§76-16 - Civil service and exemptions.

§76-16 Civil service and exemptions.
(a) The State Constitution mandates that the employment of persons in the
civil service, as defined by law, be governed by the merit principle. The
legislature declares that the public policy of the State is that all positions
in the civil service systems of the respective jurisdictions shall be filled
through civil service recruitment procedures based on merit and that the civil
service system of the respective jurisdictions shall comprise all positions,
whether permanent or temporary, in the jurisdiction now existing or hereafter
established and embrace all personal services performed for the jurisdiction,
except employees or positions exempted under this section, or sections 46-33
and 76-77.

(b) The civil service to which this chapter
applies shall comprise all positions in the State now existing or hereafter
established and embrace all personal services performed for the State, except
the following:

(1) Commissioned and enlisted personnel of the Hawaii
national guard as such, and positions in the Hawaii national guard that are
required by state or federal laws or regulations or orders of the national
guard to be filled from those commissioned or enlisted personnel;

(2) Positions filled by persons employed by contract
where the director of human resources development has certified that the
service is special or unique or is essential to the public interest and that,
because of circumstances surrounding its fulfillment, personnel to perform the
service cannot be obtained through normal civil service recruitment
procedures. Any such contract may be for any period not exceeding one year;

(3) Positions that must be filled without delay to
comply with a court order or decree if the director determines that recruitment
through normal recruitment civil service procedures would result in delay or
noncompliance, such as the Felix-Cayetano consent decree;

(4) Positions filled by the legislature or by either
house or any committee thereof;

(5) Employees in the office of the governor and
office of the lieutenant governor, and household employees at Washington Place;

(6) Positions filled by popular vote;

(7) Department heads, officers, and members of any
board, commission, or other state agency whose appointments are made by the
governor or are required by law to be confirmed by the senate;

(8) Judges, referees, receivers, masters, jurors,
notaries public, land court examiners, court commissioners, and attorneys
appointed by a state court for a special temporary service;

(9) One bailiff for the chief justice of the supreme
court who shall have the powers and duties of a court officer and bailiff under
section 606-14; one secretary or clerk for each justice of the supreme court,
each judge of the intermediate appellate court, and each judge of the circuit
court; one secretary for the judicial council; one deputy administrative
director of the courts; three law clerks for the chief justice of the supreme
court, two law clerks for each associate justice of the supreme court and each
judge of the intermediate appellate court, one law clerk for each judge of the
circuit court, two additional law clerks for the civil administrative judge of
the circuit court of the first circuit, two additional law clerks for the
criminal administrative judge of the circuit court of the first circuit, one
additional law clerk for the senior judge of the family court of the first
circuit, two additional law clerks for the civil motions judge of the circuit
court of the first circuit, two additional law clerks for the criminal motions
judge of the circuit court of the first circuit, and two law clerks for the
administrative judge of the district court of the first circuit; and one
private secretary for the administrative director of the courts, the deputy
administrative director of the courts, each department head, each deputy or
first assistant, and each additional deputy, or assistant deputy, or assistant
defined in paragraph (16);

(10) First deputy and deputy attorneys general, the
administrative services manager of the department of the attorney general, one
secretary for the administrative services manager, an administrator and any
support staff for the criminal and juvenile justice resources coordination
functions, and law clerks;

(11) (A) Teachers, principals, vice-principals,
complex area superintendents, deputy and assistant superintendents, other
certificated personnel, not more than twenty noncertificated administrative,
professional, and technical personnel not engaged in instructional work;

(B) Effective July 1, 2003, teaching
assistants, educational assistants, bilingual/bicultural school-home
assistants, school psychologists, psychological examiners, speech pathologists,
athletic health care trainers, alternative school work study assistants,
alternative school educational/supportive services specialists, alternative
school project coordinators, and communications aides in the department of
education;

(D) Members of the faculty of the University
of Hawaii, including research workers, extension agents, personnel engaged in
instructional work, and administrative, professional, and technical personnel
of the university;

(12) Employees engaged in special, research, or
demonstration projects approved by the governor;

(13) Positions filled by inmates, kokuas, patients of
state institutions, persons with severe physical or mental handicaps
participating in the work experience training programs, and students and
positions filled through federally funded programs that provide temporary
public service employment such as the federal Comprehensive Employment and
Training Act of 1973;

