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HomeMy WebLinkAboutCOM 1067.001 2006-2008 0 0 Harry Kim ,~H'v,oF Ngw.c 0, -MicgR Mayor c°.. _ . "Di>edeGF~ RaraiUk Takahashi Deputy D;,W6 ofJlurNar $ew[n+s asp;. .91E'aF•NPJ! rv.7 C_i1 County of Hawaii Department of Human Resources Aupuni center , 101 Pauafti street, suite 2 , Hilo, Hawaii 96720 . (808) 961-8361 . Fax (808) 961-8617 M (808) 961-8619 , e-mail: co6dc;@a+.6amui[ (ii.us . Jobs Inlomuuion: Job Hotline (808) 961-8618 a-maib iobs('co.hmvnli.Ff March 11, 2008 Ms. Brenda Ford, Chair And Members of the Committee on Public Works & Intergovernmental Relations 25 Aupuni Street Hilo, Hawaii 96720 Dear Chair Ford and Members of the Committee: RE: Communication 1067, Bill 262 An Ordinance to Initiate an Amendment to Article III, Legislative Branch, County Council, of the Hawaii County Charter (2000), To Reorganize the Office of the County Clerk and County Council by Establishing an Independent Audit Function Within the Legislative Branch Through the Office of the Legislative Auditor I offer comments on Section 3 of the ordinance as follows. Exemption from Civil Service The proposed section 3 under Article III of the charter reads in pertinent part: (c) The legislative auditor shall submit an annual budget to the county council and appoint necessary staff for which appropriations have been made by the council. The legislative auditor and any staff appointed by the legislative auditor shall be exempt form civil service laws and classifications. (Underscoring provided. s + + Given the State of Hawaii Supreme Court decisions in City and County of Honolulu v. Ariyoshi, 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, one of which is chapter 76, Hawaii Revised Statues, commonly known as "Civil Service Law. Comm. No. 10(V Z I Hawaii County is an E qua' Opportunity Provider and EnrPfoyer. Ref. To: rr~~ Ref. Date_~UTAR_ LL=LL Chair Brenda Ford March 11, 2008 Page 2 of 3 As I apply this law, the staff appointed by the legislative auditor would, in fact, be civil service employees and thus classified and compensated pursuant to our classification and compensation plans. HRS §76-77 provides in relevant part: §76-77 Civil service and exemptions. The civil service to which this part applies comprises all positions in the public service of each county, now existing or hereafter established, and embraces all personal services performed for each county, except the following Unless a specific exception applies, all positions are civil service and, therefore, subject to the civil service law. This analysis is expounded in the State Supreme Court decision in Konno v. County of Hawaii. In 2004, conflicting opinions had arisen on whether staff positions in the County Clerk's and County Council's office were exempt or civil service. On February 18, 2005, 1 wrote to then County Clerk Constance R. Kiriu on which positions I would consider as being civil service positions and which positions I would consider being exempt from civil service, giving her my analysis as to how I arrived at my conclusions. I have enclosed a copy of that communication for your information. The proposed language found in subsection (a) establishes the legislative auditor's office as an independent office. The afore-cited provision makes it clear too that the legislative auditor will appoint necessary staff. Together, the proposed change negates my conclusions in my February 18, 2005 letter; and further, as there is no specific exemption to be found under §76-77, HRS, or any other statute that would allow me to consider these positions as exempt from civil service, all of the positions in the legislative auditor's office would now become civil service. Further, the exemption of the legislative auditor would now come in to question because the County Council no longer prescribes the duties and responsibilities of the legislative auditor. Heretofore, I considered the legislative auditor exempt from civil service under §46-32, HRS, wherein it provides in relevant part: §46-32 Employees of the council. Any other provision to the contrary notwithstanding, the council of any county may appoint and employ personnel as it deems necessary and prescribe their powers, duties and compensation All such personnel shall be exempt from the civil service and the position classification plan. (undersconng provided. Chair Brenda Ford March 11, 2008 Page 3 of 3 It appears to me that the duties and responsibilities of the legislative auditor are now being spelled out by charter and not the County Council. To preserve the exemption already established, I suggest that amendments be made to provide that the County Council will also prescribe other duties and responsibilities of the legislative auditor and the auditor's staff in support of the Council's legislative function. Salary of the Legislative Auditor Currently, the salary commission already establishes the salaries for the county clerk, the deputy county clerk, and the legislative auditor. It does so under the advice of counsel. For the charter to specifically provide that the salary commission will set the salary of the legislative auditor, while remaining silent on the salary of the county clerk and the deputy county clerk raises an issue of whether the salary commission then is empowered to set the salary for the county clerk and deputy county clerk positions. I would suggest then that the reference to salary commission setting the legislative auditor's salary be deleted or the charter be further amended to provide that the salary commission shall set the salaries for the county clerk and deputy county clerk. In summary, the proposed charter amendment raises certain issues as to the civil service or exempt status of the legislative auditor and the positions in that office, and of the setting of the salaries for the legislative auditor, the county clerk, and the deputy county clerk. It may be appropriate to consult with the corporation counsel regarding what I have just discussed with you. If I may be of assistance in this matter, please call me at 961-8361. Sincerely, Michael R. Ben, SPHR Director of Human Resources Enclosure cc: Harry Kim, Mayor Lincoln S.T. Ashida, Corporation Counsel Harry Kim r?! °FJ4p Nficiurel R. Ben, SPHR moo- Director of Puwnw! r ~ Rodney T. Kaido Deputy Direr oJPa ..e[ J7je O~M~+' County of Hawaii Department of Civi(Service o Aupuni Center a 101 Pauahi Street, Suite No. 2 o Hilo, Hawat'i 96720-4224 0 (808) 961-8361 o MF°~C18~08~) 96617 717 (808) 961-8619 o e-mail: cohdc @inteT".net o Jobs Information: Job