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HomeMy WebLinkAbout2025-05-23 Merit Appeals Board MinutesREGULAR SESSION Merit Appeals Board Hilo Council Chambers Hawaii County Building 25 Aupuni Street, First Floor, Room 1401 Hilo, Hawaii May 23, 2025 (Friday) 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 Friday, May 23, 2025. Roll Call — Present Ms. Gabriella M. Cabanas, Chair Ms. Suzi Bond, Vice -Chair Mr. Daniel "Niel" Thomas, Member Also Present Mr. J Yoshimoto, Assistant Corporation Counsel, Office of the Corporation Counsel Ms. Sommer J. Tokihiro, Director, Human Resources Department (via Zoom) Mr. James E. Halvorson, Deputy Attorney General, Department of the Attorney General (via Zoom) Mr. Mark Disher, Deputy Corporation Counsel, Office of the Corporation Counsel Ms. Sherilyn K. Tavares, Deputy Corporation Counsel, Office of the Corporation Counsel Mr. Ted H. S. Hong, Esquire, Attorney at Law Mr. Lyndon P. K. Turner, Construction Equipment Repair Supervisor, 11, Public Works Department Mr. Jonah N. Kaye, Water Safety Officer II, Fire Department Mr. Tony M. Enriquez, Public Member Ms. Glynis Yamada, Secretary -Reporter, Human Resources Department Merit Appeals Board May 23, 2025 Call to Order (Item 1) CHR. CABANAS: Good morning, everyone. It is 9 a.m. on May 23rd, and the regular meeting of the Merit Appeals Board, is called to order. We have quorum today with three Board members. I'm Gabriella Cabanas the Chair of the Merit Appeals Board —and seated with me up here, to my left, is Ms. Suzi Bond, our Vice -Chair. MS. BOND: Good morning. CHR. CABANAS: Good morning, Suzi. And then, to my far right, our other Board member, Mr. Niel Thomas. MR. THOMAS: Good morning. CHR. CABANAS: Good morning, Niel. And to my immediate right, is our Assistant Corporation Counsel, Mr. J Yoshimoto. MR. YOSHIMOTO: Good morning, everyone. CHR. CABANAS: Good morning, J. And to my far left, in the back, is our Secretary -Reporter, Ms. Glynis Yamada. MS. YAMADA: Good morning. CHR. CABANAS: Good morning, Glynis. And appearing via Zoom from Oahu is our Deputy Attorney General, Mr. James Halvorson. Good morning, Jim. MR. HALVORSON: Good morning. CHR. CABANAS: And appearing from Japan, is our Director of Human Resources, Ms. Sommer Tokihiro. MS. TOKIHIRO: Good morning. CHR. CABANAS: Is it "good morning" there? Is it morning in Japan? MS. TOKIHIRO: It is still morning in Japan —it's about 4 a.m. CHR. CABANAS: Oh, boy. MS. TOKIHIRO: On Saturday-4 a.m. on Saturday. So —good morning. CHR. CABANAS: Well, we're happy that you could join us so early from so far away. Page 2 Merit Appeals Board May 23, 2025 MS. TOKIHIRO: My pleasure. CHR. CABANAS: And seated in the gallery, we have a number of individuals. So, I'll start - we have Mr. Mark Disher, from the Office of the Corporation Counsel; Ms. Sherilyn Tavares, from the Office of the Corporation Counsel; and Mr. Justin Lee, from the Office of the Corporation Counsel. We also have Mr. Lyndon Turner, employee, from Department of Public Works; we have Mr. John Kaye and Mr. Jonah Kaye —Jonah is an employee with the Hawaii Fire Department — to his left is Esquire, Mr. Ted Hong; and to his left isI'm assuming Mr. Tony Enriquez. Good morning —good morning to all of you. Thank you for coming this morning. We are situated in the Hilo Council Chambers, of the Hawaii County Building, at 25 Aupuni Street, First Floor, Room 1401, in Hilo, Hawaii. Addendum to Agenda (Item 2) CHR. CABANAS: Is there any "Addendum to the Agenda," Glynis? Okay, we have one communication that we received. It was electronically filed in the Third Circuit Court and that's Communication number 25-02.08, which I will be reading into the record later —in a few minutes. Statements from the Public (Item 3) CHR. CABANAS: Any "Statements from the Public" on any of the agenda items? Approval of Minutes (Item 4) CHR. CABANAS: If not, moving along, there are no minutes to be reviewed or approved today. Director's Report (Item 5) MAB Monthly Divisional Activity Report: May 2025 (Administrative Services Division, Classification & Pay Division, Equal Opportunity/ADA Division, Health & Safety Division, Labor Relations Division, Personnel & Organizational Development Division, Recruitment & Examination Division, Workers' Compensation Division) CHR. CABANAS: And so, we are now on the Director of Human Resources report. And I know the hearing is supposed to start at 9 a.m. according to our agenda regarding a number of communications as listed on the agenda. But I'm going to ask all of you, if there are any objections for us to take the "Director's Report" at this time because she is calling in from Japan. So, we'll try to move yes? Any Page 3 Merit Appeals Board May 23, 2025 MS. TOKIHIRO: It's actually okay. If you want to take the other business out of order, that's fine. I can do my report at the end. CHR. CABANAS: Okay, but we already have you and I don't see any objections. So, we'll go through it pretty quickly. MS. TOKIHIRO: Okay. CHR. CABANAS: Okay then you can go back to sleep. So, have the Board members reviewed the "Director's Report" for the month of May 2025? MR. THOMAS: Yes, I have. CHR. CABANAS: Okay. MS. BOND: Yes. CHR. CABANAS: Okay. Yes, we all have read it. Are there any questions for Ms. Tokihiro? MR. THOMAS: Is there anything she would like to call a special highlight to first? CHR. CABANAS: Okay. Sommer, is there anything that you'd like to present (inaudible). MS. TOKIHIRO: Sure. So, just some updates. At the —excuse meat the last meeting we were talking about the EO/ADA complaints that were noted in the quarterly report. And those, actually, it's not necessarily just complaints —it's a combination of complaints and inquiries and most of those are inquiries related to reasonable accommodation for our employeesso, that they are not something qualifies as a reasonable accommodationso, just wanted to clarify that. And along those lines, we do quarterly workshops with all of the HR reps. in the departments. We just had one on May 13''. And at that meeting Alika, the Manager for the ADA/EO Division, provided a presentation about determining whether something is a reasonable accommodation and then the process for that. So, we do get a lot of inquiries from departments about what qualifies as a reasonable accommodation. So her doing that presentation was very helpful and she provided a lot of scenarios to really give the HR reps. some good samples to refer to. I did want to note that we have tentative agreements in place related to collective bargaining for both UPW and HGEA. We are going to arbitration for three units that's going to be Bargaining Unit 12, our Police Officers; Bargaining Unit 11, Fire Fighters; and then our Water Safety Officers in Bargaining Unit 15. Page 4 Merit Appeals Board May 23, 2025 But we are happy to have tentative agreements with UPW and HGEA for the other units, and those need to be approved by county council —so that's in process right now. I wanted to highlight our Personnel and Organizational Development Division that's our training division. After a 15-year hiatus, we brought back the —what was before, the "Clerical Conference" but we're now calling it our "Office Support Staff Conference." So we scheduled two half -day sessions to allow maximum participation and still have coverage in our County offices. So, that was held on May 20'h and 21 "—and we had a total of 84 employees that attended that training. We also opened it up to staff at the University of Hawaii because we were able to utilize the Campus Center for that training. So, that was a great partnership as well —so some of the Hawaii Community College staff attended. I think that those were the main things. I know we've been talking a lot about the development of the new software with CherryRoad. They were on -site to do some development at the end of April. They are now on -site again doing intensive training because the Finance module of that system goes live on July 1. So, there's a lot of staff in HR because they're —our fiscal responsibilities that we're starting that intensive on -site training process. So, it's exciting