —and then, also looking at positions equivalent within the County that, that work experience in the repair of equipment is there. MR. LEE: Okay. So, I'll break that down a little bit. Thank you. I'll have you turn to "Exhibit L"—okay, and what is this? Page 59 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: So, this is the organization chart for the Automotive Division, from the Department of Public Works. MR. LEE: Okay. And which positions did you compare the CERS II positions to? MS. TOKIHIRO: So, we looked at "Garage Supervisor" as well as "Lead Construction Equipment Mechanic." MR. LEE: Okay. Let's talk about Garage Supervisor first. Why did you choose Garage Supervisor? MS. TOKIIRO: Because that's —while it's not exactly equivalent to the Construction Equipment Repair Supervisor position, when you look at the —at that structure —it falls under the "Automotive Superintendent"so, it's like that first layer of supervisor under the Superintendent in the Automotive Division. MR. LEE: Okay. So, would it be fair to say that was the closest in equivalent to the CERS II position? MS. TOKIHIRO: Yes. MR. LEE: Okay. I'll have you turn to "Exhibit N"—and this is the —what's the technical term for this? MS. TOKIHIRO: So, this is the class specification MR. LEE: Okay, so class specification —so this is the class specification for the Garage Supervisor position? MS. TOKIHIRO: Correct. MR. LEE: Okay. And if you could turn to the second page under "Minimum Qualification Requirements" what did you find within the training experience? MS. TOKIHIRO: So, for this position, the training and experience requirement is "...graduation from high school, and four years of work experience as a journey level automotive mechanic, of which one year shall have been in a supervisory capacity." MR. LEE: Okay. So, more work experience as a mechanic? MS. TOKIHIRO: Correct. MR. LEE: Okay —in addition to supervisory? MS. TOKIHIRO: Correct. Page 60 Merit Appeals Board November 26, 2024 MR. LEE: Okay. All right. I'll have you just briefly turn back to "Exhibit L" again. And you mentioned earlier, you guys looked at the "Lead Construction Equipment Mechanic" position? MS. TOKIHIRO: Correct. MR. LEE: Okay. And why did you choose that one? MS. TOKIHIRO: Because that would be right below the CERS II position —and so, just for comparison purposes and because our positions in the County within these career ladders experience builds as opposed to falling offI wanted to look at the position that was immediately under the CERS II position to look at the work experience required. MR. LEE: Okay. So, I'll have you turn to "Exhibit O"—and this is the class specifications for that "Lead Construction Equipment Mechanic" position? MS. TOKIHIRO: Correct. MR. LEE: Okay. And I'll have you turn to the second page under "Minimum Qualification Requirements" —and so, what did your —what did you find as far as the training and experience for that position? MS. TOKIHIRO: So, again, this position required completion of high school, two years of work experience as journey level mechanic, one year shall have been in the repair and overhaul of medium and heavy construction equipment. MR. LEE: Okay. Thank you. I'm going to move on to the comparison with the neighbor island positions. I'll have you turn to "Exhibit M"I'm sorry, "Exhibit P." MS. BOND: Once again, Mr. Lee, could you stay closer to your microphone? MR. LEE: I apologize. We're looking at "Exhibit P"so, Director Tokihiro, could you tell me what "Exhibit P" is? MS. TOKIHIRO: So, "Exhibit P" is the class specification for an equal class of work from Maui "Automotive Repair Supervisor IF so, this is an equivalent class to our CERS II position. MR. LEE: And how did you determine that it was an equivalent class? MS. TOKIHIRO: So, the Classification and Pay Division maintains a list amongst all the jurisdictions that documents equivalent classes of work. So, all of the jurisdiction the (inaudible) jurisdictions agree on equivalent classes. MR. LEE: I see. Page 61 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: All class specifications are reviewed by all jurisdictions. So, during jurisdictional review, it's determined what equivalent classes are. MR. LEE: Okay. And then, I'll have you turn to the second page of "Exhibit P" under "Minimum Qualification Requirements Training and Experience" what did you find there? MS. TOKIHIRO: So, training and experience required for this position was "...graduation from high school and six years of full-time experience as a journey automotive mechanic which shall have included work on construction equipment two years of which shall have been in a supervisory capacity." MR. LEE: Okay. And then I'll have you turn to "Exhibit Q"—and what is "Exhibit Q?" MS. TOKIHIRO: "Exhibit Q" is the class specification for "Repair Shop Supervisor" which is an equivalent class of work from Kauai. MR. LEE: Okay. And just to clarify —equivalent class of work to the CERS II position? MS. TOKIHIRO: Correct. MR. LEE: Okay. So, it's a little —laid out a little different. I'll have you turn to page 3 in this one, under the heading, "Training & Experience" —what did you find there? MS. TOKIHIRO: And, again, graduation from high school, this position required "...two years of work experience as a journey level mechanic in the repair and overhaul of automotive and construction equipment; and two years of supervisory work experience as a journey level mechanic in the repair and overhaul of automotive and construction equipment." MR. LEE: Okay. So, just to recap you reviewed the history of the CERS II position? MS. TOKIHIRO: Correct. MR. LEE: You reviewed, I guess, surrounding positions within the County? MS. TOKIHIRO: Correct. MR. LEE: And you reviewed equivalent positions with other jurisdictions? MS. TOKIHIRO: Correct. MR. LEE: And so, what was your conclusion as far as the training and experience for the CERS II after all this review? Page 62 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: My conclusion was that the requirement for the two years of journey level experience had been omitted, by error, from the class specification that was approved in 1994. MR. LEE: Okay. What did you decide to do as a result of this conclusion? MR. TOKIHIRO: So, initially, before I decided what else to do, I asked our Recruitment and Examination staff to review the applications to re -screen the applications for the position to see if it was evident from the applications that were submitted that that requirement would be met. Because it was not part of the job posting when the job was advertised, I wasn't sure if we would be able to determine from the applications that had been received, that that requirement would be met. But my first step was to ask the Recruitment and Examination staff to re -screen the applications with that —looking at that experience requirement. MR. LEE: I see. MS. TOKIHIRO: After that —because Mr. Turner was still in that Initial Probationary period because it was not able to be determined whether or not that minimum qualification would be met, the only opportunity to change an examination rating when someone has been appointed to the position, is in that probationary period. MR. LEE: Okay. So, let's break that down a little bit. When there's a recruitment for a position, a list of eligibles is created —correct? MS. TOKIHIRO: Correct. MR. LEE: Okay. And I think Director Pause testified earlier, there were two applicants? MS. TOKIHIRO: Correct. MR. LEE: Okay. So, is it correct to say that both applicants made the eligible list? MS. TOKIHIRO: Yes. MR. LEE: As originally posted for the CERS 11 position? MS. TOKIHIRO: Correct. MR. LEE: Okay. And they have an examination score generated? MS. TOKIHIRO: Yes. MR. LEE: And that's based on the minimum qualifications of the class specifications? MS. TOKIHIRO: Correct. Page 63 Merit Appeals Board November 26, 2024 MR. LEE: Okay. So, as originally posted for the CERS II position, both applicants had a qualifying score? MS. TOKIHIRO: Correct. MR. LEE: Okay. So, your intent in askingI'm sorry was it the Recruitment and Examination section? MS. TOKIHIRO: Yes. MR. LEE: Okay. So your intent in asking the Recruitment and Examination section to re- evaluate, was in anticipation of recalculating their scores? MR. HONG: Excuse me. I'm going to object at this point. Leading. It's leading the wit —these are leading questions. MR. LEE: I can rephrase. What was the intent in asking the Recruitment and Examination to look at the minimum qualifications? MS. TOKIHIRO: To determine if that examination rating would be changed. MR. LEE: Okay. So, you're anticipating a changea potential change to the minimum qualifications to the CERS II position? MS. TOKHIRO: Yes. MR. LEE: Why were you doing that? MS. TOKIHIRO: Because I felt that it was important to correct the class specification to reflect the experience requirement that needed to be there —and my opportunity to correct that was during this probationary period. MR. LEE: Okay. So you've alluded to this probationary period beforeI think you testified that you're allowed to —well, let me just ask you this way —what's special about this probationary period? MS. TOKIHIRO: So, that's the period during which it continues to be an ongoing examination. That's when the department has the ability to evaluate performance and evaluate if someone is performing satisfactorily in that position, and that's also the period —it's that examination period that six months. MR. LEE: Okay. I'm going to have you turn to Communication 24-3.08—and you can tell me when you're there. Page 64 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: Okay. MR. LEE: And you see there, there's an "Exhibit W?" MS. TOKIHIRO: Yes. MR. LEE: Okay. I'm going to have you turn to Section 3-19, which is on page 3-9—tell me when you're there. MS. TOKIHIRO: Okay. MR. LEE: What is the title for section 3-19? MS. TOKIHIRO: "Changes in examination ratings." MR. LEE: Okay. Is this what you're referring to? MS. TOKIHIRO: Yes. MR. LEE: Okay. So, I guess before I ask you questions about these Rules, did you think about not changing the class specifications for the CERS II position? MS. TOKIHIRO: Yes, I did. This was a very unfortunate situation and one that was very difficult for me to evaluate the best path forward because Mr. Turner was in the position. He's in the middle of a probationary period. This error came to my attention was not I wasn't here in 1994. I'm doing my best to, kind of, oversee and administer this system for our employees. So, I did consider it —what would happen if I didn't change it? What would happen if I changed it later? Looking at all of the different aspects of it and based on my responsibility and my position —my understanding and interpretation of the Rules, and my obligation to maintain the classification systemI felt that as difficult as it was to make the decision the change needed to be made. And I wanted to make the change as quickly as possible, so that the recruitment could be redone. And so that there would be minimal impact to the department, to Mr. Turner, to any other applicant. So, I really worked to do my research to make sure that I understood what needed to occur. And then, worked with the department to try and line up the dates as quickly as possible so that we could address the issue and then move forward with the recruitment —with the corrected requirement. MR. LEE: I'm going to try to ask you to elaborate a little bit. You alluded to based on the Rules and your investigation, you decided to make the change —did you feel you had a choice not to make the change? Page 65 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: I think someone could say that they had a choice not toI guess, for me, from my perspective as far as my responsibility as the Director, if I didn't make the change I felt that I would beI would know that it was incorrect and I was turning a blind eye to it. MR. LEE: I see. MS. TOKIHIRO: And, if I had done that, and we were here at this hearing because I hadn't made the change, even though I was aware that it should have been madeI wouldn't be comfortable with defending that position. MR. LEE: Okay. MS. TOKIHIRO: Turning a blind eye. MR. LEE: Okay. So, I'm going to turn you to subsection (a) of HR Rule 3-19. Could you read that to me? MS. TOKIHIRO: Sure. "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." MR. LEE: Okay. So we had established you had performed this administrative review as a result of the internal complaint? MS. TOKIHIRO: Yes. MR. LEE: Okay. And then, we had already established you made the decision that you would have to make a change to the class specifications? MS. TOKIHIRO: Yes. MR. LEE: Okay. And if you made a change to the class specifications, that would result a change in the examination rating? MS. TOKIHIRO: Yeah. I mean, potentially, it could have. That's why I did ask the Recruitment and Examination Division to re -screen the applications from the two applicants, to see if it would, in fact, result in a change in the examination ratingif, in the application, it was that work experience was somehow documented —it may not have resulted in a change in the rating. If they met the qualification or there was documentation in the application that that work experience was there their rating their examination rating would not have changed. MR. LEE: I see. So, forgive me if you already testified to this earlier —what was the conclusion of what their examination rating would be for the two applicants? Page 66 Merit Appeals Board November 26, 2024 MR. TOKIHIRO: So, it was not clear from the applications submitted that that 2-years of journey level work experience requirement was met. So, because it was not clear from the information on the applications that we had and because the minimum qualification was changed to require it —the examination rating would be that they don't meet the qualification. They wouldn't have been placed on an eligible list. MR. LEE: Okay. So both applicants —it wasn't clear whether both — MS. TOKIHIRO: Correct. MR. LEE: Okay. MS. TOKIHIRO: It was not clear for either applicant. MR. LEE: Okay. And why wasn't it clear? MS. TOKIHIRO: It wasn't clear because it wasn't documented in the class specification when the position was advertised. So, they were not asked to provide documentation of 2-years of journey level experience. MR. LEE: I see. Okay. I'm going to turn your attention to Rule 1.7—same exhibit —it's on page 1.3. MS. TOKIHIRO: Okay. MR. LEE: And then, I want you to just, kind of, read over that —and tell me when you've finished reading it. I'm not going to ask you to read it out loud. MS. TOKIHIRO: Okay. MR. LEE: Okay. And then, if you could keep your finger on that page —and I want you to turn to page 4.1. And this is a little longer section. I'd like you to read over Section 4.2 to yourself — it carries over to page 4.2 also —Subsections (a), (b), and (c)—and you can tell me when you're done. MS. TOKIHIRO: Okay. MR. LEE: Okay. So I'm going to ask you about Section 1.7 first —that's a little broader description of the authority of the Director, would you say? MS. TOKIHIRO: Yes. MR. LEE: Okay. And then, comparing that to Section 4.2 would you say that describes your authority as it (inaudible) to classification actions? Page 67 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: Yes. MR. LEE: Okay. So when you made your decision to change or revise or correct —whatever word you'd like to use the class specifications for the CERS II position —would you say it was pursuant to your authority as to Section 4-2 or 1-7? MS. TOKIHIRO: I think it more closely falls under 1-7. MR. LEE: Okay, and why is that? MS. TOKIHIRO: And that's because it specifically states, "Whenever director finds that any person has been appointed to, or is holding or performing the duties of a position in violation of any laws, rules, policies, standards, guidelines, and procedures administered by the director... "- MR. LEE: Okay. And let's go back to 4-2—it says "classification actions" —could you describe what a classification action is? MS. TOKIHIRO: So, classification would be, like, the creation of a new class of work. It could be a reallocation. But, in this case, it's specifically looking at duties and what I was evaluating in amending that class specification was the minimum requirements. MR. LEE: Okay. So, would it be more accurately stated that the classification action for the CERS II position that happened in 1994? MS. TOKIHIRO: Correct. MR. LEE: Okay. So, to recap you performed your investigation, you made a decision