IN THE MATTER OF BERNARD KUAMOO, Complainant-Employee/Appellant-Appellant and STATE OF HAWAI'I, DEPARTMENT OF PUBLIC SAFETY (2010-122), Respondent-Employer/Appellee-Appellee, and STATE OF HAWAI'I, MERIT APPEALS BOARD; COLLEEN R. MEYER;VALERIE B. PACHECO; ALVIN M. YOSHIMORI (MAB CASE NO. 265), Agency/Appellees-Appellees IN THE MATTER OF DENISE GABRIEL, Complainant-Employee/Appellant-Appellant, and STATE OF HAWAI'I, DEPARTMENT OF PUBLIC SAFETY (2010-123), Respondent-Employer/Appellee-Appellee, and STATE OF HAWAI'I, MERIT APPEALS BOARD; COLLEEN R. MEYER;VALERIE B. PACHECO; ALVIN M. YOSHIMORI (MAB CASE NO. 266), Agency/Appellees-Appellees IN THE MATTER OF ARASI MOSE, Complainant-Employee/Appellant-Appellant, and STATE OF HAWAI'I HAWAI'I, DEPARTMENT OF PUBLIC SAFETY (2011-025), Respondent-Employer/Appellee-Appellee, and STATE OF HAWAl'l, MERIT APPEALS BOARD; ALVIN M. YOSHIMORI;VALERIE B. PACHECO; JANICE T. KEMP (MAB CASE NO. 274), Agency/Appellees-Appellees IN THE MATTER OF KELII LAU, Complainant-Employee/Appellant-Appellant, and STATE OF HAWAl'l, DEPARTMENT OF PUBLIC SAFETY (2011-022), Respondent-Employer/Appellee-Appellee, and STATE OF HAWAI'I, MERIT APPEALS BOARD; ALVIN M. YOSHIMORI; VALERIE B. PACHECO; JANICE T. KEMP (MAB CASE NO. 275), Agency/Appellees-Appellees IN THE MATTER OF FIAFIA SATARAKA, Complainant-Employee/Appellant-Appellant, and STATE OF HAWAI'I, DEPARTMENT OF PUBLIC SAFETY (2011-023), Respondent-Employer/Appellee-Appellee, and STATE OF HAWAI'I, MERIT APPEALS BOARD; ALVIN M. YOSHIMORI; VALERIE B. PACHECO; JANICE T. KEMP (MAB CASE NO. 277), Agency/Appellees-Appellees
FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NOS.
12-1-1624, 12-1-1680, 12-1-2269, 12-1-2270, 12-1-2271)
K.Y. Chun-Hoon Tatjana A. Johnson / (King, Nakamura &
Chun-Hoon) for Complainants-Employees Appellants-Appellants.
E. Halvorson Richard H. Thomason Deputy Attorneys General for
S. Mukai Deputy Corporation Counsel City and County of
Honolulu for Agency-Appellees.
AND FUJISE, JJ. WITH NAKAMURA, C.J. CONCURRING SEPARATELY
Bernard Kuamoo (Kuamoo), Denise Gabriel (Gabriel), Kelii Lau
(Lau), Arasi Mose (Mose), and Fiafia Sataraka (Sataraka)
(collectively, Appellants) appeal from the May 24, 2013
"Order Dismissing Appeal" and June 4, 2013
"Judgment" both entered in the Circuit Court of the
First Circuit (circuit court). On appeal, Appellants
argue that the circuit court erred by:
(1) affirming the findings of fact (FOFs) of
Agency/Appellee-Appellee State of Hawai'i Merit Appeals
(2) holding that the Board's conclusions of law (COLs)
"were supported by its [FOFs] and were not made in
violation of constitutional or statutory provisions" or
"made upon unlawful procedure"; and
(3) upholding the Board's determination that the
recruitment and examination process of Respondent-Employer/
Appellee-Appellee State of Hawai'i, Department of Public
Safety (PSD) was "fair and impartial."
a secondary administrative appeal from five separate Board
orders, each entitled "Findings of Fact, Conclusions of
Law, Decision and Order" (FOFs/COLs), which affirmed
PSD's decision not to promote Appellants.
worked as Adult Correction Officers (ACO)
for PSD and were members of the United Public Workers Union
(Union). Between 2009 and 2010, PSD issued "Departmental
Competitive Announcements" for various ACO IV and V
positions, which are supervisory positions within PSD
(Supervisory Positions). Appellants each submitted applications
seeking promotions to the Supervisory Positions. Appellants
received letters from PSD acknowledging PSD's receipt of
Appellants' applications and letters stating that they
were each eligible for consideration. Appellants then signed
consent and waiver forms, which authorized the release of
records and information pertaining to Appellants'
backgrounds for the purpose of aiding PSD's determination
as to whether Appellants met fitness and suitability
requirements for the Supervisory Positions.
reviewing Appellants' records-including, but not limited
to, Appellants' disciplinary records, employment history,
and work performance-PSD discovered that Appellants had each
been suspended for violating PSD's Standards of
Conduct within two years of their application and
that there was proper cause for PSD's disciplinary
actions. PSD determined that Appellants, based on
PSD's background investigations, were
"unsuitable" for the Supervisory Positions for the
1. Inadequate amount of elapsed time from the effective date
of your suspension to show rehabilitation.
