Haw. Code R. § 14-25.1-4 - Appeal hearing

(a) An appeal shall be conducted as a contested case under chapter 91, Hawaii Revised Statutes. The board shall order the matter set for hearing. In any appeal, all parties shall be afforded an opportunity for hearing after reasonable notice. Opportunities shall be afforded all parties to present evidence and argument on all issues involved. Any procedure in a contested case may be modified or waived by stipulation of the parties and informal disposition may be made of any appeal by stipulation, agreed settlement, consent order, or default; provided that waiver of any procedure includes procedural requirements of section 91-11, Hawaii Revised Statutes.

(b) Hearings shall be held at the time and place set forth in the notice of hearing, but may, at that time and place, be continued from day to day or to a later day or to a different place without notice other than the announcement thereof by the presiding officer or hearing officer at the hearing.

(c) The chairperson or hearing officer may grant a continuance before the convening of a hearing, provided:

(1) the party requesting the continuance must submit a written request for the continuance, stating the specific reasons for the request;

(2) the written request must be received by the board no later than ten days after the hearing notice is issued and not less than ten days before the scheduled hearing date;

(3) the moving party must simultaneously serve a copy of the continuance request on any other party/parties;

(4) an opposing party must submit its objections to the board and any other party/parties within five days of the request for continuance and not less than five days before the scheduled hearing date;

(5) if the chairperson or hearing officer grants the continuance, written notice of the continuance and the reasons thereto shall be provided to the parties;

(6) nothing herein shall prevent the chairperson or the hearing officer from granting a continuance where all parties are agreeable to the continuance. If an opposing party fails to properly submit its objections, the party shall be deemed agreeable to the continuance; and

(7) when a continuance is granted under this paragraph, notice of the new hearing date shall be as prescribed by § 14-25.1-3 of these Rules.

(d) An application for subpoena requiring the attendance of witnesses or the production of documentary evidence from any place within the State at any designated place or hearing shall be made in writing to the board, and shall:

(1) specify the name of the witness or the specific documents or data desired, and the relevancy to the issues involved;

(2) be made no later than ten days after the hearing notice is issued and not less than ten days before the hearing, or ten days before the date the attendance or production is desired, as applicable; and

(3) be accompanied by a prepared subpoena.

If application is made at a later time, the board may, in its discretion, issue subpoenas or continue the hearing or any part thereof or both.

Once approved by the chairperson or the hearing officer, the party requesting the subpoena shall be responsible for serving the subpoena upon the person identified in the subpoena.

Enforcement of the subpoenas issued and served shall be by written application of any board member to the circuit court.

Witnesses who are subpoenaed shall be paid the same fees and mileage as are paid witnesses in the circuit court of the State. Witness fees and mileage shall be paid by the party at whose request the witness appears.

Any fees associated with subpoenas shall be paid by the party at whose request the subpoena is issued.

Fees shall be paid when a party is summoned or a deposition is taken.

A motion to revoke or quash a subpoena shall be filed with the board no later than five days after service of the subpoena. The chairperson or hearing officer shall have the discretion to revoke or quash a subpoena.

(e) Motions, including but not limited to motions to dismiss a case and motions to limit the scope of hearing, shall be filed with the board and served on all other parties no later than ten days after the hearing notice is issued and not less than ten days before the hearing unless the chairperson or hearing officer directs otherwise. These motions shall be made to the board, shall briefly state the relief sought, and shall be accompanied by affidavits or memoranda setting forth the grounds upon which they are based. Answering affidavits and memoranda, if any, shall be filed with the board and served upon all other parties no later than five days after the motion is filed and not less than five days before the time of hearing, unless the chairperson or hearing officer directs otherwise.

(f) Appeals shall be heard before the board or a hearing officer or panel of subject matter experts duly appointed by the board.

(g) The chairperson shall preside over appeals heard by the board itself. In the absence of the chairperson, another member, designated by the board, shall preside.

(h) If an appellant fails to appear in person at the scheduled time and place for the hearing, the appeal shall be dismissed with prejudice.