to correct the class specs. for the CERS II position, you did a calculation of what the examination rating would be after the correction —and it was unclear what the MR. WISEMAN: Madam Chair, I have aI'd like to proceed with Counsel's questioning. He's actually testifying. MR. LEE: Well, I'd likeI'm actually recapping. MR. WISEMAN: Recap is the closing argument. You are actually testifying. And I object MR. LEE: I can rephrase. So, you came to the conclusion that the examination rating, it was unclear whether they were still eligible? MS. TOKIHIRO: Correct. MR. LEE: Okay. Page 68 Merit Appeals Board November 26, 2024 MR. HONG: Excuse me. I made an objection earlier but, again, I would request that Counsel not ask leading questions of its own witness. CHR. CABANAS: Mr. Lee MR. LEE: I will. Thank you. CHR. CABANAS: Thank you, Mr. Hong, and Mr. Wiseman. MR. LEE: So, I'm going to have you turn nowI'm going to have you turn to "Exhibit S" that's under Communication 24-3.3. MS. TOKIHIRO: Okay. MR. LEE: I'm going to direct you to the third paragraph. It starts with "As the selectee..." Okay? I'll just read it, "As the selectee for the Position is currently within the probationary period, the selectee's appointment shall be voided and the recruitment cancelled." You see that sentence? MS. TOKIHIRO: Yes. MR. LEE: Okay. Why did you phrase it that way —"appointment voided ... recruitment cancelled?" MS. TOKIHIRO: Because I could not determine if either candidate met the qualifications. And so, because I couldn't determine that —the appointment —Mr. Turner's appointment needed to be voided and the eligible list needed to be cancelled. So, because we had sent this eligible list to the department, if Mr. Turner's —if the only action was to void Mr. Turner's appointment, the department still had this eligible list from this recruitment for this position. We couldn't correct the class specification and run a new recruitment, until the current recruitment was cancelled. MR. LEE: I see. So, I guessI want to break apart the recruitment stage. Once Mr. Turner was appointed, even on a probationary basis to the CERS II position, how would you describe the recruitment at that point? MS. TOKIHIRO: So, there's still an eligible list for the position, which last for six months. So, if his appointment had been voidedI mean —so once when someone is put into the position, they're serving a probationary period. So, the recruitment is not ongoing, but it doesn't the appointment of someone to a probationary period does not end the eligible list. Page 69 Merit Appeals Board November 26, 2024 MR. LEE: I see. So, you may have answered in a previous question —so why did you choose to cancel that recruitment? MS. TOKIHIRO: So, we cancelled the recruitment because it was based on incorrect qualifications, based on the incorrect class specification. And so, in voiding the appointment and cancelling the recruitment —we wanted to correct the class specification so that the recruitment could be redone with the correct requirements. MR. LEE: Okay. So, I'm going to refer you back to "Exhibit S"—same paragraph, the third paragraph, last sentence, "Following the correction of the class specification, the recruitment will be reopened, and he will have the opportunity to reapply." What do you mean by that? MS. TOKIHIRO: So, my intent was that the department would notify Mr. Turner immediately that he was being returned to his last held permanent position, and that once he was returned to his last held permanent position, we would correct the class specification, and work with the department to move forward with the recruitment immediately with the corrected minimum requirements. MR. LEE: Okay. So, let's talk about the dates on this memo. It's dated March 5'. MS. TOKIHIRO: Correct. MR. LEE: Is that the date you decided to make these changes? MS. TOKIHIRO: That was the date that I felt we had done all the research and we had the process in place working with Classification and Pay, and our Recruitment and Examination Division. So, I felt that March 5 h was a good point to notify the department because we had a clear path forward where we could assist them to re -run this recruitment. MR. LEE: Okay. And by "clear path forward" you mean you had a plan of action? MS. TOKIHIRO: Correct. MR. LEE: Okay. Going back to that same third paragraph, second sentence, "Please inform the employee by no later than March 8..." why did you choose that date? MR. TOKIHIRO: So, I chose that date because while I was trying to expedite this, I did realize that this was going to have a significant impact on Mr. Turner. I wanted him to be notified as quickly as possible that he would be returned to his last held permanent position effective March 16''. So, that gave a weeks' notice —also gave time for the department to do the necessary paperwork, and my intention was that the recruitment —because the class specification changed —was going to be quick to make that that recruitment would have reopened the following week. MR. LEE: Okay. I'm going to have you turn to the next exhibit —"Exhibit T"what is this? Page 70 Merit Appeals Board November 26, 2024 MR. TOKIHIRO: So, this is the notification to Mr. Turner that the recruitment was cancelled. All —when a recruitment is cancelled, all applicants need to be notified of the recruitment cancellation. I did not send this notification until March 20'h because a meeting was held with Director Pause on March 14'h and he asked for time in order to be able to talk to Mr. Turner in -person. So, this notice was not sent until after the date, which I was told Director Pause was going to be meeting with Mr. Turner, which was March 18''. MR. LEE: Okay. I'll stop you right there. So, you sent the memo to Director Pause on March 5 h. MS. TOKIHIRO: Correct. MR. LEE: Why did you send this memo to Director Pause as opposed to letting Mr. Turner know directly? MS. TOKIHIRO: Because I was voiding the appointment, which was made by Director Pause. MR. LEE: I see. Did you —why didn't you contact Mr. Turner during this process? MS. TOKIHIRO: Because as the appointing authority, the director of the department is the one who makes the selection and has had all of the communication with the applicants, through the interview process, et cetera. Basically, in my role as the Director in overseeing this, I was letting the director of the department know that the appointment was being voided and wanted —it was he who should communicate that to the employee. MR. LEE: Okay. So, when you sent this memo to Director Pause on March 5 h, what was your expectation of what would happen after? MS. TOKIHIRO: My expectation was that there would be questions, but I did also expect that in the questions, they would be the department would be working to work with us, as I indicated, I wanted to move forward as quickly as possible to reopen the recruitment. So, I anticipated questions but I anticipated that they would move forward as directed. MR. LEE: I see. Have you ever had this in a memo like this before? MS. TOKIHIRO: No. MR. LEE: How did Director Pause respond to you after receiving this memo? Page 71 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: I believe there was maybe other discussion with the Mayor prior to Director Pause reaching out to me or his staff reaching out to me to schedule a meeting. Our first meeting —and actually my only meeting with him was held on March 14'h and he was not on island at that time. So, he appeared via Zoom but the meeting also included Deputy Director Malia Kekai; Jamie Martines from our Classification and Pay Division; Danny Patel, the Deputy Director of Human Resources; and Naomi Leialoha, who is the HR Technician, I believe, or HR Program Specialist —she's on TA for the Department of Public Works. MR. LEE: Okay. And what did you guys discuss? MS. TOKIHIRO: So, during that meeting a variety of things were discussed but —so, basically, they were asking me to change my mind. They said that it would cause a morale issue if Mr. Turner were removed from the position. They asked when I said that the class specification needed to be corrected and provided the information that we had researched from equivalent positions within the County and then with other jurisdictions —and I said it needed to be corrected. Director Pause was very upset and questioned my authority —and then asked who my boss was and who he could talk to to get this changed. MR. LEE: In response to the questions about changing it, how did you respond? MS. TOKIHIRO: I said that I felt that it needed to be corrected, but that we wanted to work with them as quickly as possible, to reopen the recruitment so that the applicants would have the addition the opportunity to provide information to demonstrate that they met the minimum qualifications for the position. MR. LEE: Okay. You alluded to a delay in sending the communication to Mr. Turner that was —could you expound on that? Why did you wait? MS. TOKIHIRO: So, at the time of the meeting on March 14'', Director Pause said that he wanted to talk to Mr. Turner in -person, which I absolutely wanted him to do that. And so, he said because he was off -island, he said he wouldn't be back until March 18'h—and so he said, "Can you give me until March 18'h because I need to talk to him." I was bothered at that point that I had sent the memo on March 5 h and no one had communicated with Mr. Turner up to that point. But I agreed —he absolutely needed to be told in -person what was happening and be given the opportunity to ask questions. So, I was more than happy to allow him until March 18'h to do that. And that's why I even waited two days beyond that and didn't send the notice cancelling the recruitment until March 20'h because I wanted to make sure that Mr. Turner had been provided the information. And then, also, the information about what was happening but also the information about what would happen going forward. Page 72 Merit Appeals Board November 26, 2024 MR. LEE: I see. So, based on Director's Pause representation, you assumed that he had told Mr. Turner before sending this March 20'h communication? MS. TOKIHIRO: Yes. He told me that he was going to speak with him on March 18'h when he returned. MR. LEE: I'm going have you turn to "Exhibit U." Generally speaking, who makes the decision to temporarily appoint someone to a position? MS. TOKIHIRO: That would be the appointing authority. So, the Director or Deputy Director of the department, supervisor —immediate supervisor. MR. LEE: Okay. So, in Mr. Turner's case, that would be Director Pause? MS. TOKIHIRO: It could be Director Pause and —more appropriately, it's usually the immediate supervisor, so that would be Randy Riley. MR. LEE: I see. So, it doesn't have to be so stratified, I guess. MS .TOKIHIRO: Correct. MR. LEE: When someone is temporarily appointed to a position, like the CERS II position, what's the effect on their pay? MS. TOKIHIRO: So, they get the equivalent pay for that position. So, they get the difference so they get —the way our employees are paid, they're paid current. So, today is November 26''on November 30'h when we receive our paychecks, it's for current wages from November 16'h to November 30t'. And then, when you're on TA, I believe that there's a lag because you're paid that additional amount per hour, so it's the difference between your base salary and the base salary of the position you're TA'ing into that is paid, I believe, on a one pay period lag. MR. LEE: Okay. I'm going to have you turn to the second page of "Exhibit U"it should say, "Pay Period ending March 3I "—and on the left there, it starts "Date, March 18t'"do you see that? MS. TOKIHIRO: Yes. MR. LEE: Okay. I'll have you keep note of that. I want you to turn to Appellant's exhibit —it says, "Communication 24-3.14"specifically "Exhibit 7." And you can let me know when you're there. MS. TOKIHIRO: Okay. Page 73 Merit Appeals Board November 26, 2024 MR. LEE: So, going back to "Exhibit U"it would appear that his temporary appointment or temporary assignment was effective March 18''. MS. TOKIHIRO: Yes. MR. LEE: Okay. So, when I look at "Exhibit 7" Mr. Turner was only paid $10.00my question is —why is that? MR. TOKIHIRO: So, I think that was because of the dates. There's someI don't want to say date discrepancies but —dates that things were completed. We have certain payroll cutoff dates and so at the time that Mr. Turner was returned to his last held permanent position, I believe the Form 13 was submitted March 27 h for a retroactive action to March 16''. So, when you take a retroactive action, what's happened is Mr. Turner would have been paid the full salary for the CERS position for the period March 16'h through March 31 `—and then, if you then turn in a retroactive form that says, "Oh, he should have been returned to his position, effective March 16''"—it's resulted in an overpayment. And so, the payroll staff would then adjust that back. So, that is also —it's unfortunate that the department didn't process the paperwork in a timely manner when I provided my memo to the department. I was trying to avoid just this scenario. In all of this discussion with the department, they didn't ask me if they could adjust that effective date from March 16''. I was surprised that they used the March 16'h date and then processed the forms so late, causing this negative impact on Mr. Turner's payroll. And then, this TA form, which says that the TA was effective March 18'h—it's not dated until April 16''. So, that results in further delay in getting the salary portion corrected. MR. LEE: Okay. So, let's break that a little apart, a little bit. You indicated that you were surprised that the department did not ask to change the effective date of March 16'? MS. TOKIHIRO: Yes. MR. LEE: And you're referring to the effective date of when Mr. Turner would be returned to his previous position? MS. TOKIHIRO: Correct. MR. LEE: Okay. Is that something you could do on your own? MS. TOKIHIRO: I'm sorry, I don't understand the question. MR. LEE: You indicated that you were surprised that the department didn't do it. So, I guess, another way of phrasing it is —that —is that the department's responsibility to change the effective date? Page 74 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: I would have expected that the department —because we were engaged in these discussionsI would have expected that the department would have asked that or anticipated the negative impact for Mr. Turner, especially when they were processing the form on March 27 h. At that point, we do have a lot of situations where a date may need to be changed for whatever reason and the departments will reach out to us to talk to us and find out how we can —what the correct effective date should be. In this situation, because —well, Mr. Pause testified that he didn't talk to Mr. Turner until March 27''I mean, Mr. Pause told me that he was going to speak with Mr. Turner on March 18''. The 16'h would still have been a retroactive action but it would have only been for two days. When he didn't talk to Mr. Turner until the 27 h, and it was important for him to do so in -person —I'm surprised at that point that they wouldn't have asked if we could adjust the date. MR. LEE: If the department had asked, would you have been willing to do so? MS. TOKIHIRO: Yes. If I had been informed of when Director Pause actually talked to Mr. Turner. MR. LEE: Okay. So, we already established that Mr. Turner's temporary assignment —at least on paper —was to begin on March 18''? MS. TOKIHIRO: Correct. MR. LEE: Okay. But, I guess, as we also established on the bottom it wasn't approved until April 16''? MS TOKIHIRO: Correct. MR. LEE: So, was Mr. Turner ever, I guess, compensated for the temporary assignment he should have been making that he didn't get paid? MS. TOKIHIRO: So, I believe after this April 15'h paycheck in the amount of $10.00I believe that's when this TA paperwork was processed from my understanding —and I don't have the payroll —but from my understanding, this TA paperwork was processed on the 16'', and I believe a special check run was done, so that Mr. Turner could get paid for this time. So, I'm not sure if there would have been a resulting difference in his paycheck, but might have been a small difference the TA versus the half -month salary. But from what I understand, they worked very quickly to do the TA paperwork and have a special check run done, so that they could correct Mr. Turner's earnings. MR. LEE: Okay. Thank you. When were you first informed that the meeting took place with the Mayor's Office