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HomeMy WebLinkAbout2015-03-18 Merit Appeals Board MinutesMERIT APPEALS BOARD Department of Human Resources 101 Pauahi Street, Suite 102 Hilo, Hawai'i March 18, 2015 CALL TO ORDER The regular meeting of the Merit Appeals Board, County of Hawai'i, was called Item 1): to order at 11:06 a.m. by Chairperson Jubilee N. Kuewa, at the Department of Human Resources Conference Room, 101 Pauahi Street, Suite 2, Hilo, Hawai'i, on Wednesday, March 18, 2015. ROLL CALL Present: Mr. Jubilee N. Kuewa, Chair Ms. June R. Rabago, Vice -Chair Mr. David K. S. Nahuina, Member Ms. Ida H. Otake, Member Also Present: Ms. Sharon Toriano, Director, HR Department Mr. Julian T. White, Deputy Attorney General, Ofc. of the State Atty. General Mr. Danny Patel, Deputy Corporation Counsel, Ofc. of the Corp. Counsel Mr. Lee Lord, Business Manager, Ofc. of the Prosecuting Attorney Mr. Kelvin Ono, Information Systems Analyst IV, Ofc. of the Prosecuting Attorney Ms. Glynis Yamada, Secretary -Reporter, HR Department Merit Appeals Board March 18, 2015 ADDENDUM TO The Chair directed the Board to the next order of business, Addendum to AGENDA Agenda. Item 2): (There was none.) STATEMENTS The Chair directed the Board to proceed to the next order of business, FROM THE PUBLIC Statements from the Public. Item 3): (There were none.) APPROVAL OF The Chair directed the Board to proceed to the next order of business, MINUTES (Item 4): Approval of Minutes of February 18, 2015. Motion: Ms. Rabago moved to approve the minutes of February 18, 2015. Seconded by Ms. Otake. The voice vote, was as follows AYES: Board Members Nahuina, Otake, Rabago, and Chair Kuewa — 4. NOES: None. ABSENT: None. EXCUSED: None. COMMUNI- The Chair directed the Board to proceed to the next order of business, CATIONS Communications. Item 5): (There were none.) NEW BUSINESS The Chair directed the Board to proceed to the next order of business, New Item 6): Business. (There was none.) Page 2 Merit Appeals Board March 18, 2015 UNFINISHED The Chair directed the Board to proceed to the next order of business, BUSINESS (Item 7): Unfinished Business. COMMUNICATION NO. 15-01.1: COPY OF LETTER FROM MERIT APPEALS BOARD CHAIR JUBILEE N. KUEWA, DATED FEBRUARY 9, 2015, TO COUNSELS CONCERNING COMMUNICATION NOS. 15-01 THROUGH 15-14, RECEIVED ON DECEMBER 22, 2014, APPEALING AN EMPLOYMENT ACTION (CONCERNING COMPENSATION AND BENEFITS) BY THE FIRE DEPARTMENT. THE LETTER ADDRESSES THE FOLLOWING ISSUES: 1) CONSOLIDATION OF THE CASES; 2) SETTING DEADLINES FOR THE FILING OF PREHEARING MOTIONS, MEMORANDUMS IN OPPOSITION, AND REPLY MEMORANDUMS; AND 3) DEADLINES FOR THE FILING OF PREHEARING STATEMENTS TO INCLUDE ADDRESSING THE STATE LAWS THAT ARE APPLICABLE OR RELEVANT TO THE CASE, WITNESS LISTS, AND EXHIBIT LISTS. (NOTE: THIS MATTER IS ON THE AGENDA TO CONSIDER SCHEDULING A SPECIAL MEETING, IF ANY PRE - HEARING MOTIONS ARE FILED BY MARCH 25,2015.); AND BOARD APPROVAL REQUIRED: COMMUNICATION NO. 15-01.2, RECEIVED ON MARCH 9, 2015, FROM COUNSELS SUBMITTING FOR THE BOARD'S APPROVAL, A SIGNED "STIPULATION AND ORDER TO CONTINUE HEARING" IN THE MATTER OF THE APPEAL CONTAINED IN COMMUNICATION NO. 15-11, CURRENTLY SCHEDULED ON APRIL 15 AND 16, 2015, TO THE BOARD'S NEXT SCHEDULED MEETING OR SUCH LATER DATE AND TIME AS MAY BE DETERMINED BY THE CHAIR Chair Kuewa stated that in discussions with Mr. White, pre -hearing motions are likely to happen. It would be a very tight timeframe prior to the April 15 hearing. The Board may be receiving the counsel's response as late as April 9. The April 15 hearing may be continued to another date in order for the Board to fully consider and rule upon the motions from the counsels on that day. Chair Kuewa stated that Communication No. 15-01.2 concerns a stipulation where the Board needs to make a decision whether to allow it or not. Ms. Rabago commented that these cases were consolidated and it's her understanding that one of the Appellant's, Mr. Paul Paiva, wants to separate himself out from the consolidation. As far as she's concerned, the consolidated cases are going to move forward whether Mr. Paiva is present or not, but she could be wrong. Chair Kuewa stated that both parties are agreeable to the consolidation of the 14 appeals. It is the Employers position that all 14 appellants are required to attend the hearings. However, Mr. Paiva would be absent from the hearings due to a trip, which he must attend. This is the reason why they're asking for the stipulation. Given the recent events whereby the hearing may be continued to a later date, this Page 3 Merit Appeals Board March 18, 2015 may alleviate the