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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-FEB-2022
07:57 AM
Dkt. 125 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, DEPARTMENT OF PUBLIC SAFETY,
Employer-Appellant-Appellee,
v.
RONALD N. NAUMU, Employee-Appellee-Appellant,
and
MERIT APPEALS BOARD, Agency-Appellee-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 15-1-2432)
MEMORANDUM OPINION
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)
The procedural history of this agency appeal is long
and complex, spanning over a decade of prior proceedings arising
out of Employee-Appellant Ronald N. Naumu's (Naumu) 2001
employment termination. Naumu appealed to the Merit Appeals
Board (MAB) in 2002, and an appeal hearing was held in 2006.
Following the 2006 MAB hearing, the case subsequently went back
and forth between the MAB and the circuit court for the next ten
years, until a final judgment was entered in 2016. Four appeal
hearings were conducted before the MAB: in 2006, 2010-11, 2013,
and 2015. There were five separate Findings of Fact and
Conclusions of Law (FOF-COL) MAB decisions, issued in 2007, 2009,
2012,1 2013 and 2015. Interspersed with the four MAB appeal
hearings, were four agency appeals to the circuit court, filed in
three different case numbers (Civil No. 12-1-0331-02; Civil No.
1
The 2012 FOF-COL was as a result of the MAB granting a motion for
reconsideration of its 2009 decision.
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13-1-3353-12; and Civil No. 15-1-2432-12), taken in 2007, 2012,
2013, and 2015. The agency appeals to the circuit court
resulted, in turn, in three remands to the MAB: the 2007 remand
resulting in a 2010-11 re-hearing, 2012 remand resulting in 2013
re-hearing, and 2015 remand resulting in a 2015 "limited"2
hearing. Following the 2015 limited hearing before the MAB,
Naumu filed his last agency appeal to the circuit court, which
was dismissed in 2016. After the September 30, 2016 Final
Judgment was entered, Naumu timely filed this appeal on October
28, 2016.3
Naumu appeals from the (1) Order Remanding Employer-
Appellant State of Hawai#i, Department of Public Safety's (DPS)
Agency Appeal Filed February 3, 2012, filed November 28, 2012 in
Civil No. 12-1-0331-02 (2012 Remand Order) by the Circuit Court
of the First Circuit (Circuit Court);4 (2) Order Denying
Employee-Appellee Ronald N. Naumu's Motion for Relief from "Order
Employer-Appellant State of Hawaii, Department of Public Safety's
Agency Appeal filed February 3, 2012," Filed November 28, 2012,
filed March 3, 2014 in Civil No. 12-1-0331-02 (2014 Order Denying
Rule 60(b) Relief) by the Circuit Court; (3) Findings of Fact,
Conclusions of Law and Order (2013 FOF-COL) dated November 25,
2013 in MAB Case No. 26; (4) Order Remanding Employee-Appellant
Ronald N. Naumu's Agency Appeal Filed December 24, 2013, filed
March 6, 2015 in Civil No. 13-1-3353-12 (2015 Remand Order) by
the Circuit Court; (5) Amended Findings of Fact, Conclusions of
2
As explained infra, the 2015 hearing was limited to reviewing
whether Naumu's dismissal from employment in the 2013 FOF-COL should be
modified.
3
On October 22, 2020, after determining that this court did not
have jurisdiction over the 2012 and 2014 Orders that Naumu included in his
appeal, we issued an Order of temporary remand to the Circuit Court in Civil
No. 12-1-0331-02, for entry of a judgment on the 2012 order. On October 30,
2020, the Circuit Court entered its Final Judgment in Civil No. 12-1-0331-02.
In Civil No. 13-1-3353-12, a final judgment was not required because the 2015
Order that Naumu included in this appeal was an interlocutory order that was
brought up for review with the Final Judgment in Civil No. 15-1-2432-12. See
Ueoka v. Szymanski, 107 Hawai#i 386, 396, 114 P.3d 892, 902 (2005) ("An appeal
from a final judgment 'brings up for review all interlocutory orders not
appealable directly as of right which deal with issues in the case.'" (quoting
Pioneer Mill Co., Ltd. v. Ward, 34 Haw. 686, 694 (1938)).
4
The Honorable Rhonda A. Nishimura presided. The Honorable James
H. Ashford signed the October 30, 2020 Final Judgment in Civil No. 12-1-0331-
02.
2
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Law, Decision and Order dated November 19, 2015 in MAB Case No.
26 (2015 FOF-COL); (6) Order Dismissing Employee-Appellant Ronald
N. Naumu's Agency Appeal Filed December 21, 2015, filed September
19, 2016 in Civil No. 15-1-2432-12 (2016 Order Dismissing Appeal)
by the Circuit Court; and (7) Final Judgment filed September 30,
2016 in Civil No. 15-1-2432-12 (2016 Final Judgment) by the
Circuit Court.
On appeal, Naumu contends that the Circuit Court erred
as follows:5 (1) in its 2012 Remand Order by vacating the MAB's
January 11, 2012 FOF-COL (2012 FOF-COL) and remanding the case to
the MAB for a full evidentiary re-hearing; (2) in its 2014 Order
Denying Rule 60(b) Relief by dismissing Naumu's motion brought
under Hawai#i Rules of Civil Procedure (HRCP) Rule 60(b); (3) in
its 2015 Remand Order by finding that Naumu's dismissal from DPS
was substantiated or partially substantiated by the evidence
provided to the MAB; (4) by rejecting Naumu's claim that his due
process rights were violated during the 2015 MAB hearing where
(a) the MAB denied Naumu's pre-hearing request to conduct
additional discovery and present new evidence during the
September 24, 2015 MAB hearing, and (b) only two out of three MAB
members presided over that hearing; and (5) in its 2016 Order
Dismissing Appeal and the MAB erred in its 2015 FOF-COL, by
concluding that modifying DPS's termination of Naumu was not
warranted or just under the circumstances.
We hold that the Circuit Court did not err in its 2012
Remand Order remanding the case for a full evidentiary re-hearing
5
Naumu's Points of Error section does not comply with Hawai#i Rules
of Appellate Procedure (HRAP) Rule 28(b)(4), as none of the five points
include quotations of the findings or conclusions challenged, or reference to
"appended findings and conclusions." HRAP Rule 28(b)(4)(C). Naumu's points
do not include record references setting forth "where in the record the
alleged error occurred" and "where in the record the alleged error was
objected to or the manner in which the alleged error was brought to the
attention of the court or agency." HRAP Rule 28(b)(4). Instead, some of the
material required to be in the points of error section appears instead in the
"Discussion" section, which appears to be the "argument" section required by
HRAP Rule 28(b)(7). While points not presented in accordance with HRAP Rule
28(b)(4) may be disregarded, to the extent the "remaining sections of the
brief provide the necessary information to identify [Naumu's] argument," we
will address the merits. Marvin v. Pflueger, 127 Hawai#i 490, 496, 280 P.3d
88, 94 (2012). Naumu's counsel is cautioned to comply with this requirement.
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before the MAB, in its 2014 Order Denying Rule 60(b) Relief, and
in its 2015 Remand Order upholding the 2013 FOF-COL. With
respect to the latest MAB appeal hearing in 2015, we hold that
the Circuit Court did not violate Naumu's due process rights by:
(1) affirming the MAB's denial of Naumu's request to conduct
additional discovery and to present evidence; and (2) affirming
that the MAB was permitted to conduct the hearing with only two
members rather than the full three-member board presiding. We
also hold that the Circuit Court did not err in affirming the
MAB's 2015 denial of any modification to the MAB's 2013 decision
to affirm Naumu's discharge. We therefore affirm.
I. BACKGROUND
In 2001, Naumu was employed at Oahu Community
Correctional Center (OCCC) as a Captain, Adult Corrections
Officer (ACO) VI, with DPS. Naumu was the Watch Commander of the
Third Watch, which is from 2:00 p.m. to 10:00 p.m., at OCCC. The
duties of a Watch Commander are to oversee, and be responsible
for, the operations of the entire OCCC facility. The chain of
command at OCCC, in descending order, is as follows: the
Director, the Warden, the Deputy Warden, the Major or Chief of
Security (COS), the Captains, and the Lieutenants.