regarding Mr. Turner? Page 75 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: I was informed on April 17' that a meeting occurred on April 4 h. I was notified by email from the Managing Director who provided me with a copy of a summary email that Randy Riley had prepared following the meeting on April 4 h. MR. LEE: And what did Managing Director Sako communicate to you as far as what the Mayor's position was? MS TOKIHIRO: I believe that the sentence was that, ultimately, after the discussion that occurred ultimately, they wanted Mr. Turner to qualify for the CERS 11 position. MR. LEE: Okay. And what was your response to Managing Director Sako? MS. TOKIHIRO: My response was that prior to voiding the appointment and cancelling the recruitment, I asked my Recruitment and Examination staff to rescreen the applications because it could not be determined whether either applicant met the minimum qualifications for the position voided the appointment and cancelled the recruitment —that the recruitment would be reopened to offer the opportunity for the applicants to provide the information about the required experience. MR. LEE: Okay. Did you subsequently meet with the Mayor? MS. TOKIHIRO: Yes. Following that email —my email to the Managing Director reiterating the process that we were going to follow, I was requested to meet with the Mayor on April 29 h MR. LEE: Okay. And what was the state of purpose for this meeting? MS. TOKIHIRO: The purpose was to talk about this the CERS II position and Mr. Turner, specifically. MR. LEE: Okay. Was Mr. Turner present? MS. TOKIHIRO: No. MR. LEE: Who was present there? MS. TOKIHIRO: So present at the meeting was Darlene Akamine, Randy Riley, the Mayor, the Managing Director, and my Deputy Director —Danny Patel. MR. LEE: Okay. And yourself, of course. MS. TOKIHIRO: Correct —yeah. MR. LEE: Did the Mayor have a request for you? MS. TOKIHIRO: Yes. Page 76 Merit Appeals Board November 26, 2024 MR. LEE: What was that request? MS. TOKIHIRO: The Mayor requested that Mr. Turner be reinstated to the position. MR. LEE: Okay. And what was your response? MS. TOKIHIRO: My response was that I voided the appointment made by Director Pause because the minimum qualifications were incorrect and that the recruitment needed to be redone in order to provide the applicants with the opportunity to demonstrate that they met the experience requirements. MR. LEE: Okay. And how did the Mayor respond to that? MS. TOKIHIRO: He was not happy. MR. LEE: Okay. Was there any resolution at the end of this meeting? MS .TOKIHIRO: So, at the end of the meeting, because I was not agreeing to change my mind or change this process the Mayor said, "Well, I think Mr. Turner should file a MAB appeal." And Randy Riley said, "You're right. I think you should." And the MAB appeal was subsequently filed on May 1st MR. LEE: Thank you. I have no further questions. CHR. CABANAS: Thank you, Mr. Lee. Mr. Hong, more questions for the Director? MR. HONG: Thank you. I have a lot of questions for the Director. I don't know if this would —might be an opportunity to take a lunch break now or what —you just want me to keep going through it? CHR. CABANAS: Let me pose the question to our Board members and Mr. Lee. What are your preferences —take a break for lunch and resume because Mr. Hong has quite a bit of questions for Ms. Tokihiro? Shall we take a lunch break? MR. LEE: That would be my preference. CHR. CABANAS: Okay. Let's take a lunch break. How long shall we take —about half-hour? MR. HONG: That's fine. CHR. CABANAS: Okay. Why don't we resume at 1:00. It's 12—about 12:24. MS. MATHEWS: That's more than half -an -hour. Do you want to Page 77 Merit Appeals Board November 26, 2024 CHR. CABANAS: Yeah, we'll just round it out to 1:00. Is that okay? Okay, 1:00 it is. Let's resume at 1:00. MR. HONG: Thank you. CHR. CABANAS: Okay, thank you very much, everyone. RECESS: The Chair called for a recess at 12:26 p.m. RECESS: The meeting reconvened at 1:01 p.m. in open session. CHR. CABANAS: Okay, everyone, we're back at 1:01 p.m. on November 26 h, 2024, and we are continuing with the appeal hearing for Mr. Turner. And I believe, Mr. Hong, you're up —as you said you had questions for the County's witness, Ms. Sommer Tokihiro. MR. HONG: Thank you. MR. WISEMAN: Madam Chair, before Mr. Hong begins, I'd like to raise an issue. I stated that I would have to leave at 1:30 today. CHR. CABANAS: Oh, okay. MR. WISEMAN: I see at least two to three hours more of questioning, the way things are going. I'm just wondering if there's any continuance being considered? And I can probably go beyond 1:30, but still I couldn't go too far beyond 2:30 or 2:00. CHR. CABANAS: Well, let's see now. We will still have quorum but you won't be on the Board after December 31". So MR. WISEMAN: Yeah. I intend to make a decision to offer my input in this case. CHR. CABANAS: We will have another meeting on December 16'hwhat's everyone's thoughts on the matter? MS. MATHEWS: So, I understand you have to leave at 1:30. I'm questioning whether or not you would be —or if it's appropriate if you could talk to our Chair at some —like, when we're in executive session —so that you were just looped in for a bit because we really appreciate your expertise, particularly, all the law that you have in the background. Is there a way we can have that communication happen? CHR. CABANAS: Well, we would have to go into executive session only when we need to ask questions of our Legal Counsel, Mr. Halvorson —or discuss matters confidentially in a executive —closed meeting. But I would prefer us working it out as much as possible in our open session as to his availability. Page 78 Merit Appeals Board November 26, 2024 Personally and professionally, I do not want this continued because Mr. Turner and the County — they've been waiting pretty long already. So, if we could come to a resolution today, that would be really good. What's your thoughts, Mr. Kunz? MR. WISEMAN: My suggestion is that you call home and tell them you might be late for supper. But okayso, I'm ready to proceed. CHR. CABANAS: You're ready to what? MS. MATHEWS: Proceed (inaudible) 1:30. CHR. CABANAS: Okay. MR. KUNZ: Yeah, I would prefer we continue. CHR. CABANAS: Okay. MS. MATHEWS: Yeah. CHR. CABANAS: Okay, so we will continue. Okay. So, Mr. Hong, you're up. MR. HONG: Thank you. In terms of class specifications that's under your department's control, correct? MS. TOKIHIRO: Correct. MR. HONG: And in terms of job descriptions job descriptions or position descriptions have to come through or be routed through you as the Director for your approval, correct? MS. TOKIHIRO: Yes. MR. HONG: You're familiar with the Department's Rules? MS. TOKIHIRO: Yes. MR. HONG: If you could turn to "Exhibit W," please? Specifically, I'm looking at the definitions 1.9, Section 1.9, page 1-3. MR. HALVORSON: I can't hear you, Counsel. MR. HONG: Sorry. I'm looking at Section 1-9, specifically, on page 1-3. MS. TOKIHIRO: Sorry, which Communication are you in? Page 79 Merit Appeals Board November 26, 2024 MR. HONG: I'm looking at Supplemental Exhibitoh, excuse me24-03 dashoh, excuse me24-03.08. Should be "Exhibit W." MS. TOKIHIRO: Okay. MR. HONG: And, again, I'm looking at Section 1-9, "Definitions." MS. TOKIHIRO: Okay. MR. HONG: If you look at the definition of "Administrative review" —and I'll read it, an "Administrative review means a reevaluation of an eligibility rating or determination, initial pricing, or classification action." Do you see that? MS. TOKIHIRO: No, I'm sorry, I'm in the wrongI must be in the wrong area. Yes. MR. HONG: Did I read the definition of "Administrative review" correctly? MS. TOKIHIRO: Correct. Yes. MR. HONG: In this case, you're saying that based on the change it affected my client's eligibility rating —is that my understanding? MS. TOKIHIRO: Yes. MR. HONG: And then —and you also did a classification action, correct? MS. TOKIHIRO: Changing the minimum requirements on the class specifications is —it's changing the class specification but it's not changing the classification of the position. MR. HONG: So, you're saying that a classification action only accept —only affects the position, not the class specifications? MS. TOKIHIRO: I'm sorry, can you repeat your question? MR. HONG: Are you saying —are you trying to tell us that in terms of a classification action, how you define it —it means changing that position, not the class specs.? MS. TOKIHIRO: I guess talking from HR terms —yes, changing —we changed the class specification for the minimum requirements, but when we're talking about a classification action that's creating a classification of work, reallocating a position, setting the pricing. MR. HONG: So, you're saying that in terms of changing his class the class specifications for that supervisory position, that was not a classification action under your administrative rules? Page 80 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: It falls under classification and pay, so yes, I'll say technically it is a classification action. MR. HONG: So, what you did in terms of changing the class specs., it now requires the two - years of journeyman (inaudible) —you would agree, is a classification action? That's what you're saying, right? MS. TOKIHIRO: Yes, when we made the correction to the class specification. MR. HONG: So, when I look at "Exhibit S" as in "Sam" that's the letter you sent the department —that was dated March 5 h, 2024, correct? MS. TOKIHIRO: Correct. MR. HONG: And then when you sent the notification to my client, that's dated March 20'', 2024, is that right? MS. TOKIHIRO: Correct. MR. HONG: But when I look at "Exhibit M" as in "Mary" that actual class specification that you signed that was March 27 h of 2024, correct? MS. TOKIHIRO: Correct. MR. HONG: So, in other words, you're taking the class action or taking classification action after you had already, basically, decided to void my client's recruitment or cancel his recruitment and void the appointment, correct? MS. TOKIHIRO: Yes, because the change could not be made until the appointment was voided. MR. HONG: You're not motioning to her to stop answering the question, are you Mr. Lee? MR. LEE: No (inaudible). MR. HONG: All right. MR. HALVORSON: So, Counsel, you're fading again. MR. HONG: Sorry, Jim. CHR. CABANAS: I think you both need to speak really close to the mic. MR. HONG: I apologize. Page 81 Merit Appeals Board November 26, 2024 CHR. CABANAS: because not only can they not hear you, but the recording cannot pick up your statements. Thank you so much. MR. HONG: Thank you. Turn to the next page, definition of "Eligible" —do you see that? MS. TOKIHIRO: Yes. MR. HONG: And you would agree my client's name was on the eligible list for the position supervisory position? MS. TOKIHIRO: Yes. MR. HONG: "Eligible list" the next definition. It says, "...list of persons who have been found qualified for appointment to a position... "do you see that? MS. TOKIHIRO: Yes. MR. HONG: And my client was found to be qualified for the appointment, correct? MS. TOKIHIRO: Yes. MR. HONG: And who made that finding of meeting the MQ's the minimum qualifications? MS. TOKIHIRO: The Recruitment and Examination Division. MR. HONG: Within your department? MS. TOKIHIRO: Yes. MR. HONG: If you turn to the next page, "Probationary appointment" —and it "...means an appointment which is made to fill a permanent position" which is "Exhibit I "my client was given a probationary appointment —you would agree? MS. TOKIHIRO: Correct. MR. HONG: Probationary period, the next definition "...means a specified period which serves as the final test of an employee's qualifications for the position in which employed" —did I read that correctly? MS. TOKIHIRO: Yes. MR. HONG: So, proba the purpose of a probationary period is to test the employee's qualifications, correct? MS. TOKIHIRO: Correct. Page 82 Merit Appeals Board November 26, 2024 MR. HONG: If you could turn to page 3-2, I'm looking at Section 3-2, "Appointment in the civil service system. "3-2(a)do you see that? MS. TOKIHIRO: Yes. MR. HONG: And, basically, 3-2, sub. (a) says that your department is responsible for the recruitment process. Is that —would that be accurate? MS. TOKIHIRO: Correct. MR. HONG: And then, if you look at 3-2, sub. (c) on the next page —and all it says that "A person selected through the civil service recruitment procedure for a permanent position shall be required to serve an initial probation period" —right? MS. TOKIHIRO: Correct. MR. HONG: And that's —and when my client's appointment was voided, he was serving that initial probationary period, correct? MS. TOKIHIRO: He was actually serving a new probation because the position that he was in was a promotion. He completed his initial probation in the Storekeeper position. MR. HONG: No, I'm talking about the supervisory position. At the time that you terminated or, excuse me vacated his appointment and cancelled the recruitment, he was already in the position, the supervisor's position, right? MS. TOKIHIRO: Correct. MR. HONG: And he was serving a probationary period to be in that supervisory position, correct? MS. TOKIHIRO: Correct, but I'm just technically telling you that it's a new probation versus an initial probation MR. HONG: All right. Thank you. If you could turn to Section 3-7, on page 3-4—"Content of recruitment announcements." Was your department responsible for the recruitment announcement for this supervisory —my client's supervisory position? MS. TOKIHIRO: When the department submits the Request to Fill, they're letting us know what the position description is and they're supposed to have reviewed the class specs. So, it's not entirely the responsibility of the Department of Human Resources. It's the responsibility of the department as well. Page 83 Merit Appeals Board November 26, 2024 MR. HONG: Who —when I look at Subsection (d)-3-7(d), "Minimum qualification requirements." your department is responsible for making that initial screening, correct? MS. TOKIHIRO: Our department is responsible according to 3-7, we have to list in the announcement what the minimum qualifications are. MR. HONG: And that's your department that puts out the recruitment announcement? MS. TOKIHIRO: Yes. MR. HONG: And the recruitment announcement contains the class specs. and also the minimum qualifications, correct? MS. TOKIHIRO: Contains the class spec., which contains the minimum qualifications yes. MR. HONG: If you could turn to Section 3-10, on page 3-5—and let me read it, quote, "A recruitment may be canceled by the director at any time. In such event, all applicants shall be notified of the cancellation." —end quote. Did I read that correctly? MS. TOKIHIRO: Yes. MR. HONG: So, when you look at the letter that you sent my client dated March 201', you said you're cancelling the recruitment, correct? MS. TOKIHIRO: Correct. MR. HONG: And are you suggesting that —well, let me rephrase the question —at the —on March 20'', 2024, my client was no longer an applicant, correct? MS. TOKIHIRO: No, he was not an applicant. MR. HONG: I'm sorry, so he was still an applicant for the position? MS. TOKIHIRO: He was appointed to the position and also still on the eligible list. MR. HONG: So, again, my client —my question was, under this regulation, 3-10, in terms of my client being an applicant —he had already applied for the position, correct? MS. TOKIHIRO: Correct. MR. HONG: He had already interviewed for the position, correct? MS. TOKIHIRO: Correct. MR. HONG: There had been a ranking of the eligible candidates for the position, correct? Page 84 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: Not sure about a ranking but two eligible candidates were referred to the department for follow-up. MR. HONG: And in terms of his appointment —and that's our "Exhibit 1" on November 151h 2023, it says, quote, "Congratulations on your new probationary appointment and promotion to the Construction Equipment Repair Supervisor 11 position" —can you point out to me where it says —"and you're still part of the recruitment process or on the eligibility list"in that letter that you that the department sent. Does it say any of that? MS. TOKIHIRO: No. MR. HONG: Does it say, "Hey, by the way" —or something to the effect that, "Hey, by the way, we can yank your appointment at any time" MR. LEE: I'm going to object —lack of personal knowledge. MS. TOKIHIRO: When someone is serving a new probationary period, it's understood that they need to complete the probation and there's no that's a six-month period. MR. HONG: All right. Let's look at the probationary period. Oh, before