HAR §8-62-36. Appeal hearing

(a) The board shall, upon receipt of an appeal, order the matter set for hearing. In any appeal, all parties shall be afforded an opportunity for a hearing after reasonable notice. Opportunities shall be afforded all parties to present evidence and support their position on all issues involved. Any procedure may be modified or waived by stipulation of the parties and informal disposition may be made of any appeal by stipulation of the parties and informal disposition may be made of any appeal by stipulation, agreement, consent order, or default. (b) The hearing shall be held at the time and place set forth in the notice of hearing, but may, at the time and place, be continued from day to day, to a later day, or to a different place without notice other than the announcement thereof by the presiding officer at the hearing. (c) Appeals shall be heard before the board or its appointee. (d) When a proceeding is conducted before the board itself, the proceeding shall be presided over the chairperson of the board, or, in the chairperson’s absence, by another member designated by the board. (e) The presiding officer at a proceeding shall have authority to control the course of the hearing; to hold conferences on which the parties have had notice, for settling or simplifying issues; to administer oaths and affirmations; to grant application for and issue subpoenas; to take or cause depositions to be taken; to rule upon offers of proof and receive relevant evidence; to limit lines of questioning or testimony that are irrelevant, immaterial or repetitious; to rule upon all objections, procedural requests and motions that do not involve the final determination of proceedings; to dispose of any other matter that normally and properly arises in the course of the proceeding; and to take all other actions authorized by chapter 76, Hawaii Revised Statutes, rules of the board, or by any other statute, that are deemed necessary to the orderly and just conduct of the hearing. (f) No member of the board, or its appointee who has any pecuniary interest in any matter or business involved in the proceeding; who is related within the second degree by blood or marriage to any party to the proceeding; who has participated in an investigation preceding the institution of the proceeding or in a determination that it should be instituted or in the development of the evidence to be introduced therein; or where the circumstances fairly give rise to an appearance of impropriety and reasonably cast suspicion on the person’s impartiality shall be assigned to serve in any proceeding. (g) The record of the hearing shall be compiled. The board shall make provisions for recording testimony, but need not transcribe the record unless requested for purposes of rehearing or court review. A copy of the record of a hearing or any part thereof may be obtained as provided under board rules. (h) Subpoenas requiring the attendance of witnesses or the production of documentary evidence from within the State may be compelled at any designated place of a hearing as may be issued by the presiding officer, any designated member of the board, or its appointee. Application for subpoenas shall be made in writing to the board. The application shall specify the particular documents or data desired and shall show their relevancy to the issues involved. Applications shall be made at least ten days prior to the hearing. If the application is made at a later time, the board or its appointees may, in its discretion, issue subpoenas or continue the hearing or any part thereof or both. Enforcement of obedience to subpoenas issued and served pursuant to these rules shall be effected by written application of any member of the board to any circuit court judge. (i) Witnesses summoned shall be paid the same fees and mileage as are paid witnesses in circuit courts of the State and the fees and mileage shall be paid by the party at whose instance the witnesses appear. Fees for the depositions shall be paid by the party at whose instance the depositions are taken. Witnesses shall be placed under oath or affirmation prior to testifying. (j) At the commencement of the hearing, the presiding officer shall read the notice of hearing and shall then outline briefly the procedure to be followed. (k) All parties shall be given reasonable opportunity to offer testimony with respect to the matters relevant to the proceeding. All witnesses, before proceeding to testify, shall state their name, address, and whom they represent at the hearing and shall give such information respecting their appearance relevant to the proceedings as the presiding officer may request. The presiding officer shall confine the testimony to the matters for which the hearing has been called, but need not apply the technical rules of evidence except as required by statute. Each witness shall be subject to questioning by members of the board and its appointees. Each witness shall also be subject to cross-examination by the adverse party. Each party shall have the right to submit rebuttal evidence and rebuttal arguments. (l) The presiding officer shall take notice of judicially recognizable facts and may take notice of generally recognizable technical or scientific facts within the board’s or its appointee’s specialized knowledge when parties are given notice either before or during the hearing of the material so noticed and are afforded the opportunity to contest those facts. (m) At the hearing, the presiding