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HomeMy WebLinkAboutCOM 0573.004 2002-2004 `OJNSV oR Barry Kim Uacoln S.T. Ashlda Mayor ;a Corporation Counrel ' Gerald lgkase eTlf~•Qi•Nr,.1~~,, A.•airtant Corporation Coanrel (t~~Ixnfg ~ ~ttfuttii OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Stree4 Suia 323 • Hilo, Hawau %720.4262 • (808) %1.8251 • FAX (808) %1.8622 May 4, 2004 MEMORANDUM ~ ? - _ TO: James Arakaki, Chairman, and Members Hawaii County Council ~ FR: Bobby Jean Leithead-Todd ~ Deputy Corporation Counsel c..~ RE: Council Authority to Appoint and Employ Staff Exempt From Civil Service Corp. Counsel File No. WRK 04-7391 QUESTION PRESENTED: What current and future staff positions in the legislative branch of the County of Hawaii, the County Council, are exempt civil service positions under the Hawaii Revised Statutes and which positions are civil service? SHORT ANSWER: Under Section 46-32 of the Hawaii Revised Statutes, all positions, including the County Clerk, the Deputy County Clerk and the Legislative Auditor, are civil service exempt with the exception of those employees employed in positions which aze non-legislative such as elections clerks and machine room personnel. INTRODUCTION The County Council is currently considering a Charter amendment to create a sepazate Office of the County Auditor. The Council would appoint the Auditor. Under the language of the current draft of Bill 255, the Auditor would have the authority to appoint necessary staff to fulfill the office's mission of conducting audits and reporting to the Council. The question has been raised whether such employees would be exempt from civil service and the position classification plan. Additionally, the civil service Comm. No. 573• Ref. To: Meae~ W Ref. Uate AP~ ~~4 status of the Deputy County Clerk, the current Legislative Auditor and other staff positions has been called into question. THE CONSITUTIONAL FRAMEWORK Article VIII, section 2 of the state constitution was amended in 1968 to grant "home mle" to the counties. The provision reads: LOCAL SELF-GOVERNMENT; CHARTER Section 2. Each political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as maybe provided by general law. Such procedures, however, shall not require the approval of a charter by a legislative body. Charter provisions with respect to a political subdivision's executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact laws general laws allocating and reallocating powers and functions. A law may qualify as a general law even though it is applicable to one or more counties by reason of the provisions of this section. Under this provision of the constitution, the county has the power to enact charter provisions concerning the "stmcture and organization" of the county government. Such charter provisions aze superior to conflicting state statutes but are still subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions. Under this section of the constitution, the county has the authority to structure and organize county government through its charter. A charter amendment to create a sepazate Office of the County Auditor is related to the structure and organization of the county. However, the constitutional protection afforded county governments against legislative intrusion is far from total. The constitution did not grant to local authorities 2 complete home rule. A political subdivision may not adopt provisions in its charter, which are repugnant to existing or future laws in the areas of personnel and procedure. HGEA v. County of Maui, 59 Haw. 65, 85 (1978). The constitutional provisions regazding county local self-govemment did not grant the authority to the counties to adopt charter provisions on civil service that would conflict with state statutes. The Hawaii Supreme Court has noted that the framers of the constitution intended that the final authority on civil service laws and compensation matters would remain with the legislature. In HGEA v. County of Maui, the Supreme Court reviewed sections of the Maui charter that provided that the staff of the Maui office of the Corporation Counsel should be exempt from civil service. The court held that any conflict between the provisions of the charter and the HRS would render those provisions nugatory. HGEA at 88. Personnel matters such as civil service and compensation matters remain subject to the control of the state legislature. City & County of Honolulu v. Ariyoshi, 67 Haw. 412, reconsideration denied, 67 Haw. 682 (1984). Therefore, state civil service statutes govern whether county employees, and specifically, employees of the legislative branch of Hawaii County aze civil service or exempt. Article XVI, Section 1 of the Hawaii Constitution provides: "The employment of persons in the civil service, as defined by law, or under the State, shall be governed by the merit principle." However, the constitution does not "define the precise scope of the civil service, i.e., the particular job positions that are within the civil service." Konno v. County of Hawaii, 85 Hawaii 61, 70 (1997). This is left to various chapters of the Hawaii Revised Statutes. 