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HomeMy WebLinkAboutMerit Appeals Board Rules94 DEPARTMENT OF HUMAN RESOURCES TITLE II - RULES OF THE MERIT APPEALS BOARD CHAPTER 100 RULES OF GENERAL APPLICABILITY § 100-1 Purpose § 100-2 Construction § 100-3 Limitation of jurisdiction § 100-4 Definitions § 100-5 Board office § 100-6 Meetings § 100-7 Quorum, number of votes necessary to validate acts § 100-8 Minutes of meetings § 100-9 Administration § 100-10 Documents; records § 100-11 Performance evaluation §100-1 Purpose. Chapters 100-104 of these rules govern practice and procedure before the Merit Appeals Board of the County of Hawaii under the authority of §7-1.4, Hawaii County Charter, and Hawaii Revised Statutes §§76-14 and 76-47. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2) § 100-2 Construction. The rules shall be liberally construed to secure the just and timely determination of every proceeding. [Eff. 09/28/02] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2) § 100-3 Limitation of jurisdiction. The jurisdiction of the Merit Appeals Board is limited to those matters covered by the provisions of Hawaii Revised Statutes §§76-14, 76-41, and 76-47. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-14, 76-47, 91-2) § 100-4 Definitions. As used in Title II: 95 �^ "Appointing authority" shall be defined as in Hawai'i Revised Statutes §76-11. "Board" means the Merit Appeals Board. "Chair" or "chairperson" means the Chairperson of the Merit Appeals Board. "Chief executive" shall be as defined in Hawaii Revised Statutes §76-11. "Hearing" means any proceeding governed by Hawaii Revised Statutes §§91-8 and 91-9. "Meeting" means the convening of the Board for which a quorum is required in order to deliberate and make decisions on matters over which the Board has supervision, control, jurisdiction, or advisory power, and Hawai'i Revised Statutes §§91-8 and 91-9. "Party" means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party in an agency proceeding. "Presiding officer" means the Chairperson or any person designated as presiding officer by the Chairperson. "Person" means individuals, partnerships, corporations, associations, or public or private organizations of any character other than county governmental agencies. "Proceedings" means the Board's elucidation of the relevant facts and applicable law, consideration thereof, and action thereupon with respect to a particular subject within the Board's jurisdiction, initiated by a party's filing or submittal or request or the Board's notice or order, including matters involving the adoption, amendment, or repeal of any rule of the Board, whether initiated by the Board order or notice, or by petition of an interested person. [Eff. 09/28/02; am ] (Auth: HRS §91-2) (Imp: HRS §§76-14, 76-47, 76-75, and 91-2) § 100-5 Board office. (a) The office of the Board is at Hilo, Hawai'i. All communications to the Board shall be addressed to: County of Hawai'i Merit Appeals Board 101 Pauahi Street, Suite No. 2 Hilo, Hawai'i 96720 al unless otherwise specifically directed by the Board or its authorized representative. (b) The office of the Board shall be open 7:45 a.m. to 4:30 p.m., Monday through Friday, unless otherwise provided by statute. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2) § 100-6 Meetings. (a) Regular meetings of the Board shall be on the third Wednesday of every month, beginning at 9:30 a.m. in the conference room of the Department of Human Resources or at such other day, time, and place as specified by the Board. (b) Written public notice of regular and special meetings shall be given as provided in Hawai'i County Charter § 13-20 and Hawai'i Revised Statutes §92-7 to the extent applicable. (c) Special meetings may be called by the Chairperson pursuant to Hawaii County Charter § 13-20. [Eff. 09-28-02; am 07-10-03; am ] (Auth: HRS §76-47, 91-2; Hawaii County Charter§13-20) (Imp: HRS §§76-47,91-2, 92-3,92-3.1, 92-3.5, 92-4, and 92-5; Hawai'i County Charter § 13-20) § 100-7 Quorum; number of votes necessary to validate acts. The quorum and number of votes necessary to validate acts of the Board shall be as prescribed in Hawai'i Revised Statutes §92-15 and Hawai'i County Charter § 13-4. [Eff. 09/28/02; am ] (Auth: HRS § § 76-47, 91-2) ( Imp: HRS § § 76-47, 91-2, 92-3, 92-4, 92.5; Hawaii County Charter § 13-4) § 100-8 Minutes of meetings. The Board shall keep written minutes as prescribed in Hawaii Revised Statutes §92-9. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2, 92-9) § 100-9 Administration. (a) The Chairperson shall be responsible for the administrative functions of the Board. (b) All decisions, orders, and other actions of the Board shall be authenticated or signed by the members of the Board acting in 97 such proceeding or by the Chairperson upon delegation by the members of the Board acting in the proceeding. (c) Official copies of decisions, orders, and other Board actions may be promulgated under the signature of the Chairperson or the Chairperson's delegate. (d) The Board may delegate to any competent and qualified individual such power or authority vested in the Board as it deems reasonable and proper for the effective administration of Hawai'i Revised Statutes, Chapter 76, except the power to make, amend, or repeal rules. (e) The Board may appoint a competent and qualified disinterested person to act as its hearings officer. (1) The hearings officer shall hear any matter assigned to the officer by the Board in the same manner as if it were before the Board. (2) Upon the conclusion of any hearing conducted by the hearings officer, the hearings officer shall transmit a record of the hearing, including a recording or transcript and summary of evidence taken at the hearing, along with a recommended disposition of the matter. (3) After review of the materials submitted by the hearings officer, the Board shall render a decision on the matter pursuant to Hawai'i Revised Statutes §91-1 1. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2, 91-9, 91-11) § 100-10 Documents; records. (a) All documents required to be filed with the Board shall be filed in the office of the Board within the time limits prescribed by laws, rules, or order of the Board. (b) Requests for public information, copies of official documents, or opportunity to inspect public records may be made in writing to the Board, by telephone, or may be made in person at the Board's office. Requests shall be taken care of as expeditiously as possible. (c) Records of the Board shall be made available to the public as may be required by Hawai'i Revised Statutes, Chapter 92F. (d) All Board records are available for inspection in the Board's Office, Monday through Friday, 7:45 a.m. to 4:30 p.m., except holidays. (e) Copies of Board records shall be made available to persons requesting the copies upon payment of the appropriate fees prescribed by law or rules. (f) Any person denied the right to information or copies of Board records may appeal the denial in accordance with Hawai'i Revised Statutes, Chapter 92F. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2, 92F-18) (Imp: HRS §§76-47, 91-2, 92-3, 92-4, 92-5, 92-21, 92F-12, 92F-13, 92F-15, 92F-15.5, 92F-21, 92F-23, 92F-27, and 92F-27.5; Hawaii County Charter § 13-20) § 100-11 Performance evaluation. (a) The Board shall evaluate the performance of the director of human resources on a fiscal year basis, i.e., July of one year to June of the next. The annual evaluation shall be held during the Board's June meeting of each year. (b) At its annual evaluation, the Board will review and reach an understanding with the director of human resources on the Board's expectations and the standards upon which it will evaluate the director's performance for the next evaluation period. (c) The evaluation shall be either "meets expectations" or "does not meet expectations." The Board, at its annual evaluation meeting, shall explain to the director as to how expectations have or have not been met. [Eff. 07/10/03; am ] (Auth: Hawaii County Charter § 13-4(j)) (Imp: Hawai'i County Charter §7-1.3; HRS §76-75) DEPARTMENT OF HUMAN RESOURCES TITLE II - RULES OF THE MERIT APPEALS BOARD CHAPTER 101 PROCEEDINGS BEFORE THE BOARD §101-1 General provisions §101-2 Appearances and practices before the Board §101-3 Disqualification of Board member or hearings officer §101-4 Consolidation §101-5 Filing of documents §101-6 Amendment, removal, or withdrawal of documents §101-7 Retention of documents §101-8 Computation of time §101-9 Continuances or extensions of time §101-10 Service of process §101-11 Board decision 11.1 § 101-1 General provisions. (a) The Board may, upon the petition of any interested person or agency of the federal, state, or county government, hold proceedings as it may deem necessary in the performance of its duties or the formulation if its rules. (b) Procedures to be followed by the Board shall, unless specifically prescribed herein or by Hawai'i Revised Statues, Chapter 91, or by any other statute or law, and as in the opinion of the Board, be that as will best serve the purpose of the proceedings. [Eff. 09/28/02; am ] (Auth: HRS § § 76-47, 91-2) ( Imp: HRS § § 76-47, 91-2) § 10 1 -2 Appearances and practices before the Board. (a) A public employee may appear in the employee's own behalf; an employee organization may be represented by a person or persons duly designated and authorized by the employee organization, and a public employer may appear on its own behalf or through a person or persons duly designated and authorized by the employer. (b) In any proceeding under these rules, any public employee, �—� employee organization, or public employer may be represented by counselor any other person to whom the employee has given written or verbal authority. 