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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
28-JUN-2018
08:42 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
IN THE MATTER OF
BERNARD KUAMOO,
Petitioner/Complainant-Employee/Appellant-Appellant,
and
STATE OF HAWAIʻI, DEPARTMENT OF PUBLIC SAFETY (2010-122)
Respondent/Respondent-Employer/Appellee-Appellee,
and
STATE OF HAWAIʻI, 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 HAWAIʻI, DEPARTMENT OF PUBLIC SAFETY (2010-123)
Respondent/Respondent-Employer/Appellee-Appellee
and
STATE OF HAWAIʻI, MERIT APPEALS BOARD; COLLEEN R. MEYER;
VALERIE B. PACHECO; ALVIN M. YOSHIMORI (MAB CASE No. 266),
Respondents/Agency/Appellees-Appellees
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(CIVIL NO. 12-1-1680)
________________________________________________________________
IN THE MATTER OF
ARASI MOSE,
Petitioner/Complainant-Employee/Appellant-Appellant,
and
STATE OF HAWAIʻI, DEPARTMENT OF PUBLIC SAFETY (2011-025)
Respondent/Respondent-Employer/Appellee-Appellee,
and
STATE OF HAWAIʻI, 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 HAWAIʻI, DEPARTMENT OF PUBLIC SAFETY (2011-022)
Respondent/Respondent-Employer/Appellee-Appellee,
and
STATE OF HAWAIʻI, 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 HAWAIʻI, DEPARTMENT OF PUBLIC SAFETY (2011-022)
Respondent/Respondent-Employer/Appellee-Appellee,
and
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STATE OF HAWAIʻI, 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)
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX)
JUNE 28, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY 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 Hawaiʻi civil service
system is founded. See Haw. Const. art. XVI, § 1 (mandating
that the “employment of persons in the civil service, as defined
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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
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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
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years. While applicants to supervisory ACO positions were
informed about the other minimum qualifications before applying,
they were never informed of the existence of the suspension
policy until after their application was denied. The MAB denied
each of the employees’ appeals.
The applicants individually appealed the MAB decisions
to the First Circuit Court.1 The circuit court consolidated the
five appeals, affirmed the MAB’s findings of fact and
conclusions of law, and dismissed the applicants’ consolidated
appeals. The court explained that the department had advanced a
reasonable basis for the suspension policy, namely, “that
suspensions for violations of the Department’s Standards of
Conduct specifically correlate to both the ability to properly
and safely perform this very demanding job and supervise others
who do so.” The circuit court found that the same reasons
explained why the department treated suspensions “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
the Department with regard to pre-employment past criminal
convictions.” The applicants appealed to the ICA, and the ICA
affirmed the circuit court. Matter of Kuamoo, 138 Hawaiʻi 494,
505, 382 P.3d 306, 317 (App. 2016).
1
The Honorable Rhonda A. Nishimura presided.
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The ICA held that the circuit court correctly ruled
that the MAB’s findings of fact were not clearly erroneous, that
the MAB’s conclusions of law were supported by its findings of
fact, and that the conclusions of law were not errors of law.
Id. at 500-03, 382 P.3d at 312-15. In particular, the ICA
concluded that the department’s suspension policy did not
violate the merit principle. The ICA noted that the department
is vested with authority to make “suitability determinations”
under the Hawaiʻi Administrative Rules (HAR). Id. at 502–03, 382
P.3d at 314–15 (citing HAR § 23-10-2(b)). According to the
department, suspensions on an ACO’s record indicate that the ACO
could “not follow their own Standards of Conduct.” Id. at 503,
382 P.3d at 315. As the ICA explained, “PSD wanted to ‘make
sure that whoever [PSD is] promoting [is] going to follow the
same Standards of Conduct that they’re going to enforce upon
whoever they supervise.’” Id. (citing PSD testimony).
Given the department’s authority to make suitability
determinations, as well as the department’s proffered rationale
for the suspension policy, the ICA concluded that the policy did
not violate the merit principle of impartial selection of
individuals based on objective criteria.
