SHOPO v. HLRB

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-DEC-2023
07:59 AM
Dkt. 86 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAII ORGANIZATION OF POLICE OFFICERS (SHOPO),
Complainant-Appellant-Appellant,
v.
HAWAI#I LABOR RELATIONS BOARD; MARCUS R. OSHIRO; SESNITA A.D.
MOEPONO; and STACY MONIZ,1 Agency-Appellees-Appellees,
and
ARTHUR "JOE" LOGAN, CHIEF OF POLICE OF THE HONOLULU POLICE
DEPARTMENT, CITY AND COUNTY OF HONOLULU,
Respondents-Appellees-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC191000270)

MEMORANDUM OPINION
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)

The State of Hawaii Organization of Police Officers
(SHOPO) filed a Prohibited Practices Complaint against Susan
Ballard (in her official capacity as chief of the Honolulu Police
Department)2 and the City and County of Honolulu with the Hawai#i

1
Under Hawai#i Rules of Appellate Procedure (HRAP) Rule 43(c), a
public officer named in a case is automatically substituted by the officer's
successor when the holder of the office ceases to hold office on appeal.
Accordingly, Hawai#i Labor Relations Board Employer member Stacy Moniz has
been substituted for former HLRB member J.N. Musto.
2
Official-capacity suits are a way of pleading an action against
the entity of which the officer is an agent. See Kentucky v. Graham, 473 U.S.
159, 165-66, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). Ballard and the City
and County of Honolulu will collectively be referred to as the "City." The
(continued...)
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Labor Relations Board (HLRB or Board). HLRB granted the City's
motion for judgment on partial findings. SHOPO appealed to the
Circuit Court of the First Circuit.3 The circuit court affirmed
HLRB. SHOPO filed this secondary appeal.4 We affirm.

I. BACKGROUND

Ballard was sworn in as chief of the Honolulu Police
Department (HPD) on November 1, 2017. On November 3, 2017, all
three members of HPD's Peer Support Unit were notified they were
being assigned to different units. Sergeant Tenari Ma#afala
(supervising the unit as acting lieutenant) was reassigned to
District 6 (Waikīkī); Officer Don Faumuina was reassigned to
District 1 (Honolulu); and Sergeant Michael Tamashiro was
reassigned to the Criminal Investigative Division (detectives).
Ballard transferred command of the Peer Support Unit from the
Chief's Office to the Community Affairs Division. Full-time
staffing for the Peer Support Unit was eliminated; the commander
of the Community Affairs Division was to contact unit volunteers
or police chaplains to respond to critical incidents.
Later in November, Chief Ballard reassigned ten
officers from the Criminal Intelligence Unit,5 replaced them with
other officers, and renamed it the Intelligence Enforcement Unit.
Among those assigned out of the unit were Sergeant Malcolm Lutu,
who was reassigned to the Criminal Investigative Division; and
Lieutenant Michael Cusumano, who was reassigned to the Central
Receiving Desk.

2
(...continued)
current chief of the Honolulu Police Department, Arthur "Joe" Logan, has been
automatically substituted as Respondent-Appellee-Appellee in place of Susan
Ballard under HRAP Rule 43(c)(1).
3
The Honorable James H. Ashford presided.
4
HLRB, a nominal appellee, did not participate in briefing.
5
The Criminal Intelligence Unit, part of the Chief's Office, had
come under public scrutiny because of the federal indictment of former chief
Louis Kealoha and some members of the unit. See City & Cnty. of Honolulu v.
Honolulu Police Comm'n, 152 Hawai#i 268, 526 P.3d 245 (2023).

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Each of the reassigned police officers was a member of
collective bargaining Unit 12, under Hawaii Revised Statutes
(HRS) § 89-6(a)(12). Each officer was also a SHOPO official.
SHOPO is the HRS § 89-8 certified exclusive collective bargaining
representative for police officers who are members of Unit 12.
Ma#afala was SHOPO's president; Lutu was vice president; Cusumano
was secretary; Faumuina was a director; and Tamashiro was the
elections officer.
On December 22, 2017, Civil Beat published an article
written by Nick Grube titled New Police Chief Reassigns Union
President To Patrol Shift. The article contained several
statements about Ma#afala and the Peer Support Unit, attributed
to Ballard. By letter to Ballard dated January 11, 2018, SHOPO
executive director Russell Akana addressed what he described as
"false statements, misrepresentations and inaccuracies that were
attributed to" Ballard in the article. Akana wrote:

If you believe your statements were taken out of
context or inaccurately reported, please tell us and explain
as we are more than willing to give you the benefit of the
doubt. However, if what was reported and attributed to you
was accurate, then given the current situation, SHOPO is
willing to give you the opportunity to publicly retract your
statements that appear in Civil Beat's 12/22/17 article, in
addition to issuing a public written apology to SHOPO and
Sergeant Ma#afala including a statement that the allegations
noted above were not true. If you comply, SHOPO and its
President will consider the matter resolved and will give
you until the close of business on Tuesday, January 16,
2018, after which SHOPO will assume you have no interest in
retracting your statements or correcting the record. If
that ends up being the case, SHOPO and its President will
have no choice but to pursue its legal options including the
filing of a Prohibited Practice Complaint against you and
the City and County of Honolulu, and seek other civil
remedies that may be available.

Ballard responded by letter dated January 18, 2018:

It is regrettable that Sergeant Tenari Maafala [sic] was
offended by the article and the characterizations made by
its author, Mr. Nick Grube. Indeed, it was not my intention
to offend nor demean Sergeant Maafala [sic] when I was being
interviewed. My comments were focused on my background with
and vision for the Peer Support Unit and that Mr. Grube
chose to write his article the way he did was not within my
control.

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On February 5, 2018, SHOPO filed the Prohibited
Practices Complaint with HLRB. The complaint alleged that in
November 2017, the SHOPO officials were reassigned within HPD in
violation of HRS § 89-13(a)(1)-(5), (7), and (8),6 and the
Unit 12 collective bargaining agreement (CBA). The complaint
also alleged that the City violated Ma#afala's privacy rights.
SHOPO sought the following relief:

a. That an order issue from the Board finding that
Respondents have committed a prohibited practice
pursuant to HRS §[]89-13(a)(l)-(5), (7) and (8);

b. That an order issue from the Board finding that
Respondents have violated SHOPO's President's privacy
rights;

c. That an order issue from the Board directing

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HRS § 89-13 (2012) provides, in relevant part:

(a) It shall be a prohibited practice for a public
employer or its designated representative wilfully to:

(1) Interfere, restrain, or coerce any employee in
the exercise of any right guaranteed under this
chapter;

(2) Dominate, interfere, or assist in the formation,
existence, or administration of any employee
organization;

(3) Discriminate in regard to hiring, tenure, or any
term or condition of employment to encourage or
discourage membership in any employee
organization;

(4) Discharge or otherwise discriminate against an
employee because the employee has signed or
filed an affidavit, petition, or complaint or
given any information or testimony under this
chapter, or because the employee has informed,
joined, or chosen to be represented by any
employee organization;

(5) Refuse to bargain collectively in good faith
with the exclusive representative as required in
section 89-9;

. . . .

