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HomeMy WebLinkAbout2023-12-21 Merit Appeals Board MinutesREGULAR SESSION Merit Appeals Board Hilo Council Chambers Hawaii County Building 25 Aupuni Street, First Floor, Room 1401 Hilo, Hawaii December 21, 2023 (Thursday) 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 Thursday, December 21, 2023. Roll Call — Present Ms. Gabriella M. Cabanas, Chair Ms. Kate De Soto, Member Mr. Charles Kunz, Member Mr. David A. Wiseman, Member Absent and Excused Ms. Gay Mathews, Vice -Chair Also Present Mr. J Yoshimoto, Assistant Corporation Counsel, Office of the Corporation Counsel Ms. Glynis Yamada, Secretary -Reporter, Human Resources Department Merit Appeals Board Call to Order (Item 1) December 21, 2023 CHR. CABANAS: Good morning. The regular meeting of the Merit Appeals Board is called to order on December 2111, 2023. It is 10 a.m. We are located at the Hilo Council Chambers of the Hawaii County Building, at 25 Aupuni Street, First Floor, Room 1401, in Hilo, Hawaii. We have quorum with four members present. I'm Gabriella Cabanas, Chair, of the Merit Appeals Board, and with me in the Hilo Council Chambers are the following Board members Ms. Kate De Soto, good morning. MS. DE SOTO: Good morning. CHR. CABANAS: And Mr. Charlie Kunz. MR. KUNZ: Merry Christmas. CHR. CABANAS: Good morning. And Mr. David Wiseman. MR. WISEMAN: Good morning. CHR. CABANAS: Good morning. We have our fifth member, Ms. Gay Mathews—right now absent—she is on her way to our meeting. Also with us in the Hilo Council Chambers are J Yoshimoto, our Assistant Corporation Counsel. MR. YOSHIMOTO: Good morning, everyone. CHR. CABANAS: Good morning. And our Secretary -Reporter, Glynis Yamada. MS. YAMADA: Good morning. CHR. CABANAS: Good morning. Addendum to Agenda (Item 2) CHR. CABANAS: There's no addendum to the agenda. Statements from the Public (Item 3) CHR. CABANAS: And no "Statements from the Public." Page 2 Merit Appeals Board Approval of Minutes (Item 4) October 25, 2023 December 21, 2023 CHR. CABANAS: We are looking at Number 4 on the agenda, approval of the minutes for the regular meeting of October 25, 2023. Has everyone had the chance to review the minutes? Okay, they have acknowledged "yes." MR. WISEMAN: Move to approve. CHR. CABANAS: Thank you. Is there a second? MR. KUNZ: I second. CHR. CABANAS: Thank you. Any discussion? If not, I'll start a rollcall vote with Kate De Soto. MS. DE SOTO: Aye. CHR. CABANAS: Mr. Charlie Kunz. MR. KUNZ: Aye. CHR. CABANAS: Mr. David Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Cabanas—aye. Four ayes. Motion carried to approve the regular meeting minutes of October 25h, 2023. Review Of Executive Session Minutes October 25, 2023 (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matters, Pursuant To HRS Sections 92-4 And 92-5(a)(4), For The Purpose Of 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: Next item is the executive session minutes, but we're going to delay that for the next meeting because the minutes were not ready for today's meeting. Page 3 Merit Appeals Board Communications (Item 5) CHR. CABANAS: So, moving along there are no "Communications." New Business (Item 6) CHR. CABANAS: And no "New Business." So, we are now on Number 7, "Unfinished Business" MR. YOSHIMOTO: (Inaudible.) Review Of Executive Session Minutes December 21, 2023 October 25, 2023 (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matters, Pursuant To HRS Sections 92-4 And 92-5(a)(4), For The Purpose Of 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: Oh, we need a motion—okay, let's backtrack a little bit. So, we need a motion to delay the executive session meeting minutes for October 25h, 2023. MR. KUNZ: So moved. CHR. CABANAS: Thank you. MR. WISEMAN: Second. CHR. CABANAS: to the next meeting. Motion made and seconded to have the executive session minutes delayed to the next meeting in January. Any discussion? If not, I'll start a rollcall vote with Kate De Soto. MS. DE SOTO: Aye. CHR. CABANAS: Charlie Kunz. MR. KUNZ: Aye. CHR. CABANAS: Mr. David Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Cabanas—aye. Page 4 Merit Appeals Board December 21, 2023 Four ayes. Motion carried and the executive session minutes will be reviewed at the January meeting. Okay. So there are no "Communications," no "New Business." Unfinished Business (Item 7) Discussion Concerning The Appeal Process For Individuals Who File An Appeal (Note: The Above Matter Was Listed On The October 25, 2023, Merit Appeals Board Agenda.); And Communication No. 23-07, From Merit Appeals Board Chair Gabriella M. Cabanas, Providing A Fact Sheet Regarding "Information On Filing Appeals With The Merit Appeals Board (MAB)". This Document Was Obtained From The MAB Files, Which Is Currently Available To The Public. Chair Cabanas Requests The Board Review And Discuss Possible Revisions To The Fact Sheet CHR. CABANAS: We are now on Number 7, "Unfinished Business." So, we have a fact sheet provided by Glynis. She found this in the files and upon discussion, I thought it would be a good idea for us to review it. This concerns what may be appealed before MAB, who may file the appeal, and the filing deadlines. What we want to do is, also, address—which I'm working on—what an appellant can do to prepare for an appeal hearing. So, I'm