we get there, I'm sorry —Section 3-13, on page 3-6, talks about "Disqualification of applicants." And as an applicant, my client was never disqualified, right? MS. TOKIHIRO: Correct. MR. HONG: If you look at 3-19, on page 3-9, "Changes in examination ratings." —and I'm looking at 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." I'm unclear about your testimony —what had happened in terms of changing this rating? Was it the result of an administrative review or was a result of discovery of errors in the rating? MS. TOKIHIRO: So, the administrative review that was triggered by the internal complaint procedure, resulted in the discovery of errors in the class specifications, which affected the rating. MR. HONG: Okay. So, look down on Section (d), Subsection (d), it says, "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." Did I read that correctly? MS. TOKIHIRO: Yes. Page 85 Merit Appeals Board November 26, 2024 MR. HONG: Did my client fail the examination for the to qualify for that position? MS.TOKIHIRO: Yes. MR. HONG: How did he fail? MS. TOKIHIRO: Because he did not meet the minimum qualification. MR. HONG: But your department approved the minimum qualifications, correct? In the initial recruitment, your department approved the minimum qualifications, they posted the minimum qualifications, right? MR. LEE: I'm going to object —unclear as to which minimum qualifications or posting that they're referring to. MR. HONG: You can answer the question, if you understand it —when you posted, when your department posted that recruitment, it posted the minimum qualifications for that position, right? MR. LEE: I would respectfullycorrect, Mr. Hong, she cannot necessarily answer it. I mean, he did say, "if she understands it" but when I make an objection, I believe the Chair has to make a ruling before the witness may proceed. CHR. CABANAS: Can we, at this time, review the internal —what —can we review the recruitment posting? Is it in one of your exhibits? MR. HONG: It's not. MR. WISEMAN: Madam Chair, I'd like to be heard on this. CHR. CABANAS: Yes, Mr. Wiseman. MR. WISEMAN: This is cross-examination. I don't see anything improper with his question. It's up to the witness. If the witness doesn't understand it, she can ask for clarification. CHR. CABANAS: Okay. MR. WISEMAN: I don't see any grounds for an objection there. MR. HONG: And I would point out that based on the witnesses earlier testimony under cross- examination, she already admitted that her department posted the recruitment notices. And she also testified in her prior testimony that the class specifications and the minimum qualifications were part of that posting. MR. WISEMAN: So, is your objection asked and answered? Is it an improper question? Page 86 Merit Appeals Board November 26, 2024 MR. HONG: I'll withdraw the question. CHR. CABANAS: Let's pause for a moment. Mr. Halvorson, can you provide us with the legal advice? MR. HALVORSON: Yeah. First of all, this should not be a reading examination where he simply asking —reading from excerpts from exhibits and say, "Did I read that right?" The second thing is Mr.I agree with Mr. Wiseman and I think this has been asked and answered and he's beating a dead horse. MR. HONG: Actually, I'm not —and the point I'm trying to make is that you cannot back in March of 2024 or at the end of March of 2024, say that he failed the examination when they had already approved the examination. They had already approved the class specs. They already approved the minimum qualifications. The testimony on direct and cross is that, after the fact, they decided to change it. And then, they made the retroactive decision to void his appointment and cancel the recruitment. And I'm trying to point out in this Rule, they can't do that unless he fails the examination, which he didn't (inaudible). MR. LEE: (Inaudible.) MR. HALVORSON: What Counsel's doing now is simply making argument. That's not proper cross-examination. MR. HONG: I'm making the argument, Mr. Halvorson, in support of why I'm asking the question. CHR. CABANAS: Okay, so let's proceed with the questions —with the questions to witness, Sommer Tokihiro. You have more questions, Mr. Hong? MR. HONG: I have more questions. I'm going to withdraw the question. CHR. CABANAS: Okay. MR. HONG: And ask a different question. CHR. CABANAS: Okay. MR. HONG: So, my next question is, your testimony is that my client failed the examination because of your change in the class specifications to the supervisor's position, correct? MS. TOKIHIRO: From the application that he submitted, it was not clear that he met the minimum qualifications. MR. HONG: That you changed after he was appointed to the probationary position, correct? Page 87 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: Which I corrected based on research from the class specification dating back to 1981. MR. HONG: Which was conducted after my client was given the probationary appointment, correct? MS. TOKIHIRO: Correct. MR. HONG: Right. I'm going to Regulation 3-34, on page 3-19—and taking Mr. Halvorson's comments to heart, I'm not going to read it. I'm just going to ask you a very simple question 3-34, "Suspension and termination of eligibility; restoration of eligibility. "—Subsection "(a)" it goes down a whole number of list of —or list a whole number of circumstances which would terminate somebody's eligibility or suspend somebody's eligibility you would agree that none of those factors apply to my client, correct? MS. TOKIHIRO: Correct, I did not suspend his eligibility. MR. HONG: And if you look at the next page, 3-35, "Termination of eligibility." —and it talked —and it list 1, 2, 3, 4, 5 different factors for terminating somebody's eligibility you would agree none of these would apply to my client, correct? Did you understand the question? MS. TOKIHIRO: Yes. MR. HONG: Do you want me to repeat it? MS. TOKIHIRO: But Item 3-35(e)repeat your question, please? MR. HONG: My question was, under 3-35 and the sub -parts —none of those circumstances that would terminate my client's eligibility for the appointment to the probationary position apply, correct? MS. TOKIHIRO: Correct. MR. HONG; If you could turn to the next page, 3-21, Section 3-38, "Probationary appointment. "—do you see that? MS. TOKIHIRO: Yes. MR. HONG: Okay. So, my client fit under Section 3-38(a)he filled the permanent position for the supervisor's position, was filled, by a probationary appointment —you would agree with that, right? MS. TOKIHIRO: Yes. Page 88 Merit Appeals Board November 26, 2024 MR. HONG: So, Subsection "(b)" that the initial probationary period is supposed to be part of the examination process to determine an employee's fitness and ability for employment. The termination of an employee's fitness and ability for employment —that's done through the job appraisal or job performance appraisals? MS. TOKIHIRO: In part. So, performance appraisal reports are part of that examination process during the probationary period. MR. HONG: What's the other part? MS. TOKIHIRO: So, the other part would be the examination —so performance, but also it's continuing examination of their fitness for the position. MR. HONG: The continuing examination for the fitness of the position —how does that work? Explain that to me. MS. TOKIHIRO: So, it's their performance in the position but then also the examination includes the application and other examination information administered as part of the interview process. MR. HONG: What wereI'm sorry, Madam Chair. CHR. CABANAS: Excuse me, Mr. Hong, and Mr. LeeI don't want to confuse the Board because the section you're referring to is "initial probation period" —and Mr. Turner, was in a new probationary period as Ms. Tokihiro has explained. Mr. Turner completed his initial probation period as an Automotive Stores Clerk. And when he got promoted, he got —he was now in a new probationary period. I just want to clarify because I don't want the Board to be confused. So, thank you, you have the floor. MR. HONG: Thank you. What are the standards to determine whether or not this new probationary period that my client was serving in, how could he be evaluated? What are the standards for measuring performance with respect to someone in a new probationary period? MS. TOKIHIRO: As a performance standard that would be established by the department. MR. HONG: And that would be reflected in the job appraisal —or job performance appraisals? MS. TOKIHIRO: Yes, it should be. MR. HONG: In Mr. Turner's case —or my client's case —did you look at his job performance appraisals? MR. TOKIHIRO: No. Page 89 Merit Appeals Board November 26, 2024 MR. HONG: If you could turn to page 3-25, Section 3-40—let me know when you have it in front of you. MS. TOKIHIRO: Yes. MR. HONG: You would agree that none of these four factors apply to my client? MS. TOKIHIRO: Mr. Turner was already part of the civil service, so this section doesn't apply. MR. HONG: All right. When did you start the review of the class specifications? MS. TOKIHIRO: Following the email from the Managing Director on Mar —on February 16''. MR. HONG: And did you notify any of the eligibles at that point that this was going to be an is this may be an issue. MS. TOKIHIRO: No, because I wasn't certain, at that point, that it would be an issue. MR. HONG: When did you —when were you certain that this would now be an issue? MS. TOKIHIRO: Prior to March 5 h when I notified the department. MR. HONG: Did anyone tell you that you could actually cancel the recruitment? MS. TOKIHIRO: No, that was based on my review of the Rules and addressing how to handle the situation. MR. HONG: And you have, like, for example, the labor positions for the Department of Public Works or Parks or something like that —there's an ongoing or rolling over recruitment. You would agree? MS. TOKIHIRO: No, not necessarily. MR. HONG: There are on -going recruitments, though? MS. TOKIHIRO: There are open competitive recruitments that can be placed on a continuous basis. Mr. Turner was —his —the recruitment for the Construction Equipment Repair Supervisor II position was an internal recruitment within the department I mean, within the County, I believe. MR. HONG: I'm sorry, could you say that, again? MS. TOKIHIRO: So, when the Department of Public Works did the recruitment for the Construction Equipment Repair Supervisor II position that Mr. Turner was selected for, that was an internal recruitment —either within the department or within the County. Page 90 Merit Appeals Board November 26, 2024 MR. HONG: So, that recruitment was time -limited, right? MS. TOKIHIRO: Correct. MR. HONG: You had testified that once Mr. Turner returned to his original position, then you could correct the class specifications, is that right? MS. TOKIHIRO: Correct —that was my intention based on the documentation I provide to Director Pause. MR. HONG: When you look at "Exhibit W" under "Administrative review" the definition. The definition of "Administrative review"1-3, Section 1-9do you see that? MS. TOKIHIRO: Yes. MR. HONG: In this case, my client was sent back to his original position before you took classification action. Isn't that true? MS. TOKIHIRO: Yes. MR. HONG: In order to temporarily assign somebody to a supervisor's position, like my client, where he's being TA'd into the position —my understanding was I thought to TA you have to meet the minimum qualifications? MS. TOKIHIRO: No, you do not. I don't know if I could provide an example but the earlier witness, Darlene Akamine, who is a Senior Account Clerk —in Mr. Riley's absence is TA'd to her position—TA'd to his position as the Superintendent of the Automotive Division. MR. HONG: And she doesn't meet the MQ's for the supervisors position —the superintendent's position? MS. TOKIHIRO: Not to my knowledge. MR. HONG: Have you made a study about that? MS. TOKIHIRO: No, that's not the responsibility —someone in TA, it's at the discretion of the department. MR. HONG: In terms of my client, do you know for a fact whether financially he's been made whole? MR. LEE: Objection vague and ambiguous. Page 91 Merit Appeals Board November 26, 2024 MR. HONG: She testified regarding, on direct, regarding the payroll process and that a special run was made or should have been made. And I just want to know —ask the question, if she knows that he was made whole in terms of being paid? MS. TOKIHIRO: In terms of being made whole, I think that the terminology may be a little deceiving. He —Mr. Turner is being paid for the TA hours that he works in the CERS II position. When we refer to making an employee whole, we're talking about covering their full salary. So, if you're trying to make a comparison between the salary of the CERS II position versus what he's being paid on TAI don't think you can reference that as being made whole. MR. HONG: So, you would agree with me then, in terms of the amount of money that he's making currently, that he's not making as much as he would have, if he had continued in the probationary appointee position? MS. TOKIHIRO: I don't have definite knowledge of that, so I can't answer that question. MR HONG: So, you don't know whether or not he has suffered financially because of your actions? MS. TOKIHIRO: I cannot confirm or deny that, but I do acknowledge based on the dates that I testified on earlier that obviously there was a negative impact to Mr. Turner based on when he was notified. MR. HONG: I have no further questions. CHR. CABANAS: Thank you, Mr. Hong. Mr. Lee, any questions? MR. LEE: No. Thank you. CHR. CABANAS: Okay, thank you. Board members, I'll start with Mr. Wiseman —any questions for Ms. Tokihiro? Mr. Wiseman? MR. WISEMAN: Yes, I have a few questions. CHR. CABANAS: Please proceed. MR. WISEMAN: In all theseI mean, I've heard on many, many times that there was you used the word "incorrect" there was error. And you're referring back to something that came that wasn't done since the 1990's—some date in 1990's, is that right? MS. TOKIHIRO: Yes. MR. WISEMAN: All right. So, we're talking almost three decades and you claimed error. CHR. CABANAS: David, can you speak a little louder? Page 92 Merit Appeals Board November 26, 2024 MR. WISEMAN: Yes. You claimed error in that it was incorrect and there was inadvertence but in all these times and after deciding to make changes after three decades —it doesn't seem like the consequences would follow —that were being considered. And that's, sort of, a statement in line with my next question. Is it your position you don't have any discretion at all in these matters? MS. TOKIHIRO: No, that's not my position. I made the choice to make the change based on what I felt was the right thing to do. MR. WISEMAN: But he was on probation and there's nothing in the probation terms and conditions that allow the County or your department to change that evaluation. He was evaluated in good —he was praised on evaluation. I mean, he was doing a good job, right? MS. TOKIHIRO: There's a difference. So, because he was in this —he was in a new probationary period, we can make the changes in examination ratings during that new probationary period —though —if you're referring to the performance appraisal reports that the department completed that said that he was completing the duties of his job satisfactorily, that's something that the department completes. MR. WISEMAN: So, probation does give you the authority to change it for any whim? We had a 50 year -old mistake you could change his probation status? MS. TOKIHIRO: I didn't change the minimum qualifications based on a whim. I explained all the research that went into evaluating not only if it was proper to change, but if those qualifications had been moved to another position within the structure. So, I didn't make this change on a whim. I haveI made the choice to make it based on the research and the information that we had. MR. WISEMAN: Did that research take into effect that you were making a change affecting someone's who entered a position, in good faith, did good work —and so, it's your position that you made that —all that research —did they ever think about that, that they're going to make a change affecting this employee's life? MS. TOKIHIRO: Absolutely. I'm a human being and I have been — MR. WISEMAN: I didn't finish, yet. Based on a mistake, an error that's almost 30 years -old, did that come up in research that you found something that old that would warrant you to make a change to effect the consequences of which would affect an employee's total life? I assume the answer's "no" —'cause it would be ridiculous to find something like