officer may require the production of further evidence upon any issue. (n) After all the evidence has been presented, the presiding officer shall give the parties an opportunity to summarize their respective positions. Within a reasonable time after such final arguments have been completed and all requested memoranda submitted, the presiding officer shall bring the matter to a close. (o) The board or its appointee shall permit parties to file proposed findings and conclusions of law, together with the reasons thereof at the close of the hearing or within the time specified by the board or its appointee. The proposal shall be in writing and shall contain reference to the record and to the authorities relied upon. Copies thereof shall be furnished to all parties. (p) Board action on appeals shall be as follows: (1) For actions taken by the superintendent, assistant superintendent, or appointing authority based on failure to meet performance requirements, the board shall determine whether the conditions listed in section 76-41(b), Hawaii Revised Statutes, were met when determining whether or not the action is with or without merit. (2) If reasons for the action by the superintendent, assistant superintendent 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 in pay. (3) If the reasons are substantiated or are only partially substantiated, the board shall sustain the action of the superintendent, assistant superintendent, or appointing authority; provided that the board may modify the action of the superintendent, assistant superintendent, or appointing authority if it finds the circumstances of the case so require and may order the disposition of the case it deems just provided that the disposition is consistent with laws, rules, and policies. (q) 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 superintendent in matters of policy, methodology, and administration. All decisions and orders of the board shall be made in accordance with personnel rules, policies, and practices. 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 to the circuit court pursuant to section 76-47, Hawaii Revised Statutes. (r) In its actions on classification related appeals, the board shall not consider in its deliberation the classes in other jurisdictions or the classification of positions in other jurisdictions. (s) The board shall, as soon as practicable and unless otherwise stipulated by the parties, not later than sixty days after the close of the hearing, notify the parties to the proceeding of the decision and order. Parties to the proceeding shall be notified in accordance with board rules. (t) The charging party, in asserting an improper action or violation of the statute(s) or rule(s), shall have the burden of proving the allegations by a preponderance of the evidence. (u) Unauthorized ex parte communications are defined as private communications or arguments with members of the board or the presiding officer as to the merits of a proceeding with a view towards influencing the outcome of the case, except that the following ex parte communications shall not be prohibited: (1) Those which relate solely to matters which a board member or the hearings officer is authorized by the board to dispose of on an ex parte basis; (2) Requests for information with respect to the status of a proceeding; (3) Those which all parties to the proceeding agree or which the board has formally ruled may be made on an ex parte basis; (4) Those with representatives of any news media on matters of public information. (v) If the appellant or the appellant’s representative fails to appear before the board as scheduled and notified, the appeal shall be dismissed with prejudice, and the appellant shall not be permitted to request another hearing. (w) The following additional requirements shall apply to the board and its functions relating to the receiving and processing of initial pricing appeals: (1) After the hearing, the board shall review the facts presented, deliberate and render a decision which shall conform with the policies, standards, and guidelines governing initial pricing promulgated by the superintendent. The board shall not consider in its deliberations, the pricing of classes in other bargaining units. (2) Decisions on initial pricing appeals shall be limited to the appropriate pay grade of the class and may not require a change in bargaining unit for full implementation. (3) All decisions of the board resulting in a higher pay grade assignment shall be retroactive to the date of the initial pricing action of the superintendent. (4) If the evidence submitted indicates significant changes have occurred in the work of the position, the board shall remand the case to the superintendent for a classification review. (5) The person filing the appeal has the burden of proof. (6) Substantial weight shall be given to the technical determination of the superintendent in pricing the new class. (x) In its action on appeals filed under section 8-62-33(b)(1),(2), and (3), the board shall generally confine itself to the issue of whether legal requirements were met, rules were properly applied, and appropriate procedures were followed. In the event the board finds that these requirements were not met or appropriate procedures were not followed, the board shall remand the case to the superintendent and require that the process and action be redone in accordance with applicable requirements and procedures. [Eff 6/11/2010] (Auth: HRS §§302A-1112, 76-14, 76-47) (Imp: HRS §76-47)