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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-MAR-2023
07:48 AM
Dkt. 173 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JERAUL PLADERA, Petitioner-Appellant-Appellant,
v.
COUNTY OF MAUI, MAUI COUNTY POLICE DEPARTMENT,
Respondents-Appellees-Appellees,
and
MAUI COUNTY CIVIL SERVICE COMMISSION,
Agency-Appellee-Appellee,
and
DOE ENTITIES 1-10, Appellees
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 2CC171000129)
MEMORANDUM OPINION
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)
Petitioner-Appellant-Appellant Jeraul Pladera appeals
from the Judgment entered by the Circuit Court of the Second
Circuit on February 26, 2018.1 For the reasons explained below,
we affirm in part, vacate in part, and remand to the circuit
court for further proceedings.
BACKGROUND
Pladera was a lieutenant in the Maui County Police
Department (MPD). In January 2015 MPD announced vacancies for
1
The Honorable Peter T. Cahill presided.
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three positions as captain. Pladera was one of thirteen who
applied for the positions.
The chief of MPD appoints police captains. See Charter
of the County of Maui (CCM) § 8-12.4 (2015). The chief assigned
the deputy chief and three assistant chiefs (from the
Investigative, Uniformed, and Support Services bureaus) to the
Promotional Review Board (PRB), as required by MPD General Order
202.8 ("Promotions for Sworn Personnel").2
The MPD "Promotional Review System [for] Police
Captain" (PRS-PC) provides the PRB with specific and detailed
guidance on applying the criteria listed in General Order 202.8.
The PRB interviewed and rated each of the thirteen candidates
based upon the PRS-PC.
Under General Order 202.8, each candidate also received
a Merit Standard grade. The Merit Standard grade was calculated
by MPD's Business Administrator based on a point system
prescribed by the PRS-PC.
Then, under the PRS-PC:
The total scores for the Merit Standard and the Promotional
Review Board Standards are combined. The ratings of these
two evaluation segments are equally weighted and
consolidated to produce a total rating for each candidate.
This rating is defined as a score - maximum total score is
100, using a scale of 100. The candidates are ranked
relative to this total score which is presented to the Chief
of Police who makes the final selection.
In making the final selection:
The Chief of Police, as the Department's Appointing
Authority, will select and promote the best candidate for
the position using the Promotional Board's recommendation,
but is not precluded from exercising his powers, rights and
privileges vested in the position which conform to
2
General Order 202.8 states, in part:
The Promotional Review System is a method of rating
candidates objectively on the basis of merit, skills,
knowledge, experience, and ability which are consistent with
Civil Service Rules and Regulations. It is an appropriate
selection process which advocates that the person promoted
is the best qualified among candidates eligible for
promotion. The Promotional Review System establishes
promotional standards based upon merit and ability.
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applicable laws, rules, regulations, policies, and standards
of the merit system as stated in the Rules and Regulations
of the Department of Personnel Services, County of Maui.
The three highest-scoring candidates (all lieutenants)
were selected to fill the captain positions. Pladera had a total
score of 82; he ranked 5th out of the thirteen applicants.
Pladera, representing himself, filed a petition with
Agency-Appellee-Appellee Maui County Civil Service Commission3 on
February 27, 2015. His petition stated:
The key issue is that the current Maui Police Department
promotional system is . . . too subjective and does not take
into account enough of the merit factor for promotions for
personnel. . . . I am requesting that the Maui Police
Department Promotional Process be changed to reflect the
current HRS standing to be more merit based in choosing
personnel for promotion.[4]
The Commission scheduled a hearing. Pladera requested
a continuance so he could retain counsel. The Commission granted
several continuances. Pladera appeared with counsel at hearings
on November 2, 2016, December 20 and 21, 2016, and January 12,
2017.
3
The counties of Hawai#i, Maui, and Kaua#i are each required to have
a department of civil service and a merit appeals board. Hawaii Revised
Statutes (HRS) § 76-71 (2012). In the county of Maui the Department of
Personnel Services (DPS) is the department of civil service. CCM § 8-9.1
(2015). The Commission functions as the merit appeals board. CCM § 8-9.4(3)
(2015); see HRS § 76-47(b) (2012) ("A jurisdiction may continue to use its
civil service commission or appeals board, with or without modification, as
its merit appeals board . . . ."). The Commission consists of five members
appointed by the mayor with the approval of the county council. CCM § 8-9.4
(2015).