that. And, again, so you did have the discretion to arrive at not to effect —to make the change for future applicants, but not to affect his position? Is that right? Page 93 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: Yes, if you're asking if I could look at this information and pretend like I didn't know it, and wait for the next applicant for the position to make the change — MR. WISEMAN: I'm not asking that. You know it but the circumstances, equity, andI mean, in all rules of any government —the preamble starts with these rules of design to provide just and equitable conditions for —in effect. And how would that be just and equitable to take a 30 year - old error, which your department —other departments in the arena —violated. `Cause it said the point 44.2 or something is violated. So, I don't understand that. Okay. And I understand that the government doesn't engage in mediation or does it —to your knowledge —do you know? MS. TOKIHIRO: They do, at times. MR. WISEMAN: But this is not one of those times considered? MS. TOKIHIRO: I don't know that it was requested. MR. WISEMAN: I see. Thank you. Thank you, Madam Chair. CHR. CABANAS: Okay, thank you, Mr. Wiseman. If you can hang on, because I think we're, kind of, nearing the end to this hearing. So but let's go further. Ms. Bond, do you have other questions or questions for Ms. Tokihiro? MS. BOND: Yeah, I have a couple. CHR. CABANAS: Okay, go ahead. MS. BOND: Has the position been posted again? MS. TOKIHIRO: It has not. MS. BOND: So, this whole thing has been in limbo now for eight months? Nine months? MS. TOKIHIRO: It's not been in limbo. The department has chosen not to re -run the recruitment. Everything was done in March, so that the department could reopen the recruitment and go through the selection process again. They've elected not to do that and instead have TA'd Mr. Turner to this position since that time. MS. BOND: TA'd meaning Temporary Assignment? MS. TOKIHIRO: Correct. MS. BOND: So, he still has the original position that —or the one that he was on probation for? Page 94 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: Correct. MS. BOND: Okay. That's interesting. Was there not a way that you could just ask him for documentation that would make it be okay for this rather than just cutting the job out? MS. TOKIHIRO: No. Because there is more than one applicant and all of our applications go through our NeoGov system and that we specifically use NeoGov and have all documentation in NeoGov—so that there's an audit trail. The Department of Human Resources was audited in 2017 and there were findings that there were unfair hiring practices. And so, as part of the resolution and remedies to those audits, we used the NeoGov system. And so, the only way to be able to collect information would be to give the opportunity to all the applicants to provide additional information. So, again, we're going back to the list of eligibles that was provided to the department because once we were looking at this minimum qualification requirement, we have to look at both Mr. Turner and any other applicants that were on the eligible list. And because they were deemed to be eligible based on the incorrect information in the NeoGov system, that's why it needed to be the recruitment needed to be cancelled so that we could then reopen the recruitment with the correct qualifications and give all applicants the opportunity to provide information to show that they met the qualifications and be considered for the position. MS. BOND: But you've not done that? MS. TOKIHIRO: It's not my choice to do that. I wanted to do that as of the end of March 2024. What's happened is the department has not come back with the request to recruit for this position. They've instead, decided to continue Mr. Turner's TA. MS. BOND: Okay. Does he fall off the eligibility list if you were to open it up back again? MS. TOKIHIRO: No. Anyone is eligible. He could reapply. MS. BOND: And my last question is, who really benefited from you doing this? MS. TOKIHIRO: Nobody. MS. BOND: Absolutely —nobody. MS. TOKIHIRO: Well, I think the reason why the change is important and when you look at the career ladder that is trying to be created going back to 1994—when the CERS II position was created —is it's providing a ladder of opportunity where someone can come into a position, work in this position, gain the necessary —gain skills and abilities to advance further. Page 95 Merit Appeals Board November 26, 2024 So, in this example, for the CERS II position, the next level up would be the Superintendent of the Automotive Division. Right now, the way that the position was described with the minimum qualifications prior to us making the correction, even if Mr. Turner worked in the supervisory position for years —he wouldn't meet the qualifications for the Superintendent position, which has a work experience requirement. So, it's trying to ensure that we have equal pay for equal work across jurisdictions, looking at positions across the State, being consistent with similarly situated positions within the County but then also being able to provide this career ladder where people can advance. But this process has been extraordinarily difficult. I had to make a choiceI don't believe that this has ever come up before. Obviously, the Rules of the Director of Human Resources don't specify a situation like this. I had to take all of the information and make the best decision that I could, at that time. It was not my intention to penalize anyone, to be punitive to anyone, I'm doing the best that I can to uphold the merit principle and to protect this system that we have in place. And the result has been numerous meetings, and personal attacks at every layer within County government getting me to change my mind. And the easier thing to do would have been to change my mind. But I stand by the decision that I made because I made the decision with the intent of being fair and equitable and uniform in our hiring and selection process. It is unfortunate that Mr. Turner —well fortunate or unfortunate —Mr. Turner was in a probationary period —and that's the only —during that period, is the only time that the examination rating could be changed. But it wasn't —it's not intentional. It's not on a whim. It's not personal. It is what I felt that I had to do given the two options and based on the Rules that we have. And it's the choice that I made. But I've been yeah, attacked personally. I have been attacked professionally. It's directors of departments, the Mayor, the Managing Director, Randy Riley —it's just —this has been eight months of this going on and on and on —and all I wanted was to make the correction and to have the department re -run the recruitment so we can resolve this. I was told, "Well, why didn't you just ask Mr. Turner to provide the information. He meets the qualifications." I couldn't I can't do that. There's no opportunity for us to put that into our NeoGov system, but if I take these steps, he can do this. MR. WISEMAN: Madam Chair, if my colleagues finished, I have one question. MS. BOND: Yeah, I'm pau. Thanks. CHR. CABANAS: Okay, we're going to rotate to the other Board members, but I'll go back to you, Mr. Wiseman. Yeah no, he's going to hang on. Hang on, Mr. Wiseman. Go ahead, please, with your question. Page 96 Merit Appeals Board November 26, 2024 MR. WISEMAN: Okay. I heard in some testimony that this is the first change this was the first change since 1981, is that right? MS. TOKIHIRO: No. The initial class specification was done in 1981. And then this the one change in 1994 prior to my change in March 2024. MR. WISEMAN: Okay. Thank you. CHR. CABANAS: Okay. Ms. Mathews, please proceed if you have a question. MS. MATHEWS; I'd rather defer to you the time going to you, please. CHR. CABANAS: Okay. Thank you. Mr. Kunz. MR. KUNZ: Thank you. Director, do you know why Director Pause preferred to keep Mr. Turner on TA? MS. TOKIHIRO: I couldn't answer that. MR. KUNZ: Do you know whether or not in having Mr. Turner remain on TA status —how long he would remain on TA status? MS. TOKIHIRO: It could be indefinite. MR. KUNZ: So, as a loophole to refrain from recruiting, the TA could be indefinite? MS. TOKIHIRO: Correct. MR. KUNZ: And my experience with working Department of Labor for the State is after three months of TA' ing, if you're not going to fill it, that means you don't need a position —if you're not going to recruit for it. That doesn't sound like it's the same formula that's used within the County —is that correct? MS. TOKIHIRO: Correct. MR.KUNZ: So MS. TOKIHIRO: We do have TA that exceeds three months. MR. KUNZ: Okay. So —and I'm not asking that you have to answer for him, but I'm also looking at this as a way to get around the recruitment using the actual new specifications that having someone remain in a TA'd position indefinitely —and not go forward with the new recruitment, even after making the correct changes —would be a way to keep an individual still employed at that level Page 97 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: Correct. MR. KUNZ: Okay. I think that's all I, kind of, wanted to kind of (inaudible). Thank you. CHR. CABANAS: Thank you, Mr. Kunz. Okay, so I'm the last, as the Chair. I do have questions of you, Ms. Tokihiro. First of all, is there a job posting in any of the exhibits? Mr. Hong, you're shaking your head no? MR. HONG: I don't believe there is. CHR. CABANAS: What about you, Mr. Lee? `Cause it would be helpful for the Board to have seen that recruitment announcement. I don't remember seeing it, because I went through the binder, but — MR. LEE: I actually believe that's "Exhibit R"I'd ask Director Tokihiro to confirm that. CHR. CABANAS: It's not the class spec. now. MR. LEE: No, it's from the County of Hawaii Jobs website. CHR. CABANAS: Okay. What exhibit is that? MR. LEE: "R"—and I'd like Director Tokihiro to confirm that. I believe it is, though. MS. TOKIHIRO: I believe that's correct. MR. HALVORSON: Can't hear Counsel. MR. LEE: Sorry, I was just deferring to Director Tokihiro to confirm. CHR. CABANAS: This is not the job posting —at a quick glance, I know, because I was the Recruitment and Examination Manager. This is taken from NeoGov, from the website, but this is a copy of the class spec. And in NeoGov it's listed as a job description. So, this is not the actual job posting. Therefore, I'm going to ask Ms. Tokihiro, you mentioned that the recruitment posting was an internal recruitment? MS. TOKIHIRO: Correct. CHR. CABANAS: The Board needs to know was it internal in the Department of Public Works or was it internal in the County, `cause it makes a difference. So what was it? Page 98 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: I would have to check with the Recruitment and Examination but I believed that it was internal within the department. CHR. CABANAS: Okay, `cause you need to be sure when you testify before the Board. So, if it's internal within the re —if it's internal recruitment within the Department of Public Works only civil service employees within the Department of Public Works are eligible to apply. Now, the posting is important because when you did the internal recruitment posting, was it for this immediate position? It's not like an open recruitment where it's to establish to fill the immediate vacancy and future eligible —future vacancies islandwide. MS. TOKIHIRO: It's for the current position only. CHR. CABANAS: The position number, correct? MS. TOKIHIRO: Yes. CHR. CABANAS: Okay. So, if you selected Mr. not you but if Public Works selected Mr. Turner for the immediate position in East Hawaii, what happens to that list? It's only for that position now. MS. TOKIHIRO: Correct. CHR. CABANAS: And you only have one position in East Hawaii according to the organizational chart. What happens to that list? What happens to the status of Mr. Turner on that list —that's the second question. MS. TOKIHIRO: The list expires. CHR. CABANAS: Okay. So, there is no list already, `cause it's an internal recruitment —only for that immediate position. He was selected. The list is closed. He goes —what is his status on the list in NeoGov? MS. TOKIHIRO: But the list is for 90-days. CHR. CABANAS: The certification lasts for how long? MS. TOKIHIRO: Ninety days. CHR. CABANAS: Okay, that's not the list. The certification is the referral of names to the hiring department, correct? MS. TOKIHIRO: Correct. Page 99 Merit Appeals Board November 26, 2024 CHR. CABANAS: Okay. You see the technical difference there? So, you're talking about a list. There is no list. The list is closed because Mr. Turner got selected and he's now on a new probationary period for six months. That's the continuation of the examination process. So, Sommer, what happens to the recruitment? He's selected. What happens to the recruitment? MS. TOKIHIRO: The recruitment ends. CHR. CABANAS: Okay. The recruitment ends. Now, you saidI took some notes you said that your plan after your meeting was that a new recruitment would be done the following week those were your words. The new recruitment —you wanted a new recruitment, you the Public Works put him back in —as a TA —and the new recruitment would be the following week that was your plan. MS. TOKIHIRO: My intention was to expedite it, so as not to cause harm. I was trying to lay out a timeline for the department so that the correction could be made and because it was an internal recruitment, I was hopeful that we could get it reopened as quickly as possible in order to resolve the matter. CHR. CABANAS: So, what happened to the plan? MS. TOKIHIRO: Public Works did not follow through. CHR. CABANAS: You directed Public Works to reinstate Mr. Turner back to his former position? MS. TOKIHIRO: Correct. CHR. CABANAS: Right? Okay. Why didn't you follow-up with the Director of Public Works to do the new recruitment? MS. TOKIHIRO: I have followed up. They've continued toI keep telling them every time I get called to a meeting, whether it's Director Pause, whether it's the Mayor, with Randy RileyI keep asking that they turn in the RTF so that we can do the new recruitment to resolve this, rather than spend time trying to get me to change my mind. I the last meeting that I had with the Mayor was on April 20—and at that meeting I, again, was saying, "All we need to do is reopen the recruitment and this can be resolved and any additional information about meeting the qualifications can be submitted in the application process." I have appealed to everyone, numerous times. If this recruitment had been reopened, as I indicated, at the end of March, this could have been resolved by April 15''. CHR. CABANAS: So, was that done orally or in writing? MS. TOKIHIRO: When I spoke to them? Page 100 Merit Appeals Board November 26, 2024 CHR. CABANAS: All in oral —all were orally? (Inaudible.) MS. TOKIHIRO: Yes. CHR. CABANAS: (Inaudible.) MS. TOKIHIRO: Yeah, following the March 5' memo from me, which, in writing, said that the recruitment can be reopened —all subsequent —the subsequent discussions have been orally. CHR. CABANAS: Okay. But when you directed Mr. Pause to reinstate Mr. Turner, you did it, not only orally, but you put in writing? MS. TOKIHIRO: Correct. CHR. CABANAS: The force of it was in writing. So, why wasn't the force of you pushing for a new recruitment in writing? MS. TOKIHIRO: Because it's up to the appointing authority in a department to submit the RTF's. So, for example, in Public Works there are numerous positions where they're choosing to fill it on TA rather than submit the Request to Fill. So, after my initial notice as of March 5' and then in the subsequent discussions, I keep reiterating it but, ultimately, it's up to the Director of Public Works to request to fill that position. CHR. CABANAS: I understand that, but the thing with this is, you, yourself, mentioned that the TA could go on in definitely. Now, by certain contracts that's not true because certain contracts, it says —for so many days and then if you get the union's approval, you can extend it for another time period. I would have to look at the contract for this position, which I don't have with me but as the Director, you have more force and power to talk to the department head and get them to move `cause you cannot allow them to just continue a TA indefinitely —well, that's another issue, correct? MS. TOKIHIRO: Yes. I (inaudible) agree, but even when I tried to use my full authority as the Director and set up a timeline so as not to cause harm to Mr. Turner, the department and the Mayor and the Managing Director —decided to go in a