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RULES OF GENERAL APPLICABILITY
Historical Note: This subchapter is based substantially on chapter 2 of the rules of the civil service commission.
§1-1 Purpose of chapter; statement of policy.
This chapter governs procedures before the civil service commission under chapter 76, HRS, and shall be construed to effectuate the purpose of the chapter and to secure the just and efficient determination of every proceeding.
[Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-2) (Imp: HRS §§76-14, 76-47, 91-2)
These rules govern practice and procedure before the civil service commission of the City and County of Honolulu under civil service law, chapter 76, HRS as modified by chapter 89, HRS; hawaii administrative procedure act, chapter 91, HRS; chapter 92, HRS; and such other related acts as may now or hereafter be administered by the civil service commission. The civil service commission shall serve as an appellate body. Matters of policy, methodology, and administration are left to the determination of the director. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-2) (Imp: HRS §§76-14, 76-47, 91-2)
§1-3 Construction of rules.
These rules shall be liberally construed to secure the just, speedy and inexpensive determination of every proceeding. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-2) (Imp: HRS §§76-14, 76-47, 91-2)
§1-4 Limitation of jurisdiction.
Where the terms of collective bargaining agreements pursuant to chapter 89, HRS, conflict with these rules the terms of the agreement shall prevail; provided that the terms are not inconsistent with section 89-9(d), HRS. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-2) (Imp: HRS §§76-14, 76-47, 91-2)
§1-5 Procedure and terms.
(a) Statutory terms. The terms used in rules promulgated by the commission pursuant to powers granted by statute shall have the meaning defined by such statute, unless otherwise indicated by the context.
(c) Use of number. Words importing the singular number may extend and be applied to several persons or things and words importing the plural may include the singular. [Eff August 11, 2002] (Auth: HRS §91-2) (Imp: HRS §91-2)
As used in this chapter, unless a different meaning clearly appears in the context:
"Appointing authority" means a department head or designee having the power to make appointments or make changes in the status of employees.
"Chairperson" means the chairperson of the civil service commission.
"Commission" means the civil service commission.
"Director" means the director of the department of human resources.
"Hearing" means any proceeding governed by sections 91-8 and 91-9,
"Meeting" means the convening of the commission for which a quorum is required in order to make a decision or to deliberate toward a decision upon a matter over which the commission has supervision, control, jurisdiction, or advisory power.
"Party" means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party in a proceeding.
"Presiding officer" means, with respect to proceedings, the chairperson, and includes any member of the commission designated as such, or such other persons authorized by law to conduct hearings.
"Person" means or includes individuals, partnerships, corporations, associations, or public or private organizations of any character other than governmental agencies.
"Proceedings" means the commission's determination of the relevant facts and applicable law, consideration thereof, and action thereupon with respect to a particular subject within the commission's jurisdiction, initiated by a filing or submittal or request or a commission's notice or order. It shall include proceedings involving the adoption, amendment or repeal of any rule or regulation of the commission, whether initiated by commission order or notice, or by petition of an interested person. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-2) (Imp: HRS §§76-14, 76-47, 91-2)
§1-7 The Commission.
(a) Office. The office of the commission is at Honolulu, Hawaii. All communications to the commission shall be addressed to Civil Service Commission, City and County of Honolulu, Honolulu, Hawaii 96813.
(b) Hours. The office of the commission will be open during regular office hours unless otherwise provided by statute or executive order.
(c) Meetings. The commission may meet and exercise its powers in any part of the City and County of Honolulu.
(1) Open meetings. All meetings of the commission, except executive meetings and meetings governed by sections 91-8 and 91-9, HRS, shall be open to the public.
(3) Chance meetings. The rules governing meetings shall not apply to any chance meeting, as defined by section 92-2, HRS, at which matters relating to official business are not discussed. No chance meeting or electronic communication shall be used to circumvent the spirit or requirements of the meetings provisions to make a decision or to deliberate toward a decision upon a matter over which the commission has supervision, control, jurisdiction or advisory power.
(4) Special meetings. Special meetings of the commission for the transaction of its business may be held at any time and place as scheduled by the commission.
(5) Emergency meetings. If the commission finds that an imminent peril to the public health, safety or welfare requires a meeting in less time than is provided for in paragraph (6), the commission may hold an emergency meeting under the conditions set forth in section 92-8, HRS. In addition, if the commission finds that an unanticipated event requires it to take action within less time than is provided for in paragraph (6), the commission may hold an emergency meeting as permitted under section 92-8(b), HRS.