January 17, 2001 Inmate Escape
On January 17, 2001, during the Third Watch, inmate
Kerbert Silva (Inmate Silva) escaped from the OCCC recreation
field. Inmate Silva was eventually recaptured and returned to
OCCC. Naumu was the Watch Commander on the Third Watch during
Inmate Silva's escape.
As a result of the escape, DPS issued notices of
investigation to Naumu, along with eight other ACOs. DPS
requested the assistance of the National Institute of Corrections
(NIC), a subdepartment of the U.S. Department of Justice, with
the investigation and to conduct an audit of the security
procedures at OCCC. The NIC's March 16, 2001 audit report
highlighted various security deficiencies, such as in the OCCC
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Holding Unit.6 On March 16, 2001, OCCC COS John Manumaleuna (COS
Manumaleuna) met with Naumu and the rest of the Third Watch team
to inform them of the NIC audit findings, including concerns with
the Holding Unit, such as "doors open, gates not secured,
sergeant not cooperative with NIC auditors by not answering
questions (attitude)."
March 21, 2001 Inmate Escape
On March 21, 2001, Inmate Silva and two other inmates
escaped from OCCC during the Third Watch. Naumu was on duty as
Watch Commander during the Third Watch. ACO Sergeant Ben
Almadova (Sgt. Ben Almadova) worked the Third Watch and was
assigned to the Holding Unit as the "sergeant in charge," which
is an essential, required post. On the night of the March 21
escape, Sgt. Ben Almadova asked Naumu if he and his wife, ACO
Sergeant Pamela Almadova (Sgt. Pamela Almadova), who was on duty
at the time, could take their meal break together (collectively
the Almadovas). Naumu allowed the Almadovas to take their meal
break pursuant to an "unwritten" OCCC policy (Chow Policy) that
allowed ACOs to leave the facility for twenty minutes to purchase
a meal and return to OCCC during their forty-minute meal break.
Various activities occurred at OCCC during the evening
of March 21. Some of the scheduled events included the OCCC
talent show; inmate transfers for medical treatment; and
scheduled inmate phone calls. These activities required that the
ACOs make checks that there was sufficient manpower to handle the
security needs in the Holding Unit and other OCCC modules.
Prior to leaving OCCC for meal break, Sgt. Ben Almadova
instructed ACO Thomas Lepere (ACO Lepere) to keep the first floor
inmates locked down. Sgt. Ben Almadova further instructed ACO
Lepere to allow inmate Paul Damas (Inmate Damas) to make a
regularly scheduled phone call. The Almadovas left OCCC at
approximately 6:30 p.m.
6
The Holding Unit houses inmates who cannot be housed with the OCCC
general population because of poor behavior, protective custody,
classification as maximum security, or inability to get along with the other
inmates.
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At around 7:15 p.m., ACO Lepere let Inmate Damas out of
his cell for his routine phone call. ACO Lepere failed to
properly lock the cell-door control panel box, which led to
Inmate Damas accessing the control panel and releasing Inmate
Silva and inmate Eric Vance (Inmate Vance) from their cells.
Inmates Silva and Vance overpowered ACO Lepere and locked him
into another inmate's cell. Inmates Damas, Vance, and Silva then
escaped from the Holding Unit but were eventually captured. At
the time of the escape, Naumu was dealing with a malfunctioning
lock in OCCC Annex 2. The Almadovas returned to OCCC a little
after 8:00 p.m.
At approximately 1:00 a.m., Sgt. Ben Almadova ran into
Naumu as they were leaving OCCC. Sgt. Ben Almadova apologized
for taking such a long break and explained that he and Sgt.
Pamela Almadova left to pick up their new car. This was the
first time that Naumu learned about where the Almadovas went on
their meal break.
DPS Investigation of the March 21 Inmate Escape
Following the March 21 inmate escape, the DPS Internal
Affairs Office (Internal Affairs) conducted a formal
investigation of the incident. Pending the investigation, Naumu
was placed on thirty days of administrative leave without pay by
COS Manumaleuna. DPS Internal Affairs Investigator Andrew
Glushenko (Investigator Glushenko) conducted the investigation
and wrote the follow-up reports on Naumu (Case No. IA-010331),
Sgt. Ben Almadova (Case No. IA-010330), and ACO Lepere (Case No.
IA-010324) for the investigation. In the April 24, 2001 follow-
up report, the DPS investigation conducted by Investigator
Glushenko concluded that the primary cause of the March 21 inmate
escape was the failure of ACO Lepere to follow "precautionary
security procedures in bringing inmate Paul Damas out from his
cell" for his phone call. However, the report also cited Naumu's
failure to adhere to the OCCC security procedures and policies as
"probably contribut[ing] towards the initial success of the
escape attempts," and cited Naumu's discretionary errors in
judgment regarding "proper security presence at OCCC" and
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sufficient manpower. The report concluded that Naumu violated
seven Articles in the DPS Standards of Conduct.7
With regard to the Chow Policy, the April 24 follow-up
report concluded that the Chow Policy was a "'discretionary'
policy that was delegated to the Watch Commanders . . . that
allowed some ACO's to leave the facility for their meal breaks,
at the sole discretion of the Watch Commander." The report
stated that the investigation revealed that "there is no such
written policy or contract policy that allows an ACO a maximum
time limit of 45 minutes for his meal break, and that an
'arbitrary' policy that can be loosely applied by superiors
places a 'flexible' time limit of 20 minutes for a scheduled meal
break . . . ." The report concluded that while Naumu claimed
that this was part of a written directive from a former OCCC COS,
the claim was disputed by the said former OCCC COS, and it was
the investigator's belief that it remained uncertain "as to
whether [Naumu] disregarded the 'unwritten' policy intentionally
or whether his actions were a continuation of a 'past practice.'"
The report concluded that Naumu was in violation of established
procedures involving meal breaks for ACOs.
Pre-Disciplinary Hearing and Pre-Dismissal Hearing8
On May 15, 2001, DPS held a pre-disciplinary due
process hearing regarding Naumu's violation of the DPS Standards
of Conduct. The hearing was conducted by DPS Administrative
Hearings Officer Laurie Nadamoto (Hearings Officer Nadamoto).
On June 5, 2001, at Hearings Officer Nadamoto's request
to have a record in writing, COS Manumaleuna wrote a memo
summarizing the March 16, 2001 debriefing meeting regarding the
NIC and its audit findings.
7
The DPS Standards of Conduct are standards that the ACOs are held
to at OCCC and other Hawai#i state correctional facilities.
8
DPS has two levels of due process concerning dismissal of a DPS
employee. The first is an initial pre-disciplinary hearing, described supra,
for an employee being orally reprimanded. If the sanction, based on the pre-
disciplinary meeting, is to discharge the employee, the employee is afforded a
subsequent pre-dismissal hearing to argue why discharge may not be
appropriate.
7
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Hearings Officer Nadamoto met with DPS Director Ted
Sakai (Director Sakai) to discuss Naumu's pre-disciplinary
hearing and the March 21 escape. Hearings Officer Nadamoto and
Director Sakai discussed what was presented at the hearing, the
actions taken by Naumu, and what discipline would be imposed.
Director Sakai informed Naumu, via letter, that he was being
dismissed from his employment with DPS.
On July 9, 2001, DPS conducted a pre-dismissal hearing
to afford Naumu an opportunity to contest the dismissal decision.
DPS Departmental Hearing Officer Shelley Nobriga (Hearings
Officer Nobriga) presided over the hearing. During this hearing,
Naumu discussed and detailed the Chow Policy to Hearings Officer
Nobriga.
Following the hearing, Hearings Officer Nobriga met
with Director Sakai. Director Sakai was not aware of the Chow
Policy and, subsequent to the March 21 inmate escape, he stopped
the practice of allowing ACOs from leaving the prison campus to
pick up meals. Hearings Officer Nobriga agreed with upholding
the dismissal decision.
August 13, 2001 Termination
On July 10, 2001, Hearings Officer Nobriga issued a
letter to Naumu, signed by Director Sakai, indicating that based
on the evidence Naumu presented at the pre-dismissal hearing, his
dismissal was sustained. Naumu was officially terminated by DPS
on August 13, 2001. The other ACOs involved in the incident were
disciplined as well: ACO Lepere was suspended, as well as Sgt.