(14) A custodian or guide at Iolani Palace, the Royal
Mausoleum, and Hulihee Palace;

(15) Positions filled by persons employed on a fee,
contract, or piecework basis, who may lawfully perform their duties
concurrently with their private business or profession or other private
employment and whose duties require only a portion of their time, if it is
impracticable to ascertain or anticipate the portion of time to be devoted to
the service of the State;

(16) Positions of first deputies or first assistants
of each department head appointed under or in the manner provided in section 6,
Article V, of the State Constitution; three additional deputies or assistants
either in charge of the highways, harbors, and airports divisions or other
functions within the department of transportation as may be assigned by the
director of transportation, with the approval of the governor; four additional
deputies in the department of health, each in charge of one of the following:
behavioral health, environmental health, hospitals, and health resources
administration, including other functions within the department as may be
assigned by the director of health, with the approval of the governor; an
administrative assistant to the state librarian; and an administrative
assistant to the superintendent of education;

(17) Positions specifically exempted from this part by
any other law; provided that all of the positions defined by paragraph (9)
shall be included in the position classification plan;

(18) Positions in the state foster grandparent program
and positions for temporary employment of senior citizens in occupations in
which there is a severe personnel shortage or in special projects;

(19) Household employees at the official residence of
the president of the University of Hawaii;

(20) Employees in the department of education engaged
in the supervision of students during meal periods in the distribution,
collection, and counting of meal tickets, and in the cleaning of classrooms
after school hours on a less than half-time basis;

(21) Employees hired under the tenant hire program of
the Hawaii public housing authority; provided that not more than twenty-six per
cent of the authority's work force in any housing project maintained or
operated by the authority shall be hired under the tenant hire program;

(22) Positions of the federally funded expanded food
and nutrition program of the University of Hawaii that require the hiring of
nutrition program assistants who live in the areas they serve;

(23) Positions filled by severely handicapped persons
who are certified by the state vocational rehabilitation office that they are
able to perform safely the duties of the positions;

(24) One public high school student to be selected by
the Hawaii state student council as a nonvoting member on the board of
education as authorized by the State Constitution;

(25) Sheriff, first deputy sheriff, and second deputy
sheriff;

(26) A gender and other fairness coordinator hired by
the judiciary; and

(27) Positions in the Hawaii national guard youth and
adult education programs.

The director shall determine the applicability
of this section to specific positions.

Nothing in this section shall be deemed to
affect the civil service status of any incumbent as it existed on July 1,
1955. (c) No position shall be exempted from civil service recruitment
procedures unless it is in accordance with this section. In addition to the
exemptions under subsection (b), sections 46-33 and 76-77, or other law, the
director may exempt additional positions if the reason for exempting the
position is for the same reason as a position that is included in the list of
exemptions for the respective jurisdiction.

(d) The director may provide for an exemption
from civil service recruitment procedures if the appointment to the position
has a limitation date and it would be impracticable to recruit under civil
service recruitment procedures because the required probation period that is
part of the examination process cannot be completed by the limitation date.
The rules shall not permit additional exemptions from civil service recruitment
procedures for the same position when the position will be filled for a
duration that would be sufficient to recruit under civil service recruitment
procedures and allow for completion of the required probation period.

(e) It is also the public policy of the State
that all civil service positions be covered under the classification systems of
the jurisdictions, unless the position was exempted from the classification
systems by law prior to July 1, 2002 or based on reasons set forth in rules.
The rules may include reasons for a temporary exemption of a position, such as
the establishment of a new class is pending, or for a permanent exemption when
the establishment of a class is impracticable.

(f) The exemption of a position from the
classification systems, whether temporary or permanent, or an appointment with
a limitation date shall not itself result in an exemption from civil service
recruitment procedures. Civil service recruitment procedures based on merit
shall be followed for all positions unless exempted under subsection (b), (c),
or (d). Applicants referred under civil service recruitment procedures shall
be informed if the appointment has a limitation date or if the position is
temporarily or permanently exempted from the classification systems.