(A) The commission shall give written public notice of any regular, special, or rescheduled meeting, or any executive meeting when anticipated in advance. The content, filing and changes to the notice and agenda shall be governed by the provisions in section 92-7, HRS.
(B) Notice to parties. For hearings governed by sections 91-8 and 91-9, HRS, all parties shall be given notice of the hearing as required by law and provided for in these rules. In addition, the commission shall maintain a list of persons who have requested notification of meetings. The commission shall mail a copy of the notice to all persons on the list.
(7) Construction. The provisions requiring open meetings shall be liberally construed and the provisions providing for exceptions to open meeting requirements shall be strictly construed against closed meetings.
(d) Quorum and number of votes necessary to validate acts. A majority of all members to which the commission is entitled shall constitute a quorum to transact business, and the concurrence of a majority of all members to which the commission is entitled shall be necessary to make valid any action of the commission.
(e) Minutes. The commission shall keep written minutes of all meetings. Unless otherwise required by law, neither a full transcript nor a recording of the meeting is required, but the written minutes shall give a true reflection of the matters discussed and the views of the participants. The minutes shall meet all the requirements provided in section 92-9, HRS.
(1) The chairperson of the commission shall be responsible for the administration functions of the commission.
(2) Authentication of commission action. All decisions, orders and other actions of the commission shall be signed by the chairperson or the presiding officer acting in such proceeding. Official copies of decisions, orders and other commission actions may be promulgated under the signature of the chairperson of the commission or the chairperson's delegate.
(g) Submittals and requests. All documents required to be filed with the commission shall be filed in the office of the commission within such time limits as prescribed by laws, rules of the commission or order of the commission. Requests for public information, copies of official documents or opportunity to inspect public records may be made in writing to the commission's office or in person at said office. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-2) (Imp: HRS §§76-14, 76-47, 91-2)
§1-8 Delegation of administrative duties
(a) The commission may delegate to any competent and qualified individual such power or authority vested in the commission as it deems reasonable and proper for the effective administration of chapter 76, HRS, except the power to make, amend or repeal rules and regulations.
(b) Hearing officer. The commission may, by written resolution adopted by a majority of the members to which it is entitled, appoint a competent and qualified disinterested person to act as its hearing officer. The hearing officer shall hear the matter in the same manner as if it were before the commission and, upon the conclusion of the hearing, shall transmit to the commission a record of the hearing, including a recording or transcript and a summary of evidence taken at said hearing. After review of the testimony and evidence, a majority of the members to which the commission is entitled shall render a decision in accordance with section 91-11, HRS. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-2) (Imp: HRS §§76-14, 76-47, 91-2)
§1-9 Government records.
(a) Files of the commission. The term "government records" as used in this part is defined as in section 92F-3, HRS, and shall include all rules, regulations, written statements of policy or interpretations formulated, adopted or used by the commission, all petitions of appeal, opinions and orders, written testimony, minutes of meetings of the commission and any other material on file in the office of the commission unless accorded confidential treatment pursuant to law or the rules of the commission.
(b) Inspection of government records. All government records which are required to be disclosed pursuant to section 92F-12, HRS, will be available for inspection in the office of the commission during established office hours unless public inspection of such records is in violation of any law or rule. Nothing in this rule shall be construed to prevent the corporation counsel from raising any and all objections to the production of government records that are subject to discovery or subpoena under any rule or order of the court. The corporation counsel is authorized to raise objections and defenses pertaining to the discovery and subpoena of the commission's records and withhold production and disclosure of said documents pending a final court order.
(c) Copies of government records. Government records which are required to .be disclosed pursuant to section 92F-12, HRS, that are printed or reproduced by the commission shall be given to any person requesting the same and paying the fees established by the commission or by law.
(d) Requests. Requests for public information, for permission to inspect government records or for copies of government records shall be handled expeditiously. Said government records, however, will not be released for review or copying without the approval of the chairperson or the chairperson's delegate.
(e) Denial of inspection. Any person denied access to inspect government records or to copies of government records may apply to the circuit court of the circuit wherein the government record is found for an order permitting access to inspect government records or to copies of government records. [Eff August 11, 2002] (Auth: HRS §91-2) (Imp: HRS §91-2)
PROCEEDINGS BEFORE THE COMMISSION
§1-10 General proceedings.
The commission may, on its own motion or upon the petition of any interested person or agency of the Federal, State or County government, hold such proceedings as is consistent with sections 76-14 and 76-47, HRS. Procedures to be followed by the commission shall, unless specifically prescribed in these rules or by the hawaii administrative procedure act or by any other statute, be such as in the opinion of the commission will best serve the purpose of such proceeding.
[Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-2) (Imp: HRS §§76-14, 76-47, 91-2)
§1-11 Appearances and practices before the commission.
(a) Appearances before the commission. A public employee may appear in such employee's own behalf; an employee organization may be represented by its duly designated representative; and the director or appointing authority may appear on their own behalf.
(b) Representation. In any proceeding under these rules, the director, appointing authority, or employee may be represented by an attorney or any other individual authorized, in writing, to act in a representative capacity.
(c) Validation of authority. When an individual acting in a representative capacity appears in person or signs a paper in practice before the commission, the personal appearance or signature of such individual shall constitute a representation to the commission that, under the provisions of these rules and the law, the individual is authorized and qualified to represent the particular person on whose behalf such individual acts. The commission may at any time require individuals transacting business with the commission in a representative capacity to show to the commission their written authorization to act in such capacity.
(d) Bar to appearance.
(1) Former commission association. No individual who has been associated with the commission as a member, officer, employee or counsel shall be permitted to appear before the commission in behalf of or to represent in any manner any party in connection with any proceeding or matter that such individual has handled or passed upon while associated in any capacity with the commission.
(2) Limitations of assistance from barred persons. No person or agency appearing before the commission in any proceeding or matter shall, in relation thereto, knowingly accept assistance from and compensate any individual who would be barred by this subsection.
(3) Written consent to appear: No person who has been associated with the commission as a member, officer, employee or counsel thereof shall be permitted to appear before the commission in behalf of, or to represent in any manner, any person or agency in connection with any proceeding or matter that was pending before the commission at the time of such person's association, unless written consent of the commission shall first have been obtained, upon a verified showing that such individual did not give personal consideration to the matter or proceeding as to which consent is sought or gain particular knowledge of the facts thereof during such person's association with the commission.
(4) One year limitation. This subsection shall not apply to any individual or agency who has terminated association with the commission for a period of one year. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-2) (Imp: HRS §§76-14, 76-47, 91-2)
§1-12 Disqualification of commissioner or hearing officer.
Any party to a hearing may, up to five days before the proceeding, file an affidavit that one or more of the commissioners or a hearing officer has a personal bias or prejudice. The commissioner against whom the affidavit is so filed may answer the affidavit or may file a disqualifying certificate with the commission. If the commissioner or hearing officer chooses to answer the affidavit, the remaining commissioners shall decide by a majority of all the members to which the commission is entitled whether that commissioner or hearing officer should be disqualified from proceeding therein. Every such affidavit shall state the facts and reasons for the belief that bias or prejudice exists and shall be filed at least five days before the hearing, or good cause shall be shown for the failure to file it within such time. Any commissioner or hearing officer may be disqualified by filing with the chairperson a certificate acknowledging inability for any reason to preside with impartiality in the pending hearing. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-2) (Imp: HRS §§76-14, 76-47, 91-2)
The commission, upon its own initiative or upon motion, may consolidate for hearing or for other purposes or may contemporaneously consider two or more proceedings that involve substantially the same parties, or issues that are same or closely related, if it finds that such consolidation or contemporaneous hearing will be conducive to the proper dispatch of its business and to the ends of justice and will not unduly delay the proceedings. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-2) (Imp: HRS §§76-14, 76-47, 91-2)
§1-14 Filing of documents.
(a) Time and place. All requests, appeals, pleadings, submittals, petitions, reports, maps, exceptions, briefs, memoranda and other papers required to be filed with the commission in any proceeding shall be filed at the office of the commission within the time limits prescribed by law, the rules of the commission or by order of the commission. The date on which the papers are received, if hand delivered, or postmarked, if delivered by mail, shall be regarded as the date of filing.
(b) Form. All requests and appeals filed with the commission shall be written in ink, typewritten, mimeographed or printed; shall be plainly legible; and shall be on strong, durable paper no larger than 8-1/2 x 11 inches in size, except that maps, charts, tables and other like documents may be larger, folded to the size of the papers to which they are attached.
(c) Certification. All documents must be signed in ink by the party signing the same or by such party's duly authorized agent or attorney. The signature of the person signing the document constitutes a certification that such person has read the document; that to the best of the person's knowledge, information and beliefs, every statement contained therein is true and no such statement is misleading; and that it is not interposed for delay. The commission may prescribe specific forms or formats upon which the requests and appeals must be filed.
(d) Copies. Unless otherwise specifically provided by a particular rule, regulation or order of the commission, an original and eight copies of all papers shall be filed.