Ben Almadova, but they were not discharged for the incident.
Naumu's 2002 Appeal to the MAB
Naumu appealed his termination to the Civil Service
Commission on January 15, 2002. Naumu's appeal was transferred
to the MAB once the MAB replaced the Civil Service Commission.9
9
We take judicial notice that in 2003, the MAB replaced the Civil
Service Commission as the appellate body to hear appeals of this nature. See
Hawaii Revised Statutes (HRS) § 76-47 (2000); Uyeda v. Schermer, 144 Hawai#i
163, 172, 439 P.3d 115, 124 (2019) ("A fact is a proper subject for judicial
notice if it is common knowledge or easily verifiable.") (citing Almeida v.
Correa, 51 Haw. 594, 605, 465 P.2d 564, 572 (1970) (brackets omitted)).
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Naumu's first MAB hearing was held on August 31, 2006.
Naumu, self-represented, appeared before MAB members David B.
Knight (Knight), Chair, and Alvin M. Yoshimori (Yoshimori).10
The MAB was asked to decide, "Did [DPS] comply with established
laws, rules, policies, procedures and/or practices governing the
dismissal process with respect to [Naumu]'s dismissal from
employment with [DPS]?" In its FOF-COL (2007 FOF-COL), the MAB
failed to reach a majority decision on the issue of whether DPS
"carried its burden of substantiating or partially substantiating
the reasons for" Naumu's dismissal, yet still found in favor of
Naumu. The MAB ordered Naumu to be reinstated to his former
position without loss of pay.
DPS's 2007 Appeal to the Circuit Court
On March 22, 2007, DPS appealed the MAB's 2007 FOF-COL
to the Circuit Court (Civ. No. 07-1-0533-03).11 DPS contended
that the MAB made an error of law as to the MAB functioning with
two Board members instead of three. Naumu was now represented by
counsel. In its Decision and Order for Dismissal and Judgment
filed October 23, 2007, the Circuit Court dismissed the appeal
and remanded the case back to the full MAB for re-hearing on the
grounds that as "the MAB failed to achieve a concurrence of a
majority on the substantive merits of the case, (i.e. whether
[DPS] carried its burden), there has not been a final order from
which to appeal, hence depriving the [Circuit] Court of
jurisdiction over the substantive merits of the underlying case."
The Circuit Court noted that, as third MAB member Ted Hong, Esq.
was appointed in early May 2007, the MAB had the "ability to
decide cases before it without the possibility of another 'tie'
result." A judgment was also entered on October 23, 2007. There
was no appeal from that judgment.
10
HRS § 26-5(c)(2000) requires that the MAB consist of three
members; however, at the time of Naumu's first hearing, the MAB only had two
members (Knight and Yoshimori). See HRS § 26-5(c).
11
The Honorable Eden E. Hifo presided.
9
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The MAB's 2009 FOF-COL
Following the Circuit Court's 2007 decision, Colleen
Meyer (Meyer) replaced Ted Hong and was appointed in January
2009. The MAB did not conduct a re-hearing on the case; however,
Meyer reviewed all the submissions, documents, and audio-taped
recordings of the August 31, 2006 hearing. On October 29, 2009,
the MAB issued a new FOF-COL (2009 FOF-COL) that granted Naumu's
appeal and ordered his reinstatement to his former position
without loss of pay.
DPS moved for reconsideration of the MAB's 2009 FOF-
COL. In its motion, DPS argued that the MAB should have held a
re-hearing on the substantive merits of the case pursuant to the
Circuit Court's order in Civ. No. 07-1-0533, instead of having
Meyer review the prior proceedings. The MAB granted the motion
and held a full evidentiary hearing on September 30, 2010. The
hearing was continued to January 27, 2011, but due to Meyer's
absence, the hearing was continued to July 28, 2011 to ensure
that the full MAB would be in attendance. By the conclusion of
the hearing, DPS and Naumu presented their cases via documentary
evidence, written evidence, and/or live testimony. DPS called
Hearings Officer Nadamoto, Hearings Officer Nobriga, and Director
Sakai as witnesses; Naumu, who was self-represented, cross-
examined each of DPS's witnesses and presented his own testimony.
On January 11, 2012, the MAB issued its 2012 FOF-COL
finding in favor of Naumu, requiring his reinstatement in his
former position without loss of pay.
DPS's 2012 Appeal to the Circuit Court
On February 3, 2012, DPS appealed the 2012 FOF-COL to
the Circuit Court (Civ. No. 12-1-0331-02).12 DPS argued that the
MAB improperly relied on HRS § 76-4613 and "exceeded its
12
The Honorable Rhonda A. Nishimura presided.
13
HRS § 76-46 (2000) states,
An appointing authority may discharge or demote any
employee when the appointing authority considers that the
good of the service will be served thereby. Discharges may
be made only for such causes that will promote the
(continued...)
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authority, pursuant to HAR § 14-25.1-4(y),14 by substituting its
judgment for that of the appointing authority ([DPS]) in granting
Naumu's appeal and reversing the dismissal decision." (Footnote
added). DPS also argued that the MAB
erred as a matter of law because it failed to address
whether [DPS] substantiated or partially substantiated the
reasons for Naumu's dismissal from employment, as required
by HAR §14-25.l-4(x), instead commenting on the "credible
evidence" or argument presented by Naumu in concluding that
his termination was not fair and impartial, which is
contrary to the MAB's findings that [DPS] substantiated or
partially substantiated the reasons for Naumu's dismissal
and that Naumu was afforded his due process rights.
The Circuit Court heard arguments for DPS's appeal on October 3,
2012.
On November 28, 2012, the Circuit Court issued its 2012
Remand Order vacating the MAB's 2012 FOF-COL and remanding the
case back to the MAB for rehearing. The Circuit Court found
that:
[the] language in certain Conclusions of Law in the Order
may contain certain findings of fact, to wit, these
conclusions speak to the credibility of evidence. The Court
finds that the Findings of Fact in the Order do not comport
or address that part of the Conclusions of Law that speak to
the credibility of certain evidence.
13
(...continued)
efficiency of government service.
Demotions or discharges shall be in accordance with
procedures negotiated under chapter 89 or established under
chapter 89C, as applicable.
14
Hawaii Administrative Rules (HAR) 14-25.1-4(y) (effective 2003)
states in pertinent part:
In conducting its business and rendering its decision,
the board shall serve as an appellate body and shall not
impinge on the authority of the director in matters of
policy, methodology, and administration. All decisions and
orders of the board shall be made in accordance with
personnel laws, rules, policies, and practices, and
accompanied by a technical explanation of the decision or
order. Every decision and order adverse to a party to the
proceeding, rendered by the board, shall be in writing or
stated in the record and shall be accompanied by separate
findings of fact and conclusions of law. If any party to
the proceeding has filed proposed findings of fact, the
board shall incorporate in its decision a ruling upon each
proposed finding presented. The findings and decisions of
the board shall be final on all appeals, unless an appeal is
taken pursuant to section 91-14, Hawaii Revised Statutes.
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The MAB's 2013 FOF-COL
The MAB heard Naumu's appeal on remand on April 25,
2013; July 25, 2013; and August 27, 2013. At this time, the MAB
consisted of entirely new members: Janice T. Kemp, Laurie
Santiago (Santiago), and Valerie Pacheco (Pacheco). During the
hearing, DPS called Hearings Officer Nadamoto, Hearings Officer
Nobriga, and Director Sakai as witnesses.
On November 25, 2013, the MAB issued its FOF-COL (2013
FOF-COL) denying Naumu's appeal and finding in favor of DPS. The
MAB found that DPS provided credible evidence that Naumu's
termination "complied with all established laws, rules, policies,
procedures and/or practices governing the dismissal process."
Naumu's 2013 Motion for Relief and 2013 Appeal
to the Circuit Court
On December 24, 2013, Naumu appealed the MAB's 2013
FOF-COL to the Circuit Court (Civ. No. 13-1-3353-12).
Contemporaneously, on December 26, 2013, in Civ. No. 12-1-0331-
02, Naumu filed an HRCP Rule 60(b)15 Motion for Relief from the
15
HRCP Rule 60(b) (2000) states in pertinent part:
Rule 60. Relief from judgment or order.
. . . .
