HAR §12-42-8. Proceedings before the board

(a) Filing of documents: (1) All complaints, pleadings, submittals, petitions, reports, excep- tions, briefs, memoranda, and other papers required to be filed with the board shall be filed at the board’s office. (2) Such papers may be sent by mail or hand-carried to the board’s office within the time limit, if any, for such filing. (3) The date on which the papers are actually received by the board shall be deemed to be the date of filing. (4) All papers filed with the board shall be written in ink, typewritten, mimeographed, or printed, shall be plainly legible, and shall be on 9 strong durable paper, not larger than 8½ X 14 inches in size, except that tables, charts, and other documents may be larger, if folded to the size of the documents to which they are attached. (5) All papers must be signed in ink by the party or the party’s duly authorized representative or attorney. The signature of the person signing the document constitutes a certification that such person has read the document; that to the best of such person’s knowl- edge, information, and belief every statement contained in the instrument is true and correct and no such statements are mislead- ing; and that the document is not interposed for delay. (6) Unless otherwise specifically provided by a particular rule, regula- tion, or order of the board, the original and five copies of the papers, with certificate of service on all parties, shall be filed. (7) The initial documents filed in any proceeding shall state on the first page thereof the name, mailing address, and telephone number of the person or persons who may be served with any documents filed thereafter in the proceeding. (b) The board shall maintain a docket of all proceedings and each proceeding shall be assigned a number. (c) In computing any period of time prescribed or allowed by these rules or by order of the board, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation. As used in this section, “holiday” shall mean any day designated as such pursuant to section 8-1, HRS. (d) The board may at any time institute investigations on its own motion. The board shall serve its notice of investigation upon the public em- ployee, employee organization, or public employer being investigated or having a direct interest or concern in the matter under investigation and shall designate the time and place for the investigation. (e) In any proceeding before the board, the board may obtain the assistance or solicit the views of other governmental agencies, employee organi- zations, public employers, or private organizations where necessary or desirable to effectuate the purposes of chapter 89, HRS. (f) An official reporter shall make the only official transcript of such proceeding. Copies of the official transcript shall not be provided by the board. (g) Hearings: (1) All hearings shall be conducted by the board. However, when the board finds it necessary to appoint a hearings officer to conduct a hearing, the board may confer upon such hearings officer the 10 necessary powers, subject to chapter 89, HRS, and this chapter, to conduct such hearing and procedural matters related thereto. (2) Hearings shall be open to the public unless otherwise provided by this chapter, or ordered, for good cause by the board. (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). (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 certifi- cate 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. (iv) The board may decide to hear oral argument or testimony thereon, in which case the board shall notify the parties of such fact and of the time and place of such argument or the taking of such testimony. (4) The provisions of section 12-42-7 shall govern appearances at the hearing. (5) All witnesses shall appear in person and shall be examined under oath or affirmation. All witnesses summoned by the board shall be paid by the board and all witnesses summoned by a party shall be paid by the party. Witnesses shall be paid the same witness and mileage fees as witnesses in the courts of the State of Hawaii. (6) Discovery, depositions, and interrogatories: (A) Upon written application and for good cause shown, the board may permit the parties to take deposition upon oral examination or written interrogatories in the manner pre- scribed under the Hawaii Rules of Civil Procedure. (B) A copy of the deposition or interrogatories shall be filed with the board. (C) Witness fees and mileage shall be paid by the party at whose instance the witness appears and the person taking 11 the deposition shall be paid by the party at whose instance the deposition is taken. (7) Subpoenas: (A) The board may issue subpoenas to require the attendance of witnesses in this State and the production of books and papers at a hearing held under the provisions of this chap- ter. (B) Any party may file a written application for subpoenas with the board before the hearing. (C) Motion to revoke subpoenas: (i) A motion to revoke a subpoena may be filed with the board not later than five days from the date of service of the subpoena. (ii) The board shall give notice of the filing of a motion to revoke to the applicant for subpoena. (D) Ruling on motion to revoke: (i) The board may revoke a subpoena on the ground that the subpoena does not reasonably relate to any matter under investigation, inquiry, or hearing; that the subpoena does not describe with sufficient particularity the evidence sought or that the evidence sought from the witness is privileged under the law or the provisions of this chapter. (ii) The board shall make a statement as to the basis for its ruling. (iii) An aggrieved party may request that the motion to revoke a subpoena, the answer thereto, if any, and the board’s statement of the basis for its ruling be made part of the record. (E) Witnesses: (i) No person served with a subpoena issued by the board shall refuse or neglect to appear, to testify, or to produce books and papers relevant to such investigation, inquiry, or hear- ing as commanded in such subpoena without the timely filing of a motion to revoke a subpoena with the board. (ii) A failure to comply with, or neglect of, a subpoena issued by the board may be certified by the board to a court of competent jurisdiction for an order of compliance. (8) Rules of evidence: (A) In any proceeding before the board, the board shall not be bound by technical rules of evidence. (B) All irrelevant, immaterial, or unduly repetitious evidence shall be excluded. (C) The board shall give effect to the rules of privilege recog- nized by law. (D) Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available, 12 provided that upon request parties shall be given an oppor- tunity to compare the copy with the original. (E) Each party shall have the right to conduct such cross-exam- ination as may be required for a full and true disclosure of the facts and shall have the right to submit rebuttal evi- dence. (F) The board may take notice of judicially recognizable