(7) Refuse or fail to comply with any provision of
this chapter; [or]
(8) Violate the terms of a collective bargaining
agreement[.]

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Respondents to post for publication, in all locations
where SHOPO members may review and gather, for 60
days, the decision of the Board finding that
Respondent Ballard committed a prohibited practice as
aforesaid, with proof of compliance being made to the
Board and SHOPO;

d. That an order issue from the Board directing
Respondents to publish a public apology to SHOPO and
SHOPO President Ma#afala for the untrue and defamatory
statements made to Civil Beat;
e. A cease and desist order prohibiting continuing
violations of HRS §[]89-13(a)(l)-(5), (7) and (8);
f. That an order issue from the Board ordering
Respondents to pay civil penalties of $10,000.00 per
violation for willfully committing prohibited
practices under HRS §[]89-13(a)(l)-(5), (7) and (8);
g. Interlocutory relief prohibiting continuing violations
by the Respondents of the contractual rights of the
public employees of BU-12, and the retrieval of the
disclosed information by the Respondents from the
recipients of the confidential information;

h. That an order issue from the Board against the
Respondents enjoining them from harassing,
discriminating and retaliating against SHOPO and its
officers and members;

i. Make whole relief including, but not limited to, all
costs and all reasonable attorney's fees incurred by
SHOPO in bringing and prosecuting this prohibited
practice complaint before the Board;

j. That an Order issue from the Board against
Respondents, and each of them, for such other and
further relief as the Board deems appropriate and
proper.

HLRB conducted a prehearing conference on March 1,
2018. HLRB concluded it didn't have jurisdiction over SHOPO's
HRS § 89-13(a)(8) claim that the City violated the Unit 12 CBA.
That claim was dismissed.
HLRB conducted an evidentiary hearing on the remaining
claims on March 16, 2018. SHOPO called Ballard and Ma#afala as
witnesses, then rested. The City orally moved to dismiss SHOPO's
claims. HLRB recessed the hearing and set deadlines for filing a
written motion and a memorandum in opposition.
The City moved for judgment on partial findings.
SHOPO filed a timely memorandum in opposition. HLRB entered its

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"Order Granting [the City's] Motion for Judgment on Partial
Findings Against [SHOPO]" on January 17, 2019.
SHOPO appealed to the circuit court. Oral argument was
held. The circuit court affirmed HLRB's Order. A written order
was entered on August 29, 2019. The Judgment was entered on
September 11, 2019.
This appeal followed.

II. STANDARD OF REVIEW

We review the circuit court's decision on SHOPO's
agency appeal as a secondary appeal; we must determine whether
the circuit court was right or wrong in its decision, applying
the standards in HRS § 91–14(g) to HLRB's decision. Flores v.
Bd. of Land & Nat. Res., 143 Hawai#i 114, 120, 424 P.3d 469, 475
(2018).
HRS § 91–14(g) (Supp. 2018) provides:

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.

"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 sub-

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section (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) (citation omitted).

An agency's findings are not clearly erroneous and
will be upheld if supported by reliable, probative and
substantial evidence unless the reviewing court is left with
a firm and definite conviction that a mistake has been made.
Conclusions of law are freely reviewable under a
right/wrong standard.

Poe v. Haw. Lab. Rels. Bd., 105 Hawai#i 97, 100, 94 P.3d 652, 655
(2004) (cleaned up). The "court reviewing an agency's decision
cannot consider the weight of the evidence to ascertain whether
it weighs in favor of the administrative findings, or review the
agency's findings of fact by passing upon the credibility of
witnesses or conflicts in testimony, especially the finding of an
expert agency in dealing with a specialized field." Sierra Club
v. D.R. Horton-Schuler Homes, LLC, 136 Hawai#i 505, 522, 364 P.3d
213, 230 (2015) (cleaned up). When "mixed questions of fact and
law are presented, deference will be given to the agency's
expertise and experience in the particular field and the court
should not substitute its own judgment for that of the agency."
Dole Haw. Div.-Castle & Cooke, Inc. v. Ramil, 71 Haw. 419, 424,
794 P.2d 1115, 1118 (1990) (citation omitted).

III. DISCUSSION

We address SHOPO's points of error in the order raised
in SHOPO's opening brief.

(A) SHOPO contends that the circuit court:

(1) Erroneously interpreted and applied the Hawai#i
Supreme Court's decisions in HGEA v. Casupang, 116
Haw. 73, 99, 170 P.3d 324, 350 (2007) and Aio v.
Hamada, 66 Haw. 401, 410, 664 P.2d 727, 734 (1983) and
therefore, failed to find that the [HLRB] erroneously
interpreted, amended and exceeded its authority by
concluding that willfulness cannot be presumed or
inferred when an employer engages in conduct
reasonably tending to interfere with the free exercise

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of employee rights, or when the "natural consequence"
of the Employer's conduct leads to a reasonable
conclusion that HRS §[]89-13 was violated. . . .

(2) Erred by not finding that the HLRB violated Board
precedent, the doctrine of stare decisis, and SHOPO's
due process and equal protection rights by rejecting
the "natural consequence" standard and indirect and
circumstantial evidence, which it previously applied
for decades when determining whether a respondent
willfully committed a prohibited practice.

Amicus curiae University of Hawaii Professional Assembly (UHPA)
filed a brief on this issue supporting SHOPO's position.
HRS § 89-13(a) (2012) prohibits a public employer from
"wilfully" engaging in the practices enumerated in the statute.
SHOPO argues that for years, HLRB has applied a "natural
consequences" standard for determining willfulness under HRS
§ 89-13(a). HLRB's Order acknowledged this, but concluded:

[SHOPO] cites to a definition of wilfullness used by
prior Boards, namely that wilfullness can be presumed if a
violation occurs as a "natural consequence" of a party's
action. See e.g., Okuma-Sepe, 6 HLRB at 385 (citing United
Public Workers, AFSCME, Local 646, AFL-CIO, Decision No.
374, 5 HLRB 570, 583 (1996)). However, the [Hawai#i
Supreme] Court has confirmed that the appropriate criteria
for determining wilfullness is a showing that there was a
"conscious, knowing, and deliberate intent to violate the
provisions of HRS chapter 89." HGEA v. Casupang, 116 Haw.
73, 99, 170 P.3d 324, 350 (2007) (Casupang) (citing Aio v.
Hamada, 66 Haw. 401, 410, 664 P.2d 727, 734 (1983)).