4
HRS § 76-1 (2012), part of the Hawai#i Civil Service Law, provides
in relevant part:
It is the purpose of this chapter to require each
jurisdiction to establish and maintain a separately
administered civil service system based on the merit
principle. The merit principle is the selection of persons
based on their fitness and ability for public employment and
the retention of employees based on their demonstrated
appropriate conduct and productive performance. It is also
the purpose of this chapter to build a career service in
government, free from coercive political influences, to
render impartial service to the public at all times,
according to the dictates of ethics and morality and in
compliance with all laws.
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On March 1, 2017, the Commission issued its "Findings
of Fact, Conclusions of Law, and Order Denying [Pladera]'s
Petition of Appeal[.]" The Commission characterized the issue
presented as:
Whether or not [the Chief of Police] erred in not
selecting [Pladera] to fill one of three positions to Police
Captain, i.e., Position Nos. PD-0004, PD-0012, and PD-0406,
pertaining to a promotional announcement that opened on
January 2, 2015[,] and closed on January 15, 2015?
The Commission found:
69. . . . [T]he Chief of Police . . . as the
Department's Appointing Authority[] has discretion to select
and promote the best candidate for the position using the
results of the Promotional Review System. This discretion
provides the Chief of Police the authority to promote a
candidate regardless of how the candidate scored on the
Merit Standards and the PRB evaluation.
The Commission concluded:
6. As the Chief of Police, MPD and appointing
authority, [the Chief of Police] has the discretion to fill
Police Captain positions . . . pursuant to the authority
provided in DPS, Rules of the Director of Personnel
Services, §[]11-205-3(a).
7. Based on the results of the Merit Standards and
PRB evaluation, as well as the ranking of the candidates for
the Police Captain positions . . . , [the Chief of Police]
acted within his scope of authority and discretion pursuant
to DPS, Rules of the Director of Personnel Services,
§[]11-205-3(a), by selecting [the three highest-scoring
candidates] for promotion to Police Captain.
The Commission determined that the chief of MPD "did
not violate any applicable civil service rule, law or policy, by
not selecting [Pladera] for promotion to Police Captain[.]"
Pladera's appeal was denied.
On April 3, 2017, Pladera (through counsel) filed a
notice of appeal in circuit court. The circuit court affirmed
the Commission's determination. On February 26, 2018, the
circuit court entered the Judgment.5
5
The circuit court also entered findings of fact, conclusions of
law, and an order. But in an HRS § 91–14 agency appeal, the circuit court
(continued...)
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This appeal followed.
STANDARD OF REVIEW
Our review of a circuit court decision on an appeal
from an administrative agency determination is a secondary
appeal; we must determine whether the circuit court was right or
wrong in its decision, applying de novo the standards set forth
in Hawaii Revised Statutes (HRS) § 91–14(g) (Supp. 2017) to the
agency's decision. Flores v. Bd. of Land & Nat. Res., 143
Hawai#i 114, 120, 424 P.3d 469, 475 (2018) (citation omitted).
HRS § 91–14(g) (Supp. 2017) provides, in relevant part:
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;
(2) In excess of the statutory authority
or jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(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.
5
(...continued)
sits as an appellate court and decides whether the agency's findings of fact
were clearly erroneous, and whether the agency's conclusions of law were right
or wrong, based upon the record before the agency, Del Monte Fresh Produce
(Haw.), Inc. v. International Longshore & Warehouse Union, Local 142, 128
Hawai#i 289, 302, 287 P.3d 190, 203 (2012) ("An agency's conclusions of law
are reviewed de novo, while an agency's factual findings are reviewed for
clear error."); the circuit court does not make its own findings of fact, see
Spar Mktg. Servs., Inc. v. State Dep't of Lab. & Indus. Rels., 144 Hawai#i
122, 127, 436 P.3d 1205, 1210 (App. 2019) ("The Circuit Court should have
reviewed the evidence presented to the hearings officer not to make its own
findings or conclusions, but to determine whether the Agency Decision was
clearly erroneous.").
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"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)." Del Monte Fresh Produce (Haw.), Inc. v.
International Longshore & Warehouse Union, Local 142, 128 Hawai#i
289, 302, 287 P.3d 190, 203 (2012) (citations omitted).
Pladera acknowledges:
The Commission is an administrative body of
"specialized competence" serving as "an appellate board to
decide appeals from any action under chapter 76, Hawai#i
Revised Statutes." [Rules of the Civil Service Commission
of the County of Maui (RCSC)] § 11-101-1(a). Its creation
was mandated by the legislature. See HRS[]§§ 76-14, 76-47 &
76-71. Its jurisdiction and rules encompass appointments
for all civil service positions in Maui County. [RCSC]
§ 11-101-2. It is undisputed that Pladera applied for a
civil service position and he timely challenged his non-
selection before the [Commission], which ruled on his
challenge[.]
