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

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

(c)  The merit appeals board shall adopt rulesof practice and procedure consistent with section 76-14 and in accordance withchapter 91, except that, in the case of the judiciary and the Hawaii healthsystems corporation, the adoption, amendment, or repeal of rules shall besubject to the approval of their respective chief executives.  The rules shallrecognize that the merit appeals board shall sit as an appellate body and thatmatters of policy, methodology, and administration are left for determinationby the director.  The rules may provide for the sharing of specific expensesamong the parties that are directly incurred as a result of an appeal as themerit appeals board deems would be equitable and appropriate, including but notlimited to expenses for transcription costs or for services, includingtraveling and per diem costs, provided by persons other than the board membersor permanent staff of the board.  Official business of the merit appeals boardshall be conducted in meetings open to the public, except as provided inchapter 92.

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

(e)  Any civil service employee, who issuspended, discharged, or demoted and who is not included in an appropriatebargaining unit under section 89-6, may appeal to the merit appeals boardwithin twenty days after a final decision is made under the internal complaintprocedures.

Upon the appeal, both the appealing employeeand the appointing authority shall have the right to be heard publicly, presentevidence and be represented by counsel, who shall have the right to examine andcross-examine witnesses.  At the hearing technical rules of evidence shall notapply and the evidence shall be taken stenographically or recorded by machine. For the purpose of hearing the appeals fairly and expeditiously, the board mayat any time appoint a competent and qualified disinterested person to act asits hearing officer.  The hearing officer shall hear the matter in the samemanner 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'sconclusions and recommendations based thereon to the board and to theemployee.  The board shall render the final decision in accordance with section91-11.

If the board finds that the reasons for theaction are not substantiated in any material respect, the board shall orderthat the employee be reinstated in the employee's position, without loss ofpay, but if the board finds that the reasons are substantiated or are onlypartially substantiated, the board shall sustain the action of the appointingauthority, provided that the board may modify the action of the appointingauthority if it finds the circumstances of the case so require and may thereuponorder such disposition of the case as it may deem just.

The findings and decisions of the board shallbe 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 cityand county of Honolulu, the attorney general shall be counsel for the board andthe county attorney or corporation counsel shall be counsel for the appointingauthority.  If, however, an appeal hearing is before the state merit appealsboard, the attorney general shall be counsel for the appointing authority andthe county attorney or corporation counsel of the county, including the cityand county of Honolulu, in which the appeal hearing is being conducted shall becounsel 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 cityand county of Honolulu, is appealed as provided in chapter 91, the attorneygeneral shall be counsel for the board and the county attorney or corporationcounsel shall be counsel for the appointing authority.  When the decision andorder of the state merit appeals board is appealed as provided in chapter 91,the attorney general shall be counsel for the appointing authority and thecounty attorney or corporation counsel of the county, including the city andcounty of Honolulu, in which the chapter 91 appeal is being conducted, shall becounsel 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, c52, §2; HRS §76-47; am L 1970, c 119, §1; gen ch 1985; am L 1994, c 166, §1; amL 2000, c 253, §28]

 

Revision Note

 

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

 

Cross References

 

  Administrative hearings and review, see chapter 91.

 

Case Notes

 

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

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

  Suspension and dismissal for "incompetency, inefficiencyand carelessness" held substantiated by the evidence.  50 H. 426, 442 P.2d61.

  Cited:  50 H. 169, 434 P.2d 312.