2. [Appellants'] decision to violate or disregard the
Standards of Conduct.
separate letters to each Appellant, PSD informed Appellants
that they had not been selected for promotions to the
each wrote internal complaints to PSD requesting
reconsideration of its decision, but PSD sustained its
determinations of unsuitability without further review.
Appellants then individually appealed the PSD's decisions
to the Board and the Board held hearings to determine
"with respect to the nonselection taken on the
[Supervisory Positions], did [PSD] comply with the
established laws, rules, regulations, policies, procedures
and/or practices governing the selection process."
February 29, 2012, the Board held separate hearings on Kuamoo
and Gabriel's appeals. At Kuamoo's hearing, PSD
Personnel Officer Colleen Miyasato (Miyasato) testified that
the unwritten practice within PSD was to deem applicants as
unsuitable for promotion if they had been suspended for
violating the Standards of Conduct within two years of when
promotion was sought (suspension policy). The suspension
policy was implemented to prevent the promotion of ACOs who
had recently failed to follow the Standards of Conduct. PSD
Personnel Management Specialist Clayton Kitamori (Kitamori)
testified that the suspension policy was developed in 2005
after wardens expressed concern that ACOs were being promoted
when they had suspensions on their record. The wardens viewed
this as worrisome because the ACOs were "taking on
positions that [were] considered to be higher responsibility,
these are supervisors." The Board ultimately denied
Kuamoo's appeal in a FOFs/COLs dated May 10, 2012 and
denied Gabriel's appeal in a separate FOFs/COLs dated May
20, 2012, the Board held a joint hearing for the appeals of
Mose, Lau, and Sataraka. In three separate FOFs/COLs dated
August 14, 2012, the Board denied the appeals of Mose, Lau,
Board's five FOFs/COLs made nearly identical FOFs and
COLs as to each Appellant. Notably, the Board found in each
14. Appellant did not present credible evidence or argue
convincingly that the [PSD] had committed any violations of
established laws, rules, regulations, policies, procedures,
and/or practices governing the recruitment and examination
process in its non-selection of Appellant to the [Supervisory
15. Conversely, [PSD], through its presentation,
documentation, and the testimony of its witnesses, provided
credible evidence that the recruitment and examination
process was fair and impartial.
addition, all the Board's FOFs/COLs concluded,
"Pursuant to [Hawaii Revised Statutes (HRS) §]
91-10(5) [(2012 Repl.)], Appellant has failed to prove by a
preponderance of the evidence that [PSD] did not comply with
any applicable law, rule, policy, procedure or practice
governing the recruitment and examination process."
8, 2012, Kuamoo filed his notice of appeal and on June 15,
2012, Gabriel filed her notice of appeal to the circuit court
from the Board's FOFs/COLs. Mose, Lau, and Sataraka also
filed individual notices of appeal to the circuit court from
the Board's FOFs/COLs on August 30, 2012. On November 16,
2012, the circuit court entered an order consolidating the
24, 2013, the circuit court entered its "Order
Dismissing Appeal, " which (1) affirmed the Board's
FOFs/COLs and (2) dismissed all five administrative appeals.
Specifically, the circuit court held:
There is evidence in the record on appeal including, but not
limited to the testimony of [Kitamori] and the declarations
of [Miyasato], Roy Yamamoto and Edwin T. Shimoda, which
explained the reasons for the creation of the policy to find
employees with a prior suspension for violations of the
[PSD's] Standards of Conduct within the past two years
not suitable for promotions to [Supervisory Positions]
(namely that suspensions for violations of the Standards of
Conduct specifically correlate to both the ability to
properly and safely perform this very demanding job and
supervise others who do so).
These reasons also explained why [PSD] treated suspensions
(as opposed to lesser forms of discipline) for violations of
the Standards of Conduct as a bright line barrier to future
promotions for two years, as opposed to looking at each
violation on a case by case basis, as is done by [PSD] with
regard to pre-employment past criminal convictions.
The reasons identified by [PSD] support the [FOFs] made by
the Board and are neither arbitrary, nor capricious and are
reasonably related to bonafide employer concerns. Therefore
the Court finds that the Board's [FOFs] do not violate
the provisions of HRS § 91-14(g)(5) as they are not
4, 2 013, the circuit court entered its "Judgment."
21, 2013, the Appellants filed a consolidated notice of
appeal from the circuit court's May 24, 2013 "Order
Dismissing Appeal" and June 4, 2013
STANDARD OF REVIEW
secondary judicial review of an administrative decision,
Hawaii appellate courts apply the same standard of review as
that applied upon primary review by .the circuit court."
AlohaCare v. Ito, 126 Hawai'i 326, 341, 271 P.3d
621, 636 (2012) (quoting Kaiser Found. Health Plan, Inc.
v. Pep't of Labor & Indus. Relations, 70 Haw.
72, 80, 762 P.2d 796, 800-01 (1988)).
§ 91-14(g) (2012 Repl.), which sets forth the applicable
standard of review for administrative appeals, provides:
Judicial review of contested cases., . .
Upon review of the record the court may affirm the decision
of the agency or remand the case with instructions for
further proceedings; or it may reverse or modify the decision
and order if the substantial rights of the petitioners may
have been ...