3 THE STATUTORY FRAMEWORK There are several different sections of the Hawaii Revised Statutes that govern civil service and the classification of employees. Generally, civil service law is to be found in Chapter 76 of the Hawaii Revised Statutes. Section 76-16 provides that all positions within the various jurisdictions shall be civil service unless exempted through section 76-16, or sections 46-33 and 76-77. Section 76-16 (b) (17) provides that positions specifically exempted from Section 76-16 by any other law are exempt. Section 76-16 (c) also provides that the personnel director may exempt additional positions under subsection (b), section 46-33 and 76-77, or any other law, if the reason for exempting the position is for the same reason as a position is included in the list of specific exemptions for that jurisdiction. Section 76-77 provides the exemptions from civil service for the counties of Hawaii, Maui and Kauai. There is no specific exemption within section 76-77 that specifically lists exemptions for the County Clerk, Deputy County Clerk, Legislative Auditor or for council staff. Instead, section 76-77 (10) provides that positions within the county are exempt if they are specifically exempted from civil service by any other state statute. The only reference to employees of the legislative branch of the county provides in section 76-77 (9) that positions of "temporary election clerks in the office of the county clerk employed during election periods" are exempt from civil service. An exemption from civil service is granted to the legislative staff of the County Council pursuant to Hawaii Revised Statutes Section 46-32. Hawaii Revised Statutes Section 46-32 reads: 4 Employees of council. Any other provision to the contrary notwithstanding, the council of any county may appoint and employ personnel, as it deems necessazy and prescribe their powers, duties and compensation. All such personnel shall be exempt from the civil service and the position classification plan. Nothing in this section shall be deemed to affect the civil service or exempt status, salary range, vacation, sick leave, service credit and other rights and privileges of any incumbent as it existed on the day prior to May 9, 1977; provided that subsequent changes may be made pursuant to applicable personnel laws. (Emphasis added). The other relevant state statute that addresses the classification of employees is to be found in the collective bazgaining provisions of Chapter 89 of the Hawaii Revised Statutes. The exclusions from collective bargaining found in Chapter 89 closely mirror positions that are exempted from civil service statutory provisions. Section 89-6(f) provides that: The following individuals shall not be included in any appropriate bazgaining unit or be entitled to coverage under this chapter: (1) Elected or appointed official; (2) Member of any board or commission; (3) Top-level managerial and administrative personnel, including the depaztment head, deputy or assistant to a department head, administrative officer, director, or chief of a state or county agency or major division, and legal counsel; (4) Secretary to top-level managerial and administrative personnel under pazagraph (3); (5) Individual concerned with confidential matters affecting employee- employer relations; (6) Part-time employee working less than twenty hours per week, except part-time employees included in unit(s); (7) Temporary employee of three months duration or less; (8) Employee of the executive office of the governor or a household employee at Washington Place; (9) Employee of the executive office of the lieutenant governor; (10) Employee of the executive office of the mayor; (11) Staff of the legislative branch of the State; (12) Staff of the legislative branches of the counties, except employees of the clerks' offices of the counties; (13) Any commissioned and enlisted personnel of the Hawaii national guard; s (14) Inmate, kokua, patient, ward or student of a state institution; (15) Student help; (16) Staff of the Hawaii Labor Relations Boazd; or (17) Employees of the Hawaii national guazd youth challenge academy. (Emphasis added). THE CHARTER FRAMEWORK The Hawaii County Charter divides the county into an executive and legislative branch. Article III Section 3-1 of the Charter provides that the "legislative powers of the county shall be vested in the county council. Its primary function shall be legislation and public policy formation, as distinct and separate from the executive administration of county govermnent." Section 3-6(b) of the Charter provides for the appointment of a county clerk. Section 3-6(b) reads: The council shall appoint the county clerk which position shall be exempt from civil service laws and classifications. The county clerk shall: (1) Be the clerk ofthe council. (2) Be custodian of the county seal. (3) Conduct all elections held within the county. (4) Appoint the deputy county clerk and the legislative auditor, with the approval of the council, and such positions shall be exempt from civil service laws and classifications. (5) Perform such other functions as the council may prescribe. (6) Appoint necessary staff for which appropriations have been made by the council, subject to civil service laws and classifications, and exercise the same power with respect to the personnel of the clerk's office as the department heads in the executive branch. 