The Board has tended to follow the Court's guidance in
this matter, following Casupang's definition of wilfullness
in subsequent cases. See e.g., Hawaii State Teacher's Ass'n
v. Board of Education, Board Case No. CE-05-672, Order No.
2541 at *11 (August 6, 2008); United Public Workers, AFSCME
Local 646, AFL-CIO v. Char, Board Case No. CE-10-744, Order
No. 2697 at *12-13 (April 12, 2010). Although the Board
recognizes the "natural consequence" standard was previously
used, the Board finds that it is inconsistent with the
Court's "conscious, knowing and deliberate intent" standard
and thus defers to the Court's rulings.

(Emphasis added.)
In Aio v. Hamada, 66 Haw. 401, 664 P.2d 727 (1983),
HLRB's predecessor, the Hawaii Public Employment Relations Board
(HPERB), ruled "that to make out a prohibited practice under
Subsection 89–13(b), HRS, conscious, knowing, and deliberate
intent to violate the provisions of chapter 89, HRS, must be

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proven." Id. at 409-10, 664 P.2d at 732-33. The 13 public
school teachers who had filed prohibited practice complaints
appealed. The circuit court affirmed. The teachers filed a
secondary appeal. The supreme court noted that the legislative
history of HRS § 89-13 "is devoid of any reference" to what
"wilfully" was intended to mean. Id. at 409, 664 P.2d at 732.
It rejected the argument that "wilfully" meant "an act committed
'voluntarily' and 'with plain indifference' to the law[.]" Id.
at 410, 664 P.2d at 733. It held that HPERB's interpretation was
correct. Id.
The supreme court repeated the "conscious, knowing, and
deliberate intent to violate" standard in In re Hawai#i
Government Employees Association, AFSCME, Local 152, 116 Hawai#i
73, 170 P.3d 324 (2007) (Casupang). Id. at 99, 170 P.3d at 350
(citing Aio, 66 Haw. at 410, 664 P.2d at 734). In that case, the
Hawai#i Government Employees Association (HGEA) filed a
prohibited practice complaint against the State for removing
election campaign material from a State bulletin board. The
State claimed to have removed the material in reliance on
guidance from the state ethics commission. HLRB dismissed the
complaint. HGEA appealed. The circuit court affirmed. HGEA
filed a secondary appeal. It was transferred to the supreme
court. The supreme court stated:

[T]o reiterate, it is "a prohibited practice for a public
employer or its designated representative wilfully to"
engage in an act enumerated in HRS § 89–13. With respect to
HRS chapter 89, this court has said that "wilfully" means
"conscious, knowing, and deliberate intent to violate the
provisions of HRS chapter 89." Aio v. Hamada, 66 Haw. 401,
410, 664 P.2d 727, 734 (1983). Thus, in assessing a
violation of HRS § 89–13, the Board was required to
determine whether Respondents acted with the "conscious,
knowing, and deliberate intent to violate the provisions" of
HRS chapter 89 when it removed the campaign materials.
Respondents assert that they did not act wilfully, but acted
to comply with the Ethics Code.

Id. at 99, 170 P.3d at 350 (emphasis added). The supreme court
held that "the finding of the Ethics Code violation provided a
basis for dismissal of the prohibited practice complaint inasmuch

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as it negated the 'willfully' mental state which is required
under HRS § 89–13." Id. at 101, 170 P.3d at 352.
SHOPO and UHPA argue that the supreme court referred to
the definition of willful in Black's Law Dictionary — which
includes "with indifference to the natural consequences" among
other descriptors — in Iddings v. Mee-Lee, 82 Hawai#i 1, 7, 919
P.2d 263, 269 (1996) (quoting Willful, Black's Law Dictionary, at
1599 (6th ed. 1990)) and Marshall v. Univ. of Haw., 9 Haw. App.
21, 36 n.18, 821 P.2d 937, 946 n.18 (1991) (quoting Willful,
Black's Law Dictionary, at 1434 (5th ed. 1979)), abrogated on
other grounds by Hac v. Univ. of Haw., 102 Hawai#i 92, 73 P.3d 46
(2003). Those cases address the phrase "willful and wanton
misconduct" as used in the HRS § 386-8 exception to the Hawai#i
Workers Compensation Law's exclusive remedy provision. Aio and
Casupang specifically address the term "willfully" as used in HRS
§ 89-13.
SHOPO and UHPA cite footnote 8 of Aio to support its
argument that "willfull" should mean "indifference to the natural
consequences." Footnote 8 quotes the definition of the word
"willful" in Black's Law Dictionary (5th ed. 1979) upon which
HPERB relied in its decision. Id. at 409-10, 409 n.8, 664 P.2d
at 732-33, 732 n.8 (quoting Willful, Black's Law Dictionary, at
1434 (5th ed. 1979)). The supreme court noted that "[w]illful is
a word of many meanings, its construction often influenced by its
context." Id. (citation omitted). In affirming HPERB's
decision, the supreme court stated:

Turning to appellants' assertion that HPERB incorrectly
interpreted "wilfully" as it is employed in HRS § 89–13(b),
we observe at the outset that the related legislative
history is devoid of any reference thereto. HPERB thus
logically sought aid from a dictionary, and relying on the
discussion of the pertinent term in Black's Law Dictionary,8
ruled "that to make out a prohibited practice under
Subsection 89–13(b), HRS, conscious, knowing, and deliberate
intent to violate the provisions of chapter 89, HRS, must be
proven." We have no reason to reject the construction.

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Id. at 409-10, 664 P.2d at 732-33 (emphasis added). The supreme
court reaffirmed that construction in Casupang. 116 Hawai#i at
99, 170 P.3d at 350.
Aio and Casupang are binding on HLRB, the circuit
court, and this court. HLRB's application of the "conscious,
knowing, and deliberate intent" standard was not wrong. The
circuit court did not err by correctly applying Hawai#i Supreme
Court precedent.
As to SHOPO's argument that HLRB did not follow its own
precedent and the doctrine of stare decisis, the supreme court
has explained:

Precedent is an adjudged case or decision of a court,
considered as furnishing an example of authority for an
identical or similar case afterwards arising or a similar
question of law. The policy of courts to stand by precedent
and not to disturb settled points is referred to as the
doctrine of stare decisis, and operates as a principle of
self-restraint with respect to the overruling of prior
decisions. The benefit of stare decisis is that it
furnishes a clear guide for the conduct of individuals, to
enable them to plan their affairs with assurance against
untoward surprise; eliminates the need to relitigate every
relevant proposition in every case; and maintains public
faith in the judiciary as a source of impersonal and
reasoned judgments.

State v. Garcia, 96 Hawai#i 200, 205, 29 P.3d 919, 924 (2001)
(cleaned up) (emphasis added). HLRB, the circuit court, and this
court are bound by the supreme court's Aio and Casupang
decisions. SHOPO's argument that HLRB is bound by stare decisis
to follow its earlier decisions, even if contrary to later
Hawai#i Supreme Court precedent, is without merit.
SHOPO also argues that "HLRB violated SHOPO's due
process and equal protection rights[.]" "The basic elements of
procedural due process of law require notice and an opportunity
to be heard at a meaningful time and in a meaningful manner."
Alexander & Baldwin, LLC v. Armitage, 151 Hawai#i 37, 54, 508
P.3d 832, 849 (2022) (cleaned up). The record shows that SHOPO
received notice and a meaningful evidentiary hearing at a
meaningful time. SHOPO makes no other argument that it was

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deprived of equal protection under the law. Its due process and
equal protection rights arguments are without merit.

