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HomeMy WebLinkAbout2021-08-16 Merit Appeals Board MinutesMerit Appeals Board Hilo Council Chambers Hawaii County Building 25 Aupuni Street, First Floor, Room 1401 Hilo, Hawaii August 16, 2021 (Monday) Call to Order (Item 1) The regular meeting of the Merit Appeals Board, County of Hawaii, was called to order at 10:00 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 Monday, August 16, 2021. Roll Call — Present Ms. Gabriella M. Cabanas, Chair Mr. Mel Ventura, Vice -Chair (via Zoom) Mr. Charles Kunz, Member Ms. Gay Mathews, Member Also Present Ms. Dee Ann Sadayasu, Acting Director (TA), Human Resources Department (via Zoom) Mr. J Yoshimoto, Deputy Corporation Counsel, Office of the Corporation Counsel Ms. Amanda Furman, Deputy Attorney General, State Department of the Attorney General (via Zoom) Ms. Lerisa Heroldt, Appellee, Deputy Corporation Counsel, Office of the Corporation Counsel (via Zoom) Mr. Robert Perreira, Appellant Ms. Glynis Yamada, Secretary -Reporter, Human Resources Department Mr. Relley Araceley, Legislative Information and Reference Technician, Office of the County Clerk Ms. Nancy Cook -Lauer, Reporter, West Hawaii Today (via Zoom) Note: As part of the response to the threat of COVID-19, Governor David Ige issued an Emergency Proclamation Related to the COVID-19 Response dated August 5, 2021, suspending Hawaii Revised Statutes Chapter 92, Public Agency Meetings and Records, to the extent necessary to enable boards as defined in Section 92-2, to conduct meetings without any board members or members of the public physically present in the same location. This meeting will be held through a combination of some board members being physically present at the meeting location and some members participating by interactive video conference through ZOOM. Only persons that are present for the particular item on the agenda will be allowed in the meeting room. Each person will be required to wear a face mask and maintain six feet physical distance from any other person as required by law. Merit Appeals Board Call to Order (Item 1) August 16, 2021 CHR. CABANAS: We have quorum today with four of our members present. Sitting in via Zoom from Kailua-Kona is our Vice -Chair, Mr. Mel Ventura. Good morning, Mr. Ventura. Mel, can you hear me? MR. VENTURA: Yeah, good morning, everyone. Sorry, I had myself muted. CHR. CABANAS: No problem. Good morning, Mr. Ventura. And in the Hilo Council Chambers at the Hawaii County Building are our fellow Board members—Ms. Gay Mathews. MS. MATHEWS: Here. CHR. CABANAS: Good morning, Ms. Mathews. And we also have Mr. Charlie Kunz. MR. KUNZ: Good morning. CHR. CABANAS: Good morning, Mr. Kunz. Also present with us in the Council Chambers are the following individuals. We have our Secretary -Reporter to the Board, Ms. Glynis Yamada; our legal counsel to—for MAB, J Yoshimoto, from the Office of the Corporation Counsel. MR. YOSHIMOTO: Good morning. CHR. CABANAS: Good morning. We also have Relley Araceley from the Office of the County Clerk manning our computers to make sure everything is working well. Also, appearing via Zoom from Kona is Ms. Lerisa Heroldt, from the Office of the Corporation Counsel; from Honolulu we have Ms. Amanda Furman, our Deputy Attorney General from the State Attorney General's office; we also have Ms. Dee Ann Sadayasu from the Department of Human Resources sitting in for our Acting Director Waylen Leopoldino, who is out of the office today; and we also have Nancy Cook -Lauer, News Reporter, from West Hawaii Today. So I want to welcome all of you on behalf of the Merit Appeals Board. Looking at the agenda we do notoh, yes, and I'm so sorry. We also have Mr. Robert Perreira, Appellant, on a matter that's pending before the Merit Appeals Board. So, welcome, Mr. Perreira. Addendum to Agenda (Item 2) CHR. CABANAS: We do not have any "Addendum to the Agenda." Page 2 Merit Appeals Board August 16, 2021 Statements from the Public (Item 3) CHR. CABANAS: No "Statements from the Public." 