(e) Identification. All documents filed by any person or agency in any proceeding shall state on the first page thereof the name, mailing address and telephone number, if any, of the individual or individuals who may be served with any documents filed in the proceeding. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-2, 91-6, 91-8) (Imp: HRS §§76-14, 76-47, 91-2, 91-6, 91-8)
§1-15 Amendment of documents and dismissal.
If any document filed in a proceeding is not in substantial conformity with the applicable rules of the commission as to contents thereof, or is otherwise insufficient, the commission may, on its own motion or on motion of any party, strike such document or require its amendment. If amended, the document shall be effective as of the date of receipt of the amendment. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-2, 91-6, 91-8) (Imp: HRS §§76-14, 76-47, 91-2, 91-6, 91-8)
§1-16 Retention of documents.
All documents filed with or presented to the commission shall be retained in the files of the commission. The commission may permit the withdrawal of original documents upon submission of properly authenticated copies to replace such documents. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-2, 91-6, 91-8) (Imp: HRS §§76-14, 76-47, 91-2, 91-6, 91-8)
§1-17 Computation of time.
In computing any period of time prescribed or allowed by these rules, the day of the act, event or default, after which the designated period of time is to run, is not to be included. The last day of the period so computed is to be included unless it is a Saturday, Sunday or legal holiday in the State of Hawaii, in which event the period runs until the next day which is neither a Saturday, Sunday nor a holiday. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47) (Imp: HRS §§76-14, 76-47)
§1-18 Continuances or extensions of time.
Whenever a person or agency has a right or is required to take action within a period prescribed or allowed by these rules, the chairperson upon the filing of a proper motion or request by the person or agency, may permit the act to be done after expiration of the specified period if such delinquency is clearly shown to have been the result of excusable neglect. Such request must be filed no later than ten days prior to the hearing date set for the appeal and be accompanied by an affidavit or other evidence or documents supporting the request for an extension or continuance. This provision shall not apply to the twenty day time period in which the petition of appeal must be filed with the commission as required under section 1-35. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-2) (Imp: HRS §§76-14, 76-47, 91-2)
§1-19 Service of process.
(a) By whom served. The commission shall cause to be served all orders, notices and other papers issued by it, together with any other papers that is required by law to serve. All other papers shall be served by the parties filing them.
(b) Upon whom served. All papers served by either the commission or any party shall be served upon all parties or their counsel. Any counsel entering an appearance subsequent to the proceeding shall notify all other counsel then of record and all parties not represented by counsel of such fact.
(c) Service upon parties. The final order, and any other paper required to be served by the commission upon a party and a copy shall be furnished to counsel of record.
(d) Method of service. Service of papers shall be made personally or, unless otherwise provided by law, by first-class mail.
(e) When service complete. Service upon parties, other than the commission, shall be regarded as complete by mail upon deposit in the United States mail, properly stamped and properly addressed to the parties involved. [Eff August 11, 2002](Auth: HRS §91-2) (Imp: HRS §91-2)
§1-20 Commission decision.
All final orders, opinions or rulings entered by the commission in the proceeding and rules promulgated by the commission shall be served upon the parties participating in the proceeding by first-class mail or personal delivery by the commission. Copies of such material shall be available for public inspection in the office of the commission or may be obtained upon request and upon payment of reasonable fees, if any. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-2, 91-12) (Imp: HRS §§76-14, 76-47, 91-2, 91-12)
RULES APPLICABLE TO RULEMAKING PROCEDURES
§1-21 Initiation of rulemaking proceedings.
(a) Motion by commission. The commission may, at any time on its own motion, initiate proceedings for the adoption, amendment or repeal of any rule of the commission. Procedures to be followed in rulemaking shall be as set forth in rules of the commission and the applicable statutes.
(b) Petition by person or agency. Any interested person or agency may petition the commission for the adoption, amendment or repeal of any rule of the commission. Petitions for rulemaking filed with the commission will become matters of public record.
(1) Form and content. Petitions for rulemaking shall conform to the requirements of section 14 and shall contain the name, address and telephone number of each petitioner; the signature of each petitioner; a draft or the substance of the proposed rule or amendment or a designation of the provisions the repeal of which is desired; a statement of the petitioner's interest in the subject matter; and a statement of the reasons in support of the proposed rule, amendment or repeal.
(2) Commission action. The commission shall, within thirty days after the filing of the petition for the adoption, amendment or repeal of any rule of the commission, place the petition on the agenda for its next scheduled public meeting. At the close of the public meeting the commission shall either deny the petition or initiate rulemaking proceedings as provided for in these rules.