to see but a little bit challenging —lots to learn. But, yeah, those are the major highlights that I wanted to give to you. Oh, also, noting in our Classification and Pay Division, I asked that Jamie provide more detail about the number of new classes of work that are being created but, also, amendments to the class specifications. So that's —letting you folks know that we're continuously reviewing class specs. and making updates. So, it could be updates to minimum qualifications or other related things —but, for the most part, when we're making amendments —it's to the minimum qualifications. And we also —in addition to creating new classes of work and reviewing revised PD's et cetera the Classification and Pay Division also reviews the intent to adopt new classes of work from other jurisdictions. So, it may not be a class of work that we have in our Compensation Plan, but when a new class is created anywhere within the State, all of the jurisdictions review and provide comments and feedback before that's adopted. So, it's a good opportunity for us, too, to see what other jurisdictions are adopting and it, kind of, creates a reference bank for our Classification and Pay Division when our departments come to us and say that there's something that they need, that they don't have —and we're able to, kind of, have that information available. So, Classification and Pay is working really hard keeping up with all of the changes. We have a lot of —we're asking our departments to make sure that all of the Position Descriptions are updated —and so, we've had a lot of those coming in as well. So, I think that that's, kind of, the things that I wanted to highlight at this meeting. I'm happy to take any questions. Page 5 Merit Appeals Board May 23, 2025 CHR. CABANAS: Niel? MR. THOMAS: I was going to ask you a question about Classification and Pay, but it's really a question of what's the scope of this activities just like it goes on and on and on and never ends, `cause you loop around and get back to the beginning before you're finished. MS. TOKIHIRO: Well, "yes" and "no." I mean, it's kind of an ongoing thing that it's a moving target —that they've (inaudible) of our overall class specification and they have to ensure equal pay for equal work in accordance with the HRS. And so, it's really defining what that class of work is. They set the initial pricing for that and then, after that, it's ongoing review. And then, evaluating if that class needs to be updated in some cases. If they hadn't used the class of work in many years, then the class would be abolished. So, yeah, it's an ongoing process —like most things in HR. MR. THOMAS: It might be nice to know someday how many amendments to these classes of work have to take place in a year and how many class —new classes of work get adopted and attempts toI mean, intents to adopt a new code. MS. TOKIHIRO: Yeah, we continue to provide MR. THOMAS: (Inaudible.) MS. TOKIHIRO: Pardon? MR. THOMAS: Are there 100 classes of work or 50 or MS. TOKIHIRO: Oh, no, there's hundreds and hundreds of classes of work. MR. THOMAS: (Inaudible.) MS. TOKIHIRO: Yeah. So, (inaudible) continue to provide those stats. on an ongoing basis, so that you folks can see how many amendments we're working and new classes we're adopting. MR. THOMAS: And then in the Health and Safety Division, there's a mention of maintaining electric vehicles. I'm mindful of the national administration's, sort of, going after States and making attempts, it seems, to get States to abolish electric vehicles. Are you feeling any pressure about that here? MS. TOKIHIRO: We haven't, yet. These electric vehicles and some of these initiatives to update our electrical charging stations, were already in place before this change of Administration. So enacting it now we'll stay tuned. Page 6 Merit Appeals Board May 23, 2025 MR. THOMAS: And then, question on the next page, about halfway down the destruction of firearms and the mention that there's no metal disposing equipment, so to speak. Is there a plan to deal with that or how —do we have a large amount of storage for these weapons? MS. TOKIHIRO: That's a good question. I'm not sure. I'll have to clarify with the Police Department on that. MR. THOMAS: Okay. MS. TOKIHIRO: I'm not sure (inaudible). MR. THOMAS: And does an Animal Control Safety Program but it's for the safety of the employees, right? Oh, farther down that page they're continuing to assist Animal Control with the creation of their various safety programs for their personnel and facilities. So, if we have dangerous animals in place MS. TOKIHIRO: Yeah. So, at our Animal Control Facility yeah, making sure that the employees have the training and resources that they need to be able to handle the situations safely. So, we've (inaudible) need recommendations and are working with both Public Works and the Animal Control Agency to implement those changes MR. THOMAS: Thank you that's all I have. CHR. CABANAS: Thank you, Niel. Ms. Bond, do you have any questions? Sommer, I'm going to just to piggy -back on Mr. Thomas' questions. So, for Classification and Pay, it might be helpful if —to give —because there're new members on the Board —an idea of what the Compensation Plan consist of, so that they understand the scope of the various classes of work in the County. MS. TOKIHIRO: Mm-hmm. CHR. CABANAS: So, just like what is the number —it might be over a thousand classes of work. And when I say "class of work" —like, Clerk III, Fire Fighter Recruit, Construction Equipment Mechanic those are classes of work for everyone that's present this morning. So, just to give the Board members an idea of what it consists of `cause it is a lot —and you're right, it's fluid —it's everlasting, changing, or needs to be reviewed as time goes by. MS. TOKIHIRO: Well, actually, what I'd like to do based on (inaudible) prior feedback as well and with the new Board members, I'd like to bring in the Managers, maybe, one at a time —and have them give an overview of each of their divisions. And then, you guys can —all of you can meet them and see them —and bring their staff. Page 7 Merit Appeals Board May 23, 2025 So, I know the Board has had a lot of business recently, but we will definitely get that on the schedule, so that you can meet them —ask questions of all of the Managers individually. CHR. CABANAS: And maybe a good time with —would be when we have our Board fully staffed. As everyone, you can see, there's only three Board members present and we're still waiting for the Administration to nominate two more individuals who would have to be confirmed by the County Council. Because the Merit Appeals Board consist of five Board membersa quorum is a minimum of three, so we do have quorum to conduct our official business. So, maybe once we are fully staffed, then you can bring the Managers on board and give a little update on each function. MS. TOKIHIRO: Yeah, absolutely. CHR. CABANAS: Thanks. I do have a couple of questions to wrap it up for you, Sommer. I made a note of that —okay, so you met with the Chancellor of HCC on employee training and expanding the internship opportunities. Did the Cooperative Vocational Education Program known as "CVE"—did it include that? `Cause I know the numbers have been historically low, in the last maybe 10 years or so —with referrals of students from the CVE Program at HCC. MS. TOKIHIRO: So, we've been briefly discussed that and then, more recently, Michelle Simmons, the HR Manager for Recruitment and Examination —had a meeting with UH and they're talking about expanding that CVE Program to include accounting and also information technology programs. So, that would be great if we could see that expanded to include those disciplines and —because those are areas we're always looking to fill positions within the County —and that would be a good way to utilize more of those positions and get more involvement in that program. CHR. CABANAS: Mm-hmm. And just for everyone's benefit —the CVE Program is budgeted by the Department of Human Resources. So, it's County funds where students work part-time, like 19 hours a week while they're