calendar hearing conflict. Mr. Paiva's attorneys informally said they would be agreeable to returning to the consolidation. Mr. White added that the counsels have talked and the Employer would like all 14 battalion chiefs present at the hearing itself. It turns out that Mr. Paiva cannot be present on April 15 or April 16. In order to move forward with the other 13 cases, the counsels agreed to stipulate and agreed that Mr. Paiva's case can be separated so that the other 13 cases can proceed. So, that's the stipulation. He doesn't see any problem with approving the stipulation but it's open for discussion. Ms. Rabago stated that if the attorneys and Mr. White are okay with it, then she's okay—but, she hesitates to allow Mr. Paiva to do this because the other appellants may want to do so as well and the Board could end up having 14 hearings. Mr. White referenced Communication No. 15-01.1, which he drafted, concerning the deadlines and proceeded to explain the following: Chair Kuewa signed a letter on February 9, 2015 notifying the counsels what the respective deadlines would be for their submissions. Since this is a case of some magnitude, they found it necessary to put forward some deadlines. One of the deadlines would be for the pre -hearing motions and the deadline was set for March 25. He's pretty sure that at least one pre -hearing motion would be filed, which would be a "motion to quash." Chair Kuewa signed a "Subpoena duces decum" some time ago, which was issued by the battalion chiefs' attorneys, Margery Bronster and Robert Hatch. The Employer agreed to maybe produce some, but not all, of the documents. He anticipates, after speaking with the counsels, that on or before March 25, a "motion to quash" a portion of the "subpoena duces tecum" was going to be submitted to the Board. There's a deadline after that to file a "memorandum in opposition," which he anticipates the battalion chiefs attorneys are going to do. The last deadline after that would be April 9, which is the deadline to file a reply to the "memorandum in opposition." In light of what was just said, he doesn't think there would be sufficient time to hold a special meeting prior to April 15. Probably on April 15, the Board would make its decision on the "subpoena duces tecum" and the "motion to quash." The Board may deny the "motion to quash" and grant the "subpoena duces tecum" in its entirety or partially. This is what he calls a "discovery" issue. Pending the Board's decision, the counsels may ask for a continuance or postponement of the hearing. Page 4 Merit Appeals Board March 18, 2015 In order to prepare for the hearing or the trial portion of the case on the merits, the Board would need to look at those documents that may not yet been produced. So, we would need a continuance to the following month or whenever the Board could meet. On the other hand, the counsels may decide to go forward with the hearing on April 15, in which case he'll be prepared to advise the Board. This would depend on how the respective counsels look at their case and whether they are prepared to move forward or not. Mr. Patel stated, as a practical matter, that this will be Chair Kuewa's last meeting. Ideally, the Board would want to have all Board Members in place before getting into the substance of this. And assuming that someone else would be appointed to replace Chair Kuewa, it would give the Board and the replacement time to get up to speed. Mr. White added that Ms. Rabago's term expires in December of this year. Chair Kuewa followed-up on what Ms. Rabago stated concerning what's to prevent other appellants coming forward and asking for the same type of stipulation. Was there some flexibility in the employer's requirement that all appellants be in attendance? Normally, if the attorney's representative is present, that would be sufficient. Why would it be necessary for the appellants to be present for the hearings? Chair Kuewa asked Mr. Patel if he could comment. Mr. Patel replied that he'll defer to Mr. White because, technically, he represents the Office of the Corporation Counsel, which is a party. He mentioned that if the parties stipulate, then there's an agreement to go that route, and with that agreement the Board could properly rest their decision on that agreement. Mr. White stated he discussed with both counsels the issue of reconsolidation of the 14 cases. On April 15, if the Board decides only on the preliminary issue of discovery and how much of the documents requested are going to be produced, and the trial portion is not heard on that day—both counsels would be agreeable to re -discussing the reconsolidation of