(3) Denial of petition. Any petition that fails in material respect to comply with the requirements herein or that fails to disclose sufficient reasons to justify the institution of rulemaking proceedings will be denied by the commission. The commission shall notify the petitioner in writing of such denial, stating the reasons therefore. Denial of a petition shall not operate to prevent the commission from acting, on its own motion, on any matter disclosed in the petition. Petitioner may seek a review of said denial through the Circuit Court pursuant to the administrative procedure act and applicable rules of court and statutes.
(4) Acceptance of petition. If the commission determines that the petition is in order and that it discloses sufficient reasons in support of the petition the commission shall initiate the rule-making proceedings as provided in sections 23 through 28. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47) (Imp: HRS §§76-14, 76-47)
§1-22 Notice of public hearing.
(a) Publication and mailing. When, pursuant to a petition or upon its own motion, the commission proposes to adopt, amend or repeal a rule or regulation, a notice of proposed rulemaking shall be given in accordance with the provisions of section 91-3, HRS including being mailed to all persons or agencies who have made timely written requests for advance notice of the commissioner's rulemaking proceedings. All such notices shall be given at least thirty days prior to the date set for public hearing.
(b) Form. A notice of the proposed adoption, amendment or repeal of a rule or regulation shall comply with the requirements specified in section 91-3, HRS. [Eff August 11, 2002] (Auth: HRS §91-3) (Imp: HRS §91-3)
§1-23 Conduct of hearing.
(a) Presiding officer. The public hearing for the adoption, amendment or repeal of rules and regulations shall be heard before the commission and presided over by the chairperson of the commission or, in the chairperson's absence, by another member designated by the commission. The hearing shall be conducted in such a way as to afford to interested persons and agencies a reasonable opportunity to offer testimony with respect to the matters specified in the notice of hearing and so as to obtain a clear and orderly record. The presiding officer shall have authority to administer oaths or affirmations and to take all other actions necessary to the orderly conduct of the hearing.
(b) Continuance of hearing. Each such hearing shall be held at the time and place set in the notice of hearing but may at such time and place be continued by the presiding officer from day to day or to a later date or to a different place without notice other than the announcement thereof at the hearing.
(c) Order of proceeding. At the commencement of the hearing, the presiding officer shall read the notice of hearing and shall then outline briefly the procedure to be followed. Testimony shall then be received with respect to the matters specified in the notice of hearing in such order as the presiding officer shall prescribe.
(d) Submission of testimony. Witnesses shall, before testifying, state their name, address and whom they represent at the hearing, and shall give such other information as the presiding officer may request. The presiding officer shall confine the testimony to the matters for which the hearing has been called but shall not apply the technical rules of evidence. Every witness shall be subject to questioning by the members of the commission or by any other representatives of the commission; cross-examination by persons or agencies shall be as permitted.
(e) Oral and written presentation. All interested persons or agencies will be afforded an opportunity to submit data, views or arguments, orally or in writing, that are relevant to the matters specified in the notice of hearing. The period for filing written comments or recommendations may be extended beyond the hearing date by the presiding officer for good cause. An original and eight copies shall be filed when submitting written comments, recommendations or replies.
(f) Transcript of the evidence. Unless otherwise specifically ordered by the commission, testimony given at the public hearing shall not be reported verbatim. All supporting written statements, maps, charts, tabulations or similar data offered in evidence at the hearing, and which are deemed by the presiding officer to be authentic and relevant, shall be received in evidence and made a part of the record. Unless the presiding officer finds that the furnishing of copies is impracticable, nine copies of the exhibits shall be submitted. [Eff August 11, 2002] (Auth: HRS §§91-2, 91-3) (Imp: HRS §§91-2, 91-3)
§1-24 Commission action.
The commission will consider all relevant comments and material of record before taking final action in a rulemaking proceeding. Final action should be taken within sixty days after the final public hearing, or the expiration of any extension period for submission of written comments or recommendations. [Eff August 11, 2002] (Auth: HRS §91-3) (Imp: HRS §91-3)
§1-25 Emergency rulemaking.
Notwithstanding the foregoing rules, if the commission finds that an imminent peril to public health, safety, or as otherwise specified in section 91-3, HRS requires adoption, amendment or repeal of a rule or regulation upon less than thirty days notice of hearing, and states in writing its reasons for such findings, it may proceed without prior notice or hearing or upon such abbreviated notice and hearing as it finds practicable to adopt an emergency rule or regulation. The commission shall make an emergency rule known to persons who will be affected by it by publication at least once in a newspaper or general circulation in the State. [Eff August 11, 2002] (Auth: HRS §§91-3, 91-4) (Imp: HRS §§91-3, 91-4)
§1-26 Filing of rules.