(Citations to appendix omitted.) In such cases, the Hawai#i
Supreme Court has instructed:
If the legislature has granted the agency discretion
over a particular matter, then we review the agency's
action pursuant to the deferential abuse of discretion
standard (bearing in mind the legislature determines
the boundaries of that discretion).
Paul's Elec. Serv., Inc. v. Befitel, 104 Hawai#i 412, 419-20, 91
P.3d 494, 501-02 (2004).
DISCUSSION
Pladera's opening brief incorrectly cites the record on
appeal. His argument section does not track his statement of the
points of error. See Hawai#i Rules of Appellate Procedure
Rule 28(b)(7). We address Pladera's arguments in the order made
in the opening brief, and deem any point not argued to have been
waived. Id.
A. Pladera argues that the circuit court erred by
failing to rule on his challenge to the constitutionality of
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MPD's PRS-PC. The circuit court entered the following
conclusions of law:
19. The Court notes that the original appeal was not
dependent on any challenge to the constitutionality of the
MPD's PRS-PC, and as [Pladera] conceded in oral argument,
Mr. Pladera was eventually promoted to the rank of captain.
20. As to [Pladera]'s request that this Court
declare the MPD's PRS-PC unconstitutional, this Court
concludes that HRS § 91-14 grants it the ability to review
the constitutionality of actions taken by the Commission,
but does not authorize the Court to declare the entire
promotional system unconstitutional. As this Court sits as
an appellate court in this matter, this Court declines to do
so.
(Bold italics in original.)
The circuit court's label of a finding of fact or a
conclusion of law does not determine the standard of review. See
Crosby v. State Dep't of Budget & Fin., 76 Hawai#i 332, 340, 876
P.2d 1300, 1308 (1994). The question whether an agency's
determination is a finding of fact or a conclusion of law is a
question of law; thus, the accuracy of the label affixed by the
agency is freely reviewable. Kilauea Neighborhood Ass'n v. Land
Use Comm'n, 7 Haw. App. 227, 229, 751 P.2d 1031, 1034 (1988)
(citation omitted).
Conclusion of law (COL) no. 19 was actually a finding
of fact. It was erroneous. Pladera did challenge the
constitutionality of MPD's PRS-PC. His "Opening Brief in Support
of Appeal" filed with the Commission argued:
The unfettered discretion permitting the Chief to ignore the
entire PRB process exceeds the limitations [of] the Hawai#i
Constitution, HRS Chapter 76 and Maui Civil Service rules,
as well as G.O. 202.8 itself, mandating a merit based
selection process. Thus, G.O. 202.8 is ultra vires, denied
Pladera Due Process and is void.
The Commission found:
77. The Commission finds the MPD Promotional Review
System is merit based, and not subjective.
The Commission did not specifically conclude whether MPD's PRS-PC
violated the Hawai#i Constitution — facially or in its
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application to Pladera — or HRS § 76-1. Nor could it. See HOH
Corp. v. Motor Vehicle Licensing Bd., 69 Haw. 135, 143, 736 P.2d
1271, 1276 (1987) ("The administrative agency is not empowered to
pass on the validity of the statute; nor is it qualified to
adjudicate the propriety of its own action.").
COL no. 20 was not wrong. The circuit court concluded
"that HRS § 91-14 grants it the ability to review the
constitutionality of actions taken by the Commission[.]" HRS
§ 91-14 "allows a circuit court, [u]pon review of the record
. . . [to] reverse or modify the decision and order [of the
agency] if the substantial rights of the [appellant] may have
been prejudiced because the administrative findings, conclusions,
decisions, or orders, are . . . [i]n violation of constitutional
. . . provisions[.]" HOH Corp., 69 Haw. at 142, 736 P.2d at 1275
(citing HRS § 91-14(g)(1)) (alterations in original) (original
italics omitted) (emphasis added).
Pladera contends that the doctrine of primary
jurisdiction applies. It does not. "Primary jurisdiction . . .
applies when the circuit court and an administrative agency both
possess original jurisdiction over the same claim." State v.
