Loading...
HomeMy WebLinkAboutREP FC 383 04/23/1991 OFFICE INFORMATION ONLY Dated: October 3, 1991 mew Action: See Executive Session minutes of October 3 , 1991, on Comm. 2878 dated September 13, 1991. Re: C-2878 REPORT OF THE COMMITTEE ON FINANCE Date: April 23 , 1991 Place: Councilroom Time: 10 : 00 a .m. Chairman and Members Hawaii County Council Hilo, Hawaii 96720 Your Committee on Finance, to which was referred Communication No . 2435, reports as follows : Communication No. 2435, dated April 3 , 1991 from Colleen H. Sakurai and Randall K. Sing for Sakurai & Sing, Attorneys at Law, informs the Council that they are representing Mr. John H. ("Jippy") Mattos, the County Road Superintendent, in his appeal to the Third Circuit Court from a decision recently made by the Hawaii County Civil Service Commission. Your Committee is aware that the Commission recently entered a ruling in a grievance filed by Mr. Stanley Nakasone regarding Mr. Mattos ' appointment to the Road Superintendent position in 1985 . A copy of that decision and order, as issued February 28, 1991, was reviewed and is attached to this report. Your Committee was advised by Mr . Mattos ' attorneys that since Mr. Nakasone originally filed his appeal to the Commission in 1987, there have been a series of hearings held and decisions made by the Commission, and eventually the matter was brought before the Third Circuit Court which remanded the issue back to the Commission. Throughout these proceedings, Mr . Mattos contends Mr . Nakasone has been represented by Hawaii Government Employees Association (HGEA) , the County Department of Civil Service by the County Corporation Counsel and the Commission by the State Attorney General, while Mr . Mattos, although a subject of the meetings, was not given formal notice of the proceedings . Furthermore, the attorneys for Mr . Mattos interpret the Commission' s decision of February 28 places the fault on the County' s evaluation, selection and certification process . Thus, as the Commission has ordered the Chief Engineer to replace Mr . Mattos with one of the remaining three candidates on a 1986 eligibility list, they believe this in effect is penalizing Mr . Mattos for the County' s error. Therefore, the attorneys suggest that Mr . Mattos has not received due process of the law, which demands he be given a fair opportunity to present his case with the assistance of counsel and because of such, requests that the County Council authorize funding to pay for legal counsel in his appeal of the Commission' s decision. FC REPORT NO. 383 ADOPTED: FC-383 Page 2 April 23, 1991 Your Committee acknowledges Communication No. 2457 (attached to this report) dated April 15, 1991, from Michael J. Matsukawa, Corporation Counsel, renders an opinion non-supportive of the County providing or funding legal counsel as requested by Mr . Mattos . During the Committee meeting, Mr . Jeffrey Choi, who initially intervened on behalf of Mr. Mattos during the final months of Commission deliberations, and Mr . Steve Christensen, Office of the Corporation Counsel, presented testimony on the subject . Mr . Choi stated that Mr. Mattos innocently assumed the County was representing him during the Civil Service Commission proceedings and therefore did not actively get involved. However, Mr . Choi understands administrative law and the necessary process to be taken in order to exercise one ' s rights and because of this and the fact that Mr . Mattos is a personal friend, offered to assist . Mr. Choi stated that although he was allowed to intervene, the Commission restricted his activity, disallowing any steps which would interrupt the Commission' s process and thereby not affording his client true intervenor rights . Mr. Christensen, Assistant Corporation Counsel, refuted that claim, stating that the County championed Mr . Mattos ' right to intervene and encouraged him to do so . Mr. Choi further stated that there are a number of reasons why HGEA would not grant legal counsel to Mr. Mattos and reasoned therefore that the County should provide it to him. He noted Mr. Mattos is a supervisor and therefore represents management and it is against union policy to support management . He also said, if the union supports Mr. Nakasone