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HomeMy WebLinkAbout2024-08-28 Merit Appeals Board MinutesREGULAR SESSION Merit Appeals Board Hilo Council Chambers Hawaii County Building 25 Aupuni Street, First Floor, Room 1401 Hilo, Hawaii August 28, 2024 (Wednesday) Call to Order (Item 1) The regular meeting of the Merit Appeals Board, County of Hawaii, was called to order at 9:30 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 Wednesday, August 28, 2024. Roll Call — Present Ms. Gabriella M. Cabanas, Chair Ms. Gay Mathews, Vice -Chair Mr. Charles Kunz, Member Ms. Suzi Bond, Member Mr. David A. Wiseman, Member (via Zoom) Also Present Mr. J Yoshimoto, Assistant Corporation Counsel, Office of the Corporation Counsel Ms. Sommer J. Tokihiro, Director, Human Resources Department Mr. James E. Halvorson, Deputy Attorney General, State Department of the Attorney General (via Zoom) Mr. Justin C. Lee, Deputy Corporation Counsel, Office of the Corporation Counsel Mr. Ted H. S. Hong, Esquire, Attorney at Law Mr. Lyndon P. K. Turner, Automotive Storekeeper, Public Works Department Mr. Stephen Pause, Director, Public Works Department Ms. Darlene Akamine, Senior Account Clerk, Public Works Department Ms. Pomaikai Bartolome, Executive Assistant III, Office of the Mayor (via Zoom) Mr. Rocket -David Roque, Lead Construction Equipment Mechanic, Public Works Department (via Zoom) Ms. Glynis Yamada, Secretary -Reporter, Human Resources Department Merit Appeals Board Call to Order (Item 1) August 28, 2024 CHR. CABANAS: Good morning, everyone. The Merit Appeals Board meeting is called to order on this day, August 28h, Wednesday, at 9:30 a.m. We have quorum today and all five Merit Appeals Board members are present. We have four in Hilo and we have Mr. David Wiseman appearing via Zoom from Kona. I'm Gabriella Cabanas, Chair, of the Merit Appeals Board, and here with me are our Vice -Chair, Ms. Gay Mathews. MS. MATHEWS: Good morning. CHR. CABANAS: Good morning. Mr. Charlie Kunz. MR. KUNZ: Good morning. CHR. CABANAS: And to my far right, Ms. Suzi Bond. MS. BOND: Good morning. CHR. CABANAS: Mr. David Wiseman, as I mentioned, is appearing via Zoom from Kona. Good morning, David. MR. WISEMAN: Good morning. CHR. CABANAS: And to my immediate right is our Assistant Corporation Counsel, Mr. J Yoshimoto. MR. YOSHIMOTO: Good morning, everyone. CHR. CABANAS: Good morning. And in the back of the Merit Appeals Board members here, in the Hilo Council Chambers, at the Hawaii County Building, at 25 Aupuni Street, First Floor, Room 1401, in Hilo, Hawaii in the back of our Board members here, is Glynis Yamada, our Secretary -Reporter. Good morning, Glynis. MS. YAMADA: Good morning. CHR. CABANAS: Also, we have appearing via Zoom from Oahu, our Deputy Attorney General, Mr. James Halvorson. Good morning, Jim. MR. HALVORSON: Good morning. CHR. CABANAS: Good morning. And also present at the dais are Justin Lee, from the Office of the Corporation Counsel; and to his immediate right, is our Director of Human Resources, Ms. Sommer Tokihiro. We also have our Appellant, Mr. Turner, with his Legal Counsel, Page 2 Merit Appeals Board Mr. Ted Hong MR. HONG: Good morning. August 28, 2024 CHR. CABANAS: Good morning. And in the gallery seated, we also have Darlene—is it still "Akamine?" Akamineemployee of the County of Hawaii, and far back there is Mr. Steve Pause, the Director of Public Works. Welcome, to all of you. Addendum to Agenda (Item 2) CHR. CABANAS: Following our agenda today, we do not have any addendum to the agenda according to our Secretary -Reporter. Statements from the Public (Item 3) CHR. CABANAS: Any "Statements from the Public" at this time? If not, we will proceed. Approval of Minutes (Item 4) CHR. CABANAS: There are no "Approval of Minutes." I do want to note that we have received several correspondence after the agenda was posted. And so, I'd like to briefly mention what they are. The first one, is a letter to the Merit Appeals Board, dated August 22nd, 2024, from Mr. Ted Hong, noting that he will be out of the country from September 24h through October 19d', 2024. And he's asking if any deadlines fall within this period, he will need an extension of time upon his return. He's also saying that if there are any discovery requests or general correspondence, please send them to his office using regular mail—and we can also email the correspondence to his staff—and it's so noted in his letter. So, thank you, Mr. Tong, for—Mr. Hong, for giving us the courtesy of your absence from out of the country. So, this is just for informational purposes. Thank you very much. The second piece of correspondence is Communication number 24-03, the Appellant's memorandum in opposition to Appellee's motion to continue, dated August 8, 2024. A declaration from Ted H. S. Hong, certificate of service. All of you have it before you. And so, for record purposes, Jim—Mr. Halvorson, do