(b) Mistakes; Inadvertence; Excusable Neglect; Newly
Discovered Evidence; Fraud, etc. On motion and upon such
terms as are just, the court may relieve a party or a
party's legal representative from a final judgment, order,
or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under Rule
59(b); (3) fraud (whether heretofore denominated intrinsic
or extrinsic), misrepresentation, or other misconduct of an
adverse party; (4) the judgment is void; (5) the judgment
has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (6) any
other reason justifying relief from the operation of the
judgment. The motion shall be made within a reasonable
time, and for reasons (1), (2), and (3) not more than one
year after the judgment, order, or proceeding was entered or
taken. A motion under this subdivision (b) does not affect
the finality of a judgment or suspend its operation. This
rule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment,
order, or proceeding, or to set aside a judgment for fraud
(continued...)
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Circuit Court's "2012 Remand Order filed November 28, 2012." The
motion was heard on February 13, 2014.
On March 3, 2014, the Circuit Court denied Naumu's
Motion for Rule 60(b) Relief in Civ. No. 12-1-0331-02. In its
2014 Order Denying Rule 60(b) Relief, the Circuit Court ruled
that:
The propriety of filing the Motion for Relief under HRCP
Rule 60(b)(6) is at issue when the Court had previously
vacated the MAB's Findings of Fact, Conclusions of Law and
Order, dated January 11, 2012 and remanded the case back to
the MAB for a rehearing. Since the remand, the MAB conducted
a rehearing, the parties submitted proposed Findings of Fact
and Conclusions of Law, and the MAB issued Findings of Fact,
Conclusions of Law and Order, dated November 25, 2013. In
this instance, the Motion for Relief under HRCP Rule
60(b)(6) is not appropriate for the relief requested.
. . . .
Even assuming there were grounds for Employee-Appellee Naumu
to file the motion under the guise of HRCP Rule 60(b)(6), it
does not fit within the extraordinary circumstances that
must exist for the basis of seeking relief under those
grounds.
In Civ. No. 13-1-3353-12, the Circuit Court heard oral
arguments regarding Naumu's appeal of the MAB's 2013 FOF-COL on
February 13, 2015. On March 6, 2015, the Circuit Court issued
the 2015 Remand Order. In the 2015 Remand Order, the Circuit
Court found that:
[I]n reviewing the [MAB's 2013 FOF-COL], the Court finds it
is unclear whether the MAB considered the circumstances of
the case so required the MAB to utilize its discretion to
modify the action of [DPS] in dismissing Naumu from
employment and whether the circumstances are such that any
modification would be deemed just, as set forth in HRS
§76-47(e) and HAR §14-25.1-4(x).16
(Footnote added). The Circuit Court remanded the case to the MAB
for a "limited hearing to only consider the discrete issue of
whether the circumstances of the case warrants the MAB to
exercise its discretion to modify the dismissal action and
whether the circumstances are such that any modification would be
15
(...continued)
upon the court. . . .
(Bolding in original).
16
HRS § 76-47(e) and HAR § 14-25.1-4(x) are set forth infra.
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deemed just." The Circuit Court further instructed the parties
that, "Upon remand for a limited hearing as to the discrete
issue, the Hearings Officer has the discretion whether or not to
allow the parties to recall witnesses and/or present new
evidence." The Circuit Court further ordered the MAB to "modify
the Findings of Fact and Conclusions of Law in its Order to
address this particular issue."
The MAB's 2015 FOF-COL
Pursuant to the Circuit Court's 2015 Remand Order, the
MAB scheduled a limited hearing on remand for May 28, 2015. The
MAB submitted a memorandum to inform the parties that the MAB
determined that the parties would not be allowed to recall
witnesses or present new evidence at the hearing, but could
present written argument. Naumu objected to the MAB's decision
to not recall witnesses or present new evidence at the hearing.
The MAB reaffirmed its position.
The hearing was continued, by agreement, to September
24, 2015. At the September 24 hearing, the parties were informed
that MAB Chair Paul K. W. Au (Chair Au) would not be present for
the hearing and that the hearing would be conducted in front of
the remaining two MAB members, Santiago and Pacheco, who, in
Chair Au's absence, filled the role as Acting Chair. The parties
were informed that if there was a tie in the MAB's decision,
Chair Au would review the transcripts, records, and documents,
and would "be the deciding vote." Upon Naumu's inquiry, Pacheco
informed the parties that Chair Au would not be present at the
hearing because "he was not present at the original [2013]
hearing." Naumu objected and requested that the hearing be
continued to allow the full MAB to be present. The two-member
MAB deliberated and determined as follows:
For the record, although the Merit Appeals Board
didn't provide official notice that the two members who
originally heard Mr. Naumu's appeal would hear his -- this
remand, the Merit Appeals Board has decided that it was
proper that the two original members hear the limited issue
for the discrete issue of whether the circumstances of the
case warrant the Merit Appeals Board, in exercising its
discretion, to modify Naumu's dismissal and whether the
circumstances are such that any modification would be deemed
just.
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The parties will not be allowed to recall witnesses
or present new evidence at the hearing. Parties may, but
are not required, to submit written argument regarding their
position to the Merit Appeals Board.
In addition, each party may present oral argument to
the Board. Written or oral argument should be limited to
the issue remanded by the Court, and it should also be noted
for the record that the letter dated May 5th, 2015, was
signed on my behalf as Acting Chair, as was the May 18th
letter so the parties were aware that I would be Acting
Chair.
If there is a split decision, then the Chairman,
Mr. Au, will be tasked with reviewing the previous MAB
records and recordings and providing the tie-breaking vote;
therefore, this hearing will continue today, so thank you.
The hearing went forward as scheduled.
On November 19, 2015, the MAB issued its 2015 FOF-COL
denying Naumu's appeal on remand and finding in favor of DPS.
The MAB "majority" found that DPS "carried its burden of
substantiating or partially substantiating the reasons for
dismissal of [Naumu] from employment" and that "the MAB, in
exercising its discretion, [would] not modify [Naumu's] dismissal
because the circumstances presented [did] not require
modification of [DPS]'s actions." The MAB determined that, in
exercising its discretion, any modification of DPS's decision,
pursuant to HRS § 76-47(e) and HAR § 14-25.1-4(x), "would not be
proper or just under the circumstances."
Naumu's 2015 Appeal to Circuit Court
On December 21, 2015, Naumu appealed the MAB's 2015
FOF-COL to the Circuit Court (Civ. No. 15-1-2432-12). Oral
arguments were held on August 26, 2016, and the Circuit Court
dismissed Naumu's appeal on September 19, 2016. The Circuit
Court entered its Final Judgment in Civil No. 15-1-2432-12 on
September 30, 2016, and Final Judgment in Civil No. 12-1-0331-02
on October 30, 2020.
II. STANDARDS OF REVIEW
A. Administrative Agency-Secondary Appeals
Review of a decision made by the circuit court upon
its review of an administrative decision is a secondary
appeal. Ahn v. Liberty Mut. Fire Ins. Co., 126 Hawai#i 1,
9, 265 P.3d 470, 478 (2011) (citation omitted). The circuit
court's decision is reviewed de novo. Id. The agency's
decision is reviewed under the standards set forth in HRS §
91-14(g). Id. HRS § 91–14(g) (1993) provides:
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(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 the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted exercise of
discretion.
Under HRS § 91-14(g), conclusions of law are reviewable
under subsections (1), (2), and (4); questions regarding
procedural defects under subsection (3); findings of fact
under subsection (5); and an agency's exercise of discretion
under subsection (6). Sierra Club v. Office of Planning,
109 Hawai#i 411, 414, 126 P.3d 1098, 1101 (2006) (citation,
internal quotation marks and brackets omitted).
Watanabe v. Employees' Retirement Sys., 148 Hawai#i 508, 513, 479
P.3d 126, 131 (2021) (quoting Liberty Dialysis-Hawaii, LLC v.
Rainbow Dialysis, LLC, 130 Hawai#i 95, 102-03, 306 P.3d 140, 147-
48 (2013)).
B. Agency's Findings of Fact and Conclusions of Law
"An agency's conclusions of law are reviewed de novo,
while an agency's factual findings are reviewed for clear
error[.]" Del Monte Fresh Produce (Hawaii), Inc. v. Int'l
Longshore & Warehouse Union, Local 142, AFL–CIO, 112 Hawai#i
489, 499, 146 P.3d 1066, 1076 (2006) (citations omitted)).