100 (c) When an individual acting in a representative capacity appears in person or signs a paper in practice before the Board, the individual's personal appearance or signature shall constitute a representation to the Board that, under the provisions of these rules and the law, the individual is authorized and qualified to represent the particular person on whose behalf the individual acts. The Board may at any time require any person transacting business with the Board in a representative capacity to show the individual's authority and qualification to act in such capacity. (d) No individual who has been associated with the Board as a member, officer, employee, or counsel shall be permitted to appear before the Board on behalf of or to represent any party in connection with any proceeding or matter that the individual has handled or passed upon while associated in any capacity with the Board. (e) No person or agency appearing before the Board in any proceeding or matter shall, in relation thereto, knowingly accept the assistance from and compensate any individual who would be barred by subsection (d). (f) No person who has been associated with the Board as a member, officer, employee, or counsel thereof shall be permitted to appear before the Board on behalf of, or to represent in any manner, any person or agency in connection with any proceeding or matter that was pending before the Board at the time of the person's association, unless the person first obtains written consent of the Board. Written consent shall be given only upon verified showing that the person did not give personal consideration to the matter or proceeding as to which consent is sought or gain particular knowledge of the facts thereof during the person's association with the Board. (g) Subsections (d) through (f) shall not apply to any individual or agency who has terminated the association with the Board for a period of one year. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2) § 10 1 -3 Disgualification of Board member or hearings officer. (a) Any party to a hearing may, no later than five days before the proceeding, file an affidavit that one or more of the Board members or a hearings officer has a personal bias or prejudice. For good cause, as determined by the Board, the time limitation for filing may be waived by a majority of all the members to which the Board is entitled. 101 (b) Every affidavit shall state the facts and reasons for the belief that bias or prejudice exists. (c) The Board member or hearings officer against whom the affidavit is so filed may answer the affidavit or may file a disqualifying statement with the Board. (1) If the Board member or hearings officer chooses to answer the affidavit, the remaining Board members shall decide by a majority of all the members to which the Board is entitled, whether that Board member or hearings officer should be disqualified from proceeding therein. (2) Any Board member or hearings officer may disqualify him/herself by filing with the Chairperson a statement that the Board member or hearings officer deems him/herself unable to impartially preside over the pending hearing. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2, 91-6, 91-8) (Imp: HRS § § 76-47, 91-2, 91-6, 91-8) § 10 1 -4 Consolidation. (a) The Board, upon its own initiative or upon motion, may consolidate for hearing or for other purposes, or may contemporaneously consider two or more proceedings that involve substantially the same parties or issues that are the same or closely related, if it finds that a consolidation or contemporaneous hearing will be conducive to the proper dispatch of its business and will not unduly delay the proceedings. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2, 91-6, 91-8) (Imp: HRS § § 76-47, 91-2, 91-6, 91-8) §101-5 Filing of documents. (a) All requests, appeals, pleadings, submittals, petitions, reports, maps, exceptions, briefs, memoranda, and other papers required to be filed with the Board in any proceeding shall be filed at the Board's office within the time limits prescribed by law, rules, or orders of the Board. The date on which the papers are received, if hand delivered, or postmarked, if delivered by mail, shall be regarded as the date of filing. (b) All requests and appeals filed with the Board shall be: /1-- (1) written in ink, typewritten, mimeographed or printed; (2) plainly legible; 102 (3) on strong, durable paper no larger than 8-1/2 X 11 inches in size, except that maps, charts, tables, and other like documents may be larger, folded to the size of the papers to which they are attached. (c) All documents requiring signature must be signed in ink. The signature of the person signing the document constitutes a certification that (1) the person has read the document; (2) to the best of the person's knowledge, information, and beliefs, every statement contained in the document(s) is true and no statement is misleading, and that it is not interposed for delay. (d) All documents filed in any proceeding shall state on the first page thereof, the name, mailing address and telephone number, if any, of the individual or individuals who may be served with any documents filed in the proceeding. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2, 91-6, 91-8) (Imp: HRS § § 76-47, 91-2, 91-6, 91-8) § 10 1 -6 Amendment; removal or withdrawal of documents. (a) If any document filed with the Board is not in substantial conformance with law or rules, the Board may, on its own motion or on motion of any party, remove the document from the record or require its amendment. If amended, the document shall be effective as of the date of the receipt of the amendment. (b) The Board may permit the withdrawal of original documents upon submission of properly authenticated copies to replace the documents. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2, 91-6, 91-8) (Imp: HRS § § 76-47, 91-2, 91-6, 91-8) § 10 1 -7 Retention of documents. All documents filed with the Board shall be retained for no more than five years unless otherwise prescribed by law. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2, 91-6, 91-8) (Imp: HRS § § 76-47, 91-2, 91-6, 91-8) /I-- § 101-8 Computation of time. (a) In computing any period of time, the day of any act, event, or 103 default, after which the designated period of time is to run, is not to be included. (b) The last day of the period to be computed is to be included, unless the last day is a Saturday, Sunday, or legal holiday in the State of Hawaii. In this event, the next day which is neither a Saturday, Sunday, nor holiday shall be considered the last day. (c) When computing time periods of less than 10 days, Saturdays, Sundays, and holidays shall not be included in the computation of time. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2, 91-6, 91-8) (Imp: HRS § § 76-47, 91-2, 91-6, and 91-8) § 10 1 -9 Continuances or extensions of time. (a) The Board may, for good cause as determined by the Board, allow continuances or extensions of time for any action for which a time limitation is prescribed. (b) The allowed continuance or extension shall be allowed only upon motion and the concurrence of a majority of all the members to which the Board is entitled. (c) Notwithstanding subsections (a) and (b), time limitations prescribed by law shall not be waived, unless the law itself provides for a waiver. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2, 91-6, and 91-8) § 101-10 Service of process. (a) The Board shall cause to be served all orders, notices and other papers issued by it, together with any other papers that it is required by law to serve. All other papers shall be served by the parties filing them. (b) All papers served by either the Board or any party shall be served upon all parties or their counsel. (c) Except as provided in subsection (d), service of papers shall be made personally or, unless otherwise provided by law, by first-class mail. If service is by mail, service shall be complete upon deposit in the United States mail, properly stamped, and properly addressed to the parties involved. (d) Decisions and orders of the Board in contested case hearings shall be served as prescribed in Hawaii Revised Statutes §91-12. 104 [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2) §101-11 Board decision. (a) All final orders, opinions, or rulings entered by the Board shall be served upon the parties participating in the proceeding. (b) Service shall be by regular mail or personal delivery by the Board. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2, 91-6, 91-8) (Imp: H RS§ § 76-47, 91-2, 91-6, 91-8) 105 J DEPARTMENT OF HUMAN RESOURCES TITLE II - RULES OF THE MERIT APPEALS BOARD CHAPTER 102 RULEMAKING § 102-1 Initiation of rulemaking proceedings § 102-2 Board action on petition § 102-3 Procedure for adoption, amendment, or repeal of rules § 103-3 Public hearing § 102-5 Board action § 102-6 Emergency rulemaking § 102-7 Filing, effective date of rules § 102-8 Publication of rules § 102-1 Initiation of rulemaking proceedings. (a) The Board may on its own motion initiate proceedings for the adoption, amendment, or repeal of any of its rules. (b) Any person or agency may petition the Board for the adoption, amendment, or repeal of any of the Board's rules. Petitions will be a matter of public record, and shall: (1) Conform to the requirements of § 101-5; (2) Contain the name, address, telephone number, and signature of each petitioner; (3) Provide a draft of or substantively explain the proposed rule or amendment, or shall designate the specific rule being sought for repeal; (4) Contain a statement of the petitioners' interest in the subject matter; (5) Contain a statement of the reasons in support of the proposed rule, amendment, or repeal. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) ( Imp: HRS §§76-47, 91-2, 91-3) § 102-2 Board action on petition. (a) The Board shall, within thirty days after the filing of a petition 102-105 106 provided for in § 103-1, either deny the petition or initiate appropriate proceedings. (b) Petitions which do not conform to the requirements of subsection (b) of § 103-1 shall be denied by the Board. The Board shall inform the petitioner in writing of the denial, stating the reasons for the denial. (c) Any denial shall not prevent the Board from acting on its own motion on any matter disclosed in the petition. (d) Recourse for any denial shall be as provided in Hawaii Revised Statutes, Chapter 91. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2, 91-3) § 102-3 Procedure for adoption, amendment, or repeal of rules. Procedure for adoption, amendment, or repeal of rules shall be as prescribed in Hawai'i Revised Statutes §§91-3,91-4, and 92-41. [Eff. 09/28/02] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2, 91-3) § 102-4 Public hearinca. (a) Public hearing for the adoption, amendment or repeal of rules shall be heard by the Board. (b) The hearing shall afford all persons and agencies a reasonable opportunity to offer testimony on the subject matter. (c) The presiding officer shall have the authority to administer oaths or affirmations and to take other actions necessary to conduct an orderly hearing. (d) Any continuance of a public hearing shall be granted by the presiding officer only after notice is given at the published hearing of the date, time, and place of the continued hearing. (e) Testimonies received at the hearing shall not be recorded verbatim. All supporting written statements, maps, charts, tabulations, or similar data offered by persons at the hearing shall become part of the public hearing record. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2, 91-3) 102-106 110'-- 107 § 102-5 Board action. (a) The Board shall consider all relevant comments and material of record before taking final action in a rulemaking proceeding. (b) Final action shall be taken within sixty days after the final public hearing. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2, 91-3) § 102-6 Emergency rulemaking. Emergency rulemaking shall be as provided in Hawai'i Revised Statutes §91-3(b). [Eff. 09/28/02] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2, 91-3) § 102-7 Filing, effective date of rules. The filing and effective date of rules shall be as prescribed in Hawai'i Revised Statutes §91-4. [Eff. 09/28/02] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2, 91-4) § 102-8 Publication of rules. The publication of rules shall be as prescribed in Hawai'i Revised Statutes §91-5. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2, 91-5) 102-107 108 DEPARTMENT OF HUMAN RESOURCES TITLE II - RULES OF THE MERIT APPEALS BOARD CHAPTER 103 DECLARATORY RULINGS § 103-1 Petition for declaratory ruling § 103-2 Petition form, contents, request for hearing § 103-3 Board action § 103-4 Applicability of order § 103-5 Declaratory ruling on Board's own motion § 103-6 Refusal to issue declaratory ruling § 103-1 Petition for declaratory ruling. Any person or agency may petition the Board for a declaratory ruling as to the applicability of any statutory provision or of any rule under the Board's jurisdiction or of any order by the Board. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2, and 91-8) (Imp: HRS § § 76-47, 91-2, 91-8) § 103-2 Petition form, contents; request for hearing. (a) The petition shall conform to the requirements of § 101-5 of these rules. The petition shall: (1) Contain the name, address, telephone number, and signature of each petitioner; (2) Contain a designation of the specific provision, rule, or order upon which a declaratory ruling is sought, together with a statement of the controversy or uncertainty involved; (3) Contain a statement of the petitioner's interest in the subject matter; and (4) A statement of the petitioner's position or contention in the matter along with a memorandum of authorities, containing a full discussion of reasons and legal authorities in support of the petitioner's position or contention. (b) Any petitioner or party of interest who desires a hearing on a petition for a declaratory ruling shall set forth the specific reasons as to why a hearing is necessary. 109 [Eff. 09/28/021 (Auth: HRS §§76-47, 91-2, 91-8) (Imp: HRS §§76-47, 91-2, 91-8) § 103-3 Board action. (a) Within sixty days after the filing of any petition for declaratory ruling, the Board shall either deny the petition and/or the request for hearing, issue a declaratory ruling in writing, or set the matter for hearing. (b) Any denial shall be in writing and shall state the reasons for the denial. (c) If the Board orders a hearing, the hearing shall be conducted by the provisions found in Hawai'i Revised Statutes §91-9. (d) The Board may, without notice or hearing, dismiss a petition for declaratory ruling if the petition does not conform to the requirements of § 103-2. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2, 91-8) (Imp: HRS §§76-47, 91-2,91-8) § 103-4 Applicability of order. Any order disposing of a petition shall be applicable only to the factual situation described in the petition or set forth in the order. [Eff. 09/28/02] (Auth: HRS §§76-47, 91-2, 91-8) ( Imp: HRS §§76-47, 91-2, 91-8) § 103-5 Declaratory ruling on Board's own motion. Notwithstanding any other provisions of this chapter the Board may, upon its own motion and without notice or hearing, issue a declaratory order to terminate a controversy or to remove any uncertainty. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2, 91-8) (Imp: HRS §§76-47, 91-2,91-8) § 103-6 Refusal to issue declaratory order. (a) The Board may refuse to issue a declaratory order with specific reasons being provided for the refusal. Reasons for refusing to issue a declaratory order may include, but is not limited to the following: (1) the question is speculative or purely hypothetical and does not involve existing facts, or facts that can be expected to exist in the near future; r 110 (2) the petitioner's interest is not of the type that would give the petitioner standing to maintain an action if the petitioner were to seek judicial relief; (3) the issuance of the declaratory order may affect the interests of the Board in a litigation that is pending or may reasonably be expected to arise; or (4) [Eff. 09/28/02; am 91-2, 91-8)" the matter is not within the jurisdiction of the Board. ] (Auth: HRS §§76-47, 91-2, 91-8) (Imp: HRS §§76-47, III DEPARTMENT OF HUMAN RESOURCES TITLE II - RULES OF THE MERIT APPEALS BOARD CHAPTER 104 APPEALS § 104-1 Appeals to the Board § 104-2 Filing of appeal § 104-3 Jurisdiction § 104-4 Mediation § 104-5 Hearing § 104-6 Hearing notice § 104-7 Time and place of hearing § 104-8 Continuances § 104-9 Disqualification § 104-10 Record of hearing § 104-11 Subpoenas § 104-12 Witness/deposition fees § 104-13 Oath § 104-14 Order of hearing § 104-15 Submission of testimony § 104-16 Judicial notice § 104-17 Additional evidence § 104-18 Close of hearing § 104-19 Decisions and orders § 104-20 Appeal of decisions and orders § 104-21 Counsel § 104-1 Appeals to the Board. (a) Appeals to the Board, shall be made pursuant to Hawaii Revised Statutes §§76-14, 76-41, and 76-47. (b) Subject to subsections (c), (d), and (e), appeals may be filed by individuals concerning any action taken under Hawaii Revised Statutes, Chapter 76, by the chief executive, the director, an appointing authority, or a designee on behalf of one of these individuals, relating to: (1) Recruitment and examination; (2) Classification and reclassification of a particular position; (3) Initial pricing of classes; and 112 (4) Other employment actions under Hawaii Revised Statutes, Chapter 76, including disciplinary actions and adverse actions for failure to meet performance requirements taken against civil service employees who are excluded from collective bargaining coverage under Hawaii Revised Statutes §89-6. (c) Any person suffering legal wrong by an action under subsection (b) (1) or aggrieved by such action shall be entitled to appeal to the Board. (d) Any employee covered by Hawai'i Revised Statutes, Chapter 76, suffering any legal wrong by an action under subsection (b) (2) or (3) shall be entitled to appeal to the Board. (e) Only employees covered by Hawai'i Revised Statutes, Chapter 76, who are excluded from collective bargaining, suffering legal wrong by an action under subsection (b) (4) shall be entitled to appeal to the Board. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-14, 76-47, 91-2) § 104-2 Filing of appeal. (a) Appeals shall be filed within twenty days from the action giving rise to the appeal; provided, if use of an internal complaint procedure pursuant to Hawaii Revised Statutes §76-42 is required prior to filing an appeal with the Board, the appeal to the Board shall be filed within twenty days from a decision rendered at that step in the internal complaint procedure immediately preceding the filing of the appeal to the Board. Appeals from an administrative review taken by the director under Title I of the Rules of the Department of Human Resources shall be filed within twenty days from the director's decision. (b) All appeals shall be filed on an appeal form prescribed by the Board. (c) The appeal shall be filed at the Board's office. [Eff. 09/28/02; am ] (Auth: HRS § § 76-47, 91-2) ( Imp: HRS § § 76-47, 91-2) § 104-3 Jurisdiction. �--� (a) The Board shall not act on an appeal but shall defer to other authority if the action complained of constitutes a prohibited act 113 that is subject to the jurisdiction of another appellate body or administrative agency or the grievance procedure under a collective bargaining agreement. (b) The Board shall not proceed on an appeal or shall hold proceedings in abeyance if there is any controversy regarding its authority