we need a motion to accept and file this? MR. HALVORSON: No, I don't think you need a motion. CHR. CABANAS: Okay. So, we are—we have that for record purposes. Page 3 Merit Appeals Board August 28, 2024 And the third piece is a letter from Mr. Rocket Roque to the Merit Appeals Board members. He is a Lead Construction Equipment Mechanic with the County of Hawaii, Department of Public Works, Automotive Division. And he wrote a 2 -page letter expressing serious concerns about the management and administrative processes within the Department of Public Works. So, the information is before all of you for your review. It's quite detailed. He has a timeline of events and he ends it by saying, "These concerns highlight systemic issues that affect multiple departments and employees within the County of Hawaii." So, I'm going—we're going to admit this for record purposes also. MR. HONG: Madam Chair? CHR. CABANAS: Yes, Mr. Hong. MR. WISEMAN: I'm sorry, Madam Chair? CHR. CABANAS: Yes, Mr. Wiseman? MR. WISEMAN: (Inaudible) correspondence being admitted for what purpose? CHR. CABANAS: Well, Mr. Roque, as I understand it MR. WISEMAN: I know who he is and I know (inaudible) why he wrote the letterhe was the complainant in the case— CHR. CABANAS: Correct. MR. WISEMAN: —and his allegations that, thereafter, he wasn't hired—and, thereafter, whatever—for whatever reason, he filed the complaint one day after and the allegations were deemed inadequate they didn't hold up. So, in what standing does he have to come before the Board that we need to entertain anything he says at this point? That's my question. CHR. CABANAS: Mr. Halvorson, can you guide the Board on that question for Mr. Wiseman? MR. HALVORSON: Well, I agree that I don't think this person has any standing to bring anything before this Board and this case. But you can you don't need to give his letter any weight, if you desire not to. CHR. CABANAS: Okay, thank you. Mr. Wiseman, does that address your concern, your question? Page 4 Merit Appeals Board August 28, 2024 MR. WISEMAN: Yes, it does. He's not a parry. He has no standing. It's—could be looked at as a sour grapes thing and whatever, but I don't think we need to spend any time on it. CHR. CABANAS: Okay. Thank you. Moving along. Okay. So, it is now 9:38 a.m. MR. KUNZ: Madam Chair? CHR. CABANAS: Yes, Mr. Kunz. MR. KUNZ: Counsel, do we need a motion to dismiss this the letter? CHR. CABANAS: Mr. Halvorson, do we need a motion to dismiss Mr. Roque's letter to the Board? MR. HALVORSON: Yes, you do but I don't think you need to dismiss it. CHR. CABANAS: So, do we need a motion to just accept it into the file or just let it go as is? MR. HALVORSON: Just let it go as is. I don't think you need a motion to put it in the file. It's a letter that the Board has received/acknowledged—and, as Mr. Wiseman has correctly pointed out, it's irrelevant to this particular case. 9:30 A.M.: HEARING RE COMMUNICATION NO. 24-03: Communication No. 24-03, Received On May 1, 2024, From Appellant, Appealing The Following Actions By The County Of Hawai`i's Department Of Human Resources: Recruitment And Examination, And Classification Or Reclassification Of A Particular Position; And Communication No. 24-03.01, Received On June 10, 2024, Regarding Appellee's Motion To Dismiss For Lack Of Jurisdiction, Or In The Alternative, Hold Proceedings In Abeyance; Memorandum In Support Of Motion; Declaration Of Sommer Tokihiro; Declaration Of Justin C. Lee; Exhibits "A" – "V"; Certificate Of Service; And Communication No. 24-03.02, Received On June 10, 2024, Regarding Appellee's Witness List; Certificate Of Service; And Communication No. 24-03.03, Received On June 10, 2024, Regarding Appellee's Exhibit List; Exhibits "A" – "V"; Certificate Of Service; And Communication No. 24-03.04, Received On July 9, 2024, Regarding Appellant's Notice Of Appearance Of Counsel; Certificate Of Service; And Communication No. 24-03.05, Received On July 10, 2024, Regarding Appellant's Memorandum In Opposition To Appellee's Motion To Dismiss For Lack Of Jurisdiction, Or In The Alternative, Hold Proceedings In Abeyance, Dated June 10, 2024; Exhibits "1"; Declaration Of Appellant; Certificate Of Service; And Communication No. 24-03.06, Received On July 11, 2024, Regarding Appellant's First Amended Declaration Of Appellant In Support Of Appellant's Memorandum In Opposition To Appellee's Motion To Dismiss For Lack Of Jurisdiction, Or In The Page 5 Merit Appeals Board August 28, 2024 Alternative, Hold Proceedings In Abeyance Dated June 10, 2024, Dated July 10, 2024; Certificate Of Service; And Communication No. 24-03.07, Received On July 11, 2024, Regarding Appellee's Reply In Support Of Appellee's Motion To Dismiss For Lack Of Jurisdiction, Or In The Alternative, Hold Proceedings In Abeyance; Certificate Of Service (Note: The Above Matters Were Listed On The Agenda Or Presented At The Merit