The commission, upon adopting, amending or repealing a rule and approval by the mayor, shall file certified copies thereof with the city clerk. [Eff August 11, 2002] (Auth: HRS §91-4) (Imp: HRS §91-4)
§1-27 Taking effect of rules.
The filing and effective date of the rules shall be as prescribed by section 91-4, HRS. [Eff August 11, 2002] (Auth: HRS §91-4) (Imp: HRS §91-4)
§1-28 Publication of rules.
The commission shall, as soon as practicable compile, index and publish all rules adopted by the commission and remaining in effect. Compilations shall be supplemented as often as necessary and shall be revised at least once every ten years. [Eff August 11, 2002] (Auth: HRS §91-5) (Imp: HRS §91-5)
RULES APPLICABLE TO DECLARATORY RULINGS
§1-29 Petitions for declaratory rulings.
On petition of an interested person or agency, the commission may issue a declaratory order as to the applicability of any statutory provision or of any rule or regulation or order of the commission.
(a) Form and Contents. The petition shall conform to the requirements of section 14 and shall contain the name, address and telephone number of each petitioner; the signature of each petitioner; a designation of the specific provision, rule or order in question, together with a statement of the controversy or uncertainty involved; a statement of the petitioner's interest in the subject matter, including the reasons for submission of the petition; a statement of the petitioner's position or contention; and a memorandum of authorities, containing a full discussion of reasons and legal authorities in support of such position or contention.
(b) Commission action. The commission shall, within a reasonable time after the petition for a declaratory ruling is filed with the commission, either:
(1) Deny the petition and issue a written decision stating the reasons for such denial;
(2) Issue a declaratory order on the matters contained in the petition; or
(3) Set the matter for hearing as provided in section 1-30.
(c) Dismissal of Petition. The commission may, without notice or hearing, dismiss a petition for declaratory ruling that fails in material respect to comply with the requirements of this part. [Eff August 11, 2002] (Auth: HRS §91-8) (Imp: HRS §91-8)
§1-30 Request for hearing.
Although in the usual course of disposition of a petition for a declaratory ruling no formal hearing will be granted to the petitioner or to a party in interest, the commission may in its discretion order such proceeding set down for hearing. Any petitioner or party in interest who desires a hearing on a petition for a declaratory ruling shall set forth in detail in the request the reasons why the matters alleged in the petition, together with supporting affidavits or other written evidence and briefs or memoranda of legal authorities, will not permit the fair and expeditious disposition of the petition and, to the extent that such request for a hearing is dependent upon factual assertion, shall accompany such request by affidavit establishing such facts. In the event a hearing is ordered by the commission, section 91-9, HRS, shall govern the proceedings. [Eff August 11, 2002] (Auth: HRS §91-8) (Imp: HRS §91-8)
§1-31 Applicability or order.
In order disposing of a petition shall be applicable only to the factual situation described in the petition or set forth in the order. [Eff August 11, 2002] (Auth: HRS §91-8) (Imp: HRS §91-8)
§1-32 Declaratory ruling on commission's own motion.
Notwithstanding the other provisions of this part, the commission may, on its own motion or upon request but without notice or hearing, issue a declaratory order to terminate a controversy or to remove uncertainty. [Eff August 11, 2002] (Auth: HRS §91-8) (Imp: HRS §91-8)
§1-33 Refusal to issue declaratory order.
The commission may for good cause, refuse to issue a declaratory order with specific reasons for such determination. Without limiting the generality of the foregoing, the commission may so refuse where:
(1) The question is speculative or purely hypothetical and does not involve existing facts, or facts that can be expected to exist in the near future;
(2) The petitioner's interest is not of the type that would give the petitioner standing to maintain an action if such petitioner were to seek judicial relief;
(3) The issuance of the declaratory order may affect the interests of the commission in a litigation that is pending or may reasonably be expected to arise; or
(4) The matter is not within the jurisdiction of the commission. [Eff August 11, 2002] (Auth: HRS §91-8) (Imp: HRS §91-8)
RULES APPLICABLE TO APPEALS
§1-34 Standing to appeal.