Nakanelua, 134 Hawai#i 489, 512, 345 P.3d 155, 178 (2015). The
Commission did not possess original jurisdiction over Pladera's
claim that MPD's PRS-PC was unconstitutional. See HOH Corp., 69
Haw. at 141, 736 P.2d at 1275 (noting that an administrative
agency "generally lacks power to pass upon constitutionality of a
statute. The law has long been clear that agencies may not
nullify statutes.").
But that does not mean that the circuit court lacked
authority to rule on Pladera's contention that MPD's PRS-PC was
unconstitutional. In HOH Corp., HOH was a distributor of Honda
vehicles. The Motor Vehicle Industry Licensing Board fined HOH
for violating a statute concerning cancellation or non-renewal of
dealership franchise agreements. HOH appealed, denying any
statutory violation and asserting, for the first time, that the
statute authorizing the fine was unconstitutional. In response,
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the state Department of Commerce and Consumer Affairs (DCCA)
argued that HOH's failure to raise the constitutional issues
before the Board precluded the circuit court from considering the
issue on appeal. The circuit court agreed with the DCCA,
recognizing "that judicial review of the agency determination
should be 'confined to issues properly raised in the record of
the administrative proceedings below.'" HOH Corp., 150 Hawai#i
at 140, 736 P.2d at 1274. Because "the constitutional issues
were not matters of record, the [circuit] court affirmed the
Board's decision and order without passing on them." Id.
HOH filed a secondary appeal. The supreme court
stated:
We cannot fault the circuit court's declaration that
"[t]he Board [was] not empowered to adjudicate the
constitutionality of its governing statute[.]" . . . .
Nor do we have reason to question the pronouncement
that judicial review of an agency determination must be
"confined to issues properly raised in the record of the
administrative proceedings below." For under the Hawaii
Administrative Procedure Act, "[t]he review [is] conducted
by the appropriate court without a jury and [is] confined to
the record[.]" HRS § 91–14(f). Still, it does not
necessarily follow that the constitutional issues posed by
the motor vehicle distributor were not cognizable by the
circuit court.
. . . .
The "delicate and difficult office [of ascertaining]
whether . . . legislation is in accordance with, or in
contravention of, [constitutional] provisions" is confided
to the courts. United States v. Butler, 297 U.S. 1, 63, 56
S.Ct. 312, 318, 80 L.Ed. 477 (1936).
HOH Corp., 69 Haw. at 141-42, 736 P.2d at 1275 (emphasis added).
The supreme court noted that HOH had requested
constitutional relief as part of its HRS § 91-14 appeal to the
circuit court. The supreme court held:
That the request was coupled with another for relief
expressly authorized by HRS § 91–14 should not preclude the
circuit court from considering the request and affording
redress or relief if warranted. . . .
[HOH]'s decision to challenge the statute's facial
validity at the same time it challenged the administrative
action promoted the judicious use of scarce judicial
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resources. Moreover, the possibility of constitutional
questions being decided in a vacuum was extinguished
thereby. Though we recognize the agency decision will
rarely aid in the ultimate judicial resolution of a
challenge of the law as written, there are cases where even
this question will be better framed by the structure of a
factual context [as determined by the agency].
HOH Corp., 69 Haw. at 143, 736 P.2d at 1276 (cleaned up). The
supreme court remanded the case to the circuit court for
determination of HOH's challenge to the constitutionality of the
statute.
HRS § 91-7 (2012 & Supp. 2017) may be pertinent to this
appeal.6 It provides:
Declaratory judgment on validity of rules. (a) Any
interested person may obtain a judicial declaration as to
the validity of an agency rule as provided in subsection (b)
by bringing an action against the agency in the circuit
court or, if applicable, the environmental court, of the
county in which the petitioner resides or has its principal
place of business. The action may be maintained whether or
not the petitioner has first requested the agency to pass
upon the validity of the rule in question.
(b) The court shall declare the rule invalid if it
finds that it violates constitutional or statutory
provisions, or exceeds the statutory authority of the
agency, or was adopted without compliance with statutory
rulemaking procedures.
Under the supreme court's reasoning in HOH Corp., the
circuit court in this case could have decided Pladera's challenge
to the constitutionality of MPD's PRS-PC. We remand for the
circuit court to do so. We express no opinion on the merits of
any aspect of Pladera's challenge. As explained in the following
paragraphs, however, we affirm the remainder of the circuit
court's Judgment, and the Commission's March 1, 2017 Findings of
Fact, Conclusions of Law, and Order Denying Petition of Appeal.
B. Pladera argues that the Commission erred by not
making individual rulings on each of his lengthy proposed
6
We express no opinion on whether MPD's PRS-PC is an "agency rule"
within the ambit of HRS § 91-7.