different direction. CHR. CABANAS: Okay. I'm not going to belabor that anymore. I just wanted to bring that up. But I have another question. Sommer, when someone makes a mistake on your matter, what do you expect of that person? MS. TOKIHIRO: I expect people to accept responsibility for their mistakes, to learn from them, and to move forward. Page 101 Merit Appeals Board November 26, 2024 CHR. CABANAS: No, no, noa mistake on your matter. Let's say, someone made a mistake on your application and they reversed the decision. And you're the applicant now —and let's say I made the mistake on your application. What would you expect me to do? MS. TOKIHIRO: I would expect to that you would that I would have the opportunity to find out from you what occurred and to find out what happened going forward. What do I need to do? What needs to be corrected? Have clear communication. CHR. CABANAS: No, but I made a mistake. Let's say I made a mistake on your application. What would you expect me, as the staff member, to do? MS. TOKIHIRO: To accept the responsibility for having made the mistake and find a way to make it right going forward. CHR. CABANAS: Wouldn't I have (inaudible) -but wouldn't I have to explain to you, apologize to you, and have the individual —have you understand, "I'm really sorry, I made this mistake" —and have a discussion with the individual? MS. TOKIHIRO: Yes, that would be ideal. CHR. CABANAS: Then why wasn't it done with Mr. Turner? MS. TOKIHIRO: I don't know why Mr. Turner was never included in any of the discussions. I don't know why Mr. Turner did not reach out to me. I don't know why Mr. Turner was not part of any of these meetings that occurred with the Director of Public Works, with the Mayor, with the Managing DirectorI couldn't speak to that. CHR. CABANAS: But, Sommer, you're missing my point and my question. You don't know why the others didn't but why didn't you? You are the Director of Personnel. MS. TOKIHIRO: Yeah, I didn't because— CHR. CABANAS: Of Human Resources. MS. TOKIHIRO: I didn't because I was contacting the appointing authority to let them know I was voiding the appointment. I wasn't saying that I wasn't open to any discussion, but I was procedurally handling it the way that I thought it needed to be, which isfirst, notification to the Director of Public Works who made the appointment. And then, from then, it was to the Director of Public Works to notify the employee that he was going to be returned to his last held permanent and then II mean, I didn't say I was closed off to having a conversation with him or explaining it or I was never given the opportunity —and I didn't feel that it was my role, prior to me notifying the appointing authority of what needed to happen, for me to reach out and contact Mr. Turner. Page 102 Merit Appeals Board November 26, 2024 CHR. CABANAS: Well, you did contact Mr. Pause and that's okay, because he is the appointing authority. However, somewhere in this whole process, I don't see any consideration being taken of Mr. Turner and how he felt. He was confused. He didn't know really what was going on there's a lot of mis-communication, in my opinion, just listening to this hearing today —and the mistake was made by Human Resources —and you informed Mr. Pause. So, again, why didn't you reach out —you could have asked for Mr. Pause to come with Mr. Riley and Mr. Turner —and have a discussion to make it less painful. Because I'm assuming this was very painful. If it were me, I would be pissed off, frankly. MS. TOKIHIRO: I agree. And I'm not —and, again, that's why I was very concerned why Mr. Turner was never included in any of the discussions. I can tell you that, at this point, hindsight is always 20/20. I can look back at this scenario and see different ways that —yes, I should have been the one to communicate with Mr. Turner, at some level, because I communicated with Director Pause and left him with Director Pause to communicate with Mr. Turner and it didn't happen —and it didn't happen on the timeframe that I provided. And I took it in good faith that when I'm giving this directive, that it would be followed —regardless of whether or not someone agreed or regardless of whether or not someone wanted to do something differentlyI said, "This is what it is." And so, in good faith I handled my interaction with Director Pause, with the Mayor —with everybody on the same level of professional courtesy that I would expect. I wasn't anticipating that I was going to have to step in and do this for them. I was not intending any disrespect to them. I wanted to work with people to make this right. And, instead, despite my best effort to be clear, to be quick, to be fair, to be to provide notice to make sure that this really difficult situation impacted Mr. Turner and his family, as little as possible. Despite my best effort, something else happened. So, going forward, would I leave this to the appointing authority ever again? No. I didn't anticipate that we would be here. I didn't anticipate that this would be eight months later. I didn't anticipate that there was going to be such pushback over simply reopening a recruitment with the corrected qualifications for this position. CHR. CABANAS: Okay. Thank you very much. MR. KUNZ: Madam Chair? CHR. CABANAS: Any other questions? Mr. Kunz. MR. KUNZ: I wanted to make a comment that MR. HALVORSON: I have three questions. MR. KUNZ: Can I finish real quick? Page 103 Merit Appeals Board November 26, 2024 CHR. CABANAS: (Inaudible.) MR. KUNZ: Your mic. CHR. CABANAS: Right after Mr. Kunz, Jim, I'll call upon you. MR. KUNZ: Thanks, Jim. MR. HALVORSON: Thank you. MR. KUNZ: I had a comment regarding the appointing authority who, in my eyes, had ample time to contact Mr. Turner, who also —off -island or not —runs an organization that would take seriously what matters come through, who may have been TA'ing for him, who clears his emails, who looks at communications, and find which things are important going forward —which sounds like 20 days passed nothing happened —he may have jumped in, let's make some changes. I have down that Steve questioned Sommer's authority —"Who's her boss?" who her boss was and who does he see to make these changes. To me, that's negligent to what he was asked to do. He didn't do anything. So, I'm not making a decision here. I just want to make clear that there's a lot more going on than having a Director of Human Resources, who follow rules and make the change, and try to be as accommodating as possible when you have a department head who pretty much failed the process as well —other than fighting for Mr. TurnerI get that. And I just wanted to make sure that was on record because it's not —this is not only about a Rule change. It's timeliness. Or whether it happened decades later —it was found, and it's being rectified. But I'm almost certain that if the timing of informing Mr. Turner took place, this could have turned out a little differently —and it wasn't done. So, that's all I had to say. Jim —sorry. CHR. CABANAS: Thank you. Okay, Jim, go ahead. MR. HALVORSON: I've just got three questions. Director, you indicated that this was brought to your attention as a result of an internal complaint? MS. TOKIHIRO: Correct. MR. HALVORSON: Do you know who made the internal complaint? MS. TOKIHIRO: It was the other applicant for the position. Page 104 Merit Appeals Board November 26, 2024 MR. HALVORSON: But your review is the other applicant didn't meet the MQ's either? MR. TOKIHIRO: No, that's not —both applicants met the minimum qualifications for the position as it was advertised. But —yes — MR. HALVORSON: No, but in your follow-up review on the new qualifications, neither applicant met the qualifications or you couldn't tell? MS. TOKIHIRO: Correct, I could not tell. MR. HALVORSON: Okay. My second question is, and I want to clear up some confusion. When Mr. Turner was —he started the job in December and got reverted to his previous job in March. Did he have to pay back any of the salary that he had been paid during those two to three months? MS. TOKIHIRO: No. He was paid for the work that he'd performed. MR. HALVORSON: And since he has been TA'd he's been paid the TA'd rate? MS. TOKIHIRO: Correct. MR. HALVORSON: Do you know what the difference is between the pay of a regular appointee and a TA, if there is any? MS. TOKIHIRO: So, there may be a minor difference because for our employees we pay them on a half-month's salary basis versus when someone is on TA, they're paid the difference based on the number of hours worked. So, there may be a slight difference during some pay periods. MR. HALVORSON: But it's, basically, based on the same rate? MS. TOKIHIRO: Correct. MR. HALVORSON: Okay. And my third question isapparently, the —since 1994 there was not a change in the minimum qualifications on the classification. Do you know if —how many times this position was recruited for between 1994 and this particular recruitment? MS. TOKIHIRO: I don't know exactly from comments made during some of these meetings. I believe it may have been three or four times in the 30 years. MR. HALVORSON: And this was not caught by any of your predecessors? MS. TOKIHIRO: Correct. MR. HALVORSON: And you only reason you caught it was because somebody filed an internal complaint? Page 105 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: Correct. MR. HALVORSON: And that, essentially, forced you to look into it? MS. TOKIHIRO: Yes. MR. HALVORSON: Okay. That's all the questions I have. I just needed to clear that out. CHR. CABANAS: Okay. I have two more questions. So, going back to the minimum qualification requirements, on the existing posting that the two persons qualified for the experience part is the supervisory responsibility in the repair of construction equipment, correct? MS. TOKIHIRO: Supervisory experience CHR. CABANAS: Right? MS. TOKIHIRO: Yes. CHR. CABANAS: It's not any kind of supervisory experience. It's supervisory experience in the repair of construction equipment. MS. TOKIHIRO: Correct. CHR. CABANAS: Okay. So the part that's there, would you consider that the higher level of the experience requirement? In other words, in order to supervise the repair of construction equipment, doesn't one have to know how to repair the construction equipment in order to supervise the work being performed? MS. TOKIHIRO: That's where I feel that the journey -level experience requirement is so important for this position because I think thatcorrect, you do need to have a supervisory aptitude, but I think if you don't know how to repair something or you haven't repaired something —how could you correctly supervise that? So, that's where I feel that that journey -level experience —actually performing the repairs is vital to the position to make sure that the work is being performed correctly but, then, also to have an understanding of how those repairs are made so that we're making good decisions on when it's time to possibly refer a piece of equipment to another vendor for repair or understanding what the parts are that would be involved or understanding the number of hours that it will take to complete a repair. What is something that we're able to do in-house in our Automotive Division? What is something that is going to require either different tools or diagnostic things that need to be performed elsewhere at one of our other partners, like, Hawthorne. So, I've that's where I felt strongly that the actual repair experience requirement is vital to filling this position appropriately. Page 106 Merit Appeals Board November 26, 2024 CHR. CABANAS: Okay. Granted some of these minimum qualification requirements are very old. MS. TOKIHIRO: Yes. CHR. CABANAS: And the class specs. have not been amended over the years. MS. TOKIHIRO: Yes. CHR. CABANAS: So, again, going back to the MQ and the supervisory experience —it is the higher level experience versus just being a journey -level mechanic in construction equipment repair. The supervisory part is the higher level. If we were to do a training and experience evaluation, wouldn't —what would the points be? Higher for the supervision because this class of work is at the supervisory level? MS. TOKIHIRO: Yes, that could be. CHR. CABANAS: Yes. So, let me —and that's my second question. You mentioned that there was a rating for this particular recruitment —are scores given for internal recruitments? MS. TOKIHIRO: I think it's just to that their —they meet the qualifications. CHR. CABANAS: So, if they meet the qualifications as Applicant A and Applicant B, do they just get a certain amount of points for meeting the MQ's? MS. TOKIHIRO: The standard, I believe, is usually the 70 points. CHR. CABANAS: So, both persons got 70? MS. TOKIHIRO: If they met the minimum qualifications yes. CHR. CABANAS: Yes. Okay. So, there wasn't really an examination rating score to change. If you had two qualified applicants, both of them got 70 points MS. TOKIHIRO: Yes. CHR. CABANAS: You —do you apply veterans preference points in internal recruitments? MS. TOKIHIRO: I CHR. CABANAS: The answer is "no." MS. TOKIHIRO: No. Page 107 Merit Appeals Board November 26, 2024 CHR. CABANAS: Yeah. So, you have two applicants with the same score, being referred to the Department of Public Works. MS. TOKIHIRO: Yes. CHR. CABANAS: Using the correct class spec., which existed MS. TOKIHIRO: No. So CHR. CABANAS: Which existed. Not your changes later. What existed. MS. TOKIHIRO: What existed was the incorrect one. CHR. CABANAS: But you didn't know that at that time. MS. TOKIHIRO: Correct. CHR. CABANAS: Yes. Okay. Thank you. Okay, everyone, we asked our witness many questions. Does anyone else have other questions at this time? Otherwise, we will go into —have all the exhibits been entered? Yes, Mr. Hong? MR. HONG: I had (inaudible) follow-up questions. CHR. CABANAS: You have a follow-up? Okay. MR. HONG: Based on the Board's questions. I don't know if Mr. Lee has MR. LEE: I have no questions (inaudible). CHR. CABANAS: Okay. Go ahead, Mr. Hong. MR. HONG: You had testified in response to Ms. Cabanas' questioning that the recruitment end —ended when the list was —when my client was chosen from the eligible list. Do you recall that? MS. TOKIHIRO: Yes. MR. HONG: So, if you look at "Exhibit 4"—our "Exhibit 4" which is 24-03.14—and we're looking at "Exhibit 4." Do you see that? MS. TOKIHIRO: Yes. MR. HALVORSON: You're fading, again, Ted. Page 108 Merit Appeals Board November 26, 2024 MR. HONG: Sorry. "Exhibit 4" and you had testified that you wanted to be clear, be quick, be fair, provide Mr. Turner adequate notice. The only notice that you're giving him on March 2W, of 2024, is that the recruitment was being cancelled. Correct? MS. TOKIHIRO: Correct. MR. HONG: Nothing about an Administrative Review, right? MS. TOKIHIRO: No, that I notified Director Pause of that on March 5 h, 2024, and so he had the opportunity to tell Mr. Turner that. MR. HONG: But the letter that you sent, basically, only said that you're cancelling the recruitment, right? MS. TOKIHIRO: Correct. MR. HONG: So, in response to Mr. Kunz question about temporary assignment could be indefinite that temporary assignment depends on who the department director is, right? MS. TOKIHIRO: It's up to the discretion of the department, if they're going to offer temporary assignment. MR. HONG: And that means the department director has that discretion, correct? MS. TOKIHIRO: Correct. MR. HONG: And isn't it true, there's going to be a changeover in the Administration of the County? MS. TOKIHIRO: Yes. MR. HONG: So, the next administrator —or excuse me the next department director can say, "Guess what, I'm not going to extend the TAT' MS. TOKIHIRO: Correct. MR. HONG: So, that wouldn't be indefinite, right? MS. TOKIHIRO: Correct. MR. HONG: All right. And then, finally, I want you to look at County's "Exhibit W"—and I had it right in front of me. Of course there it is. County's "Exhibit W," 4-2, "Administrative review..."4-2(a). Do you see that? MS. TOKIHIRO: Yes. Page 109 Merit Appeals Board November 26, 2024 MR. HONG: And second sentence —it's actually third —begins —subsequent changes in the duties or responsibilities do not warrant an administrative review but has to be reported for a future or another position description. Do you see that? MS. TOKIHIRO: Yes. MR. HONG: That wouldn't apply in this case? MS. TOKIHIRO: No. Because this is an Admin. Review —subsequent changes in duties and responsibilities that's different than minimum qualifications. MR. HONG: Okay. Thank you. No further questions. MR. LEE: I have a follow-up question for Mr. Hong's questioning. If