(a) The commission shall decide appeals from any action under chapter 76, HRS taken by the mayor, the director, an appointing authority, or a designee acting on behalf of one of these individuals, relating to:
(1) Recruitment and examination if the person has a "complaint" as defined under section 10-2 of the rules of the director of human resources;
(2) Classification and reclassification of a particular position if the person has a "complaint" as defined under section 10-2 of the rules of the director of human resources, and is an employee covered by chapter 76, HRS;
(3) Initial pricing of classes if the person has a "complaint" as defined under section 10-2 of the rules of the director of human resources, and is an employee covered by chapter 76, HRS; and
(4) Other employment actions under chapter 76, HRS including disciplinary actions and adverse actions for failure to meet performance requirements, taken against civil service employees who are excluded from collective bargaining coverage under section 89-6, HRS if the person has a "complaint" as defined under section 10-2 of the rules of the director of human resources, and is an employee covered by chapter 76, HRS who is excluded from collective bargaining.
(b) It is required, however, that the person exhaust all internal complaint procedures, including administrative review and departmental complaint procedures, before an appeal is filed with the commission. In addition, the commission shall not act on an appeal if the action complained of constitutes a prohibited act that is subject to the jurisdiction of another appellate body or administrative agency. The commission shall also not act on appeal if the appeal involves matters covered by the grievance procedures contained in each of the collective bargaining agreements. In these cases, the commission shall dismiss the appeal and defer to the other authority. The commission shall also not proceed on an appeal if there is any controversy regarding its authority to hear the appeal until the controversy is resolved by the Hawaii Labor Relations Board. Finally, the commission shall use the conditions listed in section 76-41(b), HRS in reaching a decision on whether an action taken by the appointing authority based on a failure by the employee to meet the performance requirements of the employee's position is with or without merit. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47) (Imp: HRS §§76-14, 76-47)
§1-35 Filing of appeal.
(a) Time. Any person who has standing to appeal shall file a petition of appeal to the commission within twenty calendar days after notice of the action was sent by the mayor, the director or appointing authority. For purposes of this rule the date notice of the action is sent shall be construed as either:
(1) If the notice is mailed, the date the mayor, the director or appointing authority mails the notice by first class mail to the person's last known address; or
(2) If the notice is not mailed, the date the notice is hand delivered to the person. The petition of appeal shall be filed with the office of the commission during normal office hours. All petitions submitted to the commission beyond the twenty day period shall be deemed untimely and shall not be considered an appeal by the commission.
(b) Form. The petition of appeal shall be filed on a form or in a format prescribed by the commission and the original and eight copies thereof shall be filed with the commission. The petition shall conform to the requirements of section 1-14.
(c) Amendments. The petition of appeal maybe amended if the appellant is unable to ascertain the particular rule, regulation, statute or policy that was violated by the mayor, the director or appointing authority or state all material and relevant facts in support of the appeal at the time the petition of appeal is filed. The amended petition of appeal must be filed within 30 days of the filing of the original petition of appeal. For the purpose of the twenty day filing limitation the appeal shall be effective as of the date the original petition of appeal was filed.
[Eff August 11, 2002] (Auth: HRS §§76-14, 76-47) (Imp: HRS §§76-14, 76-47)
All parties shall be given written notice of the hearing in accordance with the provisions in sections 91-9 and 91-9.5, HRS [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-9, 91-9.5) (Imp: HRS §§76-14, 76-47, 91-9, 91-9.5)
§1-37 Appeal hearing.
(a) General. An appeal shall be conducted as a contested case under chapter 91, HRS. The commission shall, upon receipt of an appeal, order the matter set for hearing. Any procedure in a contested case may be modified or waived by stipulation of the parties as specified in section 91-9, HRS; provided that waiver of any procedure includes procedural requirements of section 91-11, HRS.
(b) Time and place. Hearing shall be held at the time and place set forth in the notice of hearing, but may at such 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) Nature of hearing. The nature of the hearing, whether open or closed, shall be governed by subsection 1-7(c).
(d) Before whom. Appeals shall be heard before the commission or a hearing officer duly appointed by the commission.
(e) Expenses. The commission may, by majority vote of the members to which it is entitled, provide for the sharing of specific expenses among the parties as permitted by section 76-47, HRS.
(f) Presiding officer. When a proceeding is conducted before the commission itself, the proceeding shall be presided over by the chairperson of the commission or, in the chairperson's absence, by the vice-chairperson.
(g) Powers of presiding officer. The presiding officer at a proceeding shall have authority to control the course of the hearing; to hold conferences open to the public on which they have had notice, for the settlement of simplification of issues; to administer oaths and affirmation; 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, HRS, hawaii administrative procedure act, rules of the commission or by any other statute, that are deemed necessary to the orderly and just conduct of the hearing.
(h) Mediation. The commission by majority vote of the members to which it is entitled, or the hearing officer, if appointed, may require the parties to submit issues to mediation as provided in section 76-47, HRS.