and wins, it would advance the union cause; whereas, supporting Mr . Mattos only advances the cause of the County. Mr . Christensen resoundly stated there is no legal grounds or obligation for the County to provide legal counsel to Mr . Mattos and to do so was setting a bad precedent . He stated, he wrote to Mr . Mattos ' attorneys and asked them to provide a legal foundation for their request that the County should provide their client legal counsel and had not received any reply. He suggested Mr . Mattos approach the numerous group legal plans, and other available legal services for his personal representation during the appeal . FC-383 Page 3 April 23 , 1991 Thereafter, members of the Committee, Mr. Choi and Mr. Christensen discussed a number of relevant issues : Whether Section 5-2 .3 of the Hawaii County Charter requires or restricts the County from providing for legal representation as requested by Mr . Mattos . The relevant passage states, "The corporation counsel shall be the chief legal advisor and legal representative of all county agencies, the council and all officers and employees in matters related to their official powers and duties . " Whether or not the circumstances of the subject case are similar to those of a Police Officer who receives County supported legal counsel for actions which occurred while on duty. Although not the legal responsibility of the County, whether or not it is the moral obligation of the County to provide reasonable attorney fees for Mr. Mattos ' appeal process . Whether or not the granting of County funds to Mr. Mattos would establish a precedent for other civil servants desiring subsidized legal counsel . If there was a way to determine if the Civil Service was incorrect in its findings as it relates to Mr. Mattos, and if there was some sort of recourse which the County could take to be compensated if the County were to provide funding for legal counsel to Mr . Mattos . Your Committee on Finance recommends the Council approve payment of reasonable attorney fees for Mr. Mattos ' appeal to the Civil Service Commission. / t n HELENE H. HALE, CHAIRWOMAN ROBERT H. MAKUAKANE, VICE CHR. BRAN J. DE LIMA, MEM: d k tk./ TAKASHI DOMINGO, MEMBER MERL •■ 1 S. A/I�i..' - ., -/ HARRY S. UDDLE, MEMBER S`V ER K. SCHUTTE, MEMBER POL HPR-16-91 TUE M44:44 3AKURA i R EMI P. 02 BEFORE THE CIVIL SEflVw:CE COMMISSION COUNTY OF HAWA t I STATE OF HAWAII In the Matter of the Appeal of ) ) STANLEY NAKASOjc E, ) ) Appellant . DEciaila AND ORDER This matter came on for hearing before the County of Hawaii Civil Service Commission Oere?nafter "Commission" ) . Assistant Corporation Counsel Steen Christensen represented the Hawaii County Department of Civil Service and the Hawaii. County Department of Public Works . Charles K.Y. Khim, Esq . ,, represented Appellant Stanley Nakasone (hereinafter "Appellant" ) . Jeffrey Choi , Esq. , represented Intervenor John "Jippy" Mattos . The issues in this appeal are: 1 . Whether John "nppy" Matto: met the Minimum Qualification Requirements (MQRs) for the position cf Road Construction and Maintenance Superintendent, EM-3 ; and 2 . Whether the selection of John "Jippy" Mattos to the position of Road Construction and Maintenance Superintendent violated sections 76-1 and 76--92,, Hawaii Revised Statutes , which provide::., in part;, equal opportunity for all regardless of politics . c-zy3S The Commission, having duly consilered the testimon and exhibits p:resented at this tearing ands having heard the argumen s of all parties and having been advised of the issues , makes the following findings of fact, conclusions of law and order . FI DINU_ OF FACT 1 . On December 1G,, 1985, John "JLppy" Mattos began his provisional appointment to the position of Road Construction and Maintenance Superintendent, EM-3 . 2 . On June 16 , 1986 , John "Jippy" Mattos began his probationary appointment to the position of Road. Construction and Maintenances Superintendent_ , EM-3 . This appointment was made pursuant to an Int:ra-Cc:npet.:Ltive Promotional Examination (Examination No. 16-86) . Appeel ].ant ' s Exhibit 12 . 3 . Al]. applicants for a provisional appointment and all applicants in an Intra-Competitive Promotional Examination are required to meet the Mini:nura Qualification Requirements (MQEs) for that particular position. 