in school. They get paid hourly for the work that they perform. It benefits the department, it provides the students with valued work experience, and many of the CVE students, historically —once they've finished their education at the University or HCC—it's been, primarily, with HCC—but they have applied for our recruitments and many, many have been employed —hired by the County through the formal recruitment process, and worked their way up the rank in the merit system. So, that's an important program. The last question is, what's happening with the Hiring Campaign and the Task Force on Hiring? The Hiring Campaign was brought up, I think, in November and again in February. This is mid -May —any progress on those two? MS. TOKIHIRO: Yeah. If you're specifically asking about the radio ads —we haven't pursued the radio ads but we are working on different types of advertisement. The HR Task Force has met regularly and we're seeing progress in restoring the number of eligible candidates, the referred lists to departments, we're also seeing an increase in the number of qualified applicants Page 8 Merit Appeals Board May 23, 2025 being referred. And so, we're pleased with the progress. We're working intensively on evaluating the vacancy data and then back to departments to ask them what we can do to help them facilitate filling those vacancies. In some instances and because there's been a lot turnover in HR we've actually been helping departments to send out their notices and facilitate interviews in our office, so that we can assist departments to fill those vacancies and get those needs met. So, there's been a lot of progress, a lot of good collaboration, and different ideas to move that forward. So, we're excited. I've mentioned in the report, we've partnered with Parks and Recreation. They've been putting up all of our different banners on County fences for areas that are accessed by the public to get the word out that way. We've been continuing to attend career fairs and working on different signage materials to, kind of, change it up a little bit —so, we're working hard on it. CHR. CABANAS: Yeah. So, the Task Force, did they recommend or implement other marketing strategies that resulted in the progress you've seen? MS. TOKIHIRO: We can't directly correlate that but (inaudible) a combination of all of these different efforts that we're putting forth to make those changes, and that's a revolving process as well —continue to change with the times. CHR. CABANAS: Mm-hmm. Okay. Thank you very much. Anything else? Otherwise, thank you, Sommer, for the report this morning. And I just wish you a safe stay there and a safe trip back to Hilo. MS. TOKIHIRO: Thank you. Thank you, everyone. CHR. CABANAS: Take care, now. Board members, may I have a motion to accept and file the "Director's Report?" MS. BOND: So moved. MR. THOMAS: Second. CHR. CABANAS: Thank you. Any discussion? If not, I'll start a rollcall vote with Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Mr. Thomas. MR. THOMAS: Aye. CHR. CABANAS: Ms. Cabanas —aye. Page 9 Merit Appeals Board May 23, 2025 Three ayes. Motion carried to accept and file the "Director's Report" for the month of May 2025. Communications (Item 6) CHR. CABANAS: Back on the agenda. We do not have any other "Communications." New Business (Item 7) CHR. CABANAS: There is no "New Business." Unfinished Business (Item 8) CHR. CABANAS: And so, we are now on "Unfinished Business" and it's the hearings for the following communications, which I will read —and I believe the Board will need to go into executive session to discuss the communications, but let me read what's on the agenda, for the record, if you can bear with me. (Chair Cabanas proceeded to read the following listed below.) 9:00 A.M.: HEARINGS RE THE FOLLOWING COMMUNICATIONS: Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Matters Listed Below, 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: And our Board's attorney for appeal hearings is Mr. James Halvorson from the Attorney General's Office. The first communication deals with Mr. Lyndon P. K. Turner appeal —Communication number 25-01.03. A. Communication No. 25-01.03, Received On March 27, 2025, From Ted. H. S. Hong, Esquire, Re Appellant's Motion For Award Of Attorney's Fees And Costs; Memorandum In Support Of Motion; Exhibits "1," — "2;" Declaration Of Ted H. S. Hong; And Communication No. 25-01.04, Received On March 28, 2025, From Justin C. Lee, Deputy Corporation Counsel, Re Appellee's Memorandum In Opposition To Appellant's Motion For Award Of Attorney's Fees And Costs CHR. CABANAS: Next on the agenda is regarding Mr. Jonah N. Kaye appeal Communication number 25-02.03. Page 10 Merit Appeals Board May 23, 2025 B. Communication No. 25-02.03, Received On March 27, 2025, From Ted H. S. Hong, Esquire, Re Appellant's Motion For Award Of Attorney's Fees; Exhibit "1;" Memorandum In Support Of Motion; Declaration Of Ted H. S. Hong; And Communication No. 25-02.04, Received On March 27, 2025, From Ted H. S. Hong, Esquire, Re Appellant's Notice Of Objections To Findings Of Fact, Conclusions Of Law And Order, Dated March 13, 2025; And Communication No. 25-02.05, Received On April 4, 2025, From Sherilyn K. Tavares, Deputy Corporation Counsel Re Appellee's Memorandum In Opposition To Appellant's Motion For Award Of Attorney's Fees And Costs; And Communication No. 25-02.06, Received On April 9, 2025, From Ted H. S. Hong, Esquire, Re Notice Of Appeal To Circuit Court; Statement Of The Case: Exhibits "1," — 62;" Designation Of Contents Of Record On Appeal; Order For Certification And Transmission Of Record; And Communication No. 25-02.07, Received On April 30, 2025, Submitted By Ted H. S. Hong, Esquire, Re Order For Certification And Transmission Of Record CHR. CABANAS: The additional communication that I mentioned earlier that we received on May 22nd, 2025, which was electronically filed in the Third Circuit Court, dated April 11, 2025. The communication is the Communication number is 25-02.08—it's Notice of Appeal. This concerns Mr. Jonah N. Kaye —"Notice of Appeal, Exhibit "A"; Statement of the Case, Designation of Record on Appeal; Proposed Order for Certification and Transmission of Record." C. Note: This 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. 24-13: 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"; And Communication No. 25-03, Received On March 4, 2025, From Ted H. S. Hong, Esquire, Re Notice Of Appearance Of Counsel For Appellant CHR. CABANAS: And the third on the agenda is the agenda states that this hearing —and this is regarding Mr. Tony Enriquez's appeal. The agenda states that this hearing concerns the preliminary issue of whether the Board has jurisdiction to hear his appeal, under Section 76-14 of the Hawaii Revised Statutes. Actually, the error there's an error listed on the agenda. So this Page 11 Merit Appeals Board May 23, 2025 is what the agenda states and we will discuss this further when we get to that point in the hearing —if it is determined that the Board has jurisdiction, an additional hearing will be scheduled concerning the merits of the appeal. So, for Mr. Tony M. Enriquez appeal, the Communications are the following. (Chair Cabanas proceeded to read the following listed below.) 