§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.