A finding of fact is clearly erroneous when "(1) the record
lacks substantial evidence to support the finding or
determination, or (2) despite substantial evidence to
support the finding or determination, the appellate court is
left with the definite and firm conviction that a mistake
has been made." Id. (internal quotations omitted) (quoting
In re Water Use Permit Applications, 94 Hawai#i 97, 119, 9
P.3d 409, 431 (2000)). "Substantial evidence is credible
evidence which is of sufficient quality and probative value
to enable a person of reasonable caution to support a
conclusion." Del Monte, 112 Hawai#i at 499, 146 P.3d at
1076 (internal quotations omitted) (quoting In re Water Use
Permit, 94 Hawai#i at 119, 9 P.3d at 431).
Martinez v. State Bd. of Nursing, 137 Hawai#i 83, 87-88, 365 P.3d
1012, 1016-17 (2016)(brackets and italics in original).
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C. Interpretation of Agency Rules
When interpreting agency rules, this court has stated
that "[g]eneral principles of statutory construction apply,"
which requires "look[ing] first at an administrative rule's
language." Liberty Dialysis-Haw[aii], LLC v. Rainbow
Dialysis, LLC, 130 Hawai#i 95, 103, 306 P.3d 140, 148
(2013).
If an administrative rule's language is
unambiguous, and its literal application
is neither inconsistent with the policies
of the statute the rule implements nor
produces an absurd or unjust result,
courts enforce the rule's plain meaning.
While an agency's interpretation of its
own rules is generally entitled to
deference, this court does not defer to
agency interpretations that are plainly
erroneous or inconsistent with the
underlying legislative purpose.
Id. (internal citations and quotation marks omitted).
Community Ass'n of Hualalai, Inc. v. Leeward Planning Comm'n, 150
Hawai#i 241, 252, 500 P.3d 426, 437 (2021).
D. HRCP Rule 60(b)
A circuit court's decision on an HRCP Rule 60(b) motion
is reviewed for abuse of discretion:
[T]he trial court has a very large measure of discretion in
passing upon motions under [HRCP] Rule 60(b) and its order
will not be set aside unless we are persuaded that under the
circumstances of the particular case, the court's refusal to
set aside its order was an abuse of discretion.
PennyMac Corp. v. Godinez, 148 Hawai#i 323, 327, 474 P.3d 264,
268 (2020) (brackets in original) (quoting Hawai#i Hous. Auth. v.
Uyehara, 77 Hawai#i 144, 147, 883 P.2d 65, 68 (1994)). "The
burden of establishing abuse of discretion [in denying an HRCP
Rule 60(b) motion] is on the appellant, and a strong showing is
required to establish it." Id. (brackets in original) (quoting
Ditto v. McCurdy, 103 Hawai#i 153, 162, 80 P.3d 974, 983 (2003)).
III. DISCUSSION
A. Naumu's First Point of Error, 2012 Remand
Order
Naumu contends that the Circuit Court erred in vacating
the 2012 FOF-COL in its entirety and remanding the case to the
MAB for a full evidentiary re-hearing. Naumu argues that the
Circuit Court's "ruling that a lack of clarity between the
findings of fact and conclusions of law was an insufficient basis
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to remand the case for a full evidentiary re-hearing usurped the
authority and purpose of the MAB and its full evidentiary
hearings." Naumu maintains that because the MAB already
conducted "a full evidentiary hearing where the MAB questioned
the credibility of DPS's witnesses and the reasons for Naumu's
termination," the Circuit Court should have instead had the MAB
review the record to clarify and revise the 2012 FOF-COL, in lieu
of a full hearing.
In the 2012 Remand Order, the Circuit Court vacated the
2012 FOF-COL because
language in certain Conclusions of Law in the Order may
contain certain findings of fact, to wit, these conclusions
speak to the credibility of evidence. The Court finds that
the Findings of Fact in the Order do not comport or address
that part of the Conclusions of Law that speak to the
credibility of certain evidence.
(Emphasis added). The Circuit Court's 2012 Remand Order does not
reference which specific FOFs and COLs in the 2012 FOF-COL were
at issue. Naumu also does not specifically identify the FOFs or
COLs at issue; nor does Naumu address why the Circuit Court was
wrong in concluding the FOFs did not comport with the COLs
regarding credibility. Naumu does not present any
counterargument that the FOFs and COLs were consistent with each
other. Instead, Naumu only argues that the underlying evidence
supported the MAB's ultimate decision ordering Naumu's
reinstatement. Naumu's argument is unpersuasive.
Under HRS § 91-14(g) (1993), the Circuit Court may,
inter alia, "reverse or modify" an agency's decision affected by
a prejudicial error of law. "[A]n agency's findings should be
'sufficient to allow the reviewing court to track the steps by
which the agency reached its decision.'" Matter of Gas Co., LLC,
147 Hawai#i 186, 202, 465 P.3d 633, 649 (2020) (quoting Matter of
Hawai#i Elec. Light Co., Inc., 145 Hawai#i 1, 11, 445 P.3d 673,
683 (2019)). "Where they are not, a 'remand pursuant to HRS §
91-14(g) is appropriate,' as the 'agency's findings are
incomplete and provide no basis for review.'" Id. (quoting
Matter of Hawai#i Elec. Light Co., Inc., 145 Hawai#i at 24, 445
P.3d at 696)).
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Here, the Circuit Court determined that there was a
disconnect between the COLs regarding the "credibility of the
evidence" and the absence of FOFs that addressed the
"credibility" determinations.17 The Circuit Court was not wrong
in concluding that MAB's findings were insufficient to allow the
Circuit Court to track how the MAB made its decision. See Matter
of Gas Co., LLC, 147 Hawai#i at 202, 465 P.3d at 649. As the
MAB's FOFs were inadequate to support or explain the COLs, it was
within the discretion of the Circuit Court to vacate and remand
the 2012 FOF-COL. See id.; see also Application of Kauai Elec.
Div. of Citizens Utilities Co., 60 Haw. 166, 185, 590 P.2d 524,
538 (1978) (determining that remand is proper where an agency
made "invalid, inadequate or incomplete findings.").
Naumu argues that if there was a lack of clarity
regarding the FOFs and COLs in the 2012 FOF-COL, then the Circuit
Court should have remanded the case for the MAB to modify the
2012 FOF-COL. Naumu does not provide any authority to support
this contention. Pursuant to HRS § 91-14(g), there is no
requirement that the Circuit Court must order an agency to modify
the agency's order. Both DPS and Naumu also note, in their
briefs, how the MAB composition had completely changed between
17
The 2012 FOF-COL contained the following COLs that addressed
credibility and the MAB's ultimate conclusion to grant Naumu's appeal:
6. Appellant did present credible evidence or argue
convincingly that the [DPS] committed violations of
established laws, rules, regulations, policies,
procedures, and/or practices governing the dismissal
of Appellant.
7. Conversely, Respondent [DPS], through its
presentation, documentation, and the testimony of its
witnesses, did not provide credible evidence that the
termination of Appellant was fair and impartial.
8. In view of the above, the Board finds that the action
taken by the Respondent [DPS] was without merit, thus
the Appellant's appeal is GRANTED.
There were no corresponding findings or conclusions that supported the
determination in COL 6, that DPS "committed violations" of any "laws, rules,
regulations, policies, procedures, and/or practices" regarding Naumu's
dismissal. There were also no corresponding findings or conclusions that
explained COL 7's conclusion that DPS "did not provide credible evidence that
the termination of [Naumu] was fair and impartial."
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the 2010-11 hearing and the 2013 MAB hearing. At the October 3,
2012 hearing18 on Naumu's appeal to the Circuit Court, the
parties informed the Circuit Court that if the court decided to
remand, the case would be heard by an entirely new MAB, which
could pose difficulties. We note that it would be difficult, if
not impossible, for an entirely new MAB to be bound by
credibility determinations and COLs made by a prior MAB, and be
tasked with crafting clarifying findings. Under these
circumstances, the Circuit Court did not err in vacating the
MAB's 2012 FOF-COL and remanding for a full evidentiary re-
hearing. See Watanabe, 148 Hawai#i at 513, 479 P.3d at 131;
Martinez, 137 Hawai#i at 87-88, 365 P.3d at 1016-17.