working on that—and then I'll have J and Glynis review it and then it will go to the Deputy Attorney General to also review it. So, that probably won't be done till early next year. But, for now, this is what the department already had prepared about who can file an appeal, what they can file, and the deadlines for the different matters. So, have you all had a chance to review it? And do you have any comments or concerns? MR. WISEMAN: I have one question. On the application, does the application state a right to appeal? `Cause if your time is 20 days—and I'm just wondering how would a person know when it's that 20 days—if they can appeal that or not. CHR. CABANAS: Yeah. Not on the application. But what happens is, once the person starts the Administrative Review process or the Internal Complaint process that right to appeal is provided to them. MR. WISEMAN: I see. Okay. CHR. CABANAS: I'm not sure if a right to appeal is on the posting, though. I can't remember. MR. WISEMAN: Well, so long there's a notice therea timely notice. Page 5 Merit Appeals Board December 21, 2023 CHR. CABANAS: There is. Yeah, there is, yeah. Any other comments or—I'll give you folks some time to, kind of, look it over. MR. KUNZ: Gabe, do we know how the individual has access to this or understands that these are this is the process that they would be going. When they file an appeal, does somebody in their office provide that? CHR. CABANAS: I asked that of Glynis and she said that if the person is coming in with their appeal formGlynis, you provide this to them? MS. YAMADA: Not all the time. CHR. CABANAS: Not all the time. So, when is this given to the individual who may want to file an appeal or inquires about filing an appeal? MS. YAMADA: If they have questions. CHR. CABANAS: If they have questions. MR. KUNZ: And then, is that protocol someplace—if they have questions, they have this versus every person who files an appeal should get it? Just for a matter of this issue that we're talking about now—feeling maybe a little intimidated or lost or not knowing what this might have looked like or what their rights may have looked like? Is that down somewhere, that protocol, that has to be followed or can we—can it be made where every individual who appeals gets these this information. CHR. CABANAS: Because the individual has to go through—for HR—an Admin. Review process, which is the internal complaint process. For the other departments, it is the internal complaint process and then they go to—and then it goes to MAB. So, it's not only HR giving this information, right, because if you look at it—other employment action taken by the employer—could be suspension, demotion, discharge and dismissal that could be with other line departments. So, I hear what you're saying, there should be some sort— there ortthere should be consistency. If the department—line department or HR feels that this is going to go to an appeal, the issue is not resolved at the internal complaint process, then maybe they should give this to the individual. MR. KUNZ: And I think I may have mentioned once whether there was a County employees handbook that is issued, and whether or not something like this would be in it—like, you may appealda, da, da, da, da, da—and then, they can reference this. So, there is no County handbook, though—employee handbook? Page 6 Merit Appeals Board December 21, 2023 CHR. CABANAS: Not that I know of unless—did they ever develop one? No—Glynis is shaking her head. There is no employee handbook, but there is a New Hire Orientation—of course, that's for new hires. But I'm thinking that maybe the department—and we can recommend to Sommer that this be incorporated—and not only for HR but for all line departments because all departments have an internal complaint process. MR. KUNZ: And I think, on one hand, one might consider that this opens up a can of worms that people go, "Oh, my gosh, oh, I didn't know this" but, really, I think what's prudent is that they have access to what their rights are and what the procedures are not anybody worrying about, "Well, we going see a lot of appeals come now" CHR. CABANAS: Yeah. MR. KUNZ: Because, if it happens, then it probably was meant to happen. But if the individual the employee doesn't have this in their toolbox, I can see why it can get a little daunting and confusing not understanding the steps and who we are and what being in front of us themselves. CHR. CABANAS: Because if the person—if you look at the second column, the last block, employees who are adversely affected or suffered a legal wrong, and excluded from collective bargaining, and holds a civil service position. A person from the public can come before MAB. In other words, an applicant whose application is not accepted, doesn't meet minimum qualification requirements we've had that. Or an applicant who is not selected for a position, can file an appeal. So, there are matters that MAB has jurisdiction over—recruitment and examination, classification and pricing, and there are other matters, like, suspension, demotion, discharge, dismissal. If you noticed under the footnote, "Matters covered by a collective bargaining grievance procedure may not be appealed to the Merit Appeals Board"—and that's because they're going to go through the grievance route. And if it's