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In re Kuamoo

Supreme Court of Hawaii

June 28, 2018

IN THE MATTER OF BERNARD KUAMOO, Petitioner/Complainant-Employee/Appellant-Appellant, and STATE OF HAWAI'I, DEPARTMENT OF PUBLIC SAFETY (2010-122) Respondent/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), Respondents/Agency/Appellees-Appellees (CIVIL NO. 12-1-1624) IN THE MATTER OF DENISE GABRIEL, Petitioner/Complainant-Employee/Appellant-Appellant, and STATE OF HAWAI'I, DEPARTMENT OF PUBLIC SAFETY (2010-123) Respondent/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), Respondents/Agency/Appellees-Appellees (CIVIL NO. 12-1-1680) IN THE MATTER OF ARASI MOSE, Petitioner/Complainant-Employee/Appellant-Appellant, and STATE OF HAWAI'I, DEPARTMENT OF PUBLIC SAFETY (2011-025) Respondent/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), Respondents/Agency/Appellees-Appellees (CIVIL NO. 12-1-2269) IN THE MATTER OF KELII LAU, Petitioner/Complainant-Employee/Appellant-Appellant, and STATE OF HAWAI'I, DEPARTMENT OF PUBLIC SAFETY (2011-022) Respondent/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), Respondents/Agency/Appellees-Appellees (CIVIL NO. 12-1-2270) IN THE MATTER OF FIAFIA SATARAKA, Petitioner/Complainant-Employee/Appellant-Appellant, and STATE OF HAWAI'I, DEPARTMENT OF PUBLIC SAFETY (2011-022) Respondent/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), Respondents/Agency/Appellees-Appellees (CIVIL NO. 12-1-2271)

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0001579)

          Lowell K.Y. Chun-Hoon Tatjana A. Johnson For petitioners

          James E. Halvorson Deputy Attorney General For respondent

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          WILSON, J.

         Bernard Kuamoo, Denise Gabriel, Arasi Mose, Kelii Lau, and Fiafia Sataraka (the employees or applicants) are employed by the Department of Public Safety as Adult Correction Officers. Each applied for promotion to open supervisory positions, and each was rejected based on an unwritten department policy. Under the unwritten policy, the department precludes from promotion to supervisory positions all employees who have been suspended for violation of the department's standards of conduct in the prior two years. The unwritten policy applies without exception. Each applicant had passed the relevant examination and was otherwise qualified for the supervisory position prior to being deemed "unsuitable" under the unwritten policy.

         At issue is whether the department's policy violates aspects of the merit principle on which the Hawai'i civil service system is founded. See Haw. Const, art. XVI, § 1 (mandating that the "employment of persons in the civil service, as defined by law . . . shall be governed by the merit principle"); HRS § 76-1. As explained below, we hold the department's unwritten policy violates the merit principle.

         I. BACKGROUND

         The applicants are Adult Corrections Officers (ACO) employed by the Department of Public Safety (PSD or the department). Each applied for a promotion to an open supervisory position, either ACO IV (sergeant) or ACO V (lieutenant) positions. Each was informed by department letter that his or her application had been denied. The letters noted that a background check revealed the applicant had violated the department's standards of conduct and been suspended, sometimes for as little as one day. According to the letters, the department deemed each applicant "unsuitable" for promotion for the following two reasons:

1. Inadequate amount of elapsed time from the effective date of your suspension to show rehabilitation.
2 . Your decision to violate or disregard the Standards of Conduct.

         The department characterized its decision as a determination that the applicant is deemed "temporarily unsuitable" for the position.

         The employees individually challenged PSD's denial of their application for promotion to the Merit Appeals Board (MAB). According to testimony before the MAB, the selection process for ACO IV and V positions consists of several stages. The department first administers a written examination to applicants. Applicants must receive a minimum score of 70 percent on the examination in order to be considered qualified for the positions. Those applicants who pass the written examination are then ranked by seniority. Depending on how many vacancies are available, the department contacts applicants by seniority and solicits permission to conduct a background check regarding the applicant's "suitability," which includes a review of employment records. If review of an applicant's employment records reveals a suspension within the prior two years, the applicant is deemed "temporarily unsuitable."

         The department's unwritten policy deems as unsuitable any applicant for promotion into a supervisory position who has been suspended within the prior two years. That policy was developed in 2005 to address concerns by wardens about ACOs with recent suspensions being promoted. A department personnel specialist conceded there is no written documentation of the concerns giving rise to the policy. But the specialist asserted that the policy attempted to "make sure that whoever we're promoting [is] going to follow the same Standards of Conduct that they're going to enforce upon whoever they supervise." ACOs receiving a suspension were never informed that the suspension would act as a bar on promotions for the next two years. While applicants to supervisory ACO positions were informed about ...


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