10:00 a.m. Hearing Re Communication No. 21-02 (Hearing Concerns The Preliminary Issue Of Whether The Board Has Jurisdiction Under Section 76-14, Hawaii Revised Statutes, To Hear The Appeal) CHR. CABANAS: So, we're going to move on to communications that I need to enter into the record. And so, before I read them, I'm going to ask that Mr. Yoshimoto step out for a few minutes because the—our attorney on this matter is not Mr. J Yoshimoto. Itour attorney on this matter, because it's an appeal before the Merit Appeals Board, is Ms. Amanda Furman who is sitting in via Zoom. She's our Deputy Attorney General. And I'm going to ask Mr. Perreira, if you can approach the dais here as I read the various communications and enter them into the record. So, thank you for doing that. So, there's a number of communications, so if you can bear with me. And the communication really deals with hearing Communication number 21-02. It's the hearing concerning the preliminary issue of whether the Merit Appeals Board has jurisdiction under Section 76-14, of the Hawaii Revised Statutes, for the Board to hear the appeal. Communication No. 21-02, Received On April 30, 2021, Appealing A Recruitment And Examination, And Employment Action (Failure To Provide A Fair And Transparent Process For The Selection Of The Fire Chief) By The Fire Commission; And Communication No. 21-02.01, Received On June 8, 2021, Regarding County's (Hereinafter Referred To As "Appellee") Memorandum Regarding The Merit Appeals Board's Lack Of Jurisdiction; Certificate Of Service; And Communication No. 21-02.02, Received On June 22, 2021, Regarding A Letter From The Appellee, Notifying The Board That The Memorandum Filed On June 8, 2021, (Reference Comm. No. 21-02.01) Was Inadvertently Not Sent To The Appellant); And Communication No. 21-02.03, Received On June 23, 2021, Regarding A Letter From The Appellant, Notifying The Board That The Appellant Did Not Receive The Memorandum From The Appellee By The June 9, 2021, Deadline And Requested Additional Time To Submit Their Responsive Brief. (Note: The Board Granted The Appellant's Request For A Continuance Via A Letter Dated July 6, 2021, Sent By Certified Mail To Both Parties); And Communication No. 21-02.04, Received On July 6, 2021, Regarding Appellant's Position Statement On Whether The Merit Appeals Board Has Jurisdiction In This Appeal; Exhibits "A" – `B"; Certificate Of Service; And CHR. CABANAS: At this time the Chair would like to acknowledge that Exhibit B was not submitted to the Merit Appeals Board that the Appellant called our Secretary -Reporter last week Page 3 Merit Appeals Board August 16, 2021 to notify her that he did not submit Exhibit B. So, I just want to go on the record to state that. Is that correct, Mr. Perreira? MR. PERREIRA: (Inaudible. The mic. was not turned on.) CHR. CABANAS: Okay. Thank you so much. MR. PERREIRA: That is correct. CHR. CABANAS: Thank you. Communication No. 21-02.05, Received On July 8, 2021, Regarding Appellee's Reply Memorandum Regarding The Merit Appeals Board's Lack Of Jurisdiction; Certificate Of Service. (Board Action Required: Address The Issue Of Whether The Board Has Jurisdiction To Hear The Appeal) (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matters, Pursuant To HRS Sections 92-4, 92-5(a)(2) And 92-5(a)(4), For The Purpose 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 Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting) CHR. CABANAS: At this point in time, I'm going to ask for a motion for the Board to go into executive session. There is a matter we need to discuss first and then we will come out of the executive session and go into our open session. So, I'm going to ask my fellow Board members for a motion for us to go into executive session. MS. MATHEWS: So moved—Gay Mathews. CHR. CABANAS: Thank you, Ms. Mathews. Any second? MR. KUNZ: Second. CHR. CABANAS: Thank you, Mr. Kunz. Let's have a rollcall vote starting with Mr. Ventura. MR. VENTURA: Aye. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. Page 4 Merit Appeals Board August 16, 2021 MR. KUNZ: Aye. CHR. CABANAS: Ms. Cabanas—aye. We have four votes. Motion carried. I'm now going to ask that the Board members and Ms. Furman remain in executive session. And all others if they could exit just for a few minutes while we have our discussion in executive session and we'll call you back once we're done—and back in open session. Thank you. There's a reason I'm going to explain to the Board members. Let me know when I can start. RECESS: The Chair called for a recess at 10:08 a.m. to convene executive session. RECONVENE: The meeting reconvened at 10:30 a.m. in open session. CHR. CABANAS: Okay. We are now back in open session at 10:30 a.m. with four members present—Mr. Ventura, from Kailua-Kona sitting in via