6 ANALYTICAL FRAMEWORK Various provisions of the Hawaii Revised Statutes must be read to determine whether a position should be civil service or exempt. In interpreting statutes, the fundamental starting point is the language of the statute itself. Kovno v. County ofHawai'i, 85 Hawaii 61, 71 (1997). When the language of a statute is plain and unambiguous, there is an obligation to give effect to its obvious meaning. "When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose." Kovno at 71. However, when a statute is ambiguous, the meaning of the ambiguity may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. HRS Section 1- 15(1). In order to ascertain the true meaning of the statute, a court would look to the reason and spirit of the law and the cause which induced the legislature to enact it. HRS Section 15-1(2); Ka Pa'akai O Ka Aina v. LUC, 94 Hawaii 31, 41 (2000). Thus, an ambiguous statute can be interpreted by examining the legislative history of the statute. Kovno at 71. Every construction which leads to an absurdity shall be rejected. HRS Section 15-1(3). However, statutory construction should not render a statute a nullity or create an absurd or unjust result. Kovno at 71. A statute is ambiguous when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute. A statute is ambiguous 7 if it is capable of being understood by reasonably well-informed people in two or more different ways. Konno at 71. A three-step approach is used when interpreting statutes that appear to relate to the same subject matter: first, legislative enactments are presumptively valid and should be interpreted in such a manner as to give them effect; second, laws in pari materia shall be construed with reference to each other; and third, where there is a plainly irreconcilable conflict between a general and a specific statute concerning the same subject matter, the specific will be favored, but where statutes simply overlap in (heir application, effect will be given to both if possible. State v. Batson, 99 Hawaii 118 (2002). Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other; what is clear in one statute maybe called upon in aid to explain what is doubtful in another. HRS Section 1-16. When a specific statute carves out an exception to a general statute, the specific statute will not be controlled or nullified by the general one, regardless of the priority of enactment. Cardenas v. Anzai, 311 F.3d 929 (Ninth Cir. 2002). Reference to other analogous statutes with similar language apd dealing with similaz subject matter may be helpful in the interpretation of a doubtful statute. Educators Ventures, Inc. v. Bundy, 3 Haw. App. 435 (1982). Charter provisions regazding the filling of department head positions aze Superior to state statutes. They are a matter of executive and administrative structure and organization of the county. HGEA at 84. Such appointees serve at the pleasure of the appointing authority. HGEA at 85. Charter provisions can give divisions or units of the county departmental standing. HGEA at 85. However, a political subdivision may not adopt provisions in its charter which are repugnant to existing or future laws in ttlpe areas 8 I of personnel and procedure. HGEA at 85. The final authority for all civil service and compensation matters remains with the legislature. HGEA at 86. Any inconsistency between a charter provision and state statutes on civil service would result in the'state statute prevailing and render the charter provision nugatory. HGEA at 88. DISCUSSION HRS section 76-77(10) provides that positions aze not within the civil service if other state statutes specifically exempt them. The County Council relies upon HI)tS 46-32, which provides a specific exemption for all personnel appointed and employed by the Council. The language of HRS 46-32 seems clear. It provides that the County council "may appoint and employ personnel, as it deems necessary and prescribe their dowers, duties and compensation. All such personnel shall be exempt from the civil service and the position classification plan:' (Emphasis added). This language wouldiseem to indicate that all employees within the County Clerk's office; the election's offic@, the machine room and the Legislative Auditor's office are exempt from civil service as they aze employed in the legislative branch of the County of Hawaii. However, HRS Section 46-32 should not be interpreted in a manner that would make a nullity of the specific exemption for pazt-time election clerks found in HItS section 76-77(9). If all employees employed in the legislative branch were civil (service exempt, there would be no need for an exemption for "part-time" election clerks as they would be included within the exemption of HRS section 46-32. When reading section 46-32 and section 76-77(9) together, there is an obvious ambiguity that must be addressed. If a specific exemption is required for "part-time election clerks", the obvious inference is that full-time election clerks must be civil service. 