4 . The Minimum Qualification Requirements (MQRs) for the position of Road Construction and Maintenance Superintendent are as follows : A combination of education and experience ;substantially equivalent to graduation from high school and three (3) years of supervisory experience in general construction and maintenance work involving roads and appurtenant structures , which requires directing and coordinating program activities through several subordinate supervisory levels . Appellant ' s Exhibit 1. 2 APR-16-91 TUE 11. 45 37KURAI R SING FAx O. 8J'J 5 , The Hawaii County Department of Civil Service determined that:, John "Jippy" Mattos mat the Minimum Qualification Fcequirements (MQRs ) for the position of Road Construction. and Maintenance Superintendent, EM-3 , at the time of his provisional appointment on December 1€ , 1985 as well as at the time of his probationary appointment on June 16 , 1986 . Appellant ' s Exhibit 2 . 6 . From 1980 to 1985 (before being appointed to the Road Construction and Maintenance Superintendent position) , John "Jippy" Mattos was the Sewer Maintenances Supervisor, F1 -9 , HC No . 303 , in the Wastewater System Maintenance Branch of the Waste M< nagsment Division, Department of Public Works . This position is a :First-line supervisory position in which Mr. Mattos supervi:sed three. (3) non-supervisory employees . See Appellant ' s Exhibits 3 and 4 . See also T::an:script, Vol . I, pp. 50-52 . 7 , A first-line supervisor (like Mr. Mattos) does not supervise supervisors and therefore, does not "direct or coordinate program activities through several subordinate supervisory levels . " 8 . Furthermore, as the Sewer Maintenance Supervisor, Mr . Mattes did not supervise the construction or maintenance of roads o appurtenant structures . In fact, at no time when Mr. Mattes was employed in the Waste Management Division, did he ever 'supervise the construction or maintenance of roads or appurtenant structures . 3 Rr' i t'a b ):-1r,i;l Al g SING FAX 1O 8033991c . c 9 . Before becoming a Sewer Maintenance Sup&.rvisor, Mr . Mattos was a Sewer Maintenance Repairer, a Laborer, a Custodian for Hilo Hospital , a General Laborer, E. General Construction Worker, a Carpenter Helper and General Utility worker, and a Carpenter Apprentice. In addition, Mr . Mattos graduated from :Hilo High School i:z 1959 in Industrial Arts and has three course credits in Public Planning from the University of Hawaii-Milo . See Appellant ' s Exhibit 2 . 10 . None of the work experience obtained by Mr . Mattos prior is becoming a Sewer Maintenance Supervisor qualified as "supervisory" experience . None of the work experience obtained by Mr . Mattos prior to his becoming a Sewer Maintenance Supervisor involved '"directing and coordinating program activities through several subordinate supervisory levels . " C:ONCLUS:[C�ua OF LAW Based on a review of the entire record in the instant appeal, the Commission makes the following conclusions of law. 1. At the time of his application to the provisional appointment to Road Construction and Maintenance Superintendent , EM-3 , John "Jippy " Mattos did not meet the Minimum Qualification Requirements (MQRs) for that position,. 2 . At the time of his application to the Intra-Competitive Promotional Examination to Road Construction and Maintenance Superintendent;, EM-3 , John "jippy" Mattos still 4 nr -I J-J, 'LL . ,40 FAX \10, 8095991814 did not meet the Minimum Qualif :icetion Requirements (MQRS) for that position . QPD U ,Eased on the foregoing findings of fact and conclusions of Jaya, the appeal filed herein is hereby granted. The determination by the Department of Civil Service that John "J:ippy" Mattos met the Minimum Qualification Requirements (MQRs) for the position of Road Construction and Maintenance Superintendent is hereby rescinded. The Department of Public Works is directed to re--do its selection, for the position of Road Construction and Maintenance Superintendent, EM-3 ;. such selection to be limited to the three (3) qualified applicants ( assuming that thay are still interested in this position) listed in the Int:ra-Competitive Promotional Examination No . l6 -86 . The selection shall be made by the Department of Public Works within thirty (30) days after being not:if ied. Finally, Appellant shall not be entitled to any back pay. DATED: Hilo, Hawaii , February 287 199l CIVIL SERVICE 'COMMISSION COUNTY OF HAWAII • LOKELANI RIC RDS-SI VA Chairperson 5 80859918:4 APR-16-91 TUE 14:47 $ KUF a SING FAX NO 803 1E814 P, 07 [ ed: 4 RO3ERT B. PADDOCK Membe r __1<e_41/4- r , HELEN F:. HE MMES Member PIILANT DESHA Member 4617T tFez:b. 