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

(b)  The civil service to which this chapterapplies shall comprise all positions in the State now existing or hereafterestablished and embrace all personal services performed for the State, exceptthe following:

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

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

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

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

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

(6)  Positions filled by popular vote;

(7)  Department heads, officers, and members of anyboard, commission, or other state agency whose appointments are made by thegovernor 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 attorneysappointed by a state court for a special temporary service;

(9)  One bailiff for the chief justice of the supremecourt who shall have the powers and duties of a court officer and bailiff undersection 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 circuitcourt; one secretary for the judicial council; one deputy administrativedirector of the courts; three law clerks for the chief justice of the supremecourt, two law clerks for each associate justice of the supreme court and eachjudge of the intermediate appellate court, one law clerk for each judge of thecircuit court, two additional law clerks for the civil administrative judge ofthe circuit court of the first circuit, two additional law clerks for thecriminal administrative judge of the circuit court of the first circuit, oneadditional law clerk for the senior judge of the family court of the firstcircuit, two additional law clerks for the civil motions judge of the circuitcourt of the first circuit, two additional law clerks for the criminal motionsjudge of the circuit court of the first circuit, and two law clerks for theadministrative judge of the district court of the first circuit; and oneprivate secretary for the administrative director of the courts, the deputyadministrative director of the courts, each department head, each deputy orfirst assistant, and each additional deputy, or assistant deputy, or assistantdefined in paragraph (16);

(10)  First deputy and deputy attorneys general, theadministrative services manager of the department of the attorney general, onesecretary for the administrative services manager, an administrator and anysupport staff for the criminal and juvenile justice resources coordinationfunctions, and law clerks;

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

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

(C)  The special assistant to the statelibrarian and one secretary for the special assistant to the state librarian;and

(D)  Members of the faculty of the Universityof Hawaii, including research workers, extension agents, personnel engaged ininstructional work, and administrative, professional, and technical personnelof the university;

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

(13)  Positions filled by inmates, kokuas, patients ofstate institutions, persons with severe physical or mental handicapsparticipating in the work experience training programs, and students andpositions filled through federally funded programs that provide temporarypublic service employment such as the federal Comprehensive Employment andTraining Act of 1973;

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

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

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

(17)  Positions specifically exempted from this part byany 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 programand positions for temporary employment of senior citizens in occupations inwhich there is a severe personnel shortage or in special projects;

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

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

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

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

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

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

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

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

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

The director shall determine the applicabilityof this section to specific positions.

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

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

(e)  It is also the public policy of the Statethat all civil service positions be covered under the classification systems ofthe jurisdictions, unless the position was exempted from the classificationsystems 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 asthe establishment of a new class is pending, or for a permanent exemption whenthe establishment of a class is impracticable.

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

(g)  Each director shall be responsible forensuring that all exemptions from civil service recruitment procedures or fromthe classification systems are consistent with this section.  With respect topositions exempted under this section prior to July 1, 2002 by any other law,the director shall review these positions to determine whether the positionsshould continue to be exempt and if so, whether from civil service recruitmentprocedures or the classification systems, or both.  If the director determinesthat a position should no longer be exempt from either or both based on theintent of this section, the director shall consult with the appropriateappointing authority and its chief executive on removing the exemptions.  Withthe approval of the chief executive, the director shall take whatever action isnecessary to remove the exemptions, including submittal of proposed legislationto remove the exemptions.

(h)  The director shall establish rules toimplement 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 servicerecruitment procedures shall apply, unless the incumbent is to be retained withoutthe necessity for examination by action of the legislature; provided that insuch event, the incumbent shall be retained, but only if the incumbent meetsthe minimum qualification requirements of the position; and

(2)  The manner for setting the compensation ofincumbents upon their inclusion in the classification systems shall be fair andequitable in comparison to the compensation of other incumbents with comparableexperience in the same or essentially similar classes; provided that thecompensation of incumbents who are in the same bargaining unit, prior to andafter their inclusion in the classification systems, shall be in accordancewith the applicable collective bargaining agreement.

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

(j)  Employees in positions that are exemptedfrom the classification plan, whether temporarily or permanently, may beentitled to membership in the civil service as provided in subsection (i). [L1955, c 274, pt of §1; RL 1955, §3-20; am L 1957, c 110, §1, c 156, §1(1), andc 207, §1(b), (d); am L Sp 1959 2d, c 1, §§7, 11; am L 1963, c 54, §2; am L1965, 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, c41, §1, c 81, §1, and c 199, §1; am L 1974, c 140, §2; am L 1975, c 175, §1; amL 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; amL 1980, c 111, §2; am L 1981, c 197, §1; am L 1982, c 68, §3 and c 129, §22; amL 1984, c 198, §1 and c 272, §1; am L 1987, c 37, §1, c 213, §2, c 336, §7, c339, §4, and c 379, §1; am L 1988, c 71, §2, c 303, §1, and c 348, §2; am L1989, c 105, §1, c 106, §1, c 112, §1, c 134, §2, c 211, §10, and c 256, §1; amL 1990, c 79, §1, c 219, §2, c 233, §1, c 281, §§3, 11, and c 293, §4; am L1991, 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 L2002, c 65, §3, c 66, §1, and c 148, §4; am L 2003, c 187, §3; am L 2004, c128, §§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 effectivedate of this Act".

 

Cross References

 

  Sheriff, etc., see §26-14.6.

 

Attorney General Opinions

 

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

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

  Provisions of civil service laws construed in light of Konnov. 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 lostby repeal or amendment of the civil service law.  48 H. 370, 405 P.2d 772.