I may, Madam Chair? CHR. CABANAS: Okay. Sure, Mr. Lee, go ahead. MR. LEE: I'll have you look back at "Exhibit 4" which is the letter you sent to Mr. Turner. So, in your testimony with Mr. Hong just now, you testified that there's no mention in this letter of administrative review or any, really, explanation to Mr. Turner at all? MS. TOKIHIRO: Correct. MR. LEE: Was that because you had assumed that Director Pause would communicate that to Mr. Turner? MS. TOKIHIRO: Yes. MR. LEE: Was it a mistake to make that assumption that Director Pause would communicate that? MS. TOKIHIRO: Given where I'm at right now? Yeah. MR. LEE: Okay. No further questions. CHR. CABANAS: Thank you, Mr. Lee, and Ms. Tokihiro. So, that concludes the questioning for Ms. Tokihiro. Have all the exhibits been entered into the record? MR. HONG: Yes. CHR. CABANAS: And, Mr. Lee, your exhibits have been entered into the record? Page 110 Merit Appeals Board November 26, 2024 MR. LEE: Yes. CHR. CABANAS: Okay. Thank you so much. We are now at the stage where we are going to present closing arguments. So, Mr. Hong, you can go first. Three -minutes allotted for closing arguments. MR. HONG: Three -minutes —okay. Thank you, again, for all your time and effort, and I appreciate Judge Wiseman staying late. My argument is very —going to be very brief. If you look at our "Exhibit 4" they cancelled the recruitment. And she had —Ms. Tokihiro admitted that they couldn't cancelI mean, the recruitment had already ended by the time he was selected as a probationary employee. And so, my point is, if it looks like a duck, it walks like a duck, it quacks like a duck —it's a duck. And what you have here is a probationary employee and that he the utilization of the recruitment process and extenuated passed his appointment as a probationary employee, actually violates the merit principle and violates the law. So, we would ask the Board to reverse the decision and reinstate my client to the posi the supervisors position because the decisions that were made actually violate the merit principle and violate the law with respect to the department's own regulations. Thank you. CHR. CABANAS: Mr. Lee, your turn. MR. LEE: Thank you. First, I want to address Rule 104-2(a) of the Merit Appeals Board —an appellant must file an appeal within 20 days from the action. We had discussion about this. It's not notice, it's not realization —it is the action. But, even if we are to give Mr. Turner the benefit of the doubt and give him notice testimony was very clear. He had notice on two occasions first, from the email on March 20th then in subsequent conversation, which was —in my opinion, the clearer notice —from Director Pause on March 27th. His filing of his appeal on March —excuse me, May 1st, is well past that 20 days. Appellant is trying to create a new standard of realization, which is subjective and not the rule. But I want to proceed more toward the merits. And what we're talking here today is about doing the right thing, the right way. And it can't be one or the other, it has to be both. And maybe members here today think giving Mr. Turner's job back is the right thing, but it needs to be done the right way. In absence of knowing exactly what the right thing to do is, is that you have faith that doing things the right way will bring us to it or as close as possible. And that, Ladies and Gentlemen, of the Board, is the meaning of due process. It's not results -oriented. It's not saying this employee who may deserve it, who will be gravely impacted —we should give a pass to him. It's process -oriented because it's blind to the individual, it prevents favoritism here because what Page 111 Merit Appeals Board November 26, 2024 Director Tokihiro testified to —it's not just thinking about Mr. Turner, it's thinking about the process and it's thinking about the other applicants. The Appellant in earlier pleadings cited potential abuse but the Director, in this case, was doing her best to follow the rules. We would submit, she did follow the rules. She is obligated to investigate when an internal complaint is filed. She discovered a discrepancy and moved to correct it immediately. We had ample discussion about waiting for the next guy to fix it or waiting for the next applicant to fix it. But, if an employee got a job by a faulty process, you must correct it. That's a matter of conscience, if it isn't a matter of rule. So, following the rules is the hope to safeguard against favoritism. It's a safeguard against corruption. Making exceptions to that —and make no mistake, that's exactly what is going on here with the temporary appointment or what is advocated here to make an exception that would be, basically, going past those safeguards. Mr. Turner was the Administration's choice. The Administration asked Human Resources to bend the rules. That's exactly why Human Resources independent from Administration and the Merit Appeals Board is the appointing body. Doing otherwise, ignoring the error —whether it be Human Resources or not —would be a violation of the merit principle. Mainly because the class specifications were incorrect at the time of the probationary employment that would allow an applicant to be appointed to a position he's not qualified. CHR. CABANAS: Three -minutes. MR. LEE: Okay. Thank you. I can submit on those arguments. MR. HONG: Do I hear a rebuttal? CHR. CABANAS: Yes, you do. Go ahead, Mr. Hong. MR. HONG: Very brief rebuttal —but out of her own mouth, the Director testified, the last meeting occurred on April 29 h, 2004 24, excuse me. In terms of that meeting was to reverse or negotiate and try and work out a settlement. It was, obviously, unsuccessful that's when I submit, the time period should start running that's from her own mouth. In terms of due process, I find it ironic that Mr. Lee would talk about due process. The mistake was made by the Civil Service Department I mean, the Department of Human Resources. The only person suffering for that bad decision -making and that neglect is my client —and he shouldn't have to do that when he met all the requirements. Page 112 Merit Appeals Board November 26, 2024 And for them to use or bend the rules to say that now, somehow, this is a recruitment still when he's —what —six months into the job —I think is unconscionable. So, for those reasons, we would ask the Board, the Merit Appeals Board, to reverse the decision by the Department Director and allow him to get back into the job. CHR. CABANAS: Okay. Thank you, Mr. Hong. MR. HONG: Thank you. CHR. CABANAS: Okay. We're at this point where the hearing is ended. The Board will now enter into its deliberations in executive session. Can I please have a motion and second to go into executive session? MS. MATHEWS: So moved. MR. KUNZ: Second. CHR. CABANAS: Thank you. Any further discussion? If not, I'll start a rollcall vote with Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Cabanas —aye. Five ayes. Motion carried. We will now enter into executive session. Thank you, everyone. RECESS: The Chair called for a recess at 2:33 p.m. RECONVENE: The meeting reconvened at 3:06 p.m. in open session. HEARING RE COMMUNICATION NO. 24-03 (To convene following the hearing on Comm. No. 24-14) Note: At Its Meeting Held On August 28, 2024, The Merit Appeals Board (MAB) Voted To Hold This Matter In Abeyance And Refer It To The Hawaii Page 113 Merit Appeals Board November 26, 2024 Labor Relations Board (NLRB) For Their Decision Concerning Whether MAB Has Jurisdiction To Hear This Appeal. At Its Meeting Held On September 19, 2024, MAB Was Informed That HLRB Determined That The Board Has Jurisdiction To Hear This Appeal; However, MAB Will Await The Official Written Decision From NLRB. In Anticipation Of Receipt Of The Decision, A Hearing On The Merits Of The Appeal Was Scheduled For November 26, 2024. 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; And 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 "l"; 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 (Note: The Above Matters Were Listed On The Agenda Or Presented At The Merit Appeals Board Meeting Held On July 15, 2024. The Merit Appeals Board Denied The Appellee's Motion To Dismiss For Lack Of Jurisdiction As Well As Its Motion To Hold The Proceedings In Abeyance); And Communication No. 24-03.08, Received On July 25, 2024, Regarding Appellee's First Supplemental Exhibit List; Exhibit "W"; Certificate Of Service; And Communication No. 24-03.09, Received On July 25, 2024, Regarding Appellee's Pre -Hearing Brief; Certificate Of Service; And Communication No. 24-03.10, Received On July 25, 2024, Regarding Appellee's Notice Of Filing Petition For Declaratory Ruling With The Hawaii Labor Relations Board; Exhibit "A"; Certificate Of Service; And Page 114 Merit Appeals Board November 26, 2024 Communication No. 24-03.11, Received On July 30, 2024, Regarding Appellant's Application For Issuance Of Subpoenas; Declaration Of Ted H. S. Hong; Exhibits "A" — "C"; Certificate Of Service; And Communication No. 24-03.12, Received On August 8, 2024, Regarding Appellee's Motion To Continue; Memorandum In Support Of Motion; Declaration Of Justin C. Lee; Exhibits "A" — `B"; Certificate Of Service; And Communication No. 24-03.13, Received On August 14, 2024, Regarding Appellant's Witness List; Certificate Of Service; And Communication No. 24-03.14, Received On August 14, 2024, Regarding Appellant's Exhibit List; Certificate Of Service; And Communication No. 24-03.15, Received On August 15, 2024, Regarding Appellant's Return Of Service Signed Applications For Issuance Of Subpoena's (Reference Communication No. 24-03.11); And Communication No. 24-03.16, Received On August 26, 2024, Regarding Appellant's Memorandum In Opposition To Appellee's Motion To Continue Dated August 8, 2024; Declaration Of Ted H. S. Hong (Note: The Above Matters Were Listed On The Agenda Or Presented At The Merit Appeals Board Meeting Held On August 28, 2024); And Communication No. 24-03.18, Received On September 20, 2024 Regarding Appellant's Second Application For Issuance Of Subpoenas; Declaration Of Ted H. S. Hong; Exhibits "D" — "E" • And Communication No. 24-03.19, Received On October 28, 2024, Regarding Appellant's Amended Exhibit List; Exhibit "10"; And Communication No. 24-03.20, Received On November 18, 2024, Regarding Appellant's Return Of Service Signed Applications For Issuance Of Subpoena's (Reference Communication No. 24-03.18); And Communication No. 24-03.21, Received On November 19, 2024, Regarding The Hawaii Labor Relations Board Declaratory Ruling And Order (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. Mr. Wiseman, Ms. Bond, and Jim —Mr. Halvorson, can you hear me? MR. WISEMAN: Yes. CHR. CABANAS: Okay. All the parties are in the Hilo Council Chambers and we are now at 3:06 p.m. in an open session. Everyone, the Board has made a decision regarding the appeal of Mr. Turner. And so, I would like to request that a motion be made as reflected in our discussion in the executive session. Page 115 Merit Appeals Board November 26, 2024 MR. WISEMAN: I will make a motion. CHR. CABANAS: Thank you, Mr. Wiseman. MR. WISEMAN: Pursuant to deliberations during executive session, the Board finds that based on testimony of witnesses, documents submitted, and arguments of Counsel that Appellant's motion to reverse any decision of HR should be reversed. And Order will be issued and also that Mr. Turner may resume the position he was CHR. CABANAS: That he was in, the Construction Equipment Supervisor II position. MR. WISEMAN: May resume that position on December 1st, 2024. The Board further suggests that Appellant may submit, for the Board's review, any claim for an adjustment of wages. MS. BOND: I second. MR. WISEMAN: And he just the moment —one more. This Order shall issue in a Findings of Fact and Conclusions of Law will follow at a later time. MS. BOND: Now I second. CHR. CABANAS: Thank you. Any discussion? If not, I'll start a rollcall vote with Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Nay. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Ms. Cabanas —aye. Four ayes, one nay —motion carried to grant the motion for Mr. Turner to be reinstated into the Construction Equipment Supervisor II position, effective December 1st, 2024; and that MAB Page 116 Merit Appeals Board November 26, 2024 the Merit Appeals Board —will entertain your request for any compensation adjustments. So, you can submit that for our review at the next meeting, which is in December. And that the —our Deputy Attorney General will submit, in writing, the Findings of Fact and Conclusion of Law —and that you'll get a copy of that, Mr. Turner and Mr. Lee. And I just want to thank everyone. It's been a long day and it's been a very long process for you, Mr. Turner and Mrs. Turner. So, I just want to thank you for your patience and for your loyalty and valued service to the County of Hawaii. Thank you so much. And to Mr. Lee and Ms. Tokihiro, thank you for your testimony today and all the hard work that you folks have done. It's important to communicate to our employeesI just want to say that — even if there is an error that although we work with the department heads, it's always important to have that discussion with our employees so that they feel —still feel valued, even if the answer is "no" or if the answer is "yes" that they still feel valued and that is really important. So, on behalf of our Board members, I'm going to open it up in case our Board members want to make any comments. I'll start with Mr. Wiseman. David? MR. WISEMAN: Yes, thank you, Madam Chair. But I think you said it all. I'll just add that I think as in equity, in fairness, sometimes, bureaucratic rigidity has to bend a little. In this case, the Director did have discretion and I feel it was an injustice to Mr. Turner. So, that's all I have. CHR. CABANAS: Thank you. Ms. Bond. MS. BOND: My only thing is thank you very much to Mr. Wiseman and Mr. Kunz, who will be leaving us and I'm sorry to see them go. MR. WISEMAN: I'm going to be around next month. CHR. CABANAS: Thank you. Mr. Kunz. MR. KUNZ: No comments. Thank you. CHR. CABANAS: Okay. Ms. Mathews. MS. MATHEWS: Same with me. Thank you, everybody. CHR. CABANAS: As the Chair I just want to thank everybody for your presence today, your exhibits, your testimony. I know sometimes it's hard to make decisions but we try the very best that we can. And the Merit Appeals Board is the Board where due process is in existence where we try our very best to be fair to the Appellant as well as to the County. So, I just want to thank all of you and have a very Happy Thanksgiving. Page 117 Merit Appeals Board November 26, 2024 END 3:12:44 CHR. CABANAS: We still have our meeting to continue with. MR. WISEMAN: Madam Chair, I've extended beyond the time I have— CHR. CABANAS: I know. I really appreciate it. Thank you, David. But I appreciate that you could bring a lot of value to our hearing today. So, thank you so much. MR. WISEMAN: Pleasure in doing so. And I will be there in -person, in December. CHR. CABANAS: Okay, very good. MR. WISEMAN: I'm going off to Micronesia in two days. CHR. CABANAS: Oh, okay. MR. WISEMAN: (Inaudible) 52 hours. CHR. CABANAS: Wow, see you then. MR. WISEMAN: Okay. Bye, bye. MR. KUNZ: Thank you, David. Madam Chair, can we move the "Director's Report" up? CHR. CABANAS: Yeah, we can, since it's been a long day for Sommer. It's been a long haul. MR. HALVORSON: Do you need me anymore? CHR. CABANAS: No, Jim. Yeah, so we have J for our portion of the regular meeting. So, thank you so much for your guidance today. MR. HALVORSON: Oh, you're welcome. MR. KUNZ: Thank you, Jim. MS. BOND: Thank you, Jim. CHR. CABANAS: Take care. Have a Happy Thanksgiving. MR. HALVORSON: Happy Thanksgiving. MS .BOND: Happy Thanksgiving. Page 118 Merit Appeals Board November 26, 2024 MR. HALVORSON: Thank you. MS. BOND: So, we're moving the "Director's Report" up? Yes? No? MS. MATHEWS: Yes. MS. BOND: Thank you. MS. MATHEWS: I move that we move the "Director's Report" up —what? CHR. CABANAS: We still have quorum. So, go ahead, Ms. Mathews. MS. MATHEWS: So, again, I move that we move the "Director's Report" up. I think that's all MS. BOND: I'll second that. CHR. CABANAS: Okay, any discussion? If not, I'll start a rollcall vote with Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Ms. Cabanas —aye. Four ayes. Motion carried. MAB Quarterly Reports: July Through September 2024; MAB Monthly Divisional Activity Report: October 2024; MAB Monthly Divisional Activity Report: November 2024 CHR. CABANAS: So, the "Director's Report" is moved up in the