all 14 cases again. It would need to be a mutually convenient day for the Board, counsels, appellants, and himself. Mr. White said that from speaking with the counsels, their preference is to get the 14 appellants together. He didn't detect any discord among the 14 appellants that they'd want to do separate hearings (i.e. holding 11 hearings instead of one). Efficiency and economy need to be considered. Given this situation, he doesn't have any problem with recommending the stipulation be signed by the Board's Chair or Vice -Chair. Page 5 Merit Appeals Board March 18, 2015 Mr. Patel added that because the Board is granting Mr. Paiva's request, it doesn't mean that the Board is bound by this decision to grant a subsequent request. Mr. White mentioned that Mr. Hatch said that it was a possibility that if they don't obtain the requested documents needed to prepare their case by April 15, they would then probably ask for a postponement. So, they may possibly not be prepared to go to trial on April 15. But on April 15, the Board, at the very least, would decide on the preliminary or discovery issue. Chair Kuewa mentioned that it would be best for the Board to keep the dates of April 15 and 16 open. Motion: Chair Kuewa moved to approve the stipulation referenced as Communication Number 15-01.2. Seconded by Mr. Nahuina. The voice vote, was as follows: AYES: Board Members Nahuina, Otake, Rabago, and Chair Kuewa — 4. NOES: None. ABSENT: None. EXCUSED: None. APPEAL HEARING: COMMUNICATION NO. 15-15, RECEIVED ON JANUARY 28, 2015 APPEALING A CLASSIFICATION OR RECLASSIFICATION OF A PARTICULAR POSITION ACTION, BY THE DEPARTMENT OF HUMAN RESOURCES; AND COMMUNICATION NO. 15-15.1, RECEIVED ON MARCH 5, 2015, FROM DEPUTY CORPORATION COUNSEL DANNY B. PATEL, TRANSMITTING THE CERTIFICATE OF SERVICE CONCERNING THE EMPLOYER'S WITNESS LIST, EMPLOYER'S EXHIBIT LIST, AND EXHIBITS 1-19 Chair Kuewa stated that the Board will be convening a closed hearing concerning the appeal filed by Mr. Kelvin N. Ono. RECESS: The Chair called for a recess at 11:36 a.m. in order to clear the meeting room. CLOSED HEARING: The closed hearing convened at 11:37 a.m. RECESS: The closed hearing ended at 2:59 p.m. and the Chair called for a recess in order to clear the meeting room. Page 6 Merit Appeals Board EXECUTIVE SESSION: The executive session convened at 3:02 p.m. RECESS: The executive session ended at 3:10 p.m. RECONVENED OPEN The open hearing reconvened at 3:11 p.m. HEARING: March 18, 2015 Chair Kuewa informed Mr. Ono and Mr. Patel that the Board has made a decision on the appeal. MOTION: Ms. Rabago moved that Mr. Ono's appeal be denied. Seconded by Chair Kuewa. Ms. Rabago stated that the Board strongly believes that the class specifications for the Information Systems Analyst III, IV, V, VI, et cetera, needed to be clarified. The Board is calling upon the Hawai'i County Department of Human Resources to take steps, sooner than later, to clarify on the class specification positions that "technical expertise" is only in the Information Technology Department, as well as any other clarifying language to make it clear, so this doesn't happen again. The voice vote, was as follows: AYES: Board Members Nahuina, Otake, Rabago, and Chair Kuewa —4. NOES: None. ABSENT: None. EXCUSED: None. Mr. White informed Mr. Ono that he will be drafting the Findings of Fact and Conclusions of Law and he will have a period of time after it's served on him to file a circuit court appeal, if he wishes. At this time, the Board Members thanked Mr. Ono. DIRECTOR'S REPORT The Chair directed the Board to proceed to the next order of business, Item 8): Director's Report. ITEMS OF CURRENT INTEREST Chair Kuewa inquired with Ms. Toriano whether there were any items of current interest. Page 7 Merit Appeals Board March 18, 2015 Ms. Toriano shared that she is anticipating that one of their employee's would be leaving the department soon, and also stated that the Department of Human Resources Rules was transmitted to the Lieutenant Governor's office. SCHEDULE NEXT The Chair directed the Board to proceed to the next order of business, Schedule MEETING DATE Next Meeting Date. Item 9): Chair Kuewa announced that their next regularly scheduled meeting would be held on Wednesday, April 15, 2015, at 9:30 a.m. through 4:30 p.m. at the Aupuni Center Conference Room and the meeting may continue to the next day on Thursday, April 16, 2015, at 9:30 a.m. at the same location. ADJOURNMENT There being no other business, at 3:26 p.m., the Chair declared the meeting Item 10): adjourned. Respectfully submitted, v�� Glynis Yamada Secretary APPROVED: ?uneR. Rabago Chair ST/gy Page 8