9 The original provision in the state statutes regarding exempt positions was enacted through Act 78 in 1969. The way the language of the bill read, only the Honolulu City Council would have the authority to hire six additional employees with the title of "research assistant." S.C. Rep. 730, S.B. No 1055 House Journal (1969). In 1977 the legislature amended Chapter 46, Hawaii Revised Statutes, by adding a new section to "allow county councils to appoint and employ personnel as necessary and to prescribes their powers, duties and compensation." In its committee report, the Public Employment and Government Operations Committee noted that the law in existence at that time left some question as to whether "county legislative bodies, other than the City & County of Honolulu, have the statutory authority to appoint and employ exempt personnel." House Standing Committee Report No. 854, S.B. No. 416. At that time HRS Section 62-53 provided that the "chairman and executive officer of the county boazd of supervisors shall appoint all officers and employees of the county whose election or appointment is not otherwise specially provided for by law." At the same time language in Section 76-77 of the HRS provided that there was an exemption from civil service "of positions in the office of the chairman of the board of supervisors." The language of the HRS did not reflect the changes that had occurred in the structure of county government after passage of county charters and the switch from a boazd of supervisors to a mayor and council form of government. The new section 46-32 was to help clarify the sepazation of the executive and legislative powers and "extend to the legislative branch, the clear authority to employ personnel as it deems necessary." House Standing Committee Report No. 854, S.B. No. 416. to The enactment of the broader language of section 46-32 extended to all four county councils the authority to employ as many exempt employees as they deemed necessary. The language in the committee report makes clear that the legislature clearly intended to give the authority to employ as many as the council felt necessary and definitely more than six. The issue was debated on the floor of the House of Representatives where it was clear that the representatives understood that the intent of the bill was to give county councils the authority to hire additional employees similaz to the authority already exercised by the state legislature. Representative Kunimura rose and addressed the House saying: "Since 1968, Mr. Speaker, all the counties in the State now enjoy a Constitutional Charter and the Constitutional Charter separates it clearly - the executive branch of the county government from the legislative branch. I wonder what kind of position we would be in if we had a limitation on what kinds and types of people that the Legislature could employ. Right now, because of the ambiguity, the Council is almost at the jeopazdy or sometimes at the mercy of being hauled into court by the executive branch of the county government. Mr. Speaker, this bill cleazly spells out the authority granted to the County Council to have employees that would support the efforts of the respective Councils and also, Mr. Speaker, the proof is in the mazketplace. If any Council in the State of Hawaii want to act like punch-drunk sailors and hire one thousand people under their jurisdiction, they wouldn't be in office too long. I am pretty sure that there are safeguards in our system of government. Therefore, I urge all members to vote for this bill." The bill passed 49 to 2. 11 During the same session that the legislature passed S.B. 416, Act 62 which created section 46-32, it also passed H.B. 1353, Act 61. This bill amended the HRS section 76-71 through 76-81 to reflect the changes that had occurred in the structure of the county governments. House Standing Committee Report No. 574 noted that there had been no amendments to Chapter 76 for ten yeazs. The report referred to the changes that had occurred in county governmental structure and noted that the purpose of Bill 1353 was to reflect the division of county government into legislative and executive branches. The legislature kept in place the language that gave an exemption to temporary election clerks at the same time it gave express authority to county councils to hire exempt employees as they "deemed necessary." HRS sections 46-32, 76-77(9) and 76- 77(10) have remained unchanged since 1977. The committee report further noted that the legislature was concerned over language in the county charters referencing personnel administration. The report indicated that it was important that the legislature "make clear its intent that state law is to preempt county charter provisions and ordinances relative to personnel administration." The committee's intent was to ensure that "public employees and officers aze uniformly treated throughout the State." Language in