HomeMy WebLinkAboutCOM 0573.003 2002-2004
H0.riy him OJ+tY Of M,
~ ~ Micfwef R. Ben, SPHR
°Y°f 't~4 'LHruYOr oJPersorcne!
Rooney T. Kai~o
~ ~w..,.~~ Deputy Director of Persorore!
County of Hawaii
Department of Civil Service
AuPuni Center 101 Pmta(ti Street, Suite Na. 2 a Hifn, Hawni'i 96720-4224 a (808) 961-8361 a FaX (808) %1-8617
'I'IY (808) 961-8619 a-maiG co/ufcs@interpac.net s Jobs Infmrnation: Jab Hotline (808) 961-8618 o e-mail jobs@w.fiawaii.fu.us
April 19, 2004 RcC:tivi+s
1me_ .T By
James Arakaki, Chairman gate
And Members, Crn,nry Coundt P F'r
Hawaii County Council
25 Aupuni Street
Hilo, Hawaii 96720
Dear Chairman Arakaki and Council Members:
Re: Bill 255, Draft 2
I am offering comments on Section 3 of Bill 255, Draft 2; in particular, the
proposed section titled "Office Established; County Auditor."
The last sentence of subsection (c) reads:
"Staff shall be exempt from civil service laws and classifications, and
excluded from collective bargaining."
Given the State of Hawaii Supreme Court decisions in City and County of
Honolulu v. Arivoshi, 67 Haw. 412, 689 P.2d 757, and Hawaii Government
Employees' Association v. County of Maui, 59 Hawaii. 65, 576 P.2d, I believe that
County Charter provisions cannot supersede State laws of general applicability,
among which are Chapters 76 and 89, Hawaii Revised Statutes. Therefore,
County Charter may not exempt County employees from the civil service and
classification, nor may it exclude them from collective bargaining.
Exclusion from collective bargaining
First, with respect to exclusion from collective bargaining, the proposed
language is superfluous. HRS §89-6(f) specifically provides for the exclusion:
(f) The following individuals shall not be included in any appropriate
bargaining unit or be entitled to coverage under this chapter:
Comm. No. 7'3.3
County of Hnwni`i is an Equal Opportunity Provi<fcr ntu( bmpfoyer Ref. TO: ilOieN~d
Ref. Date
~ R
1,~. q-~~
James Arakaki, Chairman
And Members,
Hawaii County Council
April 19, 2004
Page 3 of 3
legislative auditor, both positions which, by Charter, are appointed by the
county clerk, should be civil service positions.
The county clerk is exempt pursuant to HRS §76-77(10) because a specific
statute, HRS §46-32, exempts persons appointed by the County Council. The
Charter specifically provides that the County Council appoints the county clerk.
Likewise, under the proposed reorganization, the County Council would appoint
the legislative auditor; therefore, the legislative auditor would be exempt from
civil service under the provisions of HRS §46-32.
This being the case, under HRS §76-77(10), is applicable to the legislative auditor.
But here is no exemption for the auditor's staff. Therefore, the auditor's staff
would be civil service employees subject to classification.
This is my view of how the civil service law is to be applied, and I know of no
opinions or case law that would alter my view. As I recommended earlier in my
comments about the exclusion from collective bargaining, I further recommend
that this too reviewed with the corporation counsel. I do not believe we should
recommend charter provisions that would have no effect because of a law of
general applicability superseding those provisions.
I think too that it is appropriate to have an opinion to as whether the deputy
clerk and the legislative auditor (and the auditor's staff) today, should really be
civil service positions rather than exempt positions.
Sincerely,
Michael R. Ben, SPHR
Director of Personnel
Cc= Harry Kim, Mayor
Lincoln S.T. Ashida, Corporation Counsel
County of Hnv,~ai'i is an EquaC Opportunity Provider and FmPCo~~er