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"; And Communication No. 25-03, Received On March 4, 2025, From Ted H. S. Hong, Esquire, Re Notice Of Appearance Of Counsel For Appellant CHR. CABANAS: Okay. So, let's go back —where I've read all the communications. Do I have a motion to accept and file all of the communications that I read for Mr. Lyndon P. K. Turner, for Mr. Jonah N. Kaye, and for Mr. Tony M. Enriquez? MR. THOMAS: A generic question as to the two of us who weren't there at the time. I'm sure we both readI know, speaking for myself, I've been through this material and I sort of have a general understanding of what it's all about. But is there any restriction on qualifications of Board members who are —who weren't present at the time and didn't attend the hearings and don't have (inaudible) CHR. CABANAS: As long as you've read the material in the binders provided to us by our Secretary -Reporter —and you both have read the material. MR. THOMAS: I read all that. CHR. CABANAS: Okay. MR. THOMAS: And thanks for getting it delivered in a timely manner. The neighbor picked it up in the rain while I was out of town and said, "I picked up your soggy package" but it turned out it was on the outside cover because it was in waterproofso, it's in great shape. CHR. CABANAS: Okay. So, for the record, Mr. Thomas, you have read the documents that I've read? Page 12 Merit Appeals Board May 23, 2025 MR. THOMAS: I have. Yes. CHR. CABANAS: Okay. MR. THOMAS: And I think we've had the same things and I'm prepared to (inaudible). CHR. CABANAS: Yeah, it is the same. Our binders are the same, yeah. MR. THOMAS: And I'm ready toI'm willing to make that motion. CHR. CABANAS: Okay. But before you do, Ms. Bond, have you read all the materials that I've read. MS. BOND: Yeah. CHR. CABANAS: Yeah. Okay. So ready MR. THOMAS: Okay, so moved. CHR. CABANAS: Okay. MS. BOND: I'll second. CHR. CABANAS: Okay. Any discussion? No? Okay, if not, I'll start a rollcall vote with Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Mr. Thomas. MR. THOMAS: Aye. CHR. CABANAS: Ms. Cabanas —aye. Three ayes. Motion carried to accept and file the documents the communications that I read that are listed on the agenda. A. Communication No. 25-01.03, Received On March 27, 2025, From Ted. H. S. Hong, Esquire, Re Appellant's Motion For Award Of Attorney's Fees And Costs; Memorandum In Support Of Motion; Exhibits "1," — "2;" Declaration Of Ted H. S. Hong; And Communication No. 25-01.04, Received On March 28, 2025, From Justin C. Lee, Deputy Corporation Counsel, Re Appellee's Memorandum In Opposition To Appellant's Motion For Award Of Attorney's Fees And Costs Page 13 Merit Appeals Board May 23, 2025 CHR. CABANAS: So, let's take the —Mr. Turmer's appeal. Mr. Hong and Mr. Turner —and for the County, Mr. Justin Lee. (At this time, Mr. Lyndon P. K. Turner, 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, came forward.) CHR. CABANAS: Okay. So, we're back in business —Mr. Hong, and —good to see you, Mr. Turnersorry, this is kind of taking long to get addressed —and, Mr. Lee, nice to see you again. So, I'm going to allow both parties —Mr. Hong and Mr. Lee to make statements at this time. So, we'll start with Mr. Hong, since your light is on. Okay. So, at this time we are in open session, okay —and our attorney is Mr. James Halvorson from the Deputy —from the Attorney General's Office. There is a motion by the Appellant for the award of attorney's fees and cost, and the Appellee's memorandum in opposition to Appellant's motion for the award of the attorney's fees and cost. So, the Board will now hear oral arguments on this motion. You have your light on, Mr. Hong, but I think I need to procedurally allow the County to make the oral argument first. So, Mr. Lee, you may proceed. MR. LEE: Well, I guess, shouldn't —it's Mr. Hong's motion so CHR. CABANAS: Oh, okay. MR. LEE: Yeah, I was expecting they go first (inaudible) CHR. CABANAS: Okay. So, I was right. Okay. Let me just change this that's on the minutes, okay not minutes but my outline. Okay, Mr. HongI was correct. Okay, so go ahead, Mr. Hong, and present your oral argument. MR. HONG: Good morning, Madam Chair, Members of the Merit Appeals Board. My name is Ted Hong and seated to my left is Mr. Turner. CHR. CABANAS: Could you speak a little louder and into the mic., for the record, Ted. MR. HONG: Sure. So, I wanted to make two points this morning. First, in terms of the American Rule cited by Mr. Lee, doesn't apply to administrative hearings. And he hasn't shown any authority that would suggest that the American Rule that litigant's pay for their own cost, in an administrative hearing —applies. So, that's the first point. Page 14 Merit Appeals Board May 23, 2025 The second point is regarding fundamental fairness. In terms of these proceedings for individual employees who qualify or have to proceed through the Merit Appeals Board —fundamental fairness dictates that their attorney's fees and costs will be paid. That's based on two reasons. One, the context of these appeals are —it's a "make whole" remedy in terms of the employee. And two, in the context of these types of issues, had these issues involve people who would be qualified under collective bargaining agreements, their attorney's fees and costs in a grievance, in an arbitration, would be paid for by the Union. But what you're doing isor what the County's suggesting is individuals who are in similar circumstances are forced to pay their own attorney's fees and cost, and I would submit that that's actually a prohibition or, certainly, would act as a prohibition for a lot of people who would qualify and forced to litigate their issues before not litigate but forced to bring their appeals to the Merit Appeals Board versus going through the grievance and arbitration process. So, it's fundamentally unfair for them to be responsible for paying their attorney's fees and costs. I would point out that if they were in a excluded management position, that' d probably be more equitable, `cause they're making a lot more money —but with respect to Mr. Turner or Mr. Kaye. they're not in those kinds excluded positions and it is burdensome for their for them to try and bring their appeal to the Merit Appeals Board. And, as the Board knows, these hearings went over several days. So, it is burdensome financially for individual employees, at this level, to bring appeals to the —or bring their appeals to the Merit Appeals Board —and we ask that the Board grant the motion and award fees and costs. CHR. CABANAS: Thank you, Mr. Hong. Mr. Lee. MR. LEE: Thank you. Mr. Hong makes some good points but, really, I think the fundamental trend is, he argues about —doesn't consider the reverse when the shoe's on the other foot. What Mr. Hong is proposing is a situation where the other side pays, if they lose. But the Board shall also consider the precedent it would be setting and the reason why the American Rule exists is —what if Mr. Turner had lost? Would he be liable for fees and costs? That would put a greater chilling effect upon bringing an appeal. So, I think the basis for the American Rule is that each party bears its own fees and costs —is the most equitable situation because it considers both scenarios of winning and losing. I would note that neither does Appellant cite any authority for the imposition of attorney's fees. The citation —and Mr. Hong cites to —as I note in my opposition relates to medical cost. So, we would submit that it's not on point. Page 15 Merit Appeals Board May 23, 2025 And we would also note that the director's decision, in this case, while the Board did find against it —there was no finding that it was frivolous or, basically, out of pocket. So, we would submit that —we would ask the Board to deny the motion. Thank you. CHR. CABANAS: Thank you, Mr. Lee. You have your light on, Mr. Hong, do you want to add on? MR. HONG: Very briefly a rebuttal, please? CHR. CABANAS: Go ahead. MR. HONG: Thank you. So, the rebuttal isagain, the American Rule doesn't apply because when —even when you look at the citation provided by Mr. Lee of the Kamaka Case regarding the Hawaii State Supreme Court, their court rules, their —also statutes there's also case precedent —prior decisions by the Hawaii State Supreme Court or other courts of appeal that would apply. That would apply, again, to litigation, where we're across the street, at the Third Circuit Court or the Courts. But this is not a court, this is not necessarily litigation. This is an appeal of the decision with respect to the Civil Service Director or the department in this case. So, again, it's not the American Rule. And even in the case where Mr. Turner lost and the County asked for fees and costs, we would be litigating that —why the County wouldn't be entitled to it and we're not asking that it's a blank check or you sign a blank check. We're asking you to take a look at our fees and costs and award what you think is appropriate and fair out of that. So, for