Zoom; Ms. Cabanas, Ms. Mathews, and Mr. Kunz at the Hilo Council Chambers; Secretary -Reporter Glynis Yamada; Mr. Robert Perreira, Appellant; Relley Aracely manning the computers; via Zoom we have Ms. Heroldt from the Office of the Corporation Counsel; Ms. Amanda Furman from the State Attorney General's Office; Ms. Dee Ann Sadayasu from the Department of Human Resources; and Ms. Nancy Cook -Lauer from West Hawaii Today. Welcome, everybody. Mr. Perreira, you indicated on your appeal form to this Board that you wish to have an open hearing. Do you still wish to proceed in the open meeting? MR. PERREIRA: Yes, I do. CHR. CABANAS: Okay. Thank you very much. The Board received the County of Hawai`i's memorandum regarding the Merit Appeals Board's lack of jurisdiction on June 8, 2021. Because the memorandum had not been timely served on Mr. Perreira, the Board granted an extension of the deadlines for Mr. Perreira to file his responsive brief and the County to file its reply. On July 6, 2021, the Board received Appellant's position statement on whether the Merit Appeals Board has jurisdiction in this appeal. On July 8, 2021, the Board received the County of Hawai`i's reply memorandum regarding the Merit Appeals Board's lack of jurisdiction. The briefs of the parties show that there is a controversy over whether this Board has the authority to hear the appeal. The County takes that position that this Board does not have jurisdiction to hear this appeal. In short, the County has argued that the question of whether a fair and transparent selection process took place is one that should be addressed by the administrative and/or judicial process explicitly set forth in the Uniform Information Practices Act, not by this Board. Page 5 Merit Appeals Board August 16, 2021 Additionally, the County has argued that the position of fire chief is exempt from civil service law, that the Fire Commission has the exclusive authority and discretion to hire the fire chief and that the Board cannot grant the remedy sought by Mr. Perreira. Mr. Perreira, on the other hand, takes that position that his Board does have jurisdiction over the issues raised in his appeal. He refutes that his appeal should be addressed under Hawaii Revised Statutes, section 92F, and argues that pursuant to the Hawaii Labor Relations Board's decision, Number 445 in the "Amador" case, as long as Hawaii Revised Statutes, section 378-2 does not apply to any of the issues raised on appeal, then the Merit Appeals Board retains jurisdiction over this matter. This Board notes that Hawaii Revised Statutes, section 76-14, subsection (c)(2), and section 104-3(b) of this Board's Rules both require that the Merit Appeals Board shall not proceed on an appeal or shall hold proceedings in abeyance if there's any controversy regarding its authority to hear the appeal until the controversy is resolved by the Hawaii Labor Relations Board. We read these provisions as requiring that any controversy regarding this Board's authority to hear an appeal, to be resolved by the Hawaii Labor Relations Board. Because there is a controversy over this Board's authority to hear this appeal, the Board will be holding these proceedings in abeyance, and submitting the controversy regarding its authority to hear this appeal to the Hawaii Labor Relations Board. The Board will not hear arguments on the jurisdictional issue today. Instead, the Board will be submitting Mr. Perreira's appeal, appeal form, and both parties briefs on the jurisdictional issue to the Hawaii Labor Relations Board with a petition for declaratory ruling on the issue of whether the Board has authority to hear this appeal. The Merit Appeals Board will not take a position on the jurisdictional issue in the proceedings before the Hawaii Labor Relations Board and will not represent either of your interests. Thus, you are both strongly urged to file a petition for intervention with the Hawaii Labor Relations Board, so you can represent your own interests before the HLRB. If the Hawaii Labor Relations Board determines that the Merit Appeals Board has the authority to hear this appeal, then we will lift the abeyance on these proceedings and go forward with this appeal. However, if the Hawaii Labor Relations Board determines that the Merit Appeals Board does not have the authority to hear this appeal, then we will dismiss this appeal. Does either parry have an objection to the Merit