(g) Each director shall be responsible for
ensuring that all exemptions from civil service recruitment procedures or from
the classification systems are consistent with this section. With respect to
positions exempted under this section prior to July 1, 2002 by any other law,
the director shall review these positions to determine whether the positions
should continue to be exempt and if so, whether from civil service recruitment
procedures or the classification systems, or both. If the director determines
that a position should no longer be exempt from either or both based on the
intent of this section, the director shall consult with the appropriate
appointing authority and its chief executive on removing the exemptions. With
the approval of the chief executive, the director shall take whatever action is
necessary to remove the exemptions, including submittal of proposed legislation
to remove the exemptions.

(h) The director shall establish rules to
implement this section that shall be in accordance with the following:

(1) Whenever a position exempted under subsection (b)
or (c) is no longer exempted from the civil service, normal civil service
recruitment procedures shall apply, unless the incumbent is to be retained without
the necessity for examination by action of the legislature; provided that in
such event, the incumbent shall be retained, but only if the incumbent meets
the minimum qualification requirements of the position; and

(2) The manner for setting the compensation of
incumbents upon their inclusion in the classification systems shall be fair and
equitable in comparison to the compensation of other incumbents with comparable
experience in the same or essentially similar classes; provided that the
compensation of incumbents who are in the same bargaining unit, prior to and
after their inclusion in the classification systems, shall be in accordance
with the applicable collective bargaining agreement.

(i) Employees in positions subject to civil
service recruitment procedures shall be entitled to become and remain members
of the civil service for the duration of their appointments as provided in
section 76-27. Employees in positions exempted from civil service recruitment
procedures shall not be entitled to membership in the civil service.

(j) Employees in positions that are exempted
from the classification plan, whether temporarily or permanently, may be
entitled to membership in the civil service as provided in subsection (i). [L
1955, c 274, pt of §1; RL 1955, §3-20; am L 1957, c 110, §1, c 156, §1(1), and
c 207, §1(b), (d); am L Sp 1959 2d, c 1, §§7, 11; am L 1963, c 54, §2; am L
1965, c 175, §3 and c 274, §§1 to 4; am L 1967, c 160, §2 and c 303, §1; HRS
§76-16; am L 1969, c 127, §38 and c 172, §1; am L 1970, c 18, §1; am L 1971, c
41, §1, c 81, §1, and c 199, §1; am L 1974, c 140, §2; am L 1975, c 175, §1; am
L 1976, c 9, §1, c 65, §1, c 79, §1, c 170, §1, and c 182, §1; am L 1977, c 84,
§1, c 143, §1, and c 199, §1; am L 1979, c 31, §2, c 111, §7, and c 187, §2; am
L 1980, c 111, §2; am L 1981, c 197, §1; am L 1982, c 68, §3 and c 129, §22; am
L 1984, c 198, §1 and c 272, §1; am L 1987, c 37, §1, c 213, §2, c 336, §7, c
339, §4, and c 379, §1; am L 1988, c 71, §2, c 303, §1, and c 348, §2; am L
1989, c 105, §1, c 106, §1, c 112, §1, c 134, §2, c 211, §10, and c 256, §1; am
L 1990, c 79, §1, c 219, §2, c 233, §1, c 281, §§3, 11, and c 293, §4; am L
1991, c 130, §1; am L 1992, c 319, §1; am L 1993, c 65, §1; am L 1994, c 56,
§21 and c 93, §1, as superseded by c 223, §1; am L 1995, c 145, §1 and c 162,
§2; am L 1997, c 350, §14; am L 1998, c 87, §1; am L 2000, c 253, §14; am L
2002, c 65, §3, c 66, §1, and c 148, §4; am L 2003, c 187, §3; am L 2004, c
128, §§1, 5; am L 2005, c 22, §§3, 55(2) and c 196, §26(a); am L 2006, c 180,
§16; am L 2009, c 43, §1]

Revision Note

"July 1, 2002" substituted for "the effective
date of this Act".

Cross References

Sheriff, etc., see §26-14.6.

Attorney General Opinions

"Referees", in par. (8), does not include the referee
under the employment security law, who must be appointed pursuant to the civil
service law. Att. Gen. Op. 61-59.

Appointment status of private secretaries not affected by
reorganization act, chapter 26. Att. Gen. Op. 62-31.

Provisions of civil service laws construed in light of Konno
v. County of Hawaii decision for purposes of privatization. Att. Gen. Op.
97-6.

Case Notes

Rights existing by virtue of civil service status may be lost
by repeal or amendment of the civil service law. 48 H. 370, 405 P.2d 772.