those reasons, in terms of fundamental fairness, it just doesn't fit in terms of the context of these types of appeals. And the context, to me, is more similar to grievances and arbitrations in the collective bargaining context. And for those reasons, we would ask the Board to grant our motion. Thank you. CHR. CABANAS: Okay, thank you, Mr. Hong. I'm going to allow Mr. Lee to rebut, if he wants to, or you want to add anything else, Mr. Lee? MR. LEE: No, we'll submit on our arguments. CHR. CABANAS: Okay. Thank you, Mr. Lee. Okay, Mr. Hong, thank you. Page 16 Merit Appeals Board May 23, 2025 B. Communication No. 25-02.03, Received On March 27, 2025, From Ted H. S. Hong, Esquire, Re Appellant's Motion For Award Of Attorney's Fees; Exhibit "1;" Memorandum In Support Of Motion; Declaration Of Ted H. S. Hong; And Communication No. 25-02.04, Received On March 27, 2025, From Ted H. S. Hong, Esquire, Re Appellant's Notice Of Objections To Findings Of Fact, Conclusions Of Law And Order, Dated March 13, 2025; And Communication No. 25-02.05, Received On April 4, 2025, From Sherilyn K. Tavares, Deputy Corporation Counsel Re Appellee's Memorandum In Opposition To Appellant's Motion For Award Of Attorney's Fees And Costs; And Communication No. 25-02.06, Received On April 9, 2025, From Ted H. S. Hong, Esquire, Re Notice Of Appeal To Circuit Court; Statement Of The Case: Exhibits "1," — 62;" Designation Of Contents Of Record On Appeal; Order For Certification And Transmission Of Record; And Communication No. 25-02.07, Received On April 30, 2025, Submitted By Ted H. S. Hong, Esquire, Re Order For Certification And Transmission Of Record CHR. CABANAS: The next Appellant is pretty much in the same situation. Do you want to stay up here and we switch off with the County attorney, and I'll allow you you can stay in the room, Mr. Turner —but the next person is Mr. Jonah Kaye —and for the County, the attorney is Ms. Sherilyn Tavares, from the Office of the Corporation Counsel; and Mr. Jonah Kaye is the Appellant represented by Mr. Ted Hong, Esquire. (At this time Ms. Sherilyn K. Tavares, Deputy Corporation Counsel, Office of the Corporation Counsel; and Mr. Jonah N. Kaye, Water Safety Officer II, Fire Department, came forward.) CHR. CABANAS: So, for Mr. Jonah N. Kaye, there's a motion by the Appellant for the award of attorney's fees and cost, and the Appellee's memorandum in opposition to Appellant's motion for award of attorney's fees and costs. So, Mr. Hong, you may go first with your oral argument. MR. HONG: Good morning. Again, my name is Ted Hong, I represent Mr. Jonah Kaye, who's seated to my left. We would ask the Board to incorporate our arguments previously made in the Turner Case to apply in this particular case as well —and then, reserve any other time for rebuttal argument. Thank you. CHR. CABANAS: Thank you, Mr. Hong. Ms. Tavares. MS. TAVARES: Thank you. The County will just add to the arguments that were previously presented by Mr. Lee in that when Mr. Hong suggest that the American Rule only applies in matters of litigation that are handled in a courtroom, essentially, the American Rule is that each Page 17 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 Merit Appeals Board May 23, 2025 CHR. CABANAS: Mr. Hong, your light is on. MR. HONG: Just briefly. I will submit that based on Ms. Tavares' argument that the Board amend its Rules and prohibit Corporation Counsel and their attorneys from appearing on behalf of the department if the individual employee has to stand up and defend him or herself regarding a department director's decision, then it should be the department director that comes —and the County pays for that department director's time before the Board not pay for County attorneys to represent them. So, I submit that in terms of Ms. Tavares' argument —what's good for the goose is good for the gander. If the County can pay your attorneys to appear and defend their decisions but then, force the employee to pay for their attorneys to defend or actually challenge what happened to themI submit that that's (inaudible) unfair that if you're going to adopt Ms. Tavares' argument, then the Board should amend its Rules prohibit everybody from not having an attorney. CHR. CABANAS: Ms. Tavares, one more time —anything else? MS. TAVARES: I have no comment. CHR. CABANAS: Okay. Thank you very much. I want to thank both Mr. Hong and the County for presenting their oral arguments. The Board will now deliberate in executive session to consider the arguments and the facts that have been presented. So, can I please have a motion and a second for the Board to go into executive session? MS. BOND: So moved. MR. THOMAS: Excuse me —second. CHR. CABANAS: Thank you. Any discussion? MR. THOMAS: Is it customary for the Board to ask questions of the litigants based on their oral argument? A rule one way or the other? CHR. CABANAS: Well, you want to —Jim, Mr. Halvorson —Niel is asking if it's appropriate for the Board to ask further questions of the Appellant and the Appellee at this time. We have a motion and a second on the floor to go into executive session —but he's asking can we ask further questions of the parties at this time. MR. HALVORSON: I think that's up to the Chair, it's within your discretion. I don't think it's appropriate for (inaudible) the litigants themselves questions, but they can ask the attorneys —but that's up to —it rests within your discretion of the Chair. Page 19 Merit Appeals Board May 23, 2025 CHR. CABANAS: Niel? MR. THOMAS: Up to you. CHR. CABANAS: Do you feel comfortable asking a question to the attorneys? MR. THOMAS: That's fine, yes. CHR. CABANAS: Okay, I will allow it to the attorneys. So, Mr. yeah, which one do you on —for Mr. Kaye? MR. THOMAS: I could go either way, whoever chooses to answer, I suppose. CHR. CABANAS: Well, I can call Mr. Lee and Ms. Tavares up. MR. THOMAS: That's probably the way to do it. CHR. CABANAS: Yeah. And let's keep it separate. So, Mr. Kaye is already present, so ask Mr. Kaye first —ask Mr. Hong regarding Mr. Kaye. MR. THOMAS: So, Mr. Kaye, as to the American Rule and its applicability to a proceeding, such as this, an administrative agency proceeding —are there clear precedents both within Hawaii and in other States for the American Rule to be applied, one way or the other? CHR. CABANAS: Who are you asking that to, Mr. Thomas? MR. THOMAS: Oh, I was asking Counsel for Mr. Hong. CHR. CABANAS: Okay, you're asking it to Mr. Hong? MR. THOMAS: To Mr. Hong, yes. CHR. CABANAS: Okay. Okay, proceed, Mr. Hong. MR. HONG: In the context of these proceedings —no. There is no precedent regarding that. There is no case law. There is no statute. There is no rule. MR. THOMAS: So, we're making —we're being asked to make a precedent here that hasn't been seen before but you believe it's within our right to do that, I take it? MR. HONG: It is within your right. What you're being asked to do is to incorporate an entire body of law that applies to cases filed in court —whether it's this court —the Third Circuit Court or the United States Federal Judiciary system. Page 20 Merit Appeals Board May 23, 2025 You're being asked to superimpose that body of law and rules in the context of these administrative hearings that's what the County's asking you to do. MR. THOMAS: Okay. CHR. CABANAS: Ms. Tavares. MS. TAVARES: Quite frankly, the County's position is that's exactly what Mr. Hong is asking this Board to do and based on the fact that there is no precedent because this Board does not have jurisdiction to order such —should be pretty clear. He's asking this Board to start making a precedent that it has not done in the past —at least all the research that I have done, as well as my colleague has done. The administrative process there is no procedure because it is not specifically set forth in a statute or a rule that provides this Board the jurisdiction to do what he's asking to do. MR. THOMAS: Well, then, while your light is on —or you can put it back on —can you speak to the question of alleged fundamental imbalance of power here where the County gets to hire lawyers and, as this is formulated, not