Appeals Board Meeting Held On July 15, 2024. The Merit Appeals Board Denied The Appellee's Motion To Dismiss For Lack Of Jurisdiction As Well As Its Motion To Hold The Proceedings In Abeyance); And Communication No. 24-03.08, Received On July 25, 2024, Regarding Appellee's First Supplemental Exhibit List; Exhibit "W"; Certificate Of Service; And Communication No. 24-03.09, Received On July 25, 2024, Regarding Appellee's Pre -Hearing Brief; Certificate Of Service; And Communication No. 24-03.10, Received On July 25, 2024, Regarding Appellee's Notice Of Filing Petition For Declaratory Ruling With The Hawaii Labor Relations Board; Exhibit "A"; Certificate Of Service; And Communication No. 24-03.11, Received On July 30, 2024, Regarding Appellant's Application For Issuance Of Subpoenas; Declaration Of Ted H. S. Hong; Exhibits "A" – "C"; Certificate Of Service; And Communication No. 24-03.12, Received On August 8, 2024, Regarding Appellee's Motion To Continue; Memorandum In Support Of Motion; Declaration Of Justin C. Lee; Exhibits "A" – `B"; Certificate Of Service; And Communication No. 24-03.13, Received On August 14, 2024, Regarding Appellant's Witness List; Certificate Of Service; And Communication No. 24-03.14, Received On August 14, 2024, Regarding Appellant's Exhibit List; Certificate Of Service; And Communication No. 24-03.15, Received On August 15, 2024, Regarding Appellant's Return Of Service Signed Applications For Issuance Of Subpoena's (Reference Communication No. 24-03.11) (Executive Session The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matter, Pursuant To HRS Sections 92-4, 92-5(a)(2) And 92-5(a)(4), For The Purpose Of 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 Of The Members Present Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting) CHR. CABANAS: Okay. Very good. Thank you very much. Okay. So, we are now with the hearing—on the hearing regarding Communication number 24-03. And you can—if you can bear with me for a bit because I have a bit to read into the record. (At this time, Chair Cabanas proceeded to read into the record Communication numbers 23-03 through 24-03.15, which are listed above.) CHR. CABANAS: So, may I have a motion to accept and file all of the communications that I read? Page 6 Merit Appeals Board MS. MATHEWS: So moved. CHR. CABANAS: Second? MS. BOND: I'll second. August 28, 2024 CHR. CABANAS: Any discussion? If not, I'll start a rollcall vote with Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Cabanas—aye. Five ayes. Motion carried. At this time, does the Appellant want an open or a closed hearing? Your appeal form, Mr. Turner, states that you want an open hearing. Do you still want an open hearing or do you want it closed? It's up to you. (At this time, Mr. Lyndon P. K. Turner, Automotive Storekeeper, Public Works Department, and Mr. Ted H. S. Hong, Legal Counsel for Mr. Turner; and Mr. Justin C. Lee, Deputy Corporation Counsel, Office of the Corporation Counsel, came forward.) MR. TURNER: Open. CHR. CABANAS: You want it open. Okay, Mr. Turner states that he wants an open hearing. Okay. And I've mentioned all of the Board members and keep in mind that for the hearing, Mr. James Halvorson is our legal counsel from the Attorney General's Office. Mr. J Yoshimoto is the Board's attorney when we have regular meetings. Okay? Page 7 Merit Appeals Board August 28, 2024 This hearing is on the appeal filed by Mr. Lyndon P. K. Turner. The issue in this case has been identified as—Number one, did the Employer, the Human Resources Department of the County of Hawaii, violate any statutes, regulations, rules, or personnel policies regarding the following actions: Recruitment and examination, and Classification or reclassification of a particular position. And Number 2, if the answer to the above is "yes" then what remedy can be awarded by the Merit Appeals Board? At the Merit Appeals Board hearing held on July 15, 2024, concerning the preliminary issue of whether the Board has jurisdiction to hear the appeal under Section 76-14 of the Hawaii Revised Statutes, the Board denied the Appellee's motion to dismiss as well as its motion to hold the proceedings in abeyance. Do the parties have any statements or concerns in regard to the issue in this case? MR. HONG: Good morning, Madam Chair—Ted Hong on behalf of the Appellant. No—we have no concerns MR. HALVORSON: So how was your weekendI'm in a hearing. CHR. CABANAS: Pardon me? Mr. Halvorson, are you asking a question? MR. HALVORSON: No, somebody here appeared at my doorI just said I'm in a hearing. CHR. CABANAS: Oh, okay. Glynis has reminded me, that when you are speaking into the mic., if you can put the mic. closer to your face so that what is being said is also being recorded and so that the recording is clear for her to transcribe later. Okay MR. WISEMAN: Yes—Madam Chair? CHR. CABANAS: Yes, Mr. Wiseman. MR. WISEMAN: It's my