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Caap-12-0000550 v. Department of Education

May 8, 2013

CAAP-12-0000550 ROSS T. NISHI, APPELLANT-APPELLEE,
v.
DEPARTMENT OF EDUCATION, STATE OF HAWAII,
APPELLEE-APPELLANT, AND BOARD OF EDUCATION, STATE OF HAWAII,
APPELLEE-APPELLEE AND CAAP-12-0000634 ROSS T. NISHI, APPELLANT-APPELLEE,
v.
DEPARTMENT OF EDUCATION, STATE OF HAWAII,
APPELLEE-APPELLANT, AND BOARD OF EDUCATION, STATE OF HAWAII,
APPELLEE-APPELLEE



APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 10-1-2527-11)

The opinion of the court was delivered by: Associate Judge Associate Judge

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

MEMORANDUM OPINION

(By: Foley, Presiding J., Fujise and Leonard, JJ.)

In a secondary appeal arising out of an employment termination grievance, Appellee-Appellant State of Hawaii, Department of Education (DOE) appeals from (1) the April 10, 2012 "Order Granting Appellant's Agency Appeal Filed On November 22, 2010" (Order); (2) the May 8, 2012 Judgment; and (3) the June 27, NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER 2012 "Order Denying [DOE's] Motion For Reconsideration And To Amend Order Filed On April 10, 2012, Or In The Alternative, Motion For Stay Pending Appeal Filed On April 12, 2012," entered in the Circuit Court of the First Circuit *fn1 (circuit court).

The circuit court entered judgment in favor of Appellant-Appellee Ross T. Nishi (Nishi).

I. BACKGROUND

A. DOE Grievance Proceedings

On November 20, 2008, the DOE informed Nishi that he was being terminated effective December 1, 2008. Pursuant to the DOE School Code Procedure (DOE Procedure), on November 25, 2008, Nishi filed a complaint to the DOE contesting his termination. The DOE acknowledged Nishi's grievance and informed him it would arrange for a hearing.

The DOE designated a hearing officer, who conducted a hearing over three days in late 2008 through early 2009. The record indicates the hearing officer drafted a decision, dated March 17, 2009, concluding Nishi was terminated without proper cause and recommending Nishi's reinstatement. The record also indicates the DOE terminated the hearing officer's employment on March 19, 2009, the day after she submitted her drafted decision. The DOE then informed Nishi the hearing officer had not produced a final decision before the end of her employment, and it assigned a second hearing officer to Nishi's grievance. On June 15, 2009, the second hearing officer issued a decision denying Nishi's grievance and concluding the DOE "had just and proper cause to terminate [Nishi] from employment." The hearing officer based her decision on her review of the record submitted in connection with the hearing conducted by the first hearing officer. She did not consider or review the March 17, 2009 document the first hearing officer had submitted. On June 19, 2009, Nishi appealed the grievance decision. On July 6, 2009, the DOE affirmed the grievance decision upholding Nishi's termination, and it informed Nishi of his right to appeal the decision to the Chairperson of the Board of Education (BOE).

B. BOE Appeal

As set forth in the DOE Procedure, the BOE appoints a three-member Grievance Advisory Committee (GAC) to conduct a hearing pursuant to Hawaii Revised Statutes (HRS) Chapter 91 (2012 Repl.). After conducting a hearing, the GAC submits to the BOE Chairperson a written report which must include findings of fact and a recommended disposition. The BOE makes a final decision based on the GAC's report.

The GAC convened and heard Nishi's appeal on November 12, 2009. After reconvening to deliberate, the GAC submitted its written recommendation to the BOE Chairperson on February 5, 2010. The GAC determined the DOE had "just cause" to terminate Nishi, and it recommended the BOE confirm the DOE's decision to terminate Nishi's employment.

On February 19, 2010, the BOE informed Nishi it had reviewed the GAC's findings and recommendation, and the BOE confirmed the DOE's decision.

C. Circuit Court Appeal

On November 22, 2010, Nishi filed a notice of appeal to the circuit court. Nishi argued, among other things, that the BOE's decision was arbitrary and made upon unlawful procedure. The circuit court heard oral argument on November 17, 2011 and orally ruled in Nishi's favor. On April 10, 2012, the circuit court entered its Order ruling in Nishi's ...


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