allow the employees to hire counsel without cost to them? MS. TAVARES: Essentially, the County's being sued that's the reality of what it is. And I have not been around long enough when all these rules and statutes were formulated as to the principle as to why it's not specifically permitted. If it was in the Rules, we'd have no opposition and we'd not be here making that argument. But, essentially, as Mr. Hong wants to compare apples and oranges you can't have it both ways. You can't say that an Appellant is permitted attorney's fees and costs, when they win but, if the County is successful"Oh, well, good job" you don't get to recuperate the cost of defending whatever action it is that is being challenged. And that's, essentially, what he's asking this Board to do. Not only create a precedent but, ultimately, do it in such a one-sided fashion that only a prevailing Appellant is going to be able to —should they have elected to hire counsel —would be entitled to that added cost. And, perhaps, that's something that should be discussed with the client at the beginning but, ultimately, there is no basis or precedent for it and that's the only reason for our opposition. MR. THOMAS: I know what you'll say, Mr. Hong, but go ahead. MR. HONG: The County's actually not being sued. We're challenging the department director or the decision of someone within that particular department. What are the remedies that would apply? You can't give general damages, special damages, punitive damages(inaudible) that would be available to us in the circuit court. You're only being asked to give, basically, back wages, "make whole" remedy in terms of putting the employee back in the same position that he or she would have been had this decision Page 21 Merit Appeals Board May 23, 2025 not occurred. And that money doesn't come from the litigation account for Corporation Counsel because I actually used to be there at the Corporation Counsel's Office. It comes from that department —that department's salary and wages account. So, the suggestion that we're suing the County and that's why they're showing up, that's erroneous. We're challenging the department director's decision. And, also, in terms of precedent, again, if this is a "make whole" remedy, if that's the whole purpose of doing this in terms of any employee coming to you, up to challenge these decisions then why should he be put —or she be put into a negative position, basically negative (inaudible) or something like that —where they're actually put into a worse position. And then, finally, in terms of hiring counselI understand that this is a double-edged sword, but that's part of why you guys get the big money, right, in terms of being on the Board is —sure, if we're going to come in —we're going to make a motion to —for fees and costs, you can make a decision because it's within your discretion. And if the County wanted to come in and make a motion for fees and costs, there's nothing to prohibit that. I understand that. And I understand that that's one of the consequences of you guys ruling today. But we're still asking for that to for my clients to be made whole. MR. THOMAS: Thank you. I appreciate both of you speaking to this issue. It's not an easy one I can tell. MR. LEE: Sorry, Madam Chair, I CHR. CABANAS: Mr. Lee, you wanted but before you do, I just want to make one statement to clarify what you said. We are not paid. We are volunteers. MR. HONG: That wasn't my attempt to (inaudible). CHR. CABANAS: We are civic -minded individuals. MR. HONG: I understand that and I appreciate that. CHR. CABANAS: Okay. So, okay —Mr. Lee, please present your concerns. MR. LEE: I thought that this be applied equally to the Turner appeal. So, I just wanted to address Member Thomas' question also. I mean, as far as CHR. CABANAS: Can you speak into the mic.? MR. LEE: Thank you. CHR. CABANAS: Thank you. MR. LEE: (Inaudible.) Page 22 Merit Appeals Board May 23, 2025 CHR. CABANAS: Yeah, just for the record. Yeah. MR. LEE: I'm cognizant of Mr. Hong's arguments about the right to an attorney and I think they're good points, but I think this is a question that comes up in civil litigation because there is no right to an attorney, right? There's only a right to an attorney in criminal proceedings. And I think we can all think of certain civil actions, including ones before this Board, that do involve the need an attorney in order for just to have their day before the Board or in court. But I think the reason why the American Rule exists is because —well, sorryI just lost my train of thought. But just to point out that there is no right to an attorney in civil actions and that the American Rule does apply in those civil actions. So, even in a case where a litigant is successful in a you could say, in a very unjust situation they're not entitled or they have to bear their own fees and cost. So, I think I'll rest it there. I lost my train of thought. I apologize. CHR. CABANAS: Okay, thank you, Mr. Lee. Okay, so we do have a motion on the floor with a second —Mr. Thomas had a question. Your light is on, do you have another question? Okay. Any further discussion? Okay. If not, I'll start a rollcall vote with Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Mr. Thomas. MR. THOMAS: Aye. CHR. CABANAS: Ms. Cabanas —aye. Motion carried for the Board to enter into executive session. It is now 10 a.m. So, I'm going to ask that the Hilo Council Chambers be secured for the Board to enter into executive session with present Members, our Secretary -Reporter, and our —Mr. James Halvorson from the Office of the Attorney General. If everyone else could wait outside of the Hilo Council Chambers and Glynis will secure the Hilo Council Chambers room. RECESS: The Chair called for a recess at 10:00 a.m. Page 23 Merit Appeals Board May 23, 2025 RECONVENE: The meeting reconvened at 10:29 a.m. in open session. A. Communication No. 25-01.03, Received On March 27, 2025, From Ted. H. S. Hong, Esquire, Re Appellant's Motion For Award Of Attorney's Fees And Costs; Memorandum In Support Of Motion; Exhibits "1," — "2;" Declaration Of Ted H. S. Hong; And Communication No. 25-01.04, Received On March 28, 2025, From Justin C. Lee, Deputy Corporation Counsel, Re Appellee's Memorandum In Opposition To Appellant's Motion For Award Of Attorney's Fees And Costs B. Communication No. 25-02.03, Received On March 27, 2025, From Ted H. S. Hong, Esquire, Re Appellant's Motion For Award Of Attorney's Fees; Exhibit "1;" Memorandum In Support Of Motion; Declaration Of Ted H. S. Hong; And Communication No. 25-02.04, Received On March 27, 2025, From Ted H. S. Hong, Esquire, Re Appellant's Notice Of Objections To Findings Of Fact, Conclusions Of Law And Order, Dated March 13, 2025; And Communication No. 25-02.05, Received On April 4, 2025, From Sherilyn K. Tavares, Deputy Corporation Counsel Re Appellee's Memorandum In Opposition To Appellant's Motion For Award Of Attorney's Fees And Costs; And Communication No. 25-02.06, Received On April 9, 2025, From Ted H. S. Hong, Esquire, Re Notice Of Appeal To Circuit Court; Statement Of The Case: Exhibits "1," — 62;" Designation Of Contents Of Record On Appeal; Order For Certification And Transmission Of Record; And Communication No. 25-02.07, Received On April 30, 2025, Submitted By Ted H. S. Hong, Esquire, Re Order For Certification And Transmission Of Record CHR. CABANAS: Okay, welcome back, everyone. It is now 10:29 a.m. and the Merit Appeals Board is now in open session. We have discussed at length the motions made for Mr. Lyndon P. K. Turner and Mr. Jonah N. Kaye. And so, at this time, I would like to entertain a motion on both of them for the awarding of attorney's fees and cost, as we discussed in executive session. Okay. May I have a motion? MS. BOND: I move that we deny the request to award attorney's fees and cost for both Mr. Turner and Mr. Kaye. MR. THOMAS: Second. CHR. CABANAS: Is there any discussion? If not, I'll start a rollcall vote with Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Mr. Thomas. MR .THOMAS: Aye. Page 24 Merit Appeals Board May 23, 2025 CHR. CABANAS: Ms. Cabanas —aye. Motion carried to deny the request of awarding attorney's fees and cost for both Mr. Turner and Mr. Kaye. I want to thank you, Mr. Hong, and Mr. Lee, and Ms. Tavares, for your representation on these two cases —and to Mr. Turner and to Mr. Kaye. MS. BOND: Mr. Halvorson will be writing the CHR. CABANAS: Mr. Halvorson thank you, SuziMr. Halvorson will be writing the Decision and Order and it should be forthcoming to both parties. MR. HONG: Thank you. CHR. CABANAS: Okay, thank you. C. Note: This 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. 