(i) The presiding officer at a proceeding shall have authority to control the course of the hearing; to hold conferences on which the parties have had notice, for the settlement or simplification of issues; to administer oaths and affirmations; to grant application for and issue subpoenas; to take or cause depositions to be taken; to rule upon offers of proof and receive relevant evidence; to limit lines of questioning or testimony that are irrelevant, immaterial, or repetitious; to rule upon all objections, procedural requests and motions that do not involve final determination of proceedings; to dispose of any other matter that normally and properly arises in the course of the proceeding; and to take all other actions authorized by chapters 76 and 91, Hawaii Revised Statutes, rules of the board or by any other statute that are deemed necessary to the orderly and just conduct of the hearing.

(j) No hearing officer, subject matter expert or board member shall be assigned to serve in any proceeding if that person would enjoy personal enrichment in any matter or business involved in the proceeding; is related within the first degree by blood or marriage to any party to the proceeding; or has participated in an investigation preceding the institution of the proceeding or in a determination that it should be instituted or in the development of the evidence to be introduced therein.

(k) The record of the hearing shall be compiled in conformance with section 91-9(e), Hawaii Revised Statutes. The board will make provisions for recording the testimony, but it shall not be necessary to transcribe the record unless requested for purposes of rehearing or court review. A copy of the record of a hearing or any part thereof may be obtained as provided under section 14-21.1-12.

(1) At the commencement of the hearing, the presiding officer or hearing officer shall read the notice of hearing and shall then outline briefly the procedure to be followed. The procedure, unless specifically prescribed in these rules or by the chapter 91, Hawaii Revised Statutes, or by any other applicable statute, shall be outlined as in the opinion of the presiding officer or hearing officer will best serve the purposes of the hearing without prejudice to any party.

(m) Witnesses shall be placed under oath or affirmation before testifying.

(n) All parties shall be given reasonable opportunity to offer testimony with respect to the matters relevant to the proceeding. All witnesses shall, before proceeding to testify, state their name, address, and whom they represent at the hearing and shall give information respecting their appearances relevant to the proceeding as the presiding officer or hearing officer may request. The presiding officer or hearing officer shall confine the testimony to the matters for which the hearing has been called, but the presiding officer or hearing officer need not apply the technical rules of evidence except as required by statute. Each witness shall be subject to questioning by members of the board and by any representative of the board. Each party shall have the right to submit rebuttal evidence and rebuttal arguments.

(o) The board or hearing officer shall take notice of judicially recognizable facts and may take notice of generally recognizable technical or scientific facts within the board's or hearing officer's specialized knowledge when parties are given notice before the hearing of the material and afforded the opportunity to contest the facts so noticed.

(p) At the hearing, the presiding officer or hearing officer may require the production of further evidence upon any issue.

(q) 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 in accordance with the provisions of section 76-47(d), Hawaii Revised Statutes. In addition, the board may discuss the issues with the parties and informally mediate any or all of the issues involved.

(r) After all the evidence has been presented, the board or hearing officer shall give the parties opportunity to summarize. Within reasonable time after final arguments have been completed and all requested memoranda submitted, the board or hearing officer shall bring the matter to a close.

(s) The board or hearing officer may permit parties to file proposed findings and conclusions, together with the reasons therefor at the close of the hearing or within the time as is extended at the discretion of the board or hearing officer. The proposal shall be in writing and shall be limited to references to the record and to the authorities relied upon and shall not contain new information not already reflected in the record. Copies thereof shall be furnished to all parties.

(t) In appeals filed under section 14-25.1-1(b)(4)(A), involving the suspension, discharge, or demotion of a civil service employee, the employer shall have the burden of proof.

In all other appeals, the charging party, in asserting an improper action or a violation of the statutes or rules, shall have the burden of proving that statutory and regulatory requirements or proper procedures were not followed by the director or appointing authority.