(B) SHOPO contends that the circuit court:

(3) Erred by not finding that the HLRB erroneously
interpreted and exceeded its authority by concluding
that it can write, create or delegate to itself the
authority to dismiss a prohibited practice complaint
under HRCP Rule 52(c) before the conclusion of the
hearing on the merits because "the Board rules are
silent or ambiguous on procedural matters[.]"

Rule 52 of the Hawai#i Rules of Civil Procedure (HRCP),
titled "Findings by the court[,]" provides:

(c) Judgment on partial findings. If during a trial
without a jury a party has been fully heard on an issue and
the court finds against the party on that issue, the court
may enter judgment as a matter of law against that party
with respect to a claim . . . that cannot under the
controlling law be maintained or defeated without a
favorable finding on that issue[.]

The HRCP "govern the procedure in the circuit courts of
the State in all suits of a civil nature[.]" HRCP Rule 1(a)
(emphasis added). We previously held that the HRCP "do not
govern agency proceedings, except through the proper adoption of
a rule or amendment authorized by law." Los Banos v. Haw. Lab.
Rels. Bd., No. CAAP-XX-XXXXXXX, 2019 WL 6248555, at *15 (Haw.
App. Nov. 22, 2019) (mem.) (citing HRS §§ 91-3 & 91-9), cert.
rejected, SCWC-XX-XXXXXXX, 2020 WL 1557277 (Haw. Apr. 1, 2020).
HLRB may "[c]onduct proceedings on complaints of
prohibited practices by employers . . . and take such actions
with respect thereto as it deems necessary and proper[.]" HRS
§ 89-5(i)(4) (2012). HLRB is also allowed to "[a]dopt rules
relative to the exercise of its powers and authority and to
govern the proceedings before it in accordance with chapter 91"
and to "[e]xecute all of its responsibilities in a timely manner

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so as to facilitate and expedite the resolution of issues before
it." HRS § 89-5(i)(9)-(10) (2012).7
Hawaii Administrative Rules (HAR) § 12-42-8 governs
proceedings before HLRB. The rule provides:

(g) Hearings:
. . . .

(3) Motions:
(A) All motions made during a hearing shall be made
part of the record of the proceedings.
(B) Motions to dismiss a case shall be filed at
least forty-eight hours before the time of
hearing of the case, and shall conform to the
requirements in section 12-42-8(g)(3)(C)[sic].

(C) All motions other than those made during a
hearing shall be subject to the following:

(i) Such motions shall be made in writing to the
board, shall briefly state the relief sought,
and shall be accompanied by affidavits or
memoranda setting forth the grounds upon which
they are based.

(ii) The moving party shall serve a copy of all
motion papers on all other parties and shall,
within three days thereafter, file with the
board the original and five copies with
certificate of service on all parties.

(iii) Answering affidavits, if any, shall be served on
all parties and the original and five copies,
with certificate of service on all parties,
shall be filed with the board within five days
after service of the motion papers, unless the
board directs otherwise.

. . . .
(16) The charging party, in asserting a violation of
chapter 89, HRS, or this chapter, shall have the
burden of proving the allegations by a preponderance
of the evidence.

SHOPO argues that HLRB "violated HAR § 12-42-8(g)(3)(B)
& (C) when it dismissed SHOPO's complaint halfway through the
hearing on the merits." The administrative rule requires that

7
The cited provisions were recodified as HRS § 89-5(i)(10) and (11)
in 2019. See 2019 Haw. Sess. Laws Act 231, § 1 at 667-68.

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"[m]otions to dismiss a case shall be filed at least forty-eight
hours before the time of hearing of the case[.]" The argument
mischaracterizes the nature of the City's motion. It was not a
motion to dismiss for failure to state a claim upon which relief
could be granted — for which HLRB would have to assume that the
facts alleged in SHOPO's complaint were true. It was like a
motion for directed verdict. It was made after SHOPO rested its
case-in-chief. It argued that SHOPO did not sustain its burden
of proof. It was made in writing. SHOPO filed a memorandum in
opposition. HLRB followed HAR § 12-42-8(g)(3)(A), which requires
that "motions made during a hearing shall be made part of the
record of the proceedings."
HAR § 12-42-8 is to be "liberally construed to
effectuate the purpose of chapter 89, HRS, and to secure the just
and speedy determination of every proceeding." HAR § 12-42-2
(eff. Feb. 6, 1981 - Oct. 21, 2022). "All irrelevant,
immaterial, or unduly repetitious evidence shall be excluded" by
HLRB. HAR § 12-42-8(g)(8)(B) (eff. Feb. 6, 1981 - Oct. 21,
2022).

[A] harmonious reading of [HLRB]'s rules permits [HLRB] to
hear motions akin to [an HRCP Rule 52(c) motion for judgment
on partial findings], so long as the party opposing the
motion is given a full and fair opportunity to be heard on
the motion after reasonable notice, and the rules applicable
to the Board are not otherwise violated.

Los Banos, 2019 WL 6248555, at *15. HLRB acted within its
statutory powers by considering and ruling on the City's motion.

(C) SHOPO contends that the circuit court:

(4) Erred by [not] finding that the [HLRB] erroneously
interpreted, amended and exceeded its authority by
concluding that it has no jurisdiction to decide and
apply the HPD's standards of conduct, policies,
supervisory principles, or the Uniform Information
Practices Act, even when they were intertwined and/or
related to a prohibited practice under HRS §[]89-13,
and therefore it erroneously ignored and rejected
critical evidence.

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HLRB's Order stated:

[T]he Board has no jurisdiction over the HPD's standards of
conduct, supervisory principles, or the Uniform Information
Practices Act ([UIPA]). . . . Therefore, alleged violations
of any of the listed items are not relevant to the Board's
decision.
. . . .

As for SHOPO's argument that Chief Ballard violated
the HPD Standards of Conduct, these Standards of Conduct do
not fall under the Board's Chapter 89 jurisdiction, which
focuses on collective bargaining. Thus, any alleged
violations of these standards cannot be considered by the
Board.

