2011 Hawaii Code
DIVISION 1. GOVERNMENT
TITLE 7. PUBLIC OFFICERS AND EMPLOYEES
76. Civil Service Law
§76-47 Merit appeals boards; appointment, authority, procedures.

§76-47 Merit appeals boards; appointment, authority, procedures. (a) Each jurisdiction shall establish a merit appeals board that shall have exclusive authority to hear and decide appeals relating to matters set forth in section 76-14 concerning the civil service of the jurisdiction.

(b) Members of the merit appeals board shall be persons that can objectively apply the merit principle to public employment. Other qualifications of board members and other matters pertaining to the establishment of the merit appeals board, whether composition of the board, manner of appointment, term of office, limitation on terms, chairperson, removal of members, and name for its merit appeals board, shall be left to the determination of each jurisdiction based on its own preferences and needs. A jurisdiction may continue to use its civil service commission or appeals board, with or without modification, as its merit appeals board to assume all of the functions and responsibilities under section 76-14; provided that the merit appeals board for the State shall be as provided in section 26-5.

(c) The merit appeals board shall adopt rules of practice and procedure consistent with section 76-14 and in accordance with chapter 91, except that, in the case of the judiciary and the Hawaii health systems corporation, the adoption, amendment, or repeal of rules shall be subject to the approval of their respective chief executives. The rules shall recognize that the merit appeals board shall sit as an appellate body and that matters of policy, methodology, and administration are left for determination by the director. The rules may provide for the sharing of specific expenses among the parties that are directly incurred as a result of an appeal as the merit appeals board deems would be equitable and appropriate, including but not limited to expenses for transcription costs or for services, including traveling and per diem costs, provided by persons other than the board members or permanent staff of the board. Official business of the merit appeals board shall be conducted in meetings open to the public, except as provided in chapter 92.

(d) Whenever the board determines that mediation may result in a satisfactory resolution of an appeal, may narrow the issues on appeal, or otherwise expedite a decision, the board may require the parties to submit the issues to mediation, which shall not be subject to chapter 92. Mediation may be provided by any member or members of the merit appeals board or by a public or nonprofit agency which offers mediation or similar services for resolving or narrowing differences among the parties.

(e) Any civil service employee, who is suspended, discharged, or demoted and who is not included in an appropriate bargaining unit under section 89-6, may appeal to the merit appeals board within twenty days after a final decision is made under the internal complaint procedures.

Upon the appeal, both the appealing employee and the appointing authority shall have the right to be heard publicly, present evidence and be represented by counsel, who shall have the right to examine and cross-examine witnesses. At the hearing technical rules of evidence shall not apply and the evidence shall be taken stenographically or recorded by machine. For the purpose of hearing the appeals fairly and expeditiously, the board may at any time appoint a competent and qualified disinterested person to act as its hearing officer. The hearing officer shall hear the matter in the same manner as if it were before the board and upon the conclusion of the hearing, shall report the hearing officer's findings of fact and the hearing officer's conclusions and recommendations based thereon to the board and to the employee. The board shall render the final decision in accordance with section 91-11.

If the board finds that the reasons for the action are not substantiated in any material respect, the board shall order that the employee be reinstated in the employee's position, without loss of pay, but if the board finds that the reasons are substantiated or are only partially substantiated, the board shall sustain the action of the appointing authority, provided that the board may modify the action of the appointing authority if it finds the circumstances of the case so require and may thereupon order such disposition of the case as it may deem just.

The findings and decisions of the board shall be final on all appeals, unless an appeal is taken as provided in chapter 91.

Notwithstanding any other law to the contrary, when an appeal hearing is before a merit appeals board of a county or the city and county of Honolulu, the attorney general shall be counsel for the board and the county attorney or corporation counsel shall be counsel for the appointing authority. If, however, an appeal hearing is before the state merit appeals board, the attorney general shall be counsel for the appointing authority and the county attorney or corporation counsel of the county, including the city and county of Honolulu, in which the appeal hearing is being conducted shall be counsel for the state merit appeals board.

Notwithstanding any other law to the contrary, when the decision and order of the merit appeals board of a county or the city and county of Honolulu, is appealed as provided in chapter 91, the attorney general shall be counsel for the board and the county attorney or corporation counsel shall be counsel for the appointing authority. When the decision and order of the state merit appeals board is appealed as provided in chapter 91, the attorney general shall be counsel for the appointing authority and the county attorney or corporation counsel of the county, including the city and county of Honolulu, in which the chapter 91 appeal is being conducted, shall be counsel for the state merit appeals board. [L 1955, c 274, pt of §1; RL 1955, §3-25; am L 1957, c 65, §1 and c 207, §1(c); am L 1965, c 96, §2; am L 1967, c 52, §2; HRS §76-47; am L 1970, c 119, §1; gen ch 1985; am L 1994, c 166, §1; am L 2000, c 253, §28]

Revision Note

The words "or corporation counsel" added to conform to county charters.

Cross References

Administrative hearings and review, see chapter 91.

Case Notes

Appointing authority not entitled to appeal from commission's decision. 46 H. 260, 377 P.2d 703.

Demotion for insubordination. 48 H. 278, 398 P.2d 155.

Suspension and dismissal for "incompetency, inefficiency and carelessness" held substantiated by the evidence. 50 H. 426, 442 P.2d 61.

Cited: 50 H. 169, 434 P.2d 312.