facts. (G) The board may take notice of generally recognizable tech- nical or scientific facts within its specialized knowledge; however, parties shall be notified either before or during the hearing of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed. (9) Contemptuous conduct: (A) Contemptuous conduct at any hearing shall be grounds for summary exclusion from the hearing. Such misconduct, if of an aggravating character and engaged in by an attorney or other representative of a party, shall be grounds for suspension or disbarment from further practice before the board after due notice and hearing. (B) The refusal of a witness at any such hearing to answer any question which has been ruled to be proper may, in the discretion of the board, be grounds for striking all testi- mony previously given by such witness on related matters. (10) Amendment of documents: (A) Any document filed in a proceeding may be amended, in the discretion of the board, at any time prior to the issuance of a final order thereon. (B) If such document is not in substantial conformity with the applicable rules of the board as to the contents thereof, or is otherwise insufficient, the board, on its own initiative or upon motion of a party, may strike or dismiss such docu- ment, or require its amendment. A party moving for amendment of a document shall file a motion for leave to amend together with the proposed amended document. (C) If amended, the document shall be effective as of the date of the original filing, if it relates to the same proceeding. (11) Retention of documents by the board: (A) All documents filed with or presented to the board shall be retained in the files of the board. (B) The board may permit the withdrawal of original docu- ments upon submission of properly authenticated copies to replace such documents. (12) Upon motion and for good cause shown, the board may order substitution of parties, except that in the case of death of a party substitution may be ordered without the filing of a motion. 13 (13) The board, on its own initiative or upon motion, may consolidate for hearing or other purposes or may contemporaneously consider two or more proceedings which involve substantially the same parties or issues if it finds that such consolidation of proceedings or contemporaneous consideration will be conducive to the proper dispatch of its business and to the ends of justice and will not unduly delay the proceedings. (14) Intervention in proceeding: (A) In any proceeding other than representation proceedings, a petition to intervene and become a party thereto shall be submitted in writing to the board. (B) The petition shall contain the following: (i) Nature of petitioner’s statutory or other right. (ii) Nature and extent of petitioner’s interest. (iii) Effect of any decision in the proceeding on petitioner’s interest. (iv) Other means available whereby petitioner’s interest may be protected. (v) Extent petitioner’s interest may be represented by existing parties. (vi) Extent petitioner’s participation can assist in development of a sound record. (vii) Extent petitioner’s participation will broaden the issue or delay the proceeding. (viii) Extent petitioner’s interest in the proceeding differs from that of the general public. (ix) How the petitioner’s intervention would serve the public interest. (C) The original and five copies of the petition with certificate of service on all parties, shall be filed with the board. (D) Intervention shall not be granted except on averments which are reasonably pertinent to the issues already pre- sented but do not unduly broaden them. If intervention is granted, the petitioner thereby becomes an intervenor and a party to the proceeding to the degree indicated by the order allowing intervention. (15) In any proceeding an agreed statement of facts may be introduced into the record with respect to any issue. An agreed statement of facts may be accepted by the board without a hearing. The parties to an agreed statement of facts may agree to a waiver of hearing. (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. The party raising any subsequent issue shall have the burden of proving that issue by a preponder- ance of the evidence. 14 (17) Argument, briefs, proposed findings: (A) Any party shall be entitled, upon request made before the close of the hearing, to present oral argument. (B) Any party shall be entitled, upon request made before the close of the hearing, to file a brief or proposed findings of facts and conclusions of law, or both, within such time as may be fixed by the board, but not in excess of fifteen days from the close of the hearing. (C) The board may direct oral argument or the filing of briefs or proposed findings of facts, conclusions of law, or both, when it deems the submission of briefs or proposed find- ings, or both, is warranted by the nature of the proceeding or the particular issues therein. (D) A request for extension of time within which to file a brief or proposed findings shall be made in writing to the board at least three days before the expiration of the required time for filing, and shall be accompanied by an affidavit setting forth the grounds upon which it is based and indicating the position of the other parties with regard to such request. (18) Decisions and orders of the board: (A) Every decision and order 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 has filed proposed findings of fact, the board shall incorporate in its decision a ruling upon each proposed finding so presented. A certified copy of the decision and order and accompanying findings and conclusions shall be delivered or mailed to each party or his attorney or repre- sentative, and shall be released for public information. (B) Copies of such documents shall be available for public inspection in the office of the board or may be obtained upon request and upon payment of costs, if any. (19) Unauthorized ex parte communications: (A) Unauthorized ex parte communications are defined as private communications with members of the board as to the merits of a proceeding with a view towards influencing the outcome of the cause, except that the following classes of ex parte communications shall not be prohibited: (i) Those which relate solely to matters which a board member is authorized to dispose of on an ex parte basis. (ii) Requests for information with respect to the status of a proceeding. 15 (iii) Those which all parties to the proceeding agree, or which the board has formally ruled, may be made on an ex parte basis. (iv) Those with representatives of any news media on matters intended to inform the general public. (B) No public employee, employee organization, public em- ployer, or any other person or organization, whether or not a party to a proceeding before the board, shall make any unauthorized ex parte communication either orally or in writing about the proceeding to any member of the board. [Eff. Feb. 6, 1981] (Auth: HRS §89-5)(Imp: HRS §§89-5, 91-1, 91-2, 91-9, 91-10 to 12)