24-13: 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"; And Communication No. 25-03, Received On March 4, 2025, From Ted H. S. Hong, Esquire, Re Notice Of Appearance Of Counsel For Appellant CHR. CABANAS: Okay, so we are still continuing on for the appeal on Mr. Tony M. Enriquez. (At this time, Mr. Tony M. Enriquez, Appellant, and Mr. Ted H. S. Hong, Legal Counsel for Mr. Enriquez; and Mr. Mark Disher, Deputy Corporation Counsel, Office of the Corporation Counsel, came forward.) CHR. CABANAS: Hold on, I'm going to just take a pause to discuss with our Secretary - Reporter. Okay. We'll take a five-minute break. Page 25 Merit Appeals Board May 23, 2025 RECESS: The Chair called for a recess at 10:33 a.m. RECONVENE: The meeting reconvened at 10:38 a.m. in open session. CHR. CABANAS: Okay, it is 10:38 a.m. and the Merit Appeals Board is back from a short recess. Going back to the agenda and the verbiage listed, as I read earlier it states, "This hearing concerns the preliminary issue of whether the Board has jurisdiction to hear the appeal of Tony M. Enriquez under Section 76-14 of the Hawaii Revised Statutes." I've been informed by our Secretary that that is actually an error. It should read, "...to schedule the hearing on the jurisdictional issue..." and there was some letters that was sent to you, Mr. Hong, and Mr. Disher. So Mark Disher is the attorney from the Office of the Corporation Counsel for this appeal, and Mr. Hong is representing Mr. Tony Enriquez for this appeal. So, Glynis has informed me that there were two letters that were sent —March 14d', 2025, which you should have received and it stated that the Board will set deadlines for the submission of documents. And then, there was another letter where that was supposed to have occurred on April 22nd, right. And then another letter was sent to reschedule the letter was dated April 14 April 15d'. So, she realized that she had made an error, she provided the wrong information to Ted Hong re Mr. Enriquez' hearing today. MAB is supposed to only set a future hearing date on the preliminary issue of jurisdiction as well as setting the deadline dates for the submission of their position statements on this issue. So, Mr. Hong and Mr. Disher, we can proceed and set the deadlines for submission of documents —is that okay with you, that we do that today? MR. HONG: Yes. Morning, Madam Chair, Members of the Board —Ted Hong on behalf of Mr. Enriquez, who is present sitting to my left. That was my understanding also in terms of the hearing today, to set the actual hearing on jurisdiction and the deadlines for the submission. CHR. CABANAS: To set —I'm sorry, the MR. HONG: The deadlines for submission of documents— CHR. CABANAS: Yes? MR. HONG: that that would be today you were going to set those deadlines. CHR. CABANAS: Okay. Mr. Disher? MR. DISHER: Yes, that's my understanding as well. I'd just —so, the —Mr. Enriquez intends to oppose the jurisdictional issue and another's a pending matter regarding this allegations before Page 26 Merit Appeals Board May 23, 2025 the Hawaii Civil Rights Commission. So, I would just —I'm just wondering, if there's a need for delay or CHR. CABANAS: YeahI mean — MR. DISHER: litigation. CHR. CABANAS: I mean, in all fairness to Mr. Enriquez, what transpired with his filing to the Hawaii Civil Rights Commission MR. HONG: Well CHR. CABANAS: —did theyI remember it being said that they didn't accept his complaint, is that correct? MR. HONG: They issued him a notice of dismissal right to sue letter —I think it was May 12'h May 12'h of this month. CHR. CABANAS: So, they're not acting on his concerns? MR. HONG: That's correct. CHR. CABANAS: Okay. So, now it's before the Merit Appeals Board. MR. HONG: Right. And I read through Mr. Disher's position statement regarding jurisdiction and that's why I would want the opportunity to submit a written opposition CHR. CABANAS: Okay. MR. HONG: to his position statement. CHR. CABANAS: Okay, I get it. Okay. So, Communication number 24-13.01 where the Appellant request the following the hearing be delayed until the Appellant can obtain proper legal counsel that has been taken care of, you are his Legal Counsel. And, Number 2, the Merit Appeals Board Chair —meaning myself —be recused from making any decisions involving his appeal. I've already stated my position on that, right? Right. MR. HONG: Yes, thank you. CHR. CABANAS: Okay. And that I'm not recusing myself from hearing this appeal —okay, for a number of reasons. I feel I can be objective and, Number 2, we wouldn't have quorum. MR. HONG: I explained that to my client. Page 27 Merit Appeals Board May 23, 2025 CHR. CABANAS: Okay. And is your Client, Mr. Enriquez, aware that you and I have worked together when you were the Assistant Corporation Counsel? Does he know that? MR. HONG: No, he doesn't know that. So yeah. CHR. CABANAS: Could you please explain that to him? MR. HONG: So, in terms of potential conflict that Ms. Cabanas has disclosed, in the Kaye and Turner case, for example, that she and I have worked together while I was Assistant Corporation CounselJ Yoshimoto's position —and when she was in the Department of Civil Service or is it Human Resources —at some point it changed, but I can't remember (inaudible). CHR. CABANAS: At some point it changed from Department of Civil Service to Department of Human Resources. And, Mr. Enriquez, it's been years since I've seen you. When I read everything that you submitted, as far as for your appeal, your name was familiarit, kind of like, rang a bell, like, "Oh, your name is familiar to me" —'cause it's been over 20 years. But when I read further that you were "job placed" I knew I had job placed you at —back then from to the position of Motor Vehicle Control Inspector I. Now, Mr. Enriquez, I was quite surprised that I have to address it because I want to be fair to you as well as to the County that when I job placed you I was lobbying, actually, for you with the Police Department to get you into another position that was my job, as the Recruitment and Examination Manager. And back then I didn't know if you realized but when I made the referral of you to back to the Police Department a department that you were employed with —sometimes the employee doesn't realize how much I'm being proactive in trying to job place the individual. First of all, determining whether you met the minimum qualification requirements for that position, is it a suitable position for you within your capabilities, and that, "Hey, Police Department, don't forget Mr. Enriquez is still your employee." So, the referral was made in writing to the Police Chief not disclosing what physical ailments or other ailments you had. It's just stating, "You could not return to your job as a police officer. The Motor Vehicle Control Inspector position is the suitable position for your employee. Please consider him for the position" which they did, and then you were hired. Okay. So, I was a little surprised that you wanted me recused from the hearing because I felt that I had helped you and everything was proceeding okay, that you perceived that I gave you mis- information and it's been years. So, I've tried to recall what was said and what was not said, but I'm here to —what I'm trying to say is, Mr. Enriquez, that I'm here to hear all the facts in a non - biased way. Yeah. And that's my position that I'm here to hear your side and I'm here to hear Mr. Disher representing the County side. And so, that's why I did not recuse myself. Okay. Page 28 Merit Appeals Board May 23, 2025 So, moving it along, we have looked