understanding there's a motion to continue the hearing and there's an opposition to it. Don't we have to take that up first procedural CHR. CABANAS: Yeah, that comes a little later, Mr. Wiseman. MR. WISEMAN: Okay. CHR. CABANAS: So procedurally I have to follow the protocol. Yeah. So, we will get to that very shortly. MR. WISEMAN: Okay. Page 8 Merit Appeals Board August 28, 2024 CHR. CABANAS: So, Mr. Hong, you have said "no" that you don't have any statements or concerns at this time, is that correct? MR. HONG: That's correct. CHR. CABANAS: Okay, thank you. Mr. Lee? MR. LEE: This might be a good time to bring this to the Board's attention. I did notify Mr. Hong, a witness identified as Darlene Akamine—she is a relation of mine—our mothers are cousins. We consider ourselves "cousins." We don't believe that presents a conflict and I've disclosed such to the other side. CHR. CABANAS: Thank you, Mr. Lee, for the disclosure. Since we are on the topic of disclosures, as I mentioned before at a previous—our previous meeting that—yes, I have worked with Mr. Hong when he worked for the Office of the Corporation Counsel. And I do know Darlene because when I was working at the Human Resources Department, Darlene performed HR work, on behalf of the department that she was with. So, I do know Darlene in that capacity. So, it's important that we fully disclose any relationship to avoid any appearance of conflict or impropriety. So, I appreciate your disclosure. Thank you very much. MS. BOND: (Inaudible.) CHR. CABANAS: Are there other—yes, thank you, Ms. Bond. So, there are other persons appearing—is it via Zoom? I see Mayor's Executive Assistant—is that correct? Hello, Pomai. (At this time, Ms. Pomaikai Bartolome, Executive Assistant III, Office of the Mayor, appeared via Zoom.) MS. BARTOLOME: Hi, aloha. CHR. CABANAS: Aloha. Okay, so you'll be sitting in on the hearing today, is that correct? MS. BARTOLOME: I'm here for about 10 -minutes. CHR. CABANAS: Oh, 10 -minutes. Okay. So, for the record, we have Pomai Bartolome, the Executive Assistant to Mayor Mitch Roth. And there is another person on the via Zoom? If you could identify yourself, for the record? Hello? No, I can't see the number from here, but it looks like—are they muted? FEMALE: I'm muted Page 9 Merit Appeals Board August 28, 2024 CHR. CABANAS: Okay. `Cause I can't see it from the angle. Okay. Oh, hello, hi, good morning—could you disclose yourself, please, `cause we see your number appearing via Zoom. MR. ROQUE: Yeah. Good morning, my name is Rocky Roque. CHR. CABANAS: Oh, hi, Mr. Roque. Okay. Thank you for identifying yourself. So, at this point, let me continue. Strict rules of evidence will not apply in this hearing, however, the Board requests that all parties confine themselves to the matters connected with today's hearing and the issue before the Board. If witnesses are used, the opposite parties will be allowed to cross-examine the witness. Members of the Board may also question the witness after the witness testimony. Are there any questions? If not, we shall begin. The Board may go into executive session to discuss the motions before the counsels make their arguments. Unless the parties have agreed otherwise, the Board will entertain the Appellee's motion to continue until such time as the Hawaii Labor Relations Board renders a decision as to whether this Board has the authority to proceed—reference Communication number 24-03.12, received on August 8, 2024. For the record, the Board is in receipt of the Appellants memorandum in opposition to Appellee's motion to continue, dated August 8, 2024—reference Communication number 24-03.16. Okay. So, at this time, we're going to allow the County the opportunity to make argument in support of its motion. Mr. Lee? MR. LEE: Thank you. Deputy Corporation Counsel, Justin Lee, present on behalf of the County of Hawaii. The motion to continue is premised on the argument that the Merit Appeals Board does not have the authority to decide if it has jurisdiction—only the Hawaii Labor Relations Board may do so that's the plain meaning of the statute, HRS 76-14(c)(2)—and I'll quote it, "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." That rule is also echoed in the Merit Appeals Board Rule 1044(b). In this case, it's relatively simple. The County has asserted that the Board does not have jurisdiction. The Appellant has asserted that it does. The plain meaning of the word "controversy" exists—and the analysis stops. Page 10 Merit Appeals Board August 28, 2024 The County has the duty to uphold the law, so does the Appellant, and this Board. This Board cannot proceed on the merits. It may be in excess of its authority until the Hawai `i Labor Relations Board makes a ruling. The Appellants argument regarding delay to Mr. Turner is not well made. It would do no good to proceed, if the Board has no authority. And it would take longer to