B. Second Point of Error, 2014 Order Denying
Rule 60(b) Relief
Naumu contends that the Circuit Court erred in denying
his 2014 HRCP Rule 60(b) Motion for Relief because the record
supported the MAB's decision to sustain Naumu's appeal and order
his reinstatement. Naumu also argues that the 2013 FOF-COL
issued by the MAB was the first time the MAB issued a thorough
FOF, COL, and Order that included new language that was not
contained in any of previous FOF-COLs.19
The Circuit Court did not err in denying Naumu's Motion
for Relief. HRCP Rule 60(b)(6) provides that a court, "on motion
and upon such terms as are just," may relieve a party from a
final judgment, order, or proceeding "for any other reason
justifying relief from the operation of the judgment."
Essentially, "the primary purpose of the [HRCP Rule 60(b)(6)]
motion 'is to authorize the reopening of a closed case or final
order.'" PennyMac Corp., 148 Hawai#i at 328, 474 P.3d at 269
18
Naumu did not request the October 3, 2012 hearing transcript, as
required by HRAP Rule 10(b)(1)(A). The transcript of the October 3, 2012
hearing is only available in the record as an exhibit to Naumu's Reply to his
Motion for Relief from "Order Remanding Employer-Appellant State of Hawaii,
Department of Public Safety's Agency Appeal Filed February 3, 2012," Filed
November 28, 2012, filed January 29, 2014.
19
Naumu did not request the pertinent transcript, as required by
HRAP Rule 10(b)(1)(A), of the February 13, 2014 hearing on the HRCP Rule 60(b)
motion.
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(quoting Cho v. State, 115 Hawai#i 373, 383, 168 P.3d 17, 27
(2007)). HRCP Rule 60(b)(6) "provides for extraordinary relief
and is only invoked upon a showing of exceptional circumstances."
Uyehara, 77 Hawai#i at 148, 883 P.2d at 69.
The record reflects that in the Order Denying Naumu's
Motion for Rule 60(b) Relief, the Circuit Court stated that it
was denying the motion as improper because the MAB had already
conducted the rehearing and had since issued its 2013 FOF-COL.
See Part I supra. While the 2012 FOF-COL found in favor of
Naumu, the MAB's 2013 FOF-COL found in favor of DPS. The purpose
of HRCP Rule 60(b)(6) is not to automatically relieve Naumu of an
outcome that was detrimental to him by reinstating the 2012 FOF-
COL. See Citicorp Mortg., Inc. v. Bartolome, 94 Hawai#i 422,
436, 16 P.3d 827, 841 (App. 2000), abrogated on other grounds by
Chen v. Mah, 146 Hawai#i 157, 457 P.3d 796 (2020).
Assuming arguendo that Naumu's motion was proper under
HRCP Rule 60(b)(6), the Circuit Court did not abuse its
discretion in finding that there were no extraordinary
circumstances warranting relief under HRCP Rule 60(b)(6). See
Uyehara, 77 Hawai#i at 148, 883 P.2d at 69. Here, Naumu does not
proffer any extraordinary circumstances that afford him relief
under HRCP Rule 60(b)(6). The only point that Naumu argues is
that the Circuit Court should have granted his motion because "in
[the MAB's 2013 FOF-COL], the MAB for the first time issue[d] a
thorough" FOF, COL, and Order, and that the new FOFs and COLs
included in the 2013 FOF-COL "could have and should [sic] been
employed in construing [2012 FOF-COL] considering that the MAB's
decision was adequately support[ed] by the documentary evidence,
written evidence, and/or recording or transcript of MAB3 [sic],
and Naumu's and MAB's answering briefs." Naumu does not provide
any authority that says the MAB issuing a more detailed FOF-COL
is an extraordinary circumstance. See Uyehara, 77 Hawai#i at
148-49, 883 P.2d at 69-70. We conclude that the Circuit Court
did not abuse its discretion in denying Naumu's HRCP Rule 60(b)
Motion for Relief. See PennyMac Corp., 148 Hawai#i at 327, 474
P.3d at 268.
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C. Third Point of Error, 2015 Remand Order
Naumu contends that the Circuit Court erred in its 2015
Remand Order by upholding the MAB's 2013 FOF-COL finding that
Naumu's dismissal from employment was substantiated by the
evidence provided to the MAB pursuant to HRS § 76-47(e) and HAR §
14-25.1-4(x).20 Naumu claims that: the MAB failed to comply
20
HRS § 76-47(e) (2000) provides, in pertinent part:
Any civil service employee, who is suspended, discharged, or
demoted and who is not included in an appropriate bargaining
unit under section 89-6, may appeal to the merit appeals
board within twenty days after a final decision is made
under the internal complaint procedures.
Upon the appeal, both the appealing employee and the
appointing authority shall have the right to be heard
publicly, present evidence and be represented by counsel,
who shall have the right to examine and cross-examine
witnesses. At the hearing technical rules of evidence shall
not apply and the evidence shall be taken stenographically
or recorded by machine. For the purpose of hearing the
appeals fairly and expeditiously, the board may at any time
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 board
and upon the conclusion of the hearing, shall report the
hearing officer's findings of fact and the hearing officer's
conclusions and recommendations based thereon to the board
and to the employee. The board shall render the final
decision in accordance with section 91-11.
If the board finds that the reasons for the action are not
substantiated in any material respect, the board shall order
that the employee be reinstated in the employee's position,
without loss of pay, but if the board finds that the reasons
are substantiated or are only partially substantiated, the
board shall sustain the action of the appointing authority,
provided that the board may modify the action of the
appointing authority if it finds the circumstances of the
case so require and may thereupon order such disposition of
the case as it may deem just.
The findings and decisions of the board shall be final on
all appeals, unless an appeal is taken as provided in
chapter 91.
HAR § 14-25.1-4(x) (effective 2003) provides, in pertinent
part:
(x) In its action on an appeal by a civil service employee
who has been suspended, discharged, or demoted, both the
appealing employee and the appointing authority shall have
the right to be heard publicly, present evidence, and be
represented by counsel who shall have the right to examine
and cross-examine witnesses. At the hearing, technical
rules of evidence shall not apply and the evidence shall be
taken stenographically or recorded by machine.
(continued...)
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with HAR § 14-25.1-4(y) as it failed to make a ruling on Naumu's
proposed findings of fact; failed to include certain "undisputed
facts" on the Chow Policy in the 2013 FOF-COL; and the MAB's
sustaining Naumu's dismissal was an arbitrary, capricious, abuse
of discretion.
We reject Naumu's argument that the 2013 FOF-COL
violated HAR § 14-25.1-4(y) for failing to include "undisputed
facts" about the "Chow policy." Naumu argues that his fifty-four
proposed FOFs "included findings related to the existence of and
Naumu's adherence to the Chow Policy." DPS argues that there was
no "chow or meal 'policy'" and thus no need for the MAB to make
findings in that regard. Yet, Naumu concedes that a separate
ruling on each proposed finding filed by a party "is not strictly
required," as long as the agency incorporate its findings in its
decision and its findings are reasonably clear. See Application
of Terminal Transp., Inc., 54 Haw. 134, 139, 504 P.2d 1214, 1217
(1972). This argument is without merit.
The record supports the MAB's finding that Naumu's
dismissal was substantiated or partially substantiated by the
evidence. See Martinez, 137 Hawai#i at 87-88, 365 P.3d at 1016-
17. At the April 25, 2013 hearing before the MAB, Director Sakai
testified that Naumu was investigated for his role in the March
21 inmate escape (FOF 19); that Naumu was subject to the DPS
standards of conduct (FOF 25); that the OCCC holding unit was not
properly staffed and that although ACO Lepere21 made mistakes,
20
(...continued)
(1) If reasons for an action by the director or
appointing authority are not substantiated in any material
respect, the board shall order that the employee be
reinstated in the employee's position, without loss of pay.
(2) If the reasons are substantiated or are only
partially substantiated, the board shall sustain the action
of the director or appointing authority; provided that the
board may modify the action of the director or appointing
authority if it finds the circumstances of the case so
require and may order the disposition of the case it may
deem just provided that the disposition is consistent with
laws, rules, and policies.