SHOPO relies on United Public Workers, AFSCME, Local
646 v. Abercrombie, 133 Hawai#i 188, 325 P.3d 600 (2014). In
that case, then-Governor Linda Lingle8 unilaterally planned to
furlough all state employees three days per month to avoid having
to lay off any employees. The United Public Workers (UPW) sued
to enjoin the furloughs (the Furlough Lawsuit). The circuit
court enjoined the furloughs. Various State employees were then
told they would be layed off. UPW responded by filing a
prohibited practices complaint with HLRB.
UPW also filed another lawsuit (the Retaliation
Lawsuit) alleging that its members were being layed off in
retaliation for UPW filing the Furlough Lawsuit, in violation of
the Hawai#i Whistleblowers' Protection Act, HRS Chapter 378
(HWPA). The circuit court dismissed the Retaliation Lawsuit. It
concluded that HLRB had exclusive original jurisdiction over
UPW's claims, and the circuit court could only review HLRB's
decision in its appellate capacity under HRS § 91-14. UPW
appealed. We vacated the circuit court's judgment and remanded
the case with instructions to stay the Retaliation Lawsuit under
the primary jurisdiction doctrine, so the parties could pursue
appropriate administrative remedies before HLRB. United Public

8
While the case was on appeal, Neil Abercrombie succeeded Lingle as
governor. Abercrombie was automatically substituted for Lingle under HRAP
Rule 43(c).

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Workers, AFSCME, Local 646 v. Lingle, No. CAAP–12–0000505, 2013
WL 3063803, at *5 (Haw. App. June 18, 2013) (mem.). UPW applied
for a writ of certiorari.
The supreme court noted that the Retaliation Lawsuit
was within the original jurisdiction of the circuit court. UPW
v. Abercrombie, 133 Hawai#i at 196, 325 P.3d at 608. However, if
the State retaliated against UPW members because UPW tried to
exercise its right to collectively bargain the furloughs, the
HWPA claim would also implicate collective bargaining rights
under HRS Chapter 89. Id. at 200, 325 P.3d at 612. The supreme
court held that "UPW's retaliation claims raise issues of public
employment policy that ought to be considered by the HLRB in the
interest of a uniform and expert administration of the regulatory
scheme laid down by HRS Chapter 89[,]" triggering the primary
jurisdiction doctrine. Id. at 200–01, 325 P.3d at 612–13
(emphasis added). The supreme court clarified:

The agency and the court need not have concurrent
jurisdiction over the claims, as long as the agency and the
court have concurrent jurisdiction over issues presented in
the claims. . . .
The retaliation allegations in UPW's complaint provide
a basis for both a prohibited practice claim and claims
under the HWPA . . . ; however, one issue is determinative
of all these claims, namely, whether [Lingle's] decision to
lay off government employees was motivated by the Furlough
Lawsuit. Thus, the question of whether Defendants violated
the HWPA . . . [is] inextricably intertwined with the
question of whether Defendants engaged in a[n] HRS
§ 89–13(a)(4) prohibited practice. Under these
circumstances, we conclude that the HLRB must be the first
to pass on the motivations for [Lingles's] decision to
implement the layoffs.

Id. at 201–02, 325 P.3d at 613–14 (emphasis added). Thus, UPW v.
Abercrombie does not stand for the proposition that HLRB has
jurisdiction to decide whether the City violated the UIPA. But
if conduct violating the UIPA (or HPD's standards of conduct)
could also be a prohibited practice under HRS § 89-13(a), HLRB
may consider the conduct to determine whether a prohibited
practice took place. To the extent HLRB ruled otherwise, its
ruling was erroneous.

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HLRB ruled on the City's motion for judgment on partial
findings after SHOPO concluded presentation of its case-in-chief.
SHOPO's opening brief on appeal does not explain how the evidence
presented to HLRB proved that Ballard's acts or omissions
violated UIPA or HPD's standards of conduct. SHOPO's reply brief
cites to a memo dated November 6, 2017, from then-acting deputy
chief William Axt informing Ma#afala that his special assignment
to the Peer Support Unit will end, he will be on special
assignment to District 6 "due to the rise in high profile
criminal activity[,]" and the Peer Support Unit will be
reassigned to the Community Affairs Division. But SHOPO doesn't
explain how the memo violated the UIPA or HPD's standards of
conduct. SHOPO also cites to Ballard's testimony about
transferring Ma#afala from the Peer Support Unit. SHOPO doesn't
explain how the testimony proves that Ballard violated the UIPA
or HPD's standards of conduct.
SHOPO cites no other evidence in the record of conduct
by Ballard that violated the UIPA or HPD's standards of conduct,
or argue why that conduct should have been found to constitute a
practice prohibited by HRS § 89-13(a). We also note that after
the proceedings below concluded, the supreme court held that the
UIPA provides no express or implied cause of action to prevent
disclosure of government records. State of Hawaii Organization
of Police Officers v. City & Cnty. of Honolulu, 149 Hawai#i 492,
506, 494 P.3d 1225, 1239 (2021).
On this record, HLRB's erroneous conclusion that it
lacked jurisdiction to consider the UIPA and HPD's standards of
conduct was harmless, because SHOPO did not establish that
Ballard or HPD violated the UIPA or HPD's standards of conduct.

(D) SHOPO contends that the circuit court:

(5) Erred by not finding that the HLRB erroneously
interpreted, amended and exceeded its authority by
concluding that SHOPO failed to exhaust its remedies
and thus cannot pursue an HRS §[]89-13(a)(8) claim,
and further erred in finding that this claim was not
properly before it.

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SHOPO's Prohibited Practices Complaint alleged that the
City violated Articles 4 (Discrimination), 7.D. (Transfer or
Reassignment of Union Officials), 13 (Discipline and Dismissal),
and 20 (Transfers) of the Unit 12 CBA. During a prehearing
conference, HLRB on its own dismissed SHOPO's HRS § 89-13(a)(8)
claim that the City violated the CBA, "based on SHOPO's failure
to exhaust its remedies under the Unit 12 collective bargaining
agreement[.]" SHOPO contends that HLRB erred by so doing.
The City contends that SHOPO's appeal on this issue is
untimely. The City cites HOH Corp. v. Motor Vehicle Indus.
Licensing Bd., 69 Haw. 135, 141, 736 P.2d 1271, 1275 (1987) in
support of its timeliness argument. The cited part of the
supreme court opinion does not address the timeliness issue.
Rather, it stands for the proposition that judicial review of an
agency determination must be "confined to issues properly raised
in the record of the administrative proceedings below." Id. The
transcript of the prehearing conference (during which SHOPO's HRS
§ 89-13(a)(8) claim was dismissed) is in the record on appeal.
HOH Corp. is inapposite.
HRS § 91-14(a) (2012) provides for appeals only from
final decisions and orders in a contested case. HLRB's dismissal
of one of SHOPO's claims during the prehearing conference was not
a final decision or order from which an appeal could be taken.
Nor was the interlocutory dismissal "a preliminary ruling of the
nature that deferral of review pending entry of a subsequent
final decision would deprive appellant of adequate relief[.]"
HRS § 91-14(a); see, e.g., Mitchell v. State, Dep't of Educ., 77
Hawai#i 305, 308, 884 P.2d 368, 371 (1994) (noting that appeal
would be allowed where agency's preliminary ruling "requires
immediate execution of a command that property be delivered to
the appellant's adversary, and the losing party would be
subjected to irreparable injury if appellate review had to wait
the final outcome of the litigation" (citing Penn v. Transp.