proceed, have a decision made, and then potentially overturned on appeal for violation of the statute and the Board's own rules. Finally, a word on the opposition that was untimely filed that ignores two rules. The first rule, would be the Merit Appeals Board Rule 104-8, regarding continuancesspecifically, subsection (b)(4)—it requires an opposition to be filed within five working days of receipt of the motion. By my count, the opposition was received or filed 11 working days, with no excuses to why. Rule 104-8(b)(6) requires the Board to treat a lack of timely opposition as agreeing to the request to continue. Now, I'll quote the Rule, "If MR. WISEMAN: Mr. Lee, if I may. You didn't file any reply to the opposition nor did you file any objection to anything being allegedly untimely, did you? MR. LEE: No, we did not. And I do—I will assert the Rule does not require that and also I would assert that the filing was untimely from the Appellant. If I may continue, the Rule states, "If opposing party fails to submit its objections following subsection (b)(4), the opposing parry shall be deemed agreeable to the continuance request." Secondly, the opposition to our motion to continue, ignores the Rule 104-3, the Merit Appeals Board, pertaining to jurisdiction as previously mentioned. The issue is not whether the Hawaii Labor Relations Board has jurisdiction to hear matters pertaining to recruitment, as the Appellant argues in its opposition. The issue is that, if a controversy exists as to the jurisdiction of this Board, this Board cannot decide on it—only the Hawaii Labor Relations Board can. This request to continuance complies with the statute, it complies with the MAB's own Rules. The Board must allow the Hawaii Labor Relations Board to make a determination of jurisdiction before proceeding. Thank you. CHR. CABANAS: Thank you, Mr. Lee. At this time, Mr. Hong, do you have any argument in opposition at this time? MR. HONG: Yes. Thank you. Regarding the timeliness issueI certainly apologize. And Mr. Lee is correct, it is beyond what the Rules require and I put in my Declaration there were extenuating circumstances in terms of my personal life that prohibited me from addressing this Page 11 Merit Appeals Board August 28, 2024 matter, in a timely manner. But what Mr. Lee doesn't identify is how he's prejudiced by the late filing. Second thing is, in terms of the HLRB's jurisdiction—so when you look at the statutory structure of the HLRB versus the merit appeals boards and what the intent was of 76-14—the HLRB has no authority over the individual merit appeals board or civil service commissions. It creates, basically, autonomous organizations -76-14(e) says, you have the jurisdiction or you decide whether you have jurisdiction or not—and that you have to look at it liberally. And I would point out that this is a issue regarding recruitment. And the Intermediate Court of Appeals has said in the Andrade Case against the County that anything regarding recruitment, under 76-14(a)(1), which this is—and we've alleged that—is supposed to be in front of the Merit Appeals Board. So, the tactic in terms of filing anothera complaint or prohibitive practice complaint, with the Hawaii Labor Relations Board, is really specious—it's a stalling tactic because the County well knows the Intermediate Court of Appeals has said, if this is a recruitment issue, you have to go through the Merit Appeals Board not the HLRB. You can count on us that once the HLRB takes it up, we're going to do a motion to dismiss and the law is quite clear—Mr. Lee has not said anything that would counter this Board's or—excuse me—would counter the Intermediate Courts ruling—and we quote in the Intermediate Court's ruling in our memorandum in opposition. So, we would ask the Board to deny the present motion. MR. LEE: Madam Chair, if I may reply? CHR. CABANAS: Please proceed, Mr. Lee. MR. LEE: Thank you. First of all, I want to apologize to Mr. Hong. I forgot about his declaration as far as the reasons toso, if I could strike my argument as far as the lack of excuse for the untimely filing. That was an unfortunate occurrence. With regards to the HLRB's authority, I think what's passed over is the statutory scheme does establish certain jurisdiction of the Merit Appeals Board, but it indicates if there's a controversy as to that—which does exist—then the HLRB has to decide it. And Appellee (sic.) argues, I guess, assumes, that this is a recruitment issue, which is not what the County will agree to. We argue that's it's a classification and pay issue, which leads to a jurisdictional issue. So, we would maintain that a controversy does exist. Thank you. MR. WISEMAN: Madam Chair? CHR. CABANAS: Yes, Mr. Wiseman? Page 12 Merit Appeals Board August 28, 2024 MR. WISEMAN: Mr. Lee, how do you respond to the three factors that the Appellant has listed, such as whether it's to be considered—whether