2025-05-23 Merit Appeals Board Minutes

Home

Merit Appeals Board May 23, 2025 parry bears its own cost and fees —and in those situations, the stakes are even greater. And so, the cost of litigation and going through that process in court would, essentially, mean higher cost beared by each parry. And in that situation, the court has maintained that each party —unless specifically ordered or provided by statute or rule —to bear its own cost and fees. And so, this expansion that Mr. Hong is asking MAB to do today, there's no jurisdiction for it. It is not in your Rules, there is no specific statute or rule that he can cite to that gives this Board jurisdiction to award attorney's cost and fees. And, ultimately, this appeal process is one in which pro se individuals have an opportunity to come before a board so that the board can take into full consideration whatever the circumstances were, the specific facts of that case to maybe prevent or prohibit or deter added costs because it's an individual that has that right. But when an individual chooses to hire an attorney, that is the choice that they are making and not one that needs to be beared upon the quote/unquote, "loser" of whatever the merits or the case is before the board. And, again, I'll just stress that there is no jurisdiction provided in the MAB Rules that allow such an award and there is no statute or rule that provides the authority that Mr. Hong is asking this Board to consider. Thank you. CHR. CABANAS: Thank you, Ms. Tavares. Mr. Hong? MR. HONG: Two points. Apples and oranges is the first one. Ms. Tavares' references that a statute or a rule is required to award fees and costs only applies if we're across the street in the courthouse. She can't show and has failed to show how, in an administrative appeal, the Board can't award fees and costs —and which brings me to the second point. Your Board Rules allows individuals to hire counsel, and they can hire counsel to represent them in this particular case. So, we submit that because this is a "make whole" remedy, part of that making whole or an employee whole is to also include their attorney's fees and cost. And, again, the whole idea of there have there needing to be a statute or a rule allowing for fees and cost, does not apply in the context of an administrative appeal —or appeal, in this particular case, of a department director's decision. Thank you. CHR. CABANAS: Okay, thank you, Mr. Hong. Ms. Tavares, you have anything else to add? MS. TAVARES: I will just say that the "make whole" provision, as I presented in my opposition, is what the Board appears to have intended with the decision it made regarding the specific language in the Order the Finding of Facts, Conclusions of Law and Order that the top individuals would, essentially, be made whole from the effective date in which this perceived wrong was committed. The "make whole" isregarding the employment practices, which is what this Board has jurisdiction to consider —not the choice, right, as Mr. Hong pointed out —it is a choice for an individual to hire counsel. It is not a requirement that they do so. So, that "make whole" does not go to everything else that was elected to be taken on by the Appellee. Page 18