PSD’s suspension policy is objective and speaks directly to
PSD's responsibility to ensure that whomever it promotes to
the Supervisory Positions has the necessary fitness and
character to fulfill the duties of the Supervisory
Position, which includes ensuring that other ACOs do not
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violate the Standards of Conduct. PSD’s suspension policy,
therefore, does not violate the “merit principle” pursuant
to HRS § 76–1.
Id.
The ICA also rejected the employees’ argument that the
selection process was not “fair and impartial,” as required by
the merit principle. The employees had argued that applicants
for the supervisory position with prior criminal records were
given case-by-case suitability determinations. In contrast,
applicants who were merely suspended for as little as a day for
violating one of the department’s standards of conduct within
the two-year window were uniformly denied promotion rather than
afforded a case-by-case suitability determination. The ICA
rejected the applicants’ argument, observing that the
department’s regulations give it the authority to decide a
prospective employee’s fitness for department positions. Id.
(citing HAR § 23-10-6). HAR § 23-10-6 authorizes suitability
determinations to be made based on “fitness for employment.”
The regulation allows the department’s suitability determination
to draw on information from criminal history records, employment
records, or other sources of information. The purpose of the
suitability determination is to “ensure that staff members and
prospective staff members are of reputable and responsible
character, and are capable of performing the duties of the job.”
Id.; Kuamoo, 138 Hawaiʻi at 502-03, 382 P.3d at 314-15.
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On certiorari, the employees argue that the ICA’s
opinion sanctions “the use of undisclosed criteria” in hiring,
which could “in turn sanction the retroactive use of similar
secret standards in a way that is antithetical to the merit
principle.”2
II. STANDARDS OF REVIEW
Under Hawaii’s Administrative Procedure Act, we review
agency decisions and orders for constitutional or statutory
violations, actions beyond the agency’s authority or
jurisdiction, clearly erroneous findings of fact, unlawful
procedure or other errors of law, arbitrary and capricious
decisions or orders, and abuses of discretion or clearly
unwarranted exercises of discretion. HRS § 91–14(g)(1)-(6)
(2012). We review conclusions of law presenting mixed questions
of fact and law “under the clearly erroneous standard because
the conclusion is dependent upon the facts and circumstances of
the particular case.” Save Diamond Head Waters LLC. v. Hans
Hedemann Surf, Inc., 121 Hawaiʻi 16, 25, 211 P.3d 74, 83
(2009)(citation omitted). When we review an agency decision
that has been appealed to the circuit court sitting in its
2
In their application, the employees assert that the ICA
“mistakenly construed the present dispute as one over whether the Employer’s
duty to negotiate with the Union when that contention was never addressed by
the Union or the Appellants.” Instead, the employees assert, they “simply
contended that the ban and its non-disclosure violated the openness,
fairness, and objectivity mandated by the merit principle as defined in HRS §
76-1. Accordingly, we do not address any implications of the suspension
policy for collective bargaining. See Kuamoo, 138 Hawaiʻi at 500-502, 382
P.3rd at 312-314.
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appellate capacity, we apply “the same standard of review as
that applied upon primary review by the circuit court.”
AlohaCare v. Ito, 126 Hawaiʻi 326, 341, 271 P.3d 621, 636 (2012)
(citation omitted).
III. DISCUSSION
The employees argue that the department’s policy, and
the ICA’s affirmance of the MAB orders upholding the policy,
“sanction the use of undisclosed criteria” in hiring, which
could “in turn sanction the retroactive use of similar secret
standards in a way that is antithetical to the merit principle.”
A. The merit principle
“The employment of persons in the civil service, as
defined by law . . . shall be governed by the merit principle.”
Haw. Const. art. XVI, § 1. As embodied in the Hawaiʻi
Constitution, the merit principle “simply means that the civil
service, however defined, is to be governed by merit
principles.” Konno v. Cty. of Hawaiʻi, 85 Hawaiʻi 61, 70, 937
P.2d 397, 406 (1997). The Hawaiʻi Constitution does not itself
“establish an independently enforceable right to the protection
of merit principles.” Id. Rather, the constitution “expressly
refers to other sources for a definition of ‘civil service,’”
such as statutory and case law. Id.