Hawaii County Charter, Article III, Section 3-6 (b), as to who shall be exempt or subject to civil service is therefore preempted by the relevant state statutes. Collective bazgaining was originally enacted in 1970 as Act 171. In 1970 positions excluded from collective bargaining were delineated in section 89-6(c): No elected or appointed official, member of any board or commission, representative of a public employer, including the administrative officer, director, or chief of a state or county department or agency, or any major division thereof 12 as well as his deputy, first assistant, and any other top-level managerial and administrative personnel, individual concerned with confidential matters affecting employee- employer relations, part time employee working less than twenty hours per week, temporary employee of three months duration or less, or any commissioned and enlisted personnel of the Hawaii national guard, shall be included in any appropriate bargaining unit or entitled to coverage under this chapter. In 1973 the language in this section was amended as follows: No elected or appointed official, member of any board or commission, representative of a public employer, including the administrative officer, director, or chief of a State of county department or agency, or any major division thereof as well as his deputy, first assistant, and any other top-level managerial and administrative personnel, individual concemed with confidential matter affecting employee- employer relations, part-time employee working less than twenty hours per week, temporary employee of three months duration or less, employee of the executive office of the governor, household employee at Washington Place, employee of the legislative branch of the State, city and county of Honolulu and counties of Hawaii, Maui and Kauai, employee of the executive office of the lieutenant governor, inmate, kokua, patient, ward or student of a state institution, student help, or any commissioned and enlisted personnel of the Hawaii national guard, shall be included in any appropriate bazgaining unit or entitled to coverage under this chapter. (Emphasis added). One year prior to the amendments to civil service law, the legislature moved to clarify provisions of the Chapter 89 because of confusion in the administration of the collective bargaining law. Election clerks were initially considered to be part of the legislative branch of govemment and excluded from collective bargaining. In 1976 the section was amended to "except employees of the clerks' offices of said city and county and counties." Senate Standing Committee Report No. 567-76 stated that the purpose of the amendment was to "exclude the staff of Legislative Branch of the City and County of 13 Honolulu and the counties of Hawaii, Maui and Kauai except the staff of the Clerks Office of the City and County of Honolulu and to counties of Hawaii, Maui, and Kauai from any collective bazgaining unit." The report went on to say that the "responsibility of the Clerks Office is to handle elections and has no direct relationship to the Legislative function." The language of HRS section 89-6(f)(12) regarding collective bargaining indicates that "staff of the legislative branch of the counties" is exempt from collective bazgaining, but employees of the "clerks' offices of the counties is subject to collective bargaining. When Section 89-6(f)(12) is read together with section 76-77 (9) it appears that the legislature intended at a minimum that "election clerks" within the County Clerk's office aze subject to civil service. The question is whether other employees are also subject to civil service. In Hawaii County, azguably all the employees that service the legislative needs of the County Council are "within the clerk's office" and thereby included under the collective bargaining provisions of Chapter 89. If one reads the statute to include all the employees within the Hawaii County Clerk's office as subject to collective bargaining, then the logical conclusion that they are all civil service follows. However, this would lead to the absurd result of all the legislative staff of the County Council being subject to civil service and collective bargaining, contrary to the clear intent of the exemption provided by HRS 46-32. To interpret the statutes to mean that only the County Clerk is exempt would lead to an absurd result. This interpretation would essentially gut the intent of HRS section 46-32 and turn all the staff of the County Council into civil servants. Additionally, it converts positions which had previously been civil service t4 exempt at the time of the enactment of HRS Section 46-32, the Deputy Clerk and the Legislative Auditor into civil servants. The cleaz language of HRS 46-32 states that nothing "in this section shall be deemed to affect the civil service or exempt status, salary range, vacation, sick leave, service credit and other rights and privileges of any incumbent as it existed on the day prior to May 9, 1977." At the time of the enactment of the statute, both positions were exempt. Such an interpretation also runs