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Lease Haw., Ltd., 2 Haw. App. 272, 274, 630 P.2d 646, 649
(1981))). SHOPO's appeal from HLRB's dismissal of its HRS § 89-
13(a)(8) claim is not untimely.
HLRB members and SHOPO's counsel had this exchange
during the prehearing conference:

[HLRB]: . . . 89-13(a)(8) speaks specifically to
collective bargaining violations.
[SHOPO]: Right.
[HLRB]: And, you know, we don't have jurisdiction over
it unless the grievance process has been exhausted. So I
guess this would apply to all of your Article 13
[(discipline and dismissal)], Article 20 [(transfers)] --
that was more a definition -- but Article 4
[(discrimination)]. Are you alleging discrimination and
interference or both?

. . . .
[SHOPO]: Yes, both. And to be clear, we're not
seeking -- our individual officials are not seeking any
individual remedies that are available under this procedure.
They elected not to pursue that. So we are not pursuing any
remedies under breach for the individual members.

[HLRB]: So you have not filed a grievance?

[SHOPO]: . . . [T]he individual officials elected not
to. They don't want any remedies for themselves
individually. They don't want to be transferred back.
SHOPO is asserting these allegations and asserting that this
is a violation of Article 13.

Because, in general, what we allege happened has
caused a chilling effect on our members. Now they're scared
that they're going to assert or use their -- their rights
under Chapter 89 and the CBA, and they're going to be
retaliated against, they're going to be discriminated
against.
We're looking for an injunction and a declaratory
action or relief, finding that there was a violation [and]
ordering the chief of police to stop this. And with that,
we're hoping that the chilling effect will stop, and our
members won't have that fear of exercising their rights.
[HLRB]: Okay. So that really goes to probably our
[sic] 89-13(a)(1) to (4). . . .

. . . .

. . . The union on its own behalf has not filed a
union grievance saying that those provisions are being
violated by the employer and then proceeded to seek
resolution under the arbitration provision?

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[SHOPO]: Yes, that's correct.
. . . .

[HLRB]: Okay. I think, you know, we're -- under
[Poe], you know, you're -- you come here before us with an
(a)(8) that you have to have exhausted, your contractual
remedies, for you to prevail under (a)(8). In this
situation you folks didn't file a grievance. It's not going
through grievance.
So and just my opinion. I don't think we have
jurisdiction over any of your (a)(8) claims, okay. So your
(a)(1) through (4) and (5), you know, I think, just my
opinion, you know, you should be able to go forward with
that.
. . . .
. . . [T]he board has discussed whether or not we have
jurisdiction over complainant's 89-13(a)(8) claims. And
under [Poe] we believe we do not have jurisdiction. And
since it is a jurisdictional decision and we lack
jurisdiction over the (a)(8) claims, (indiscernible) dismiss
those claims, which the board has made a decision
unanimously to dismiss those (a)(8) claims. But we will go
forward with the hearing on the merits on the (a)(1) to (5)
and (7) claims, okay.

(Emphasis added.)
HLRB seems to have relied on Poe v. Haw. Lab. Rels.
Bd., 105 Hawai#i 97, 94 P.3d 652 (2004). Poe worked for the
State of Hawai#i. He was a member of bargaining Unit 3. He
filed five grievances against the State. He represented himself
through step 3 of the grievance procedure. In one grievance, he
asked HGEA to pursue a step 4 arbitration. HGEA declined because
it felt the grievance lacked merit. Poe did not ask HGEA to
arbitrate his other four grievances. Instead, he filed five
prohibited practices complaints against the State with HLRB.9
HLRB dismissed each complaint for failure to exhaust contractual
remedies. Poe appealed to the circuit court. The circuit court
consolidated the appeals and affirmed HLRB. Poe filed a
secondary appeal.

9
It does not appear that Poe alleged that HGEA breached its duty of
fair representation. HGEA was not named as a party in any of the underlying
cases.

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The supreme court recognized that an employee who is
prevented from exhausting their remedies under a collective
bargaining agreement may still sue the employer for breach of the
collective bargaining agreement "provided the employee can prove
that the union as bargaining agent breached its duty of fair
representation in its handling of the employee's grievance."
Poe, 105 Hawai#i at 103–04, 94 P.3d at 658–59 (citation
omitted).10 The supreme court determined that Poe did not show
that he was prevented from exhausting his contractual remedies
because he did not ask his union to arbitrate four of his
grievances. Id. at 104, 94 P.3d at 659. As to the fifth
grievance (which HGEA declined to arbitrate), Poe conceded that
he could not prove that HGEA breached its duty of fair
representation. The supreme court held that Poe lacked standing
to pursue his claim before the HLRB. Id.
SHOPO argues that its Prohibited Practices Complaint
"was filed by SHOPO and not by or on behalf of an individual
member under the CBA's grievance procedure." But the CBA's
grievance procedure also applies to "a complaint filed by . . .
the Union individually . . . alleging a violation,
misinterpretation or misapplication of a provision of this
Agreement[.]" SHOPO's claims that the City violated Articles 4,
7.D., 13, and 20 of the Unit 12 CBA were subject to the grievance
procedure in Article 32 of the Unit 12 CBA. SHOPO did not follow
the grievance procedure. Under Poe, SHOPO failed to exhaust its
remedies under the CBA, which it had to do to pursue its HRS
§ 89-13(a)(8) claim for violation of the CBA with HLRB.
SHOPO also argues that its Prohibited Practices
Complaint "requested relief that enforced its collective
bargaining rights under HRS § 89-13, and not remedies for any

10
We refer to this kind of action as a "hybrid action." Lee v.
United Public Workers, AFSCME, Local 646, 125 Hawai#i 317, 321, 260 P.3d 1135,
1139 (App. 2011).

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alleged per se violation of the CBA between SHOPO and
Respondents." This relief could be afforded under HRS § 89-
13(a)(2), (3), (4), (5), and (7), but not (8).
SHOPO then argues that it requested "declaratory and
injunctive relief for the benefit of all its members," not
personal remedies for individual employees under the CBA. In In
re United Public Workers, AFSCME, Local 646, 131 Hawai#i 142, 315
P.3d 768 (App. 2013), a labor union petitioned HLRB for a
declaration that public employers may not subpoena certain
records from the union because it would have a chilling effect on
the rights of public employees in violation of HRS § 89–3. The
State moved to dismiss for lack of jurisdiction. HLRB denied the
motion. HLRB issued a decision that included the requested
declaration. The State appealed. The circuit court "reversed
because the Board exceeded its authority." Id. at 149, 315 P.3d
at 775. The union filed a secondary appeal.
We noted that "HLRB's jurisdiction clearly extends to
determining whether, in a particular instance, specified employer
conduct constitutes a 'prohibited practice' under HRS § 89–13."
In re United Public Workers, 131 Hawai#i at 151, 315 P.3d at 777
(citing Fasi v. State Pub. Emp. Rels. Bd., 60 Haw. 436, 444-45,
591 P.2d 113, 118 (1979)). We also noted that HRS § 91-8 and HAR
§ 12-42-9 contemplated declaratory rulings by agencies such as
HLRB, id. at 150-51, 351 P.3d at 776-77, and that the supreme
court held that was so "even if the parties were required to
submit the question to arbitration[,]" id. at 151, 315 P.3d at
777 (citing Fasi, 60 Haw. at 444, 593 P.2d at 118). We concluded
that "HLRB had jurisdiction to declare whether the factual
circumstances presented to it on the [union's petition] would
constitute a prohibited practice" under HRS § 89-13(a)(1). Id.
at 153, 315 P.3d at 779.
Here, we also conclude that HLRB had jurisdiction,
under HRS § 91-8 and HAR § 12-42-9, to declare whether the
factual circumstances presented to it on SHOPO's Prohibited
Practices Complaint would be a prohibited practice under any