it be delays the opposition is not the general delay, it's not a tactic, and there's no prejudice to the Appellant or prejudice to the Appellee? It's three factors here (inaudible) that stem from some case law. MR. LEE: Well, we would argue that it is not a delay tactic. I mean, we are complying with the statute. I can't tell you how many times I read the statute—it's pretty clear. I mean, it's not complicated at all. It just says, if a controversy exist, this Board cannot act. It has to go to the HLRB. When planning brainstorming out—it's, like, whether or not we disagree with the Merit Appeals Board's decision to deny our motion at the least hearing, it would—it's still clear error and would be more expeditious to take advantage now. I would also note that the Rule does not prohibit us from independently filing a petition with the HLRB, which is why we did so to resolve this jurisdictional issue. I would also point out that jurisdiction is an issue that can be raised at any time, so it will not go away notwithstanding the Board's ruling on our motion. We can raise it again during the hearing on the merits. And I guess— MR. WISEMAN: Okay, thank you. MR. LEE: Oh, thank you. MR. WISEMAN: I see there's a hearing for tomorrow, is that correct—before the HLRB? MR. LEE: There is a hearing before the HLRB tomorrow yes. To—for the Board's clarification—and Mr. Hong, and correct me if I'm wrong that is only on petitions to intervene. It's not on the merits. MR. WISEMAN: I see. Thank you. CHR. CABANAS: Mr. Hong, do you have any other arguments to make at this time? MR. HONG: Well, the only other argument I can make is that, again, Mr. Lee sidesteps the Andrade Case versus the County ofHawai `i. I mean, the language of the Intermediate Court is very clear. And as the Board had articulated what the issues are the Board articulated that one of the issues is recruitment—and that's what we're here about—the recruitment issue. CHR. CABANAS: Thank you. Board members, any questions for either Mr. Lee or Mr. Hong? Mr. Wiseman, you have any other questions for the attorneys? MR. WISEMAN: Just does—Mr. Hong, do you intend to—depending on today's decision—but did that hearing before the HLRB tomorrow, will you be attending that? Page 13 Merit Appeals Board August 28, 2024 MR. HONG: Yes, I'll be attending that because they filed—excuse me the County filed a prohibitive practice complaint and under the HLRB Rules, we're not a party unless we petition to intervene. So, we've petitioned to intervene and that would allow us then, at that point, to file MR. WISEMAN: What type of complaint did you say? MR. HONG: It's a prohibitive practice complaint under 89-13— MR. LEE: I'm sorry, it was a petition for (inaudible). MR. WISEMAN: The purpose is to prohibit someone from practicing? MR. HONG: No—it's like an unfair labor practice before the National Labor Relations Board. MR. WISEMAN: Oh, I see. I see. Thank you. MR. HALVORSON: If I may ask a question? Mr. Hong, what is the prohibitive practice complaint that you're responding to? MR. HONG: We're not—we're petitioning to intervene in the County's petition or complaint regarding—it's asking the Board for a declaratory judgement regarding what they feel would be a prohibitive practice complaint. MR. HALVORSON: That's my question—what's the prohibitive practice being complained of? MR. HONG: That this is not within the jurisdiction of the Merit Appeals Board. MR. LEE: I was going to draw the attention of the Board to Communication 24-3.10 that's, basically, attaches "Exhibit A" is what the County filed with the Hawaii Labor Relations Board, and attaches exhibits to our motion to continue were Mr. Hong's filings before the Hawaii Labor Relations Board. CHR. CABANAS: Did you say, "Exhibit AT' MR. LEE: Yes. MR. HONG: Yeah, so that'sI think that's Communication 03.10 that's their notice of petition. CHR. CABANAS: Okay, thank you, Mr. Hong—and, Glynis, thank you. MR. HONG: And then, our petitionoh, excuse me—our petition for intervention is Communication 03.12, County's "Exhibit B"—as in "Bravo." Page 14 Merit Appeals Board August 28, 2024 CHR. CABANAS: Okay. We will take all of this under advisement at this time. If there are no other questions or arguments to be made, the Board will now deliberate. And so, if I could have a motion, a second—for the Board to go into executive session? MR. KUNZ: So moved. MS. MATHEWS: Second. CHR. CABANAS: Thank you. Any discussion? If not, I'll start a rollcall vote with Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Cabanas—aye. Five ayes. Motion carried. The Board will now enter into executive session and the parties will now be excused from the meeting room. And for those individuals that are on the Zoom call, if—we will now disconnect your capability to hear the rest for a while until our executive session ends. RECESS: The Chair called for a recess at 10:11 