Hotline (808) 961-8618 o e- C.Yr~@m> uii. as February 18, 2005 -v Ms. Constance R. Kiriu, County Clerk 25 Aupuni Street Hilo, Hawaii 96720 a Dear Ms. Kiriu: This is to follow-up on our meeting of February 9, 2005 at which time we discussed civil service status vs. exempt status for council positions. Ms. Bobby Jean Leithead-Todd also attended and participated in these discussions. This is a summary of my understanding as to how I will determine which positions in the legislative branch (County Council) are civil service and which are not. First, 76-77, HRS, provides "§76-77 Civil service and exemptions. The civil service to which this part applies comprises all positions in the public service of each county, now existing or hereafter established, and embraces all personal services performed for each county, except the following: What follows is a listing of which positions/services are exempt from civil service. The Hawaii State Supreme Court in its Konno ruling ruled that all positions are civil service unless there is a specific exemption that says otherwise. There are two specific exemptions applicable to positions under the legislative branch. The first is §76-77(9), wherein positions of temporary election clerks in the office of the county clerk employed during election periods are identified as being exempt. Hawai'i County is an Equaf opportunity Pravida and Employer. Ms. Constance R. Kinu, County Clerk February 18, 2005 Page 2 of 4 The next is §76-77(10), wherein positions specifically exempted from this part (civil service laws) by any other state statute, are identified as being exempt. Through this reference, we then turn to §42 -32 where in it provides that the council may appoint and employ personnel as it deems necessary and prescribe their powers, duties, and compensation. It goes on further to specifically state that all such personnel (appointed by the Council) shall be exempt from the civil service and the position classification plan. I apply these laws to provide that all positions in the legislative branch are all civil service except for those temporary election clerks (§76-77(9)), and positions filled by the Council. I do not consider the Council as appointing and employing all personnel within the legislative branch. This is because our County Charter specifically provides, in Section 3-6(b)(6) that the County Clerk shall appoint necessary staff. Because the Charter specifically gives the authority to appoint necessary staff to the County Clerk, anyone appointed by the County Clerk is civil service. The only exception is the temporary election officers (§76-77(9)). However, Section 3-6(b)(4) provides that the County Clerk appoints the deputy county clerk and the legislative auditor. However, unlike "necessary staff" these two appointments are subject to the Council's approval. Given this fact, I construe the Council as having authority for these appointments and thus exempt under §46-32, 1 note that organizationally, the staff of the legislative auditor's office is apart and distinct from the County Clerk's Office. 1 note too that the charter and laws are silent as to who appoints the legislative auditor's staff. However, you have pointed out that Rule 4.2 of the Council Rules of Procedures provides that the Council Chair assists Committee chairs and members by assuring the availability of adequate administrative and support staff. These administrative and support staff, I believe, are the • special assistant to the council chair, • executive assistant to the council chair, • council legislative assistants, and • council aides. I would also consider the Office of the Legislative Auditor as providing administrative and support staff to the Council. Positions in the legislative auditor office are the • legal specialist, • legislative auditor assistants I and 11, Hawaii County is an Equal Opportunity Provider and Employer Ms. Constance R. Kinu, County Clerk February 18, 2005 Page 3 of 4 • council legislative assistants, • legislative auditor/research assistant, • fiscal/program review auditor, • administrative assistant to the legislative auditor, and • legislative analyst III. You also have pointed out to me Rule 5 of the Council Rules of Procedure from which I very much infer that the County Clerk's Office provides more clerical support to the Council, as well as a few other activities (such as elections and machine room) which do not support the Council in its legislation function. This latter support is performed by the Legislative Auditor's Office. Given the above, I would believe that the Council or the Council Chair especially, has a direct say on who is appointed or employed by the legislative auditor's office. Considering this, it is easy for me to conclude that the staff of the Legislative Auditor's Office should also be considered exempt under §42-32, HRS. All this being said, there remains two positions that don't neatly fit into the discussion offered above; the personnel-senior account clerk and a senior clerk- stenographer. The dilemma is easily rectified by recognizing that these positions do not perform the same support services to the Council as does the rest of the Legislative Auditor's staff. These positions would be more appropriately placed in the County Clerk's Office and appointed by the County Clerk, thus making them civil service positions. Therefore, I strongly urge that the personnel-senior account clerk and the senior clerk-stenographer positions be transferred to the Office of the County Clerk as their function more appropriately falls within the functions of the County Clerk's Office. Once this is done, it would be helpful to show somehow in your table of organization the separation between the Legislative Auditor's Office and the County Clerk's Office. This will help to clarify the civil service and exempt status of all the positions in the legislative branch of government. Finally, I would urge that all new Form 13s be processed once again to reflect the proper exemption authority for positions which are exempt from civil service. If you have any questions concerning the "reorganization" I'm proposing, please call Joney Nitahara at 961-8361. Otherwise, I will be glad to assist with any other Hawad'i County is an Equal Opportunity Provider and Employer Ms. Constance R. Kinu, County Clerk February 18, 2005 Page 4 of 4 questions you may have. Sincerely, ~y Michael R. Ben, SPHR Director of Personnel Cc: 'Harry Kim, Mayor Gary Safarik, Council Chair Bobby Jean Leithead-Todd Hawai `i County is an Equaf Opportunity Prov der and Empk5w