21
The hearing transcript misspells ACO Lepere's name as "ACO
LaPair."
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the inmate escape was due to the improper staffing (FOF 21); and
Sgt. Ben Almadova was allowed to leave the facility on a busy
night during the Third Watch, leaving only two officers, instead
of four, in the holding unit (FOFs 21, 24). Thus, the MAB's
findings in the 2013 FOF-COL were substantiated or partially
substantiated by the evidence pursuant to HRS § 76-47(e) and HAR
§ 14-25.1-4(x). See Application of Terminal Transp., Inc., 54
Haw. at 139, 504 P.2d at 1217. We conclude that the Circuit
Court did not err in its 2015 Remand Order by upholding the 2013
FOF-COL in this regard. See Watanabe, 148 Hawai#i at 513, 479
P.3d at 131.
D. Fourth Point of Error, the September 2015 MAB
hearing
In his fourth point of error, Naumu contends that the
Circuit Court and the MAB erred and violated his due process
rights when: (1) the MAB denied Naumu's pre-hearing request to
conduct additional discovery and present evidence during the
September 24, 2015 hearing; and (2) that it was improper for the
MAB to "unilaterally" determine that two MAB members would
preside over the hearing, and not require the attendance of MAB
Chair Au at the hearing based on his absence from the prior MAB
hearings. Naumu's contentions are without merit.
1. The MAB's denial of Naumu's pre-hearing
request to conduct additional discovery and
to present evidence did not violate due
process under the circumstances of this case.
Relying on HAR § 14-25.1-4(a) and (d),22 Naumu argues
that, "[a]s a matter of law," at the September 24, 2015 MAB
hearing, he had the right to conduct additional discovery and
present evidence on the remanded issue.
22
HAR § 14-25.1-4(a) (effective 2003) states in pertinent part, "An
appeal shall be conducted as a contested case under chapter 91, Hawaii Revised
Statutes. The board shall order the matter set for hearing. . . .
Opportunities shall be afforded all parties to present evidence and argument
on all issues involved."
HAR § 14-25.1-4(d) (effective 2003) states in pertinent part, "An
application for subpoena requiring the attendance of witnesses or the
production of documentary evidence from any place within the State at any
designated place or hearing shall be made in writing to the board . . . ."
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The authority Naumu relies on, comes from the "Appeal
hearing" rule of HAR § 14-25.1-4, under the "Rules of Practice
and Procedure, State Merit Appeals Board." See generally HAR,
Title 14, Chapter 21.1. The appeal hearing rule sets forth the
procedure and process for appeal hearings before the Board.
While the appeal hearing rule requires that parties be afforded
opportunities to present evidence on "all issues involved" in
subsection (a), and provides for subpoenas for the production of
documentary evidence in subjection (d), the rule also confers
discretion and authority to the officer presiding over the MAB
hearing to set forth the procedure appropriate for the hearing
and to control the course and scope of the hearing itself. See
HAR §§ 14-25.1-4(i), (l), and (n). Subsection (i) provides that:
[t]he presiding officer at a proceeding shall have authority
to control the course of the hearing; . . . to grant
application for and issue subpoenas; . . . to rule upon
offers of proof and receive relevant evidence; to limit
lines of questioning or testimony that are irrelevant,
immaterial, or repetitious; . . . . and to take all other
actions authorized by [HRS] chapters 76 and 91 . . . , rules
of the board or by any other statute that are deemed
necessary to the orderly and just conduct of the hearing.
(Emphases added). In addition to the specific "authority to
control the course" of the hearing conveyed in subsection (i),
the appeal hearing rule provides the presiding officer control
over the scope and manner of the presentation of evidence at the
hearing. Subsection (n) affords a "reasonable opportunity to
offer testimony with respect to the matters relevant to the
proceeding." (Emphases added). Subsection (n) specifically
requires the officer to properly confine testimony: "The
presiding officer or hearing officer shall confine the testimony
to the matters for which the hearing has been called . . . . "
(Emphasis added).
Here, the Circuit Court's 2015 Remand Order gave the
MAB "the discretion whether or not to allow the parties to recall
witnesses and/or present new evidence." The remand was for a
"limited hearing to only consider the discrete issue" as to
whether the MAB should exercise its discretion to modify the
dismissal action. The 2015 MAB appeal hearing was a remand from
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an appeal of the prior 2013 MAB appeal hearing, which had lasted
three days: April 25, 2013; July 25, 2013; and August 27, 2013.
During the 2013 three-day hearing, Naumu, Director Sakai,
Hearings Officers Nobriga and Nadamoto testified. The 2013 MAB
hearing was also the third time the case was heard by the MAB,
following the first 2006 appeal hearing, and the second 2010-11
appeal re-hearing. Thus, the record reflects that Naumu did have
an opportunity "to present evidence and argument on all issues
involved." HAR § 14-25.1-4(a). We conclude that the MAB did not
abuse its discretion by not allowing the parties to conduct
additional discovery or present new evidence at the hearing.
Naumu's argument that he was entitled to present new
evidence at the 2015 limited appeal hearing is not persuasive.
In Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan, 87
Hawai#i 217, 239-41, 953 P.2d 1315, 1337-39 (1998), the supreme
court determined that HRS Chapter 91, the Hawai#i Administrative
Procedures Act does not require that a contested case hearing be
conducted de novo with evidence not already considered by the
agency. The Korean Buddhist Court found that the appellant
Buddhist temple had numerous opportunities to submit evidence and
had the right to cross-examine witnesses at prior hearings, and
thus the record in those proceedings was sufficient for the
agency to review. Id. at 240, 953 P.2d at 1338. Here, the MAB
similarly had access to the record of the previous 2013 appeal
re-hearing, which included the transcripts of the prior
testimonies of Director Sakai, Hearings Officer Nadamoto and
Nobriga, and Naumu. Thus, the record was sufficient for the MAB
to review.
"[D]ue process is flexible and calls for such
procedural protections as the particular situation demands."
Sandy Beach Def. Fund v. City Council of Cty. of Honolulu, 70
Haw. 361, 378, 773 P.2d 250, 261 (1989) (citation omitted).
Naumu's due process rights were not violated by the MAB's
discretionary decision not to reopen his case to further
witnesses and testimony. See Korean Buddhist, 87 Hawai#i at 240,
953 P.2d at 1338. The MAB's exercise of its discretion was
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consistent with the Circuit Court's order and the appeal hearing
rule, and did not constitute an abuse of discretion because Naumu
had previously been afforded opportunities to be heard in a
meaningful time and a meaningful manner, consistent with
procedural due process. See HAR §§ 14-25.1-4(i), (l), and (n);
Sandy Beach Def. Fund, 70 Haw. at 378, 773 P.2d at 261. We
conclude that the Circuit Court did not err in rejecting Naumu's
claim of a due process violation on this basis. See Watanabe,
148 Hawai#i at 513, 479 P.3d at 131.
2. The plain language of the appeal hearing
rule, HAR § 14-25.1-4, does not require
the full three-member MAB to preside
over the appeal hearing.
Naumu contends that he had the right to have the
September 24, 2015 hearing to be heard by the full three-member
MAB pursuant to HAR § 14-25.1-4(f).23 Naumu argues that there is
no rule under HAR Title 14 that allows the MAB to "unilaterally"
decide that a Board Member need not attend a hearing "simply
because that Board Member was not present during a prior
hearing," nor to allow the absent Board Member to "act as a tie-
breaking vote in the event the two other Board Members cannot
agree." Naumu argues that the plain language of the words
"before the board" in subsection (f) means the full Board and not
a partial Board.
We do not agree with Naumu that "before the board" in
the appeal hearing rule must mean the full three-member Board.
HAR § 14-25.1-4(f) (effective 2003) provides: "Appeals shall be
heard before the board or a hearing officer or panel of subject
matter experts duly appointed by the board." The rule's language
unambiguously permits even a single hearing officer or a panel of
subject matter experts to hear appeals, in addition to the board.
The very next subsection, HAR § 14-25.1-4(g) (effective 2003)
provides: "[t]he chairperson shall preside over appeals heard by
the board itself. In the absence of the chairperson, another
23
In his Opening Brief, Naumu erroneously cites to the rule as HAR §
14-21.1-4(f).