a.m. RECONVENED: The meeting reconvened at 10:54 a.m. in open session. Communication No. 24-03, Received On May 1, 2024, From Appellant, Appealing The Following Actions By The County Of Hawai`i's Department Of Human Resources: Recruitment And Examination, And Classification Or Reclassification Of A Particular Position; And Communication No. 24-03.01, Received On June 10, 2024, Regarding Appellee's Motion To Dismiss For Lack Of Jurisdiction, Or In The Alternative, Hold Proceedings In Abeyance; Memorandum In Support Of Motion; Declaration Of Sommer Tokihiro; Declaration Of Justin C. Lee; Exhibits "A" – "V"; Certificate Of Service; And Page 15 Merit Appeals Board August 28, 2024 Communication No. 24-03.02, Received On June 10, 2024, Regarding Appellee's Witness List; Certificate Of Service; And Communication No. 24-03.03, Received On June 10, 2024, Regarding Appellee's Exhibit List; Exhibits "A" - "V"; Certificate Of Service; And Communication No. 24-03.04, Received On July 9, 2024, Regarding Appellant's Notice Of Appearance Of Counsel; Certificate Of Service; And Communication No. 24-03.05, Received On July 10, 2024, Regarding Appellant's Memorandum In Opposition To Appellee's Motion To Dismiss For Lack Of Jurisdiction, Or In The Alternative, Hold Proceedings In Abeyance, Dated June 10, 2024; Exhibits "l"; Declaration Of Appellant; Certificate Of Service; And Communication No. 24-03.06, Received On July 11, 2024, Regarding Appellant's First Amended Declaration Of Appellant In Support Of Appellant's Memorandum In Opposition To Appellee's Motion To Dismiss For Lack Of Jurisdiction, Or In The Alternative, Hold Proceedings In Abeyance Dated June 10, 2024, Dated July 10, 2024; Certificate Of Service; And Communication No. 24-03.07, Received On July 11, 2024, Regarding Appellee's Reply In Support Of Appellee's Motion To Dismiss For Lack Of Jurisdiction, Or In The Alternative, Hold Proceedings In Abeyance; Certificate Of Service (Note: The Above Matters Were Listed On The Agenda Or Presented At The Merit Appeals Board Meeting Held On July 15, 2024. The Merit Appeals Board Denied The Appellee's Motion To Dismiss For Lack Of Jurisdiction As Well As Its Motion To Hold The Proceedings In Abeyance); And Communication No. 24-03.08, Received On July 25, 2024, Regarding Appellee's First Supplemental Exhibit List; Exhibit "W"; Certificate Of Service; And Communication No. 24-03.09, Received On July 25, 2024, Regarding Appellee's Pre -Hearing Brief; Certificate Of Service; And Communication No. 24-03.10, Received On July 25, 2024, Regarding Appellee's Notice Of Filing Petition For Declaratory Ruling With The Hawaii Labor Relations Board; Exhibit "A"; Certificate Of Service; And Communication No. 24-03.11, Received On July 30, 2024, Regarding Appellant's Application For Issuance Of Subpoenas; Declaration Of Ted H. S. Hong; Exhibits "A" - "C"; Certificate Of Service; And Communication No. 24-03.12, Received On August 8, 2024, Regarding Appellee's Motion To Continue; Memorandum In Support Of Motion; Declaration Of Justin C. Lee; Exhibits "A" - `B"; Certificate Of Service; And Communication No. 24-03.13, Received On August 14, 2024, Regarding Appellant's Witness List; Certificate Of Service; And Communication No. 24-03.14, Received On August 14, 2024, Regarding Appellant's Exhibit List; Certificate Of Service; And Communication No. 24-03.15, Received On August 15, 2024, Regarding Appellant's Return Of Service Signed Applications For Issuance Of Subpoena's (Reference Communication No. 24-03.11) (Executive Session The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matter, Pursuant To HRS Sections 92-4, 92-5(a)(2) And 92-5(a)(4), For The Purpose Of 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 Page 16 Merit Appeals Board August 28, 2024 To The Board's Powers, Duties, Privileges, Immunities, And Liabilities. A 2/3 Vote Of The Members Present Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting) CHR. CABANAS: Okay. So our Merit Appeals Board hearing is back in open session at 10:54 a.m. David, can you hear us? MR. WISEMAN: Yes, I hear you fine. CHR. CABANAS: Okay. And, Jim, you can hear us as well? MR. HALVORSON: Loud and clear. CHR. CABANAS: Okay. And then, we have Mr. Roque on the call via Zoom, but he is muted. Okay. All righty, okayso, Board members, do we have a motion as we discussed in executive session? MS. MATHEWS: Mr. Wiseman, would you like to make a motion? MR. WISEMAN: Yes. I move that weoh, we're already in open sessionoh, I'm sorry. CHR. CABANAS: We are in open session, so the Chair is requesting a motion at this time, as we discussed in executive session. MR. WISEMAN: Okay. I make a motion that we hold the matter in abeyance and let the HLRB proceed at tomorrow's hearing, and reschedule a return of this matter on September—what's the date? CHR. CABANAS: September 19'h MR. WISEMAN: 19'h CHR. CABANAS: Here in the Hilo Council