Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Kuamoo

Intermediate Court of Appeals of Hawaii

August 18, 2016

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 (CIVIL NO. 12-1-1624) 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 (CIVIL NO. 12-1-1680) IN THE MATTER OF ARASI MOSE, Complainant-Employee/Appellant-Appellant, and STATE OF HAWAI'I, DEPARTMENT OF PUBLIC SAFETY (2011-025), Respondent-Employer/Appellee-Appellee, and STATE OF HAWAI'I, MERIT APPEALS BOARD; ALVIN M. YOSHIMORI; VALERIE B. PACHECO; JANICE T. KEMP (MAB CASE NO. 274), Agency/Appellees-Appellees (CIVIL NO. 12-1-2269) IN THE MATTER OFKELII LAU, Complainant-Employee/Appellant-Appellant, and STATE OF HAWAI'I, 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 (CIVIL NO. 12-1-2270) 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 (CIVIL NO. 12-1-2271)

         On the briefs:

          Lowell K.Y. Chun-Hoon Tatjana A. Johnson (King, Nakamura & Chun-Hoon) for Complainants-Employees/ Appellants-Appellants.

          James E. Halvorson Richard H. Thomason Deputy Attorneys General for Respondent-Employer/ Appellee-Appellee.

          John S. Mukai Deputy Corporation Counsel City and County of Honolulu for Agency-Appellees.

          FOLEY AND FUJISE, JJ. WITH NAKAMURA, C.J. CONCURRING SEPARATELY

          OPINION

          FOLEY, J.

         Complainants-Employees/Appellants-Appellants 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[1] (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 Board (Board);

         (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";[2] 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."

         I. BACKGROUND

         This is a secondary administrative appeal from five separate Board orders, each entitled "Findings of Fact, Conclusions of Law, Decision and Order"[3] (FOFs/COLs), which affirmed PSD's decision not to promote Appellants.

         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).[4] 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.

         In 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[5] within two years of their application and that there was proper cause for PSD's disciplinary actions. [6] PSD determined that Appellants, based on PSD's background investigations, were "unsuitable" for the Supervisory Positions for the following reasons:

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.

         In separate letters to each Appellant, PSD informed Appellants that they had not been selected for promotions to the Supervisory Positions.

         Appellants 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."

         On 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 16, 2012.

         On June 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, and Sataraka.

         The Board's five FOFs/COLs made nearly identical FOFs and COLs as to each Appellant. Notably, the Board found in each case:

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 Position].
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.

         In 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."

         On June 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 five appeals.

         On May 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 clearly erroneous.

         On June 4, 2013, the circuit court entered its "Judgment."

         On June 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 "Judgment."

         II. STANDARD OF REVIEW

         "On 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)).

         HRS § 91-14(g) (2012 Repl.), which sets forth the applicable standard of review for administrative appeals, provides:

         §91-14 Judicial review of contested cases.

         (g) 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 prejudiced because the administrative findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.