(i) Prehearing motions and requests. All prehearing motions and requests shall be filed with the office of the commission and served on the opposing party by personal service or by first class mail no later than two weeks prior to the hearing date set by the commission for the appeal.
(k) Record of the hearing. The record of the hearing shall be compiled in conformance with section 91-9(e), HRS. The commission will make provisions for stenographic record of the testimony, but it shall not be necessary to transcribe the record unless requested for purposes of prehearing or court review. Any person desiring a copy of the record of a hearing or any part thereof shall be entitled to the same upon written application to the commission and upon payments of reasonable costs thereof.
(1) Subpoenas. Subpoenas requiring the attendance of witnesses or the production of documentary evidence from any place within the State of Hawaii at any designated place of hearing may be issued by the presiding officer or any designated member of the commission or by the hearing officer. Application for subpoenas shall be made in writing to the commission or hearing officer. The application shall specify the particular documents or data desired and shall show their relevancy to the issues involved. Application shall be made at least five days prior to the hearing. If application is made at a later time, the commission may, in its discretion, issue subpoenas and/or continue the hearing or any part thereof. Enforcement of obedience to subpoenas issued by the commission and served pursuant to these rules will be effected by written application of any member of the commission to any circuit judge.
(2) Fees. Witnesses summoned shall be paid the same fees and mileage as are paid witnesses in circuit courts of the State of Hawaii and such fees and mileage shall be paid by the party at whose instance the witnesses appear. Fees for the depositions shall be paid by the party at whose instance the depositions are taken.
(3) Oath. Witnesses shall be placed under oath or affirmation prior to testifying.
(m) Order of proceeding. 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. Such procedure, unless specifically prescribed in these rules or by the hawaii administrative procedure act or by any other applicable statute shall, in the opinion of the presiding officer or hearing officer, best serve the purpose of the hearing without prejudice to any party. Following the outlining of the procedures to be followed the commission or the hearing officer shall first consider all prehearing motions or requests filed by the parties.
(n) Submission of testimony. All parties shall be given reasonable opportunity to offer testimony with respect to the matters relevant to the proceeding. Witnesses shall, before proceeding to testify, state their name, address and whom they represent at the hearing and shall give such information respecting their appearance 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 need not apply the technical rules of evidence except as required by statute. Each witness shall be subject to questioning by members of the commission and by any representative of the commission. Each witness shall also be subject to cross-examination by the adverse party. Each party shall have the right to submit rebuttal evidence and rebuttal arguments.
(o) Official notice of facts. The commission or hearing officer shall take notice of judicially recognizable facts and may take notice of generally recognizable technical or scientific facts within the commission's or hearing officer's specialized knowledge when parties are given notice either before or during the hearing of the material so noticed and afforded the opportunity to contest the facts so noticed.
(p) Additional evidence. At the hearing, the presiding officer or hearing officer may require the production of further evidence upon any issue.
(q) Closing the hearing. After all the evidence has been presented, the commission or hearing officer shall give the parties opportunity to summarize. Within reasonable time after such final arguments have been completed and all requested memoranda submitted, the commission or hearing officer shall bring the matter to a close.
(r) Proposed findings and conclusions. The commission or hearing officer shall permit parties to file proposed findings and conclusions, together with the reasons therefore at the close of the hearing or within such time as is extended at the discretion of the commission or hearing officer. Such proposal shall be in writing and shall contain references to the record and to the authorities relied upon. Copies thereof shall be furnished to all parties.
(s) Commission action. If the commission finds that the director or the appointing authority violated any applicable civil service rule, regulation, law or policy the commission shall grant such relief to the appellant as allowed by law. If the commission finds that the director or the appointing authority did not violate any applicable civil service rule, regulation, law or policy the commission shall deny the appeal and uphold the action of the director or the appointing authority.
(t) Findings and decisions. The findings and decisions of the commission shall be final on all appeals, unless an appeal is taken pursuant to section 91-14, HRS.
(u) Notice of decision. The commission shall, within 60 days after the close of the hearing on the appeal, or such other time as the commission may deem reasonable, notify all parties of its decision and order by delivering or mailing a certified copy of the decision and order to each party or to such party's attorney of record. This decision and order shall include separate findings of facts and conclusions of law and, if the parties have presented to the commission proposed findings of fact the commission shall incorporate in its decision a ruling upon each proposed finding so presented. [Eff August 11, 2002] (Auth: HRS §§76-14, 76-47, 91-9, 91-9.5, 91-10, 91-11) (Imp: HRS §§76-14, 76-47, 91-9, 91-9.5, 91-10, 91-11)
|Last Reviewed: Tuesday, October 07, 2003|