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member, designated by the board, shall preside." Thus, if the
chairperson is not present at the appeal hearing, another MAB
member is designated as acting chairperson. HAR § 14-25.1-4(g).
The appeal hearing rule plainly and unambiguously allows two of
the three MAB members to conduct the hearing. See Community
Ass'n of Hualalai, 150 Hawai#i at 252, 500 P.3d at 437.
The MAB's decision to conduct the hearing with only
Pacheco and Santiago was permitted by HAR § 14-25.1-4(g), and
there was no due process violation. The Circuit Court's
conclusion that the MAB was allowed to conduct the hearing with
only two MAB members was not wrong.24 See Martinez, 137 Hawai#i
at 87-87, 365 P.3d at 1016-17. The Circuit Court did not err in
rejecting Naumu's claim of a due process violation on this basis.
See Watanabe, 148 Hawai#i at 513, 479 P.3d at 131.
E. Fifth Point of Error, 2016 Order Dismissing
Appeal and 2015 FOF-COL.
In his final point of error, Naumu contends that the
Circuit Court, in its 2016 Order Dismissing Appeal and the MAB in
its 2015 FOF-COL, erred in not modifying Naumu's dismissal and in
not finding that the circumstances were such that modification
would be deemed just. Naumu argues that it was an abuse of
discretion to not overturn his dismissal based on the facts and
circumstances of the case. Naumu's contention is without merit.
First, Naumu argues that the MAB's decision to uphold
DPS's termination of Naumu was "premised on the idea that Naumu
violated a DPS rule, policy or procedure." Naumu alleges that
the MAB "disregarded the undisputed evidence that Naumu did not
violate any DPS policy, but rather followed one [the Chow
Policy], and thus there was no cause for his termination."
An appellant seeking to overturn an agency's
determination made within the agency's expertise "has a high
burden to demonstrate that the agency abused its discretion."
Paul's Elec. Serv., Inc. v. Befitel, 104 Hawai#i 412, 429, 91
24
In light of our disposition based on the plain language of the
appeal hearing rule, it is not necessary to address DPS's and the MAB's
counter-argument that a two-member MAB was permissible because two members
constituted a "quorum" under HRS § 92-15 and HAR § 14-1.1-10.
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P.3d 494, 501 (2004). "[A] determination made by an
administrative agency acting within the boundaries of its
delegated authority will not be overturned unless 'arbitrary, or
capricious, or characterized by . . . [a] clearly unwarranted
exercise of discretion.'" Id. (citation omitted).
Here, Naumu has not sustained his burden of
demonstrating that the MAB abused its discretion in not
overturning Naumu's dismissal. See id. The record reflects that
the Circuit Court's 2015 Remand Order specifically ordered the
MAB to conduct a limited hearing on the "discrete issue" of
whether the MAB should modify DPS's dismissal action. The MAB
was not directed to reopen the hearing to allow Naumu to
relitigate the existence of the "Chow Policy" at OCCC. The MAB
is authorized to reinstate a civil service employee to the
employee's position if the "action by the director or appointing
authority are not substantiated in any material respect." HAR §
14-25.1-4(x); see HRS § 76-47(e); Paul's Elec. Serv., Inc., 104
Hawai#i at 419, 91 P.3d at 501. The MAB found that the decision
by DPS was substantiated by the evidence that Naumu violated
various Standards of Conduct relevant to his position as Captain:
Naumu was informed of the NIC audit findings concerning improper
security measures following the January 17, 2001 inmate escape
(FOF 27); DPS's internal investigation determined that Naumu's
failure to adhere to the OCCC security procedures and policies
probably contributed to the escape attempt (FOF 20); Naumu did
not inform the immediate supervisor for the Almadovas that both
Almadovas were being permitted to leave the premises (FOF 14);
the March 21, 2001 inmate escape occurred on Naumu's watch (FOF
21); Naumu's permission for Sgt. Ben Almadova to be absent for an
extended period of time contributed to an insufficiency of
personnel (FOF 22); and allowing the Almadovas to leave for a
meal break was a discretionary error in judgment regarding the
manpower and security presence in the Holding Unit during the
March 21, 2001 inmate escape (FOFs 22, 27). Thus, the MAB's
finding that the DPS's dismissal of Naumu was substantiated by
the record, and the MAB's decision to not overturn DPS's
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determination, did not constitute an abuse of discretion by the
MAB.25 See Paul's Elec. Serv., Inc., 104 Hawai#i at 419, 91 P.3d
at 501. We conclude that the Circuit Court did not err in its
2016 Order Dismissing Appeal affirming the MAB's decision to not
modify Naumu's dismissal in its 2015 FOF-COL. See Watanabe, 148
Hawai#i at 513, 479 P.3d at 131.
IV. CONCLUSION
For the reasons set forth above, we affirm the (1)
Order Remanding Employer-Appellant State of Hawai#i, Department
of Public Safety's Agency Appeal Filed February 3, 2012, filed
November 28, 2012 in Civil No. 12-1-0331-02 by the Circuit Court
of the First Circuit; (2) Order Denying Employee-Appellee Ronald
N. Naumu's Motion for Relief from "Order Remanding Employer-
Appellant State of Hawaii, Department of Public Safety's Agency
Appeal filed February 3, 2012," Filed November 28, 2012, filed
March 3, 2014 in Civil No. 12-1-0331-02 by the Circuit Court of
the First Circuit; (3) Findings of Fact, Conclusions of Law and
Order dated November 25, 2013 in Merit Appeals Board Case No. 26;
(4) Order Remanding Employee-Appellant Ronald N. Naumu's Agency
Appeal Filed December 24, 2013, filed March 6, 2015 in Civil No.
13-1-3353-12 by the Circuit Court of the First Circuit; (5)
Amended Findings of Fact, Conclusions of Law, Decision and Order
dated November 19, 2015 in Merit Appeals Board Case No. 26; (6)
25
We also reject Naumu's challenges to FOFs 20 and 22, that appear
for the first time on the last page of the "Discussion" section of the Opening
Brief, alleging that these FOFs were "incorrect." In FOF 20, Naumu takes
issue with the phrase "Sergeant Almadova probably contributed in part to the
escape opportunity" and argues that the evidence shows that Almadova did
contribute rather than just "probably" contributed. (Emphasis added). Naumu
argues that FOF 22 is not supported by the record and that the record reflects
that Naumu believed that Sgt. Ben Almadova was immediately returning to the
facility after buying dinner.
Naumu's challenges go to the weight of the evidence and resolution
of conflicts in testimony -- all of which are not the province of an appellate
court. See Application of Hawaiian Elec. Co., Inc., 81 Hawai#i 459, 465, 918
P.2d 561, 567 (1996) (observing that appellate courts "decline to consider the
weight of the evidence to ascertain whether it weighs in favor of the
administrative findings, or to review the agency's findings of fact by passing
upon the credibility of witnesses or conflicts in testimony, especially the
findings of an expert agency dealing with a specialized field.") (citation
omitted)). FOFs 20 and 22 have not been shown to be clearly erroneous. See
id.; Martinez, 137 Hawai#i at 87-88, 365 P.3d at 1016-17.
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Order Dismissing Employee-Appellant Ronald N. Naumu's Agency
Appeal Filed December 21, 2015, filed September 19, 2016 in Civil
No. 15-1-2432-12 by the Circuit Court of the First Circuit; (7)
Final Judgment filed September 30, 2016 in Civil No. 15-1-2432-12
by the Circuit Court of the First Circuit; and (8) Final Judgment
filed October 30, 2020 in Civil No. 12-1-0331-02 by the Circuit
Court of the First Circuit.
DATED: Honolulu, Hawai#i, February 17, 2022.
On the briefs:
/s/ Keith K. Hiraoka
Sunny S. Lee Presiding Judge
(Bronster Fujichaku Robbins)
for Employee/Appellee- /s/ Karen T. Nakasone
Appellant Associate Judge
Kimberly Tsumoto Guidry /s/ Sonja M.P. McCullen
Deputy Solicitor General Associate Judge
for Employer/Appellant-
Appellee
Ernest H. Nomura
Deputy Corporation Counsel
City and County of Honolulu
for Agency-Appellee-Appellee
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