afoul of the language of the charter that has the clerk appoint the deputy and legislative auditor "with the approval of the council." Assuming, arguendo, that the charter provisions were superior to state laws on civil service, the deputy clerk and legislative auditor positions would still be exempt. The clerk with the consent of the council appoints these positions. As appointees, they serve at the pleasure of the appointing authority, the county clerk, and their terms aze co- terminus with the clerks. It is also important to note that in past salary ordinances passed by the county council, the clerk, deputy clerk and legislative auditor were classified at the same level as department heads and deputies of the administration and compensated accordingly. By examining the legislative history of these statutes, it is clear that the legislature differentiated between "legislative staff' and staff handling elections and that it intended that "elections clerks" would be civil service and subject to collective bazgaining, It is also cleaz that the legislature intended that staff whose work had a direct relationship with the legislative function of the councils would be excluded from collective bargaining and civil service. 15 The language, in Chapter 89 of the HRS, referring to the clerks' office w~s apparently based on how the Clerk's Office of the City and County of Honolulu vas structured. However, while the City and County's and County of Maui's Clerk's Office is sepazate and apart from the "Council Services" section, neither Hawaii County nor Kauai County are so structured. In order to give effect to the provisions of HRS Section 46-32 and avoid ~n absurd result, the nature of the actual duties of the employees should be reviewed. Using an analysis geared to the "nature of the services" of the employees, those employes in the Hawaii County Clerk's office who have no direct relationship to the Council' legislative function should be classified as civil servants. Clearly the elections clerks, except for the temporary clerks during election seasons, aze to be classified as civil service. Similazly, the employees in the machine room, whose jobs aze to handle mail and copying for the entire county, do not have a direct relationship to the legislative function of the County Council and should be classified as civil service. Using tl~e same analysis, the County Clerk, Deputy County Clerk and Legislative Auditor who directly provide services to County Council related to its legislative function should be exempt. Similarly, the council aides, assistant legislative auditors, budget analyst, and legislative assistants should also be civil service exempt. Additionally, consultation with civil servants employed by the Hawaii Co{~nty Council in 1977 revealed that at the time of the enactment of HRS 46-32 all emplllbyees of the County Council were civil service with the exception of the County Clerk, D~puty County Clerk and the Legislative Auditor, who were appointed, exempt positions~~ Subsequent to enactment of HRS Section 46-32, existing employees were given t~e I 16 option of moving out of their civil service positions into appointed positions. Some employees chose to do so, others did not. This is consistent with the provisions in HRS Section 46-32 which stated that the new law was not to "affect the civil service or exempt status, salary range, vacation, sick leave, service credit and other rights and privileges of any incumbent as it existed on the day prior to the effective date" of the new law. However, the law provided that subsequent changes "maybe made pursuant to applicable personnel laws." A check with Kauai County indicates that in some cases when an existing civil servant employed by the county council retired, they were replaced with appointed staff. The voters of Honolulu recently passed a charter amendment to create a legislative auditor position. The staff is hired pursuant to merit principles but is not subject to civil service. Similarly, the staff of the state legislative auditor is also exempt from civil service. Both the Honolulu and the State legislative auditors have authority to hire and fire their staff. Honolulu also provides for civil service exempt private secretaries for the Clerk and Deputy Clerk. The secretaries and office manager in the Office of Council Services (similar to the existing Hawaii County Legislative Auditor's staff) were once civil service but were replaced with exempt positions as people retired. CONCLUSION Hawaii Revised Statutes Section 46-32 gives broad discretion to the County Council to appoint and employ personnel, as it deems necessary. All such employees, with the exception offull-time election clerks and personnel of the machine room shall be exempt from civil service. If a charter amendment is passed to create an office of the 17 County Auditor, so long as that position is within the legislative branch of the county, both the auditor and the staff of the auditor's office shall be exempt from civil setvice. BLT:pc s:Depts\County CouncilU.,O re civil service status of council employees\ 5-4-04 BLTpc.doc 18