Appeals Board submitting Mr. Perreira's appeal form and all of the briefing material you submitted on the jurisdictional issue to the Hawaii Labor Relations Board? Mr. Perreira, I'm going to ask you first if you have any objection at this time. Page 6 Merit Appeals Board August 16, 2021 MR. PERREIRA: Chair Cabanas, and Board Members, thank you for your time today. I do have an objection. And my objection is that it's very clear and simple that in 76-14 the Merit Appeals Board duties and jurisdiction, the Merit Appeals Board of each jurisdiction shall decide appeals from any action under this chapter taken by the chief executive officer, the director, and appointed authority which the Fire Commission is an appointing authority—or a designee acting on behalf of one of these individuals relating to: Number 1, Recruitment and Examination. And I'll end there. My objection is that 76-14(a)(1) clearly states that you guys have jurisdiction that the Merit Appeals Board shall have jurisdiction. And that's my objection. If that's the process that I need to go through after this meeting today, then that's the process I will go through because our department—our Fire Department—is suffering under this leadership. Thank you. MS. FURMAN: So, Mr. Per CHR. CABANAS: Mr. MS. FURMAN: Sorry. Mr. Perreira, the Board the Merit Appeals Board will not be deciding the merit of that jurisdictional issue and is going to be submitting it to the Hawaii Labor Relations Board—we'll be submitting your briefs and your appeal form as well. Do you have any objection to your appeal form and the brief that you submitted regarding the jurisdictional issue that has your position on this Board's jurisdiction to hear your appeal, do you have objections to those filings that you submitted to the Merit Appeals Board being submitted to the Hawaii Labor Relations Board? MR. PERREIRA: I do not have any objections to that. MS. FURMAN: Okay. Thank you very much, Mr. Perreira. Thank you. MR. PERREIRA: Thank you. CHR. CABANAS: Thank you, Ms. Furman, and Mr. Perreira. Ms. Heroldt, do you have any objection to the Merit Appeals Board's submitting Mr. Perreira's appeal form and all the briefing material you submitted on the jurisdictional issue to HLRB? MS. HEROLDT: No, Madam Chair, Appellee has no objection. Thank you. CHR. CABANAS: Okay. Thank you, Ms. Heroldt. This Board will be mailing you copies of this Board's petition for declaratory ruling to the Hawaii Labor Relations Board once it is filed. But please be reminded that it will be up to you to become intervenors and represent your interest in those proceedings. Page 7 Merit Appeals Board August 16, 2021 This appeal will be held in abeyance until further notice from this Board. At this time, I'm going to ask for a motion from our Board to postpone the hearing until we receive a determination from HLRB and then upon receipt, the matter will be placed on the Merit Appeals Board's agenda. May I have a motion, please? MS. MATHEWS: So moved. CHR. CABANAS: Thank you, Ms. Mathews. MR. KUNZ: Second. CHR. CABANAS: A second— MR. KUNZ: Second. CHR. CABANAS: Seconded by Mr. Kunz. So, we will take a rollcall vote starting with Mr. Ventura. MR. VENTURA: Aye. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Cabanas—aye. We have four aye votes. Motion carried. Thank you very much. Thank you, Mr. Perreira, for coming today. MR. PERREIRA: Thank you. CHR. CABANAS: And thank you, Ms. Heroldt, for also being present representing the County. MS. HEROLDT: Thank you. CHR. CABANAS: Moving along on our agendaoh, yes, that's right. We'll wait for Mr. Yoshimoto to come back into the room. Page 8 Merit Appeals Board August 16, 2021 So, Mr. Yoshimoto is now back as our attorney. Thank you, Amanda, for your help with the Robert Perreira appeal. Thank you very much. MS. FURMAN: I will stay for—until the (inaudible/Appellant) matter. CHR. CABANAS: Okay. Thank you. Oh, shall we take it out of order. So, if there are no objections, we can do that. MR. KUNZ: No objections. CHR. CABANAS: Okay. Let's do that. Now, where are we. Under "Unfinished Business" so we will go to "Unfinished Business" for discussion and appropriate action. Entering into the record, we have the following communications. Communication No. 21-01, Received On March 8, 2021, Appealing A Recruitment And Examination Action (Discharge As A Police Officer I During The Police Recruit Process) By The Hawaii County Police