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subpart of HRS § 89-13(a), including (8). HLRB's jurisdiction to
declare whether a particular action is a prohibited practice is
not affected by the fact that the propriety of the same
underlying action might also be decided by an arbitrator. In re
United Public Workers, 131 Hawai#i at 153, 315 P.3d at 779.
However, SHOPO did not exhaust its contractual remedies under the
Unit 12 CBA. HLRB did not err by dismissing SHOPO's claim under
HRS § 89-13(a)(8) for the City's alleged violations of the
Unit 12 CBA.

(E) SHOPO contends that the circuit court:

(6) Erred by not finding that the HLRB erroneously
interpreted, amended and exceeded its authority by
requiring evidence of "a threat of reprisal or force
or promise of benefit" to establish a prohibited
practice complaint; and applying the wrong analysis to
SHOPO's discrimination claims, including its failure
to properly apply the burden shifting analysis, its
failure to find that SHOPO established a prima facie
case of discrimination, erroneously concluding that
the reorganization of the [Peer Support Unit] and the
transfer of the union officials did not rise to the
level of "inherently destructive", [sic] erroneously
finding that Chief Ballard's conduct was prima facie
lawful, and failing to find that Chief Ballard acted
with antiunion [sic] animus. To the extent that the
Board made factual findings, such findings are clearly
erroneous in view of the reliable, probative and
substantial evidence on the whole record.
(7) Erred by not finding that the HLRB made Findings of
Fact that are clearly erroneous in view of the
reliable, probative and substantial evidence on the
whole record.

We review findings of fact under the "clearly
erroneous" standard. Del Monte Fresh Produce, 128 Hawai#i at
302, 287 P.3d at 203; Poe, 105 Hawai#i at 100, 94 P.3d at 655.
SHOPO's statement of the points of error does not quote
the findings of fact SHOPO contends are clearly erroneous (HLRB's
findings of fact were not numbered), or reference specific
findings in the HLRB Order appended to the opening brief, as
required by Hawai#i Rules of Appellate Procedure (HRAP)
Rule 28(b)(4)(C). SHOPO's brief argues that HLRB's findings of
fact that "quotes from Ballard in the [Grube] Article do not

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mention Ma#afala's position as SHOPO President, and they focus
primarily on the [Peer Support Unit] and her planned revamp of
the unit" and that "quotes from Ballard in the Article do not
mention any of the other Officers," were clearly erroneous.
The City's answering brief has less than a page of
generic argument about conflicting evidence and witness
credibility. It fails to point us to any evidence in the record
supporting the findings of fact challenged by SHOPO.
This issue is narrow and specific, such that we do not
have to search a voluminous record for the information that
should have been provided by the parties. See Haw. Ventures, LLC
v. Otaka, Inc., 114 Hawai#i 438, 480, 164 P.3d 696, 738 (2007)
(first quoting Lanai Co., Inc. v. Land Use Comm'n, 105 Hawai#i
296, 309 n.31, 97 P.3d 372, 385 n.31 (2004) (explaining that an
appellate court "is not obligated to sift through the voluminous
record to verify an appellant's inadequately documented
contentions"); and then citing Miyamoto v. Lum, 104 Hawai#i 1, 11
n.14, 84 P.3d 509, 519 n.14 (2004)). The HLRB Order stated:

The [Grube] Article included information regarding the
[Peer Support Unit], the transfers of the Officers, and
included additional information regarding Ma#afala and his
position as SHOPO President. The quotes from Ballard in the
Article do not mention Ma#afala's position as SHOPO
President, and they focus primarily on the [Peer Support
Unit] and her planned revamp of the unit. The quotes from
Ballard in the Article do not mention any of the other
Officers.

(Emphasis added.)
Grube's Civil Beat article was titled New Police Chief
Reassigns Union President To Patrol Shift but the title does not
quote Ballard. The lead-in stated, "Susan Ballard says she had
concerns with how the department's Peer Support Unit was led by
SHOPO chief Tenari Maafala." The lead-in is ambiguous about
whether Ballard mentioned Ma#afala's position with SHOPO to
Grube, or whether Grube or his editor were simply echoing the
headline. Nowhere in the text of the article is Ballard quoted
as referring to Ma#afala as SHOPO's president.

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Grube's article stated:

Ballard said the paid officers in the [peer support] unit,
which in addition to Maafala included Don Faumuina and
Sgt. Michael Tamashiro, had issues with overtime that, she
said, didn't follow along with the spirit of the unit's
mission, which is spelled out in HPD's policies.
. . . .
Ballard said she asked Maafala if he wanted to remain with
the Peer Support Unit on a volunteer basis, but he declined.
Tamashiro and Faumuina, who is an at-large director for the
State of Hawaii Organization of Police Officers union, have
also been reassigned.

(Hyperlink omitted.) Grube's writing is ambiguous about whether
Ballard told Grube that Faumuina and Tamashiro were in the Peer
Support Unit, or whether Grube on his own reported that Faumuina
and Tamashiro were the other members. Grube did not write that
Ballard said Tamashiro and Faumuina had "also been reassigned."
Grube may have obtained the information from Faumuina, or
Tamashiro, or someone else at HPD who was familiar with the
reorganization. Ballard testified:

Nick Grube already had all this information. It was nothing
that I gave out. He knew everybody who was being
transferred. He knew where they were going to be assigned.
He knew pretty much everything that was discussed, different
questions that he asked. He had all that information
already. From where he got it, I don't know.

SHOPO did not call Grube as a witness at the HLRB hearing, so
there is no evidence in the record to explain the ambiguities.
HLRB found Ballard to be credible. We "cannot . . . review the
agency's findings of fact by passing upon the credibility of
witnesses or conflicts in testimony[.]" Sierra Club v. D.R.
Horton-Schuler Homes, LLC, 136 Hawai#i 505, 522, 364 P.3d 213,
230 (2015) (cleaned up). On this record, we cannot say that the
challenged findings of fact were clearly erroneous.
HLRB found:

In November of 2018, Chief Ballard presented a plan
for the HPD moving forward, entitled "A New Beginning." As
part of this plan, Chief Ballard decided to revamp the [Peer
Support Unit] and turn it into a unit that was more like its

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original concept in the mid-1990s.