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findings of fact and conclusions of law.7 A separate ruling on
each of Pladera's proposed findings and conclusions was not
required. See In re Terminal Transp., Inc., 54 Haw. 134, 139,
504 P.2d 1214, 1217 (1972). "All that is required is that the
agency incorporate its findings and rulings in its decision[,]"
and to "make its findings and rulings reasonably clear."
Survivors of Timothy Freitas, Dec. v. Pac. Contractors Co., 1
Haw. App. 77, 84, 613 P.2d 927, 932 (1980).
Pladera argues that the Commission erred by granting
MPD's motion to strike portions of his position statement and
exhibits. The Commission's Rules authorize it to rule on
objections, motions, and offers of proof, and to receive relevant
evidence, limit lines of questioning that are irrelevant,
immaterial, or repetitious, and take other actions deemed
necessary to the orderly and just conduct of the hearing, among
other things. RCSC § 11-102-39(i); see also HRS § 91-10(1)
(2012) (authorizing agency to exclude "irrelevant, immaterial, or
unduly repetitious evidence"). "Although the parties have the
right to present evidence, cross-examine opposing evidence, and
submit rebuttal evidence, considerations of relevancy,
materiality, and repetition limit the presentation of evidence in
contested case proceedings." In re Application of Maui Elec.
Co., 141 Hawai#i 249, 269, 408 P.3d 1, 21 (2017) (cleaned up).
The Commission "has the authority to set limitations in
conducting the proceedings so long as the procedures sufficiently
afford an opportunity to be heard at a meaningful time and in a
meaningful manner[.]" Id. at 270, 408 P.3d at 22. The evidence
excluded by the Commission concerned alleged misconduct by PRB
members during a subsequent recruitment for police captain that
was not the subject of Pladera's appeal. We conclude that the
Commission did not abuse its discretion by excluding evidence
pertaining to a subsequent recruitment for police captain that
was not the subject of Pladera's appeal.
7
Pladera submitted 105 proposed findings of fact and 55 proposed
conclusions of law.
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Pladera argues that the Commission erred by refusing to
allow him to make an offer of proof about the excluded evidence.
He represents that the excluded evidence would have shown "that
three of the PRB members acted arbitrarily and disregarded the
mandates of MPD 1998 PRS-PC in their scoring" of Pladera in a
subsequent recruitment for police captain after Pladera was not
selected for the three captain positions at issue in this appeal.
We conclude that the Commission did not abuse its discretion by
rejecting Pladera's offer of proof, because evidence that PRB
members may have acted arbitrarily in a subsequent recruitment is
not relevant to whether they did so in the recruitment at issue
in this appeal. State v. Ortiz, 93 Hawai#i 399, 408, 4 P.3d 533,
542 (App. 2000) ("Events occurring after a contested event are
generally not relevant.") (citation omitted); cf. In re Est. of
Herbert, 90 Hawai#i 443, 463, 979 P.2d 39, 59 (1999) ("[E]vidence
of facts which occur after the testator's death is ordinarily
inadmissible on the issue of undue influence.").
Pladera next argues that the Commission "manipulated
the evidence, allowing hearing by ambush through the untimely
admission of [MPD]'s Exhibits 34-36, in direct violation of its
pre-hearing order setting a deadline of October 5, 2016, for such
filings." Pladera received the exhibits in question three days
before the hearing. We conclude that the Commission did not
abuse its discretion by admitting the three exhibits, because
Pladera was given a reasonable opportunity to respond to the
evidence. See In re Maui Elec. Co., 141 Hawai#i at 270, 408 P.3d
at 22.
C. Pladera argues that the PRS-PC was not properly
adopted by MPD. He challenges the Commission's finding of fact
(FOF) nos. 20, 31, and 32.
The Commission found:
20. Although the entirety of the PRS-PC is not
contained in G.O. 202.8, the Commission finds that G.O.
202.8 incorporates the same criteria utilized to assess and
score Police Captain candidates as set forth in the PRS-PC.
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. . . .
31. In 1998, changes were made to G.O. 202.8
pertaining to promotions for Captain and Inspector
(Assistant Chief). Change Notice No. 68 was issued in
conformity with G.O. 102.2, indicating the changes in the
percentages for the Merit Standards for both Captain and
Inspectors (Assistant Chief) promotions. The issuance of
Change Notice No. 68 confirmed the adoption of the 1998
PRS-PC (revising the percentages for the Merit Standards).