at —Glynis has helped the Board in finding time here in the Hilo Council Chambers for a hearing the next hearing date being July 18'', 2025. I know you're grimacing, Mr. Hong, that it's so far away, but we have an agenda already set for our June meeting —and the next meeting is July 18''. So, Mr. Hong and Mr. Disher, are you both available along with Mr. Enriquez that day? And we're looking at 9 a.m. in the Hilo Council Chambers. MR. DISHER: I should be available. I do have other court hearings in Kona at 1:30 that day. CHR. CABANAS: Oh. MR. DISHER: Yes. CHR. CABANAS: That's a tight schedule. Glynis, our Secretary is saying it's only on the jurisdiction, so it shouldn't take that long but I don't want you speeding over the Saddle Road either. So, July 18'', is that workable? MR. DISHER: Yes, if it were heard, pretty much, right away. Yeah. CHR. CABANAS: We'll make it the first thing on the agenda. Okay, so here, in the Hilo Council Chambers. I'm going to read the deadlines for both parties to submit your position statements, which are limited to 20 pages, and any supporting documentation regarding any preliminary issueexample, whether the Board has jurisdiction to hear the appeal or any other preliminary concern —and the deadline is June 12'', close of business, at 4:30 p.m. This would only be a hearing on this issue and will not be on the merits of the appeal. This deadline is 15 calendar days prior to June the June 27 h, 2025, deadline. Now, the June 271h 2025, deadline is for both parties to respond —it's your responsive pleadings and that would be by 4:30 p.m. And this deadline is 21 calendar days prior to the July 18'', 2025, hearing date. You would need to submit all documents to the Board's Secretary, which is Glynis, via email and regular mail, or hand -delivered —and to the opposing party. MAB requires 1-original and 8-copies for all submittals, and 1-copy to the opposing parry. For the Appellant you are to number and tab your exhibitsso, Number 1, 2, 3, 4, 5, et cetera. For the Appellee you alphabetize and tab your exhibitsA, B, C, D, E, et cetera. We will send a certified letter to both parties notifying you of the date, time, location, and the respective deadlines. The date, time, and location of the hearing will be July 18, 2025, 9 a.m., in the Hilo Council Chambers, of the Hawaii County Building, at 25 Aupuni Street, First Floor, Room 1401, in Hilo, Hawaii. Mr. Hong? Page 29 Merit Appeals Board May 23, 2025 MR. HONG: Madam Chair, we waive the requirement of any certified or registered mail and the reason is two -fold —altruistically save the County some cost, but to —I don't want to stand in the line at the airport post office to retrieve that certified mail. So, if you send it regular mail, we'll get it. CHR. CABANAS: Okay. Well, we were going to send it regular mail MR. HONG: Oh, I thought— CHR. CABANAS: or do you send it certified mail? Oh, okay —Glynis says we are required to send it certified mail in accordance with HRS. Okay MS. BOND: What's "HRST' CHR. CABANAS: Hawaii Revised Statutes. MS. BOND: Oh, okay —sorry. Acronyms (inaudible). CHR. CABANAS: Okay. So, sorry, Mr. Hong, that's the requirement —legal requirement. MR. HONG: Sure. CHR. CABANAS: Okay. So, if the hearing date, time, and deadlines, are agreed upon —Board members, you are available, right? MS. BOND: Yeah. MR. THOMAS: I'm looking and seeing yes, I am. CHR. CABANAS: Okay. So that we have quorum. I need a motion to approve the hearing date, July 18'', 2025; time, 9 a.m.; and all the deadlines that I read for the respective submittal of documents. And we will send both parties a letter with all the information as to the deadlines, etcetera. Mr. Fisher? MR. DISHER: Mr. Disher—but I CHR. CABANAS: I mean, Mr. Disher (inaudible). MR. DISHER: It's okay, I get it all the time —Fisher. CHR. CABANAS: Mr. Disher. MR. DISHER: Just for clarificationso, the County actually already submitted a Position Statement Page 30 Merit Appeals Board May 23, 2025 CHR. CABANAS: Oh, okay. MR. DISHER: (Inaudible) June 12'h will likely be Mr. Hong's Position Statement, and thenI guess, I would respond on the 27�'. CHR. CABANAS: Okay. Thank you very much. Mr. Hong? MR. HONG: Thank you. Nothing further. CHR. CABANAS: Okay. MS. BOND: I move that we approve the date of July 18'h for the hearing on this matter. CHR. CABANAS: Second? MR. THOMAS: Second. CHR. CABANAS: Thank you. Any discussion? If not, I'll start a rollcall vote with Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Mr. Thomas. MR. THOMAS: Aye. CHR. CABANAS: Ms. Cabanas —aye. Three ayes. Motion carried to set Mr. Tony Enriquez' appeal hearing for July 18'', 2025, at 9 a.m., in the Hilo Council Chambers of the Hawaii County Building. Okay. So Glynis has indicated that —Mr. Hong, you have the Appellee's Position Statement in your binder. It's Communication number 24-13.02. MR. HONG: Yes, I do. And I just want to clarify, for the record, that when we were going over the conflict in discussion, that I said that I did have the position that J Yoshimoto currently has certainly didn't do as well a job as J Yoshimoto's been doingso, I just wanted to clarify that for the record. CHR. CABANAS: Okay. Anything else? Okay. I want to thank both Mr. Disher, Mr. Hong, and Mr. Enriquez, for coming today. Thank you so much. MR. HONG: Thank you. MR. DISHER: Thank you. Page 31 Merit Appeals Board May 23, 2025 MS. BOND: Thank you. And are we done with Jim at this point? CHR. CABANAS: Let me see yeah, I think we are. So, Jim, you will be in touch with us? MR. HALVORSON: Yes. CHR. CABANAS: Okay. And you are available July 18'h as well? MR. HALVORSON: Yes. CHR. CABANAS: I should have asked you that earlier. Okay. Thank you so much, Jim, have a nice weekend. MR. HALVORSON: Okay, thank you. You, too. MS. BOND: Have a good long weekend. CHR. CABANAS: Take care. Announcements (Item 9) CHR. CABANAS: Okay, do we have any "Announcements?" No? MS. BOND: There will be a lovely Memorial Day service up at KMC at 11:00 on Monday, in case —and you might even see a volcano going off. CHR. CABANAS: Oh, okay. Schedule Next Meeting Date (Item 10) The Merit Appeals Board Will Convene Its Next Meeting On Tuesday, June 24, 2025, At 9:00 A.M., At The Hilo Council Chambers, Hawaii County Building, 25 Aupuni Street, First Floor, Room 1401, Hilo, HI 96720 CHR. CABANAS: Okay. So, we're scheduling our next meeting date for June 24 h. It's a Tuesday, at 9 a.m., at the Hilo Council Chambers of the Hawaii County Building, at 25 Aupuni Street, First Floor, Room 1401, in Hilo, Hawaii. MR. THOMAS: At 9:00, right? CHR. CABANAS: Nine o'clock. That's going to be a long day because we will be evaluating the Director of Human Resources. MR. THOMAS: (Inaudible.) Page 32 Merit Appeals Board May 23, 2025 CHR. CABANAS: And we have the hearing for Mr. Ikaika-Smith. MR. THOMAS: Will we also see those documents, like, a week ahead of time? CHR. CABANAS: Yes, Glynis will prepare the documents. MR. THOMAS: Thanks, Glynis. CHR. CABANAS: Anything else? MR. THOMAS: So, (inaudible) run that tillmaybe, 1:00 or something. CHR. CABANAS: Oh, it might be longer. MS. BOND: No, it might be more. CHR. CABANAS: It's going to go longer. MR. THOMAS: Okay. CHR. CABANAS: It might be a full day, like, to 4:00. MR. THOMAS: All right, thank youI'm not troubled by that, I just — MS. BOND: Yeah, the last one was a long CHR. CABANAS: I know the Administration is looking for other nominees. We might have one person, but I don't know if it's for the June or July meeting. MR. THOMAS: Well, hooray for that. CHR. CABANAS: Yeah. Adiournment (Item 11) CHR. CABANAS: Okay, so may I have a motion to adjourn today's meeting. MS. BOND: I move. MR. THOMAS: Second. CHR. CABANAS: Any discussion? If not, I'll start a rollcall vote with Ms. Bond. MS. BOND: Aye. Page 33 Merit Appeals Board May 23,2025 MR. THOMAS: Aye. CHR. CABANAS: Mr. Thomas. Ms. Cabanas—aye. Motion carried to adjourn today's meeting at 10:59 a.m. Thank you, everyone. Respectfully submitted, Apiitt tPlitidZ(1,—) Glynis Yamada, Secretary-Reporter APPROVED: ) 0,tALUA. M • &WV CIA S-- Gabriella M. Cabanas, Chair Merit Appeals Board Page 34