(u) In its action on appeals filed under sections 14-25.1-1(b)(1),(2),(3) and (4)(C), the board shall generally confine itself to the issue of whether legal requirements were met, rules were properly applied, and appropriate procedures were followed, pursuant to chapter 91. In the event the board finds that these requirements were not met or appropriate procedures were not followed, the board shall remand the case to the director or the appointing authority and require that the process and action be redone in accordance with applicable requirements and procedures.

(v) In its actions on appeals filed under section 14-25.1-1(b)(2), the board shall not consider, in its deliberation, the classes in other jurisdictions or the classification of positions in other jurisdictions.

(w) In its action on appeals by a civil service employee from adverse actions taken by the appointing authority based on failure to meet performance requirements, the board shall determine whether the conditions listed in section 76-41(b), Hawaii Revised Statutes, were met when determining whether or not the action is with or without merit.

(x) In its action on an appeal by a civil service employee who has been suspended, discharged, or demoted, 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.

(1) If reasons for an action by the director or appointing authority 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.

(2) If the reasons are substantiated or are only partially substantiated, the board shall sustain the action of the director or appointing authority; provided that the board may modify the action of the director or appointing authority if it finds the circumstances of the case so require and may order the disposition of the case it may deem just provided that the disposition is consistent with laws, rules, and policies.

(y) In conducting its business and rendering its decision, the board shall serve as an appellate body and shall not impinge on the authority of the director in matters of policy, methodology, and administration. All decisions and orders of the board shall be made in accordance with personnel laws, rules, policies, and practices, and accompanied by a technical explanation of the decision or order. Every decision and order adverse to a party to the proceeding, rendered by the board, shall be in writing or stated in the record and shall be accompanied by separate findings of fact and conclusions of law. If any party to the proceeding has filed proposed findings of fact, the board shall incorporate in its decision a ruling upon each proposed finding presented. The findings and decisions of the board shall be final on all appeals, unless an appeal is taken pursuant to section 91-14, Hawaii Revised Statutes.

(z) The board shall, as soon as practicable and unless otherwise stipulated by the parties, not later than sixty days after the close of the hearing, notify the parties to the proceeding of the decision and order. Parties to the proceeding shall be notified by delivering or mailing a certified copy of the decision and order and any accompanying findings and conclusions to each party or to the party's attorney of record.

(aa) Unauthorized ex parte communications are defined as private communications or arguments with members of the board or its hearing officer as to the merits of a proceeding with a view towards influencing the outcome of the case, except that the following classes of ex parte communications shall not be prohibited:

(1) Those which relate solely to matters which a board member or hearing officer is authorized by the board to dispose of on an ex parte basis.

(2) Requests for information with respect to the status of a proceeding.

(3) Those which all parties to the proceeding agree or which the board has formally ruled may be made on an ex parte basis.

(4) Those with representatives of any news media on matters intended to inform the general public.

(bb) The following additional requirements shall apply to the board and its functions relating to receiving and processing initial pricing appeals filed under 14-25.1-1(b)(3):

(1) After the hearing, the board shall review the facts presented, deliberate, and render a decision which shall be in conformance with the policies, standards and guidelines governing initial pricing promulgated by the director.

(2) In its deliberations, the board shall be limited to consideration of classes in the same bargaining unit. The board shall consider only State classes, unless the basis for the appeal alleges violation of the provisions of section 76-1(5), Hawaii Revised Statutes.

(3) Decisions on initial pricing appeals shall be limited to the appropriate pay grade of the class and cannot require a change in bargaining unit for full implementation.

(4) All decisions of the board resulting in a higher pay grade assignment shall be retroactive to the date of the initial pricing action of the director.

(5) If the evidence submitted indicates significant changes have occurred in the work of the position, the board shall remand the case to the director for classification review.

(6) The person filing the appeal has the burden of proof.

(7) Substantial weight shall be given to the technical determination of the director in pricing the new class.

Notes

Haw. Code R. § 14-25.1-4

[Eff OCT 24 2003] (Auth: HRS § 91-2) (Imp: HRS §§ 76-14, 76-42, 76-47, 91-9, 91-9.5, 91-10, 91-11)