The civil service statute defines the merit principle
broadly as “the selection of persons based on their fitness and
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ability for public employment and the retention of employees
based on their demonstrated appropriate conduct and productive
performance.” HRS § 76-1 (2000). In order to achieve the broad
purpose of selecting civil service employees based on fitness
and ability, the statute requires, among other things,
“[i]mpartial selection of individuals for public service by
means of competitive tests which are fair, objective, and
practical[.]” HRS § 76-1(2). As we have explained, our civil
service system “embodies positive principles of public
administration such as openness, merit, and independence.
Openness is served through public announcement of job vacancies,
clear articulation of qualifications, open application to all
persons, and selection according to objective criteria.” Konno,
85 Hawaiʻi at 68, 937 P.2d at 404 (citations omitted); Salera v.
Caldwell, 137 Hawaiʻi 409, 417, 375 P.3d 188, 196 (2016).
B. The unwritten “brightline” suspension policy violates the
merit principle of openness in the application process for civil
service positions
The employees assert that the department’s “complete
failure to disclose the two-year bar on suspensions for
employees seeking promotion is the antithesis of the openness
and public articulation of objective standards required by the
merit principle.” We agree that the failure to disclose the
two-year bar violates the merit principle.
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As a general matter, the merit principle requires
“clear articulation of qualifications” and “open application to
all persons[.]” Konno, 85 Hawaiʻi at 68, 937 P.2d at 404
(citations omitted). Here, the department failed at the outset
of the application process to make known to applicants for the
supervisory positions a critical requirement for the positions.
If an applicant had been suspended for any reason and for any
length of time in the prior two years, the applicant was deemed
by the department’s unwritten suspension policy to be
“temporarily unsuitable” for the supervisory positions, even if
the applicant was otherwise qualified for the positions.
The suspension policy was a brightline rule applied
without exception. For that reason, the absence of a suspension
within the prior two years was the functional equivalent of a
significant minimum qualification for the position. Yet that
qualification (or disqualifying factor) was never included in
any announcement of the position openings, and the applicants
were made aware of that qualification only at the end of the
process, by the department’s letters rejecting the applicants
for the positions. Moreover, as embodied in an unwritten
policy, the additional qualification for the position was not
articulated at all. This lack of openness regarding a
significant qualification (or disqualifying factor) for the
supervisory positions was compounded by the “notice of
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disposition of application” sent to the applicants. It states:
“You have met the minimum qualification and other requirements
for this vacancy.” (Emphasis added). The notice then provides
instructions on taking the written examination, which each of
the applicants later passed.
The language in the “notice of disposition of
application” is inaccurate; there were, in fact, additional
“other requirements” for the supervisory positions. However,
those other requirements, embodied in the unwritten brightline
suspension policy, remained unarticulated and unannounced.
Applicants were given no notice of the full set of significant
minimum requirements for the position until after they were
rejected for the positions.3 In sum, the silent imposition of a
de facto minimum qualification for the supervisory positions
violated the merit principles of openness and clear articulation
of qualifications.
We hold that an unwritten policy which imposes a
significant qualification or disqualification for a position,
and which is not otherwise made known to applicants at or near
the outset of the application process, violates the merit
3
We recognize there is a difference between meeting the minimum
requirements for an ACO IV or V position and the further step of receiving a
positive suitability determination. See HAR § 23-10-2(b). Here, however,
precisely because the suitability determination was based on the brightline
suspension policy and was applied without exception, the unwritten policy
operated as a minimum requirement for the supervisory positions.
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principle of openness. HRS § 91-14(g)(4)(authorizing an
appellate court to reverse an agency decision or order if
substantial rights of petitioners may have been prejudiced
because the administrative findings, conclusions, decisions, or
orders are affected by an error of law).
IV. CONCLUSION
For the reasons stated above, we vacate the ICA’s
opinion and judgment on appeal, as well as the circuit court’s
order dismissing the applicants’ consolidated appeal. We remand
to the circuit court with instructions to remand to the Merit
Appeals Board for proceedings consistent with this opinion.
Lowell K.Y. Chun-Hoon /s/ Mark E. Recktenwald
Tatjana A. Johnson
For petitioners /s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
James E. Halvorson
Deputy Attorney General /s/ Richard W. Pollack
For respondent
/s/ Michael D. Wilson
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