'i to be a - 1 . I ..01 On {11,. i.. Lorraine R.Inouye Mayor Michael J.Matsukawa or Corporation Counsel •(--"•�` �1;:;0 Steven Christensen " Office of the Corporation Counsel Assistant Corporation Counsel • o =°- Hilo Lagoon Centre • 101 Aupuni Street,Suite 325 • Hilo,Hawaii 96720 • (808)961-8251 • Fax(808)969-7049 April 15, 1991 Honorable Russell S. Kokubun Chairman, County Council County of Hawaii 25 Aupuni Street Hilo, Hawaii 96720 Dear Mr. Kokubun: Re: Request for Attorneys ' Fees, John H. Mattos By letter dated April 3 , 1991, Sakurai and Sing, attorneys for John H. Mattos, have asked that the County Council authorize and commit the County to pay Mr. Mattos ' attorneys ' fees with respect to his appeal of the decision of the Civil Service Commission. As you know, the dispute centers upon the lawfulness of Mr. Mattos ' selection as road maintenance superintendent and the appeal of Stanley Nakasone who was a disappointed applicant for the post . We are unable to discern any lawful basis upon which the County might be said to have a duty to provide legal counsel ' s fees for Mr. Mattos ' defense of his appointment . If the Council were to act to authorize and fund such an expenditure by the County, the same might be an ultra vires act subject to challenge by a taxpayers ' action to void such a measure. The rule we deem applicable is succinctly stated in 4 McQuillin Mun Corp §12 . 199 , p. 10 : Attorneys ' fees cannot be recovered by way of reimbursement of a municipal officer, where the attorney was employed to protect the private interest of the officer in his office and no COMM. NO..—. ' / To: FC Honorable Russell S. Kokubun Page 2 April 15, 1991 public benefit inured to the municipality' s benefit . A municipality may indemnify its officials only where the expenses are incurred in the performance of official duties or in defense of actions challenging official acts . The fact that the public official is involved in the suit is not dispositive of the issue, rather it is the subject matter of the underlying suit that determines whether the public must bear the burden of the expense. (Citations omitted. ) It is a fundamental tenet that a municipality is "not authorize[d] . . . to expend funds for other than a public purpose. " Section 39 . 19 , McQuillin Mun Corp p. 38 . In that vein, it has been remarked that: "City authorities have no discretion to give away public funds or pay other people' s bills . " City of Nampa y Kibler, 113 P.2d 411 (Idaho 1941) (headnote 4 . ) As stated in §406 , 63A Am Jur 2d, Public Officers and Employees, pp. 963-964 : In some circumstances, it has been held that a municipality or other public authority may be, or may become, bound to pay the legal expenses which an official has incurred in an action brought against him. It is the general rule that a public agency may indemnify public officials acting in good faith for legal expenses incurred in suits brought against them for acts committed in the discharge of their duties . We are of the opinion that these precepts do not apply in this instance in that no action was "brought against" Mr. Mattos; neither is the civil service proceeding a "suit brought against [Mr. Mattos] for acts committed in the discharge of [his] duties . " In the absence of contrary constitutional, statutory, charter, ordinance or collective bargaining contractual provision to the contrary, none of which we find exists , the applicable authority militates against a right to payment of legal fees by the County in this instance . Honorable Russell S. Kokubun Page 3 April 15 , 1991 Please inquire at any time if there are remaining doubts or questions . Sincerely, MICHAEL J. MATSUKAWA Corporation Counsel By / /i STEVEN CHRISTENSEN Assistant Corporation Counsel SC: jk 5180I cc: Mayor