Chambers. Is there a second? MS. BOND: Second. CHR. CABANAS: What time nine? Okay, so any discussion? We're discussing the time so is it okay for 9:00 on September 19'', Board members? I'll start a rollcall vote with Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. Page 17 Merit Appeals Board MR. KUNZ: Aye. CHR. CABANAS: Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Ms. Cabanas—aye. Five ayes. Motion carried. Is that date okay with the both of the attorneys—Mr. Hong and Mr. Lee? August 28, 2024 MR. HONG: I have a hearing before Judge Kubota at 8:00—it's supposed to only go until approximately 8:30—should be relatively short. Oh, I see, wait—they changed my calendar. I don't have a hearing now at 8:00. CHR. CABANAS: Oh, okay, that's good. MR. HONG: So, the 19'h at 9:00 is fine. CHR. CABANAS: Okay. We chose September 19'h because we're hoping that HLRB will have rendered their decision and it's before your trip, and it's based on the availability of our Board members. So, our apologies for the delay but we need to, kind of, like, do what we need to do and wait for HLRB's decision. So, September 19'h it is. MR. HONG: My experience with HLRB is sometimes they don't get around to things that—as quickly as possible. I think that Mr. Halvorson probably shares that opinion. But—so may require going into October or even November but, I guess, we can take that up when—cross that bridge when we get to it. CHR. CABANAS: Yes. MR. HONG: And, certainly, I appreciate the Board's consideration of this because I go back to the old adage "haste makes waste"—so— CHR. CABANAS: Yes. And we do not want to—in general, our Board's position is not to keep appellants waiting months and months and months. So, we've asked our—Mr. James Halvorson to see if it can be expedited at HLRB. So, he's going to do what he can to see if it can be expedited. Page 18 Merit Appeals Board August 28, 2024 MR. HONG: It would be nice to see Mr. Halvorson part the waters of HLRB. CHR. CABANAS: Yes, so anyway, that's where it all restsso, September 19'h and we will wait for HLRB's decision, hopefully, before then. And the September 19'h hearing will be here in the Hilo Council Chambers, starting at 9 a.m. Okay. So, at this time is there anything else? Otherwise, I'm going to entertain a motion to end today's hearing. MR. KUNZ: So moved. MS. MATHEWS: Second. CHR. CABANAS: Thank you. Any discussion? If not, I'll start a rollcall vote with Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Thank you. Ms. Cabanas—aye. Five ayes. Motion carried. Today's hearing has been concluded at 11 a.m. Thank you, Mr. Lee and Mr. Hong, Mr. Turner, for your patience, Ms. Tokihiro also for your patience. Thank you—and, hopefully, we'll see you all September 19''. Okay, thank you. Okay. Our meeting continues, going back to our agenda. Okay. So, looking at theoh, yes, thank you, Jim, we're going to just continue with our regular meeting at this point. MR. HALVORSON: Okay. I'll go ahead and leave, but I just want to reiterate that if any member of the Board has any suggestions on how to increase efficiency, feel free to contact me or my office. Page 19 Merit Appeals Board CHR. CABANAS: Okay, thank you. MR. HALVORSON: All right, you guys have a good day. MR. KUNZ: You as well. CHR. CABANAS: You, too. Thank you for your help. MS. MATHEWS: Thank you. MR. HALVORSON: You're welcome. Director's Report (Item 5) August 28, 2024 CHR. CABANAS: Okay, so we are now back to our agenda. There's no "Director's Report." Communications (Item 6) CHR. CABANAS: No other "Communications." New Business (Item 7) CHR. CABANAS: No "New Business." Unfinished Business (Item 8) CHR. CABANAS: No "Unfinished Business." 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 Thursday, September 19, 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: Are we ready to schedule the next meeting day? SPEAKER: (Inaudible.) CHR. CABANAS: We did. But our agenda shows it at "10" but we voted earlier for it to start at 9 a.m. So, the Merit Appeals Board will convene its next meeting on Thursday, September 10, Page 20 Merit Appeals Board August 28, 2024 2024, at 9 a.m., at the Hilo Council Chambers of the Hawaii County Building, at 25 Aupuni Street, First Floor, Room 1401, in Hilo, Hawaii. Adiournment (Item 11) CHR. CABANAS: Is there a motion to adjourn today's meeting? MS. MATHEWS: So moved. CHR. CABANAS: A second? MR. WISEMAN: Second. CHR. CABANAS: Thank you, Mr. Wiseman. Any further discussion? If not, I'll start a rollcall vote with Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. Bond. MS. BOND: Aye. CHR. CABANAS: Mr. Wiseman. MR. WISEMAN: Aye. CHR. CABANAS: Ms. Cabanas—aye. Five ayes. Motion carried. Today's meeting is adjourned at 11:03 a.m. Thank you, everyone, have a good rest of the week. Respectfully submitted, Glynis Yamada, Secretary -Reporter APPROVED: Gabriella M. Cabanas, Chair Merit Appeals Board Page 21