This finding was not clearly erroneous. Ballard's plan titled "A
New Beginning" was dated November 8, 2017.
SHOPO argues that Ma#afala, Faumuina, and Tamashiro
being notified on November 3, 2017 — five days before Ballard's
plan was unveiled — shows that HLRB was wrong in concluding that

Chief Ballard's vision for the department when she became
Chief of Police included reorganizing the [Peer Support
Unit] and restoring it to its original vision as set up in
the mid-1990s. Based on the evidence, the Board finds that
the evidence shows that Chief Ballard's conduct was prima
facie lawful.

HLRB's conclusion was supported by substantial evidence in the
record. Ballard testified that "the entire [Peer Support Unit]
was set up for volunteers." She explained:

[T]he [Peer Support Unit] is a volunteer unit. And per
policy it also states that it is a volunteer unit and it is
not a unit where overtime is to be earned on a regular
basis. There are options -- there are times when it could
be used.
And based on the fact that there was just three of
them, three people there who were responding, then of course
obviously there's going to be some overtime because of the
fact that there was only three. But the way that the unit
and the program was set up, it was supposed to have been set
up as a volunteer unit using a lot -- quite a few people,
officers as well as civilians within the police department,
to respond to the various critical incidences [sic] that
occur.

Ballard's explanation follows HPD Policy No. 3.15,
which states that the Peer Support Unit "is a voluntary and
confidential resource for all [HPD] employees and their families.
It provides support and assistance for personal and/or work-
related problems and debriefings for critical incidents." It
explains the statement, attributed to Ballard in the Grube Civil
Beat article, that "the paid officers in the [peer support] unit,
which in addition to Maafala [sic] included Don Faumuina and
Sgt. Michael Tamashiro, had issues with overtime that, she said,
didn't follow along with the spirit of the unit's mission, which

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is spelled out in HPD's policies" (hyperlink omitted). The peer
support was supposed to have been provided by volunteers, not by
the officers who administered the volunteers. It also explains
Ballard transferring command of the Peer Support Unit from the
Chief's Office to the Community Affairs Division, eliminating
full-time staffing for the unit, and directing the Community
Affairs Division commander to contact unit volunteers or police
chaplains to respond to critical incidents, rather than having
the paid unit staff respond to critical incidents.
HLRB noted that HRS § 89-9(d)(3) stated that the City
and SHOPO "shall not agree to any [collective bargaining]
proposal . . . which would interfere with the rights and
obligations of a public employer to . . . [h]ire, promote,
transfer, assign, and retain employees in positions[.]" HLRB
concluded that "[t]ransferring employees is undoubtedly a
management right under the statute." That conclusion was
supported by HLRB's findings of fact (which were supported by
substantial evidence in the record) and reflects an application
of the correct rule of law; it will not be overturned. See Est.
of Klink ex rel Klink v. State, 113 Hawai#i 332, 351, 152 P.3d
504, 523 (2007).
SHOPO challenges HLRB's finding that "[w]hile SHOPO
also brings up the issue of the transfers of the Officers, only
one of the Officers (Ma#afala) testified as to the transfers, and
he stated that he viewed the transfer 'like a sense of relief.'"
Ma'afala was the only police officer (beside Ballard) who
testified before HLRB. During the hearing Ma#afala was asked
whether he had "a problem" with his transfer. He testified,
"Sorry to chuckle. First and foremost no, because I actually
looked at it as a -- pardon the expression, it was like a sense
of relief." HLRB's finding was not clearly erroneous.
SHOPO argues that Ma#afala's testimony was "incomplete
and out of context" because when he later learned that Ballard
"publicly defamed him . . . through the Civil Beat article, he
was 'shattered' and 'offended', [sic] and his daughters called

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him crying." Ma#afala's and his daughters' subjective reactions
to Grube's Civil Beat article are irrelevant to HLRB's finding
that "[b]ased on the evidence, there is no evidence that the
transfers were adverse actions taken against the officers.
Complainant also has not shown that Chief Ballard's statements
constituted an 'adverse action.'"
SHOPO's remaining challenges to HLRB's findings of fact
cite to the text of SHOPO's circuit court notice of appeal, not
to HLRB's Order. The notice of appeal did not cite to where in
HLRB's Order the challenged findings were located. We decline to
search for them ourselves. See Haw. Ventures, LLC, 114 Hawai#i
at 480, 164 P.3d at 738.

(F) SHOPO contends that the circuit court:

(8) Erred by not finding that the HLRB violated SHOPO's
constitutional right to collectively bargain under the
Hawai#i State Constitution, Article XIII, section 2 by
ignoring the CBA as it applies to transfers.

SHOPO's Prohibited Practices Complaint did not allege
that the City violated article XIII, section 2 of the Hawai#i
Constitution. HLRB's Order contained no reference to article
XIII, section 2 of the Hawai#i Constitution. SHOPO's opening
brief cites article XIII, section 2 of the Hawai#i Constitution
in a footnote, but makes no legal argument about how SHOPO's
constitutional right to collectively bargain were violated. The
issue is waived. See HRAP Rule 28(b)(7) ("Points not argued may
be deemed waived.").

(G) SHOPO contends that the circuit court:

(9) Erred by not finding that the HLRB acted arbitrarily,
capriciously and abused its discretion.

SHOPO seems to argue that HLRB arbitrarily and
capriciously disregarded SHOPO's arguments and abused its
discretion by making clearly erroneous findings of fact. SHOPO
has not shown that HLRB's findings of fact were clearly

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erroneous, that HLRB's conclusions of law were wrong, or that
HLRB "clearly exceeded the bounds of reason or disregarded rules
or principles of law or practice to the substantial detriment of
a party litigant." James B. Nutter & Co. v. Namahoe, 153 Hawai#i
149, 162, 528 P.3d 222, 235 (2023) (citation omitted). SHOPO's
final point of error lacks merit.

IV. CONCLUSION

For all these reasons, the "Judgment" entered by the
circuit court on September 11, 2019, and the "Order Granting
Respondents' Motion for Judgment on Partial Findings Against
Complainant" entered by HLRB on January 17, 2019, are affirmed.
DATED: Honolulu, Hawai#i, December 29, 2023.

On the briefs:

Vladimir Devens, /s/ Keith K. Hiraoka
Keani Alapa, Presiding Judge
for Complainant-
Appellant-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
Molly A. Stebbins,
for Respondents- /s/ Karen T. Nakasone
Appellees-Appellees. Associate Judge

T. Anthony Gill,
Wade C. Zukeran,
David A. Sgan,
for Amicus Curiae
University of Hawaii
Professional Assembly.

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