Department; And Communication No. 21-01.01, Received On April 19, 2021, Regarding County's (Appellee's) Witness And Exhibit List; Certificate Of Service; And Communication No. 21-01.02, Received On May 18, 2021, Regarding County's (Appellee's) Subpoena; Notice To Appear, Was Approved On May 19, 2021, By Merit Appeals Board Chair Gabriella M. Cabanas (Note: At The Merit Appeals Board Hearing Held On May 26, 2021, On The Above Matter, The Appellant Requested A Closed Hearing. Following The Board's Discussion In Executive Session And Upon Exiting Executive Session, The Board Rendered Its Decision And Voted In The Closed Hearing With Both Parties Present. In Accordance With Hawaii Revised Statutes, Chapter 92, The Board Will Recite Its Decision Rendered On May 26, 2021, And Vote In Open Session) Board Action Required: Board To Recite Its Decision Rendered On May 26, 2021, And Vote In Open Session (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matters, Pursuant To HRS Sections 92-4, 92-5(a)(2) And 92-5(a)(4), For The Purpose 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 Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting) CHR. CABANAS: Not listed on the agenda is also Communication number 21-01.03 which is the executed subpoena to Communication No. 21-01.0, which is the executed subpoena to Communication No. 21-01.02. So, at this time, I would just like to note that the minutes of the closed hearing reflected that Mr. Kunz made a motion and it was seconded by Mr. Ventura. Ms.—and then we all voted in the closed hearing. So, I'm going to ask for a motion now that we are in open session, and what we're going to do now is we need a motion made by the same individual by the same Board member, who was Page 9 Merit Appeals Board August 16, 2021 Mr. Kunz, and seconded by Mr. Ventura. We're going to vote—we need the motion made and it's to concur that's the language to concur with the Board's recommendation at the May 26, 2021, executive session. So, we need to use those—I've been advised, we need to use that verbiage for our motion now with the second. So, the motion made by Mr. Kunz and seconded by Mr. Ventura. Shall I repeat that? So, the motion is to concur with the Board's recommendation at the May 26, 2021, executive session. MR. KUNZ: What was the date, again, I'm sorry. CHR. CABANAS: May 26, 2021, executive session for the (inaudible/Appellant) appeal. MS. MATHEWS: Point of order. Didn't we do that after we came back from executive session? CHR. CABANAS: We did it in the closed hearing. From executive session we moved into a closed hearing MS. MATHEWS: Oh. CHR. CABANAS: because he asked for a closed hearing. I've been advised, we now need to do our vote in an open session and the verbiage is to concur with the Board's recommendation at the May 26, 2021, executive session. So, may I ask, kindly MR. KUNZ: Sure. CHR. CABANAS: —for a motion. MR. KUNZ: I move that we concur with the Board's recommendation at the May 21 ", 2021, executive session for the (inaudible/Appellant) appeal. CHR. CABANAS: Okay. And may I have a second from the person who from the Board member that made the second initially on May 26—can I have that second? MR. VENTURA: Second. And the motion was May 26h. Correct? CHR. CABANAS: Correct. MR. KUNZ: I think I mis-spoke. MR. VENTURA: Yeah, I sec MR. KUNZ: I believe I mis-spoke. Did I say May 21" or 26h? Page 10 Merit Appeals Board MR. VENTURA: I thought I heard 21st CHR. CABANAS: I thought it was "26h"' but- MR. ut MR. KUNZ: Shall I restate it? CHR. CABANAS: Yeah, please? August 16, 2021 MR. KUNZ: I move that we concur with the Board's recommendation at the May 26th, 2021, executive session for the (inaudible/Appellant) case—appeal. CHR. CABANAS: Okay. And the second is from Mr. Ventura. MR. VENTURA: Second. CHR. CABANAS: Okay. And so, we'll do a rollcall vote with—starting with Mr. Ventura. MR. VENTURA: Aye. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Cabanas—aye. We have four aye votes. Motion carried. Okay. So now following the agenda—okay, so, Amanda, I think—do we still need to have you sit in? MS. FURMAN: No, if it's okay, I'd like to be excused. CHR. CABANAS: Sure. Thank you so much for all of your help on behalf of the Merit Appeals Board. MS. FURMAN: Thank you. CHR. CABANAS: We really appreciate your legal expertise. MS. FURMAN: Thank you, everyone. Bye CHR. CABANAS: Thank you bye, bye. Page 11 Merit Appeals Board Approval of Minutes (Item 4): August 16, 2021 May 26, 2021; May 26, 2021 (closed hearing re Comm. No. 21-01); June 28, 2021 CHR. CABANAS: Okay. Going back to the agenda for "Approval of Minutes." This is on page 3 of the agenda. We have three different meetings. May 26, 2021 CHR. CABANAS: We'll take the first one—May 26, 2021. Have the Board members reviewed the meeting minutes? And if, "yes," may I have a motion to approve the meeting minutes of May 26, 2021. MR. KUNZ: So moved. MS. MATHEWS: Second. CHR. CABANAS: Thank you. We'll take a rollcall vote starting with Mr. Ventura. MR. VENTURA: Aye. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Cabanas—aye. We have for aye votes. Motion carried to accept the meeting minutes of May 26h, 2021. May 26, 2021 (closed hearing re Comm. No. 21-01) CHR. CABANAS: We also have May 26h, 2021, the closed hearing regarding Communication number 21-01. Have we all reviewed the meeting minutes of that? Okay, we have. So, I need a motion to approve the meeting minutes of May 26th, 2021, closed hearing regarding Communication number 21-01. MR. KUNZ: So moved. CHR. CABANAS: A second? MS. MATHEWS: Second. Page 12 Merit Appeals Board August 16, 2021 CHR. CABANAS: Okay. Thank you. Starting with a rollcall vote with Mr. Ventura. MR. VENTURA: Aye. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Cabanas—aye. We have four aye votes. Motion carried. June 28, 2021 CHR. CABANAS: The last one is for June 28, 2021. There were three of us at the meeting that day. So, I'm going to just note that, Gay, you abstain from the voting on that one because you were absent and excused. So, everyone reviewed the June 28h minutes? Okay. So, may I have a motion to accept the meeting minutes of June 28, 2021. MR. VENTURA: So moved. CHR. CABANAS: Thank you. MR. KUNZ: Second. CHR. CABANAS: Thank you. Starting with a rollcall vote. Mr. Ventura. MR. VENTURA: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Cabanas—aye. We have three aye votes. Motion carried to accept the June 28, 2021, meeting minutes. Page 13 Merit Appeals Board August 16, 2021 Review of Executive Session Minutes April 26, 2021; May 26, 2021; June 28, 2021 (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matters, Pursuant To HRS Sections 92-4, 92-5(a)(2) And92-5(a)(4), For The Purpose 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 Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting) CHR. CABANAS: Now we move on to "Review of Executive Session Minutes." April 26, 2021 CHR. CABANAS: We have April 26h, 2021. Has everyone read those minutes? Okay, we have. Okay. May I have a motion to accept the meeting minutes for April 26h, 2021? MS. MATHEWS: So moved. CHR. CABANAS: Thank you. Second? MR. KUNZ: Second. CHR. CABANAS: Thank you. Okay. Vote starting with Mr. Ventura. MR. VENTURA: Aye. CHR. CABANAS: Okay. Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Cabanas—aye. We have four aye votes. Motion carried. May 26, 2021 CHR. CABANAS: We also have the May 26h, 2021, executive session minutes. Everyone read those minutes? Okay. May I have a motion, please? Page 14 Merit Appeals Board MS. MATHEWS: So moved. CHR. CABANAS: Second? MR. VENTURA: Second. CHR. CABANAS: Thank you. Starting with Mr. Ventura rollcall vote. MR. VENTURA: Aye. CHR. CABANAS: Thank you. Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Thank you. And Ms. Cabanas—aye. Four aye votes. Motion carried. June 28, 2021 August 16, 2021 CHR. CABANAS: And the last one is June 28, 2021, executive session minutes. Everyone read those minutes? Okay. May I have a motion to accept. MR. KUNZ: So moved. CHR. CABANAS: Second? MR. VENTURA: Second. CHR. CABANAS: Thank you. Starting with the rollcall vote. Mr. Ventura. MR. VENTURA: Aye. CHR. CABANAS: Thank you. Ms. Mathews. MS. MATHEWS: Abstain. CHR. CABANAS: Okay. And Mr. Kunz. MR. KUNZ: Aye. Page 15 Merit Appeals Board August 16, 2021 CHR. CABANAS: And Ms. Cabanas—aye. We have three aye votes. And I just want to note that Ms. Mathews was absent and excused from the June 28 executive session. Communications (Item 5) CHR. CABANAS: I do note that there are no "Communications" on the agenda. New Business (Item 6) 6A) Selection Process For Filling The Position Of New Director Of Human Resources (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matters, Pursuant To HRS Sections 92-4, 92-5(a)(2) And 92-5(a)(4), For The Purpose 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 Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting) 6B) Fiscal Year 2021-2022 Annual Evaluation Process Of The Director Of Human Resources (HR) (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matters, Pursuant To HRS Sections 92-4, 92-5(a)(2) And 92-5(a)(4), For The Purpose 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 Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting) CHR. CABANAS: So, we're going to go to "New Business." Under "New Business" we have two topics and for these two topics, I believe it's appropriate for us to go into executive session. So, may I have a motion to—for the Board to go into executive session. MS. MATHEWS: So moved. CHR. CABANAS: First of all, I need to I'm sorryI need to read for the record what the two items are for us going into executive session. The first one is 6A—selection process for filling the position of new director of human resources; and the second one is Fiscal Year 2021-2022 the annual evaluation process of the director of human resources. Is there any objection for the Board to take out of order—if we can do 6B first—the annual evaluation process. And then we do the selection process for the next director of human Page 16 Merit Appeals Board August 16, 2021 resources. Any objection to taking it out of order? Okay, thank you very much. No objection is noted. MR. YOSHIMOTO: So, Madam Chair, you're going to make or request a motion to go into executive session? CHR. CABANAS: Yes. MR. YOSHIMOTO: Yeah. CHR. CABANAS: I am requesting a motion for the Board to go into executive session to discuss these two items under "New Business"—and we're going to take it out of order. We will start with the fiscal year 2021-2022 annual evaluation process of the director of human resources. We'll do that first. And then, we'll go to the selection process second. MS. MATHEWS: So moved. MR. KUNZ: Second. CHR. CABANAS: Thank you. We'll start with the rollcall vote starting with Mr. Ventura. MR. VENTURA: Aye. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Cabanas—aye. We have four ayes. We will now enter into executive session at 10:56 a.m. and we will secure the room. RECESS: The Chair called for a recess at 10:56 a.m. to convene executive session. RECONVENE: The meeting reconvened at 12:05 p.m. in open session. CHR. CABANAS: So, Mr. Ventura, thank you for serving as the Acting Chair MR. VENTURA: You're welcome. Page 17 Merit Appeals Board August 16, 2021 CHR. CABANAS: on the selection process. I'm now back in the room at the call of Glynis, our Secretary -Reporter. And it is now 12:05 p.m. 6B) Fiscal Year 2021-2022 Annual Evaluation Process Of The Director Of Human Resources (HR) (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matters, Pursuant To HRS Sections 92-4, 92-5(a)(2) And 92-5(a)(4), For The Purpose 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 Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting) CHR. CABANAS: So, can we go back to the annual evaluation process and the language. J is going to advise us, the motion, that we should make. MR. YOSHIMOTO: Okay. Thank you, Madam Chair. So, at this point for Item 613, the Chair is requesting a motion to approve the annual evaluation process of the director of human resources as discussed by the Board in executive session. CHR. CABANAS: Thank you, J. So, may I have a motion to that effect? MS. MATHEWS: So moved. MR. KUNZ: Second. CHR. CABANAS: Thank you. And so, we will do a rollcall vote starting with Mr. Ventura. MR. VENTURA: Aye. CHR. CABANAS: Thank you. Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Thank you to the two of you. And Ms. Cabanas—aye. We have four aye votes. Motion carried. Page 18 Merit Appeals Board August 16, 2021 6A) Selection Process For Filling The Position Of New Director Of Human Resources (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matters, Pursuant To HRS Sections 92-4, 92-5(a)(2) And 92-5(a)(4), For The Purpose 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 Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting) MR. YOSHIMOTO: So, Madam Chair, for the next item 6A selection process for filling the position of the new director of human resources. My understanding is—well, you've recused yourself on this particular matter. CHR. CABANAS: I have recused myself. MR. YOSHIMOTO: Okay. CHR. CABANAS: Yes. (Note: At this time, Chair Cabanas existed the Council Chambers.) MR. YOSHIMOTO: So, at this point, the Board would be—Mr. Ventura would be the Acting Chair for this matter, and the Board would be requesting that a motion be made that the selection process for the filing of the position of new director be conducted by open recruitment in the State of Hawaii. ACTING CHR. VENTURA: May I have a motion that the selection process for the HR director be one of open recruitment in the State of Hawaii. MR. KUNZ: So moved. MS. MATHEWS: Second. ACTING CHR. VENTURA: It's been moved and seconded that the recruitment process be one of open recruitment. Is there any further discussion? There's no further discussion, I'm going to call for a vote. Ms. Cabanas is recused. Ms. Mathews. MS. MATHEWS: Aye. ACTING CHR. VENTURA: Mr. Kunz. MR. KUNZ: Aye. ACTING CHR. VENTURA: Mr. Ventura—aye. Page 19 Merit Appeals Board Motion is carried. August 16, 2021 MR. YOSHIMOTO: So, Mr. Ventura, at this point, it looks like we're going to move on to the next item, which appears to be the "Director's Report." So, looks like Ms. Cabanas can probably appear as Chair again. (Note: At this time, Chair Cabanas returned to the Council Chambers.) Unfinished Business (Item 7) Communication No. 21-01, Received On March 8, 2021, Appealing A Recruitment And Examination Action (Discharge As A Police Officer I During The Police Recruit Process) By The Hawaii County Police Department; And Communication No. 21-01.01, Received On April 19, 2021, Regarding County's (Appellee's) Witness And Exhibit List; Certificate Of Service; And Communication No. 21-01.02, Received On May 18, 2021, Regarding County's (Appellee's) Subpoena; Notice To Appear, Was Approved On May 19, 2021, By Merit Appeals Board Chair Gabriella M. Cabanas (Previously taken out of order.) Director's Report (Item 8) Director's Report Submitted By Department Of Human Resources Acting Director Waylen L. K Leopoldino, Dated August 10, 2021 (And Presented At The Meeting Additional Information Concerning Mileage Reimbursement for Boards and Commissions, Dated August 13, 2021) CHR. CABANAS: Okay. So moving along to the "Director's Report" our Acting Director submitted a memo, I believe it's a memo yes. It's a memo, dated August 10'', 2021, which is his director's report. And he also submitted a memo on August 13, 2021, it's about "Additional Information Concerning Mileage Reimbursement for Boards and Commissions." Is there any discussion about either one the director's report or the memo on the mileage reimbursement for boards and commissioners. I believe we have Dee Ann Sadayasu. Hi, Dee. She's sitting in representing Waylen Leopoldino, who's away from the office today. But Dee Ann is available, if you have any questions on the director's report or the changes on the mileage reimbursement. No questions or comments. If not, may I have a motion to accept and file the director's report and memo on the mileage reimbursement. MR. KUNZ: So moved. Page 20 Merit Appeals Board MR. VENTURA: Second. August 16, 2021 CHR. CABANAS: Thank you. Okay. So, we will have a rollcall vote to accept the director's report and the memo on the mileage reimbursement. Starting with Mr. Ventura. MR. VENTURA: Aye. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Cabanas—aye. We have four aye votes, so the motion is to the motion has been carried to accept and file these two documents. Okay. Thank you, Dee Ann, for sitting in. I hope you're having a good day. MS. SADAYASU: Thank you. CHR. CABANAS: Take care. Schedule Next Meeting Date (Item 9) CHR. CABANAS: Okay. So next on the agenda is scheduling the next meeting which Glynis did poll all of us. So, I believe September 15' is the date we are all available. Our next meeting will be ten a.m. in the Council Chambers on September 15''. Adiournment (Item 10) CHR. CABANAS: May I have a motion to adjourn today's meeting, if we don't have anything else. MS. MATHEWS: So moved. MR. KUNZ: Second. CHR. CABANAS: Okay. Motion is made and seconded. So, I'll start with the rollcall vote. Mr. Ventura. MR. VENTURA: Aye. CHR. CABANAS: Ms. Mathews. Page 21 Merit Appeals Board August 16, 2021 MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Cabanas—aye. Four aye votes. Motion carried to adjourn today's meeting at 12:12 p.m. Thank you, everybody. Respectfully submitted, ilJra) Vandb Glynis Yamada, Secretary-Reporter APPROVED: ifCt-iI .CCt. M. - Vrti-VIG.Ce Gabriella M. Cabanas, Chair Merit Appeals Board Page 22