not resolved through the grievance route, it could possibly end up going to arbitration. MR. KUNZ: So, is an exempt employee has rights to file? CHR. CABANAS: So, an exempt employee has rights. Yes. And a member of the public has rights. So, that's where the differentiation occurs, and that's where employees and members of the publicI agree with you, it should be transparent—what their rights are. The purpose of the internal complaint process is for the issue at -hand to, hopefully, be resolved so that it doesn't come to MAB or if it's through the collective bargaining process, it doesn't end up going to Page 7 Merit Appeals Board December 21, 2023 arbitration they resolve it that way. So, that's the purpose. The only time it should come to MAB is if it cannot be resolved and then it comes to MAB. And that's why the internal complaint process is very important and that's why for HR, specifically, when they're dealing with applicants they need to engage with the person. It's not only sending an email notice to the individual. It's talking to the individual, allowing them to understand why this is—why their application was not accepted, give them options that's where the employment counseling component comes in. For a line department, if it's a non-selection—while there's only so much that the line department will provide to the applicant why you're not selected, they're not going to give an analysis to the individual. However, both sides need to have their facts so that if—when they come to MAB, they provide the facts, yeah, so that MAB can evaluate and then make a decision. But that engagement with the person, to me, is so important. And we don't want applicants to be disillusioned or so discouraged, they don't apply for other recruitments. We want them to continue to apply even if this job, you didn't meet MQ's—maybe the other job you will, but hang in there and keep trying. A lot of employees, a lot of applicants have done that but they need to engage with the person. So, any other comments or questions. MR. KUNZ: I was just going to say, I have no more questions this year, regarding this matter. CHR. CABANAS: So, I don't know—any recommendation or MR. KUNZ: I think we just wait for CHR. CABANAS: Wait for Part 2. MR. KUNZ: Yeah. And then, we can have a more active discussion. CHR. CABANAS: And Glynis has a lot of it already. So, I'm going to incorporate what she has—what the appellant needs to do for an appeal itself. In other words, provide an original and eight copies of your exhibits, provide your list of witnesses, and that sort of thing—so that they come prepared and they're not at a disadvantage. In other words, both sides come prepared because what we have found was appellants may not know what they really need to do in an appeal—and they don't realize, sometimes, it's a formal appeal hearing that could last hours, if not, the whole day depending on the matter. So, I will get that done early in 2024. So, do we need to do anything with this? MR. YOSHIMOTO: File (inaudible). Page 8 Merit Appeals Board December 21, 2023 CHR. CABANAS: Just—do I need—we need a motion to file? Okay. So may I have a motion to file the information on filing appeals with the Merit Appeals Board, specifically, it's Communication number 23-07. MS. DE SOTO: So moved. CHR. CABANAS: Thank you. Is there a second? MR. KUNZ: Second. CHR. CABANAS: Thank you. Any discussion? If not, I'll start a rollcall vote with Ms. Kate De Soto. MS. DE SOTO: Aye. CHR. CABANAS: Charlie Kunz. MR. KUNZ: Aye. CHR. CABANAS: David Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Cabanas—aye. Four ayes. Motion carried to file Communication number 23-07. Director's Report (Item 8) CHR. CABANAS: The "Director's Report"—our Director of Human Resources has submitted a letter explaining why she is not in attendance today. She is in mediation—and I think it's going to last for a couple of days. So, she and her deputy are at that mediation meeting. Page 9 Merit Appeals Board December 21, 2023 Announcements (Item 9) CHR. CABANAS: Are there any "Announcements?" Schedule Next Meeting Date (Item 10) The Merit Appeals Board Will Convene Its Next Meeting On Monday, January 22, 2024, At 10:00 A.M. At The Hilo Council Chambers, Hawaii County Building, 25 Aupuni Street, First Floor, Room 1401, Hilo, HI 96720 CHR. CABANAS: If not, our next meeting will be on Monday, January 22nd, 2024, at 10 a.m., at the Hilo Council Chambers, Hawaii County Building, at 25 Aupuni Street, First Floor, Room 1401, in Hilo, Hawaii. Adiournment (Item 11) CHR. CABANAS: And so, now we are at the "Adjournment"—is there a motion to adjourn? MR. KUNZ: So moved. CHR. CABANAS: Second? MS. DE SOTO: Second. CHR. CABANAS: Any discussion? If not, I'll start a rollcall vote to adjourn today's meeting with Kate De Soto. MS. DE SOTO: Aye. CHR. CABANAS: Charlie Kunz. MR. KUNZ: Aye. CHR. CABANAS: David Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Gabriella Cabanas—aye. Page 10 Merit Appeals Board December 21, 2023 Four ayes. Motion carried. Meeting is adjourned at 10:18 a.m. Merry Christmas, everyone, and have a wonderful Happy and healthy New Year. Respectfully submitted, Aftifew,cyam/tick Glynis Yamada, Secretary-Reporter APPROVED: ,fdeXIA .-tGt3 At • 0a Gra Pity Y'- Gabriella M. Cabanas, Chair Merit Appeals Board Page 11