agenda. (At this time, Ms. Sommer J. Tokihiro, Director, Human Resources Department, came forward.) CHR. CABANAS: And we have Ms. Tokihiro present to provide a MAB Quarterly Report for July through September 2024, followed by a MAB Monthly Divisional Activity Report for October and November 2024. Go ahead, Sommer. Page 119 Merit Appeals Board November 26, 2024 MS. TOKIHIRO: Okay. Where to begin. So, lot of things happening in HR and it's already the end of November, so it's hard to even remember the Third Quarter, since we're fast approaching the end of the Fourth Quarter. I don't have any big highlights that I wanted to provide to the Board, but I'm happy to answer any questions. CHR. CABANAS: Does anyone have questions? Suzi, any questions —no? Charlie, Gay? I think I have —for the Equal Opportunity/ADA report for July through September. It says 12 out of 34 internal inquiries/complaints relating to EO issues. What could that be"EO issues?" Equal Opportunity. MS. TOKIHIRO: Yeah. So, equal opportunityso, it could be anything. Equal opportunity in hiring CHR. CABANAS: In hiring? MS. TOKIHIRO: I'm not sure, I would have to ask Alika CHR. CABANAS: Yeah, if you can ask Alika—what does she mean by that? MS. TOKIHIRO: specifically, what those yeah. CHR. CABANAS: Now, let's see, what else. MR. KUNZ: I just had one quick comment. CHR. CABANAS: Yeah, go ahead. MR. KUNZ: If I can. CHR. CABANAS: Yeah. MR. KUNZ: I actually —sort of related, I guess. I just wanted to extend wishing Sommer well with the new Administration. I feel like you —we've all, kind of, worked together to have done some interesting things. I know just prior to you coming on board as well, but with the survey and with the goals and with coming up with that layman terms for our appellants and following with what you're putting forward and how you're trying to accelerate areas in recruitment and everything. I'm hoping it's as supported going forward. So, I just wanted to wish you well when you have —working under a different Mayor. MS. TOKIHIRO: Thank you. Page 120 Merit Appeals Board November 26, 2024 MR. KUNZ: Sure. MS. TOKIHIRO: Thank you, yeah. We're, definitely, reaching out to the new Administration offering training. We're doing an HR Boot CampI actually have that scheduled, I believe, on December 13'', so that we can put names to faces and really begin with connecting the right people with the right resources. And so, yeah, definitely, our intention to want to be supportive and helpful and provide the education to get everybody up to speed on what all these processes are, and continue to move forward with exciting things that I feel are happening in HR going forward but thank you for that. It doesn't hurt to get wished a little good luck. CHR. CABANAS: Okay. Any other questions or comments? I have one other question. For the —where was it —temporary appointments outside of an eligible list. I noticed the number was kind of high —was 25 appointments outside of a list for the period July through September. MS. TOKIHIRO: Yeah, so that was higher than the average previously. Oh, I thought 25 was for the quarter. CHR. CABANAS: Yeah, for the quarter. But looking at the other numbers, that's kind of high. MS. TOKIHIRO: Yeah, that is high, but that makes me almost question the number for the April to June period. CHR. CABANAS: Do you know why MS. TOKIHIRO: I'd have to follow-up on that and see exactly what that is. But I know that we've been offering, as kind of possible solutions to temporarily address vacancies while departments are recruiting for positions —we're reminding departments that they can use the TAOL option while they're recruiting to fill the permanent position. So, it could be that our departments are taking advantage of that while continuing their recruitments because, unfortunately, our list of continuous recruitments has grown again. So, that could be it. CHR. CABANAS: Okay. So, is thereI know I read the recruitment part about boosting the recruitments and the attendance at the fairs, the job fairs that's really good. But any big thing happening to advertise, especially, since you have a new Administration. You don't want to have too many TAOL's. MS TOKIHIRO: Yeah. So, working on theI know Michelle was working on the radio ad campaign, trying to get it across a bunch of different radio stations —still continuing the social media. And then, we've run some full —bigger notices in the newspaper just trying to spread the word in a variety of different ways. We've also been looking at more minimum qualifications for positions and seeing if there's ways that minimum qualifications could be reworded in our class specs. that would be a little bit Page 121 Merit Appeals Board November 26, 2024 more current and relevant and kind of address because thingsI mean, as kind of was discussed during the appeal today the class specifications and those minimum requirements — those —sometimes they're not updated as often. And so, you can look at qualification —and my question has been to my staff, "What is the aptitude or skill or ability that we're trying to get by identifying that specific qualification?" And go back and look at jurisdictional reviews —see how other people are writing it. See if we need to revise it because, I think, sometimes, our positions can be a little intimidating —if people feel that they're not going to meet the qualification or they don't know what the words are, they won't even apply —and so, looking at those things as well. We did also —we changed the minimum qualification for our entry-level engineering positions, so that they don't have to have a degree at time of application. They can be in their third year, so we can recruit people who are currently in school. Engineers have been hard to fill category for a really long time and we found that even when we're going to engineering career fairs, by their third year they're already finding jobs they have jobs by the time they graduate. So, we changed the requirement to be that, at the time of application, they have to have completed a certain number of credit hours, but with a degree upon time of hire. So, it's just to give us a little bit more flexibility so that we can change the way that we're recruiting. So, I'm excited about those things because it really becomes a collaborative process amongst all the staff to make sure that it works for Recruitment and it works for Classification and Pay —and we're consistent with other jurisdictions and just trying to get more to the heart of what we're looking for. MS. MATHEWS: May I ask a question? CHR. CABANAS: Mm-hmm. MS. MATHEWS: I don't know what the deal is on college interns, but if there were college interns that are focusing on human resources, et cetera, would it be useful to get several of them in, to go from the very beginning and look at the stuff and see what they (inaudible). `Cause they're looking at it from a completely different perspective and it's not taking away from the regular jobs everybody's trying to do with minimal staff. MS. TOKIHIRO: Right. MS. MATHEWS: And it just seem like a way to start —maybe this kind of thing that happened, would have been caught and especially if they, somehow, were doing it as a team —like, you have three of them or something. I don't know how that works, but it's just a thought. MS. TOKIHIRO: Yeah. So, we do have, like, our CVE Program that's in working with HCC they actually have to be in, like, CVE classes —but as far as volunteers or other internship opportunities yeah, certainly, that would be great if the opportunity presented itself. Yeah. Page 122 Merit Appeals Board November 26, 2024 CHR. CABANAS: Okay. Any other questions or comments? Okay, I think that's it then. Do we have a motion to accept and file the "Director's Reports?" MS. MATHEWS: So moved. MR. KUNZ: Second. CHR. CABANAS: Thank you. Any discussion? If not, I'll start a rollcall vote with Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Ms. Cabanas —aye. Four ayes. Motion carried and approved. MS. TOKIHIRO: Thank you. CHR. CABANAS: Thank you, Sommer. It's been a long day. MS. TOKIHIRO: Before I go, I just wanted to thank Charlie. I was actually really disappointed to get your to see that you were resigning from the Board. But I appreciate your service. It's been great working with you. Thank you for your time and, hopefully, we'll continue to see you as a volunteer for other County things, yeah. So, it has been a real pleasure working with you, and I appreciate your insights and the perspective that you share. MR. KUNZ: Well, thank you. It was working with you, as well —it was great, and I'm glad we met. I really think you're doing a really bang-up job and just stick with it. MS. TOKIHIRO: Thank you. Thank you, everybody. Happy Thanksgiving. CHR. CABANAS: Thank you, Sommer, same to you. Page 123 Merit Appeals Board November 26, 2024 Approval of Minutes (Item 4) July 15, 2024 (Regular Session); August 12, 2024 (Regular Session); August 12, 2024 (Closed Session/Comm. No. 24-13, 1 of 2); August 12, 2024 (Closed Session/Comm. Nos. 24-05 and 24-07 through 24-12, 2 of 2); and August 28, 2024 (Regular Session) CHR. CABANAS: Okay. We are now at the "Approval of Minutes." Yeah, it's quite a bit. So, I'm just going to read it all. (At this time, Chair Cabanas read into the record the meeting dates, listed on the agenda.) MR. KUNZ: Move to accept. MS. BOND: I moveoh, I'll second. You fast, Charlie. CHR. CABANAS: Any discussion? If not, I'll start a rollcall vote with Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Ms. Cabanas —aye. Four ayes. Motion carried. Thank you. Oh, let the record reflect that Mr. Wiseman left at approximately 3 p.m. Okay. Moving on, "Review of Executive Session Minutes." Review of Executive Session Minutes July 15, 2024: Director's Report (1 of 3); July 15, 2024: Comm. No. 24-03 (2 of 3); July 15, 2024: FY2024-2025 Annual Performance Evaluation (3 of 3); August 12, 2024: Director's Report (1 of 3); August 12, 2024: Comm. No. 24-04 (2 of 3); August 12, 2024: Comm. Nos. 24-05 and 24-07 through 24-12 (3 of 3); August 28, 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) Page 124 Merit Appeals Board November 26, 2024 (At this time, Chair Cabanas read into the record the meeting dates, listed on the agenda.) CHR. CABANAS: May I have a motion to accept and file or, approve and file, all of these executive session meeting minutes. MS. MATHEWS: So moved. CHR. CABANAS: Thank you. A second? MS. BOND: Second. CHR. CABANAS: Thank you. Any discussion? If not, I'll start a rollcall vote with Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Ms. Cabanas —aye. Four ayes. Motion carried. Director's Report (Item 5) MAB Quarterly Reports: July Through September 2024; MAB Monthly Divisional Activity Report: October 2024; MAB Monthly Divisional Activity Report: November 2024 (Previously taken out of order.) Communications (Item 6) CHR. CABANAS: Okay. "Communications" we don't have any. New Business (Item 7) CHR. CABANAS: "New Business" none. Page 125 Merit Appeals Board November 26, 2024 Unfinished Business (Item 8) Note: At The Merit Appeals Board (Board) Hearing Held On October 4, 2024, It Was Established That The Appellant Desired To Obtain Legal Counsel Before Proceeding On The Jurisdictional Issue. The Board Agreed And Requested The Appellant Provide An Update On The Status Of Obtaining Legal Counsel At Its Next Meeting Scheduled For November 26, 2024 (A Future Hearing Date On The Jurisdictional Issue May Be Scheduled Conditional Upon Whether The Appellant Is Able To Obtain Legal Counsel). Communication No. 24-13: Received On July 25, 2024, From Appellant, Appealing The Following Action By The County Of Hawai`i's Office Of The Mayor: An Employment Action Taken Under Chapter 76, Hawai`i Revised Statutes; And Communication No. 24-13.01: Received On August 29, 2024, From Appellant, Transmitting Documents Entitled "Representation And Correspondence." The Appellant Requests The Following: 1) The Hearing Be Delayed Until The Appellant Can Obtain Proper Legal Counsel; And 2) Merit Appeals Board Chair, Gabriella Cabanas, Be Recused From Making Any Decisions Involving Appellants Appeal; And Communication No. 24-13.02: Received On August 29, 2024, From Appellee Regarding Appellee's Position Statement; Exhibits "A" — "H" (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: We took care of "Unfinished Business." Announcements (Item 9) CHR. CABANAS: And we are now at "Announcements." I just want to thank Mr. Kunz for his time on the Merit Appeals Board —like others, I'm very saddened, Charlie, that you are leaving our Board because you bring a great perspective from your work experience with the State. And you have participated so outstandingly in our discussions with meetings and appeal hearings. I'm really going to miss you. But I have a letter for you and I'd like to read it, so we are all signing it. So, I'm going to have Suzi—when you come next time, sign it. Glynis will have the letter and for Mr. Wiseman as well. But it says, from all of us, "We are grateful for your service as a member of the Merit Appeals Board. It has been a great pleasure to have worked with you on the Board. Your commitment to uphold the merit system while being fair in the meetings and appeal hearings are greatly valued. We wish you good health, much happiness, and success in your future endeavors. With sincerest gratitude" —from all of us. Page 126 Merit Appeals Board November 26, 2024 So, thank you so much. MR. KUNZ: Thank you, guys, very much. CHR. CABANAS: And the lei we gave Charlie is from all of us. MR. KUNZ: Thank you. CHR. CABANAS: Glynis got the lei. MR. KUNZ: And thank you, guys. It's been really a privilege to work with all of you. Gabe, you and I go back, literally, decades. CHR. CABANAS: Really. MR. KUNZ: I think from the beginning of my career with the State till now, is like 41-frickin years. CHR. CABANAS: Yes. Yeah. MR. KUNZ: And, but it's been a privilege —and it's also been an honor, J, to be working with you. I know you've been —when you were a Councilman, you actually came to some of our going home meetings and stuff —at the Department of Labor, when you stepped in. And it's a delight working with Glynis. You are the frickin' backbone of this place. Without you, we sink. But thank you, guys, it's been an amazing journey. I wish you guys all well and hope those seats get filled expeditiously but thank you. I will miss you guys as well. CHR. CABANAS: You can always come visit us MR. KUNZ: I will come for Christmas lunch CHR. CABANAS: Yeah, there we go. MR. KUNZ: Okay, so that's the first (inaudible). I will sit in stuff and cause havoc. I will be one of thoseI'm going to sign in for any (inaudible) —and me, I have things to say. CHR. CABANAS: Or you can appear via Zoom. MR. KUNZ: But —thank you, guys, very much —and Happy Holidays. MS. BOND: Thank you, Charlie. CHR. CABANAS: Thanks so much. Page 127 Merit Appeals Board November 26, 2024 MS. BOND: Happy Thanksgiving. What's that? CHR. CABANAS: A lunch. Schedule Next Meeting Date (Item 10) The Merit Appeals Board Will Convene Its Next Meeting On Monday, December 16, 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: So that takes me to our scheduling of the next meeting day, which will be on Monday, December 16, 2024, at 8:30 a.m. what time should we meet on December 109. MS. BOND: Was that not the 8:30? CHR. CABANAS: No-9 a.m. MS. BOND: No, I have 10 on here. CHR. CABANAS: I'm sorry, I'm getting ahead of myself. The 8:30 is for the January meeting. MS. BOND: Oh, okay. CHR. CABANAS: So, 9 a.m. on December 16'', at the Hilo Council Chambers, Hawaii County Building, at 25 Aupuni Street, First Floor, Room 1401, in Hilo. MS. BOND: And then, we're having lunch afterwards? CHR. CABANAS: Yes. Is this the day that you have your Civil Defense meeting? MS. BOND: No, no, no —Civil Defense is on the 12''. If it's not, then it's the 16'h of January is my (inaudible). CHR. CABANAS: Oh, okay. So, yes, we can have lunch to follow. MS. BOND: Cool. Adiournment (Item 11) CHR. CABANAS: Okay. So, may I have a motion to adjourn? MR. KUNZ: Let me, let me, let me —so moved. CHR. CABANAS: Thank you so much, Charlie. Page 128 Merit Appeals Board November 26, 2024 MS. MATHEWS: Second. CHR. CABANAS: Any discussion? Let's start a rollcall vote with Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Ms. Cabanas—aye. Four ayes. Motion carried. Today's meeting is adjourned at 3:34 p.m. Respectfully submitted, Glyni Yama a, Secretary-Reporter APPROVED: Akt4 cuc0 /L4 . £2a(matt fit.Sr-- Gabriella M. Cabanas, Chair Merit Appeals Board Page 129