Change Notice No. 68 was effective November 1, 1998.
32. The Commission finds there is a presumption that
changes to the percentages for the Merit Standards in the
1998 PRS-PC were revised as required by G.O. 102.2,
otherwise Change Notice No. 68 would not have been issued.
(Footnotes omitted.)
FOF no. 20 is supported by substantial evidence in the
record. It is not clearly erroneous.
FOF nos. 31 and 32 are combined findings of fact and
conclusions of law. They are supported by substantial evidence
in the record and were within the specialized competence of the
Commission. We conclude that the Commission did not abuse its
discretion by making or entering the combined findings and
conclusions.
D. Pladera argues that the PRS-PC was not "merit
based." He challenges the Commission's FOF nos. 12, 13, 14, 45,
and footnote 26.
The Commission found:
12. The establishment of scoring standards for
Police Captain includes assigning 50% weight to Merit
Standards and 50% weight to evaluation by the PRB. These
comprised the total score for Police Captain. The ratings
of these evaluation segments are equally weighted and
consolidated to produce a total rating for each applicant.
13. The Merit Standards utilized for Police Captain
include the following categories and respective percentages:
Conduct and Disciplinary Record - 2.5%; Performance
Appraisal Rating - 5.0%; Work Experience Record - 5.0%; Oral
Review Board Rating - 30%; Seniority - 5.0%; Education and
Training - 2.5%.
14. As to the Conduct and Disciplinary Record
category, the Promotional Review System provides the review
period for this category consists of the past 3 years. This
3 year time period is consistent with the SHOPO (State of
Hawaii Organization of Police Officers) collective
bargaining agreement.
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. . . .
45. The PRB was provided instructions and blank
rating sheets to utilize in the interview. Additionally,
the PRB was provided with copies of each candidate's
performance evaluation. The PRB evaluation portion is worth
50% of the total score.
. . . .
26
The Oral Review Board is comprised of the same
panel as the PRB. All candidates were interviewed
only once. The Oral Review Board rating is derived
from the same interview as the interview for the PRB
evaluation.
These findings of fact are supported by substantial
evidence in the record and are not clearly erroneous. Pladera's
argument that they are actually conclusions of law "couched as"
findings of fact is without merit.
E. Pladera argues that the Commission erroneously
ignored the other candidates' disciplinary history. He
challenges FOF nos. 14, 80, and 83.
The Commission found:
14. As to the Conduct and Disciplinary Record
category, the Promotional Review System provides the review
period for this category consists of the past 3 years. This
3 year time period is consistent with the SHOPO (State of
Hawaii Organization of Police Officers) collective
bargaining agreement.
. . . .
80. The Commission finds that whether or not
[Pladera] was subject to discipline while employed with the
MPD, unlike [the three lieutenants selected for captain], is
immaterial and not relevant because the prior discipline
imposed on [the three lieutenants selected for captain]
occurred outside of the 3 year review period as stated in
the 1998 PRS-PC.
. . . .
83. The Commission finds the PRB was not under any
mandate to consider the candidates' disciplinary history,
although the PRB had the discretion to consider prior
discipline, even if it occurred beyond the 3 year review
period.
These findings of fact are supported by substantial
evidence in the record and are not clearly erroneous. The PRS-PC
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states: "The review period consists of the past 3 years."
Pladera cites to no authority that requires the PRB review any
candidate's disciplinary history beyond the three-year period
specified by the PRS-PC.
CONCLUSION
For the foregoing reasons, we remand to the circuit
court for consideration of Pladera's challenge to the
constitutionality of MPD's PRS-PC, without expressing any opinion
on the merits of Pladera's challenge. In all other aspects, the
circuit court's Judgment, and the Commission's "Findings of Fact,
Conclusions of Law, and Order Denying [Pladera]'s Petition of
Appeal[,]" are affirmed.
DATED: Honolulu, Hawai#i, March 24, 2023.
On the briefs:
/s/ Keith K. Hiraoka
Carl M. Varady, Presiding Judge
for Petitioner-Appellant-
Appellant. /s/ Karen T. Nakasone
Associate Judge
James E. Halvorson,
Claire W.S. Chinn, /s/ Sonja M.P. McCullen
Deputy Attorneys General, Associate Judge
State of Hawai#i,
for Agency-Appellee-Appellee
Maui County Civil Service
Commission.
Thomas Kolbe,
Deputy Corporation Counsel,
for Respondents-Appellees-
Appellees County of Maui and
Maui County Police Department.
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