to hear the appeal until the controversy is resolved by the Hawaii Labor Relations Board. (c) The Board shall not hear any appeal for which the requirements of §76-42, when applicable, have not been met. [Eff. 09/28/02; am ] (Auth: HRS §§76-14, 76-47, 91-2) (Imp: HRS §§76-14, 76-47, 91-2) § 104-4 Mediation. (a) The Board may require mediation of an appeal whenever it determines that mediation may: (1) result in a satisfactory resolution of an appeal; (2) narrow the issues of an appeal; or (3) otherwise expedite a decision. (b) Mediation shall not be subject to Hawai'i Revised Statutes, Chapter 92. (c) Mediation may be provided by any member or members of the Board, or by a public or non-profit agency which offers mediation or similar services for resolving or narrowing differences among the parties. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2) § 104-5 Hearing. (a) All appeals shall be heard in accordance with and in conformance to the provisions of Hawai'i Revised Statutes §§91-9, 91-9.5, 91-10, 91-11, 91-12, and 91-13, and Hawai'i County Charter § 13-20. (b) The Board shall hear all appeals unless a hearing officer is appointed by the Board to hear the appeal. (c) The presiding officer at the hearing shall have the authority to: (1) Control the course of the hearing; FW 114 (2) Hold conferences open to the public on which they have had notice for settlement or simplification of the issues involved; (3) Administer oaths and affirmations; (4) Grant application for and issue subpoenas; (5) Take or cause depositions to be taken; (6) Rule upon offers of proof and receive relevant evidence; (7) Limit lines of questioning or testimony that are irrelevant, immaterial, or repetitious; (8) Rule on all objections, procedural requests, and motions that do not involve final determination of proceedings; (9) Dispose of any matter that normally and properly arises in the course of the proceeding; and (10) Take all other actions authorized by Hawaii Revised Statutes Chapter 76, rules, or any other law that is deemed necessary to the orderly and just conduct of the hearing. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-14, 76-47, 91-2, 91-9, 91-9.5, 91-10, 91-11, 91-12, 91-13) § 104-6 Hearing notice. Notices for hearing shall be as provided by Hawaii Revised Statutes §§91-9 and 91-9.5. [Eff. 09/28/02] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2, 91-9, 91-9.5) § 104-7 Time and place of hearing. Hearings shall be held at the time and place set forth in the notice of hearing; provided, where a hearing is continued, the time and place of the hearing shall be as determined by the Board and announced by the presiding officer at the hearing. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2, 91-9, 91-9.5) § 104-8 Continuances. (a) Continuances may be granted as provided in § 104-7. 115 (b) Continuances may be granted prior to the convening of a hearing, provided: (1) the party requesting the continuance submits a written request for the continuance, stating the specific reasons for the request; (2) the written request is received by the Board ten working days prior to the scheduled hearing date; (3) the moving party simultaneously sends a copy of the continuance request by certified mail to the opposing party; (4) the opposing party, within five working days of receipt of the request for continuance, submits its objections, if any, to the Board. A copy of its objections shall be sent, by certified mail, simultaneously to the party requesting the continuance; (5) the Chairperson or the Vice -chairperson in the Chairperson's absence grants the continuance and submits written notice of the granting of the continuance and the reasons thereto to the parties; and (6) nothing herein shall be construed as preventing the Chairperson or the Vice -chairperson in the Chairperson's absence from granting the continuance where both parties are agreeable to the continuance. If the opposing party fails to submit its objections following subsection (b) (4), the opposing party shall be deemed agreeable to the continuance request. (c) When the Chairperson or Vice -chairperson grants a continuance, notice of the new hearing date shall be as prescribed by Hawai'i Revised Statutes §91-9.5. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2, 91-9.5) § 104-9 Disqualification. (a) No hearing officer or Board member shall serve in any proceeding who: (1) has a pecuniary interest in any matter or business involved in the hearing; (2) is related within the first degree by blood or marriage to any 116 party in the hearing; or (3) has participated in any investigation preceding the institution of the hearing or in a determination that should be instituted or in the development of the evidence to be introduced therein. [Eff. 09/28/02; am ] (Auth: HRS § § 76-47, 91-2) ( Imp: HRS § § 76-47, 91-2) § 104-10 Record of hearing. (a) A record of the hearing shall be compiled in accordance with Hawai'i Revised Statutes, subsection (e) of §91-9. (b) Minutes of the hearing shall be kept and an audio recording of the hearing made. Transcription of the hearing shall be made only as provided in Hawai'i Revised Statutes, subsection (f) of §91-9. [Eff. 09/28/02] (Auth: HRS §§76-47, 91-2) ( Imp: HRS §§76-47, 91-2, 91-9) § 104-11 Subpoenas. (a) Application for subpoenas requiring the attendance of witnesses or the production of documentary evidence from any place within the State of Hawai'i at any designated place or hearing shall be made in writing to the Board or hearing officer. The application shall: (1) specify the name of the witness, or the specific documents or data desired, and their relevancy to the issues involved; (2) be made no later than ten days prior to the hearing; and, (3) be accompanied by a prepared subpoena. (b) If an application is not made within ten days of the hearing, the Board may issue the subpoena and/or continue the hearing or any part thereof. (c) Once approved by the Board or hearing officer, the party requesting the subpoenas shall be responsible for serving the subpoenas upon the persons identified in the subpoenas. (d) Enforcement of the subpoenas issued and served shall be written application of any Board member to a circuit court judge. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2) 117 %` § 104-12 Witness/deposition fees. (a) Witnesses who are subpoenaed shall be paid the same fees and mileage as are paid witnesses in the circuit courts of the State of Hawaii. (b) Witness fees shall be paid by the party at whose insistence the witnesses appear. (c) Fees for depositions shall be paid by the party at whose insistence the depositions are taken. (d) Fees shall be paid at the time a party is summoned or a deposition is taken. [Eff. 09/28/02] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2) § 104-13 Oath. All parties testifying at any hearing shall be placed under oath or affirmation prior to testifying. [Eff. 09/28/02] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2) § 104-14 Order of hearing. (a) At the commencement of the hearing, the presiding officer shall read the notice of hearing and shall outline briefly the procedure to be followed. (b) Procedures to be followed shall be that which, unless otherwise specifically provided by law or rules, and in the opinion of the presiding officer, best serve the interest and purposes of the hearing without prejudice to any party. [Eff. 09/28/02] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2) § 104-15 Submission of testimony. (a) All parties shall be given reasonable opportunity to submit relevant testimony. (b) Witnesses shall be subject to cross-examination and to questioning by the Board members and the adverse party. (c) Each party shall have the right to submit rebuttal evidence, testimony, and arguments. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2) 118 /I-- § 104-16 Judicial notice. (a) The presiding officer may take notice of judicially recognizable facts and may take notice of generally recognizable technical or scientific facts within the presiding officer's specialized knowledge. (b) Such notice may be taken only when: (1) parties are given notice either before or during the hearing of the material so noticed; and (2) parties have been afforded the opportunity to contest the facts so noticed. [Eff. 09/28/021 (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2) § 104-17 Additional evidence. At any hearing, the presiding officer may require the production of further evidence upon any relevant issue. [Eff. 09/28/021 (Auth: HRS §§76-47, 91-2) ( Imp: HRS §§76-47, 91-2, 91-9, 91-9.5, 91-10, 91-11) 1-1—� § 104-18 Close of hearing. (a) After all evidence has been presented, the parties shall be given an opportunity to summarize and present closing arguments. (b) Within reasonable time after closing arguments and all requested memoranda submitted, the presiding officer shall bring the hearing to a close. [Eff. 09/28/02] (Auth: HRS §§76-47, 91-2) ( Imp: HRS §§76-47, 91-2, 91-9, 91-9.5, 91-10, 91-11) § 104-19 Decisions and orders. Decisions and orders of the Board shall be in conformance with Hawaii Revised Statutes §§76-14, 76-41, 76-47, and 91-12. [Eff. 09/28/02; am ] (Auth: HRS§§76-47,91-2) (Imp: HRS §§76-47, 91-2, 91-9, 91-9.5, 91-10, 91-11, 91-12) § 104-20 Appeal of decisions and order. Appeals of any Board decision or order shall be made pursuant to Hawaii Revised Statutes §91-14. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2, 91-14) 119 § 104-21 Counsel. On matters of appeal, the Attorney General shall serve as counsel for the Board. The Corporation Counsel shall serve as counsel for the appointing authority or the director of human resources unless the appointing authority or director of human resources elects another representative. [Eff. 09/28/02; am ] (Auth: HRS §§76-47, 91-2) (Imp: HRS §§76-47, 91-2)