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                                                             Electronically Filed
                                                             Supreme Court
                                                             SCWC-XX-XXXXXXX
                                                             28-JUN-2018
                                                             08:42 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---
________________________________________________________________
                           IN THE MATTER OF
                         BERNARD KUAMOO,
      Petitioner/Complainant-Employee/Appellant-Appellant,
                                   and

    STATE OF HAWAIʻI, DEPARTMENT OF PUBLIC SAFETY (2010-122)
       Respondent/Respondent-Employer/Appellee-Appellee,
                                   and

    STATE OF HAWAIʻI, MERIT APPEALS BOARD; COLLEEN R. MEYER;
   VALERIE B. PACHECO; ALVIN M. YOSHIMORI (MAB CASE No. 265),
             Respondents/Agency/Appellees-Appellees
                      (CIVIL NO. 12-1-1624)
________________________________________________________________
                           IN THE MATTER OF
                         DENISE GABRIEL,
      Petitioner/Complainant-Employee/Appellant-Appellant,
                                   and

    STATE OF HAWAIʻI, DEPARTMENT OF PUBLIC SAFETY (2010-123)
        Respondent/Respondent-Employer/Appellee-Appellee
                                   and

    STATE OF HAWAIʻI, MERIT APPEALS BOARD; COLLEEN R. MEYER;
   VALERIE B. PACHECO; ALVIN M. YOSHIMORI (MAB CASE No. 266),
             Respondents/Agency/Appellees-Appellees
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                      (CIVIL NO. 12-1-1680)
________________________________________________________________
                           IN THE MATTER OF
                           ARASI MOSE,
      Petitioner/Complainant-Employee/Appellant-Appellant,
                                   and

    STATE OF HAWAIʻI, DEPARTMENT OF PUBLIC SAFETY (2011-025)
       Respondent/Respondent-Employer/Appellee-Appellee,
                                   and

   STATE OF HAWAIʻI, MERIT APPEALS BOARD; ALVIN M. YOSHIMORI;
     VALERIE B. PACHECO; JANICE T. KEMP (MAB CASE No. 274),
             Respondents/Agency/Appellees-Appellees
                      (CIVIL NO. 12-1-2269)
________________________________________________________________
                           IN THE MATTER OF
                           KELII LAU,
      Petitioner/Complainant-Employee/Appellant-Appellant,
                                   and

    STATE OF HAWAIʻI, DEPARTMENT OF PUBLIC SAFETY (2011-022)
       Respondent/Respondent-Employer/Appellee-Appellee,
                                   and

   STATE OF HAWAIʻI, MERIT APPEALS BOARD; ALVIN M. YOSHIMORI;
     VALERIE B. PACHECO; JANICE T. KEMP (MAB CASE No. 275),
             Respondents/Agency/Appellees-Appellees
                      (CIVIL NO. 12-1-2270)
________________________________________________________________
                        IN THE MATTER OF
                        FIAFIA SATARAKA,
      Petitioner/Complainant-Employee/Appellant-Appellant,
                                   and

    STATE OF HAWAIʻI, DEPARTMENT OF PUBLIC SAFETY (2011-022)
       Respondent/Respondent-Employer/Appellee-Appellee,
                                   and



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   STATE OF HAWAIʻI, MERIT APPEALS BOARD; ALVIN M. YOSHIMORI;
     VALERIE B. PACHECO; JANICE T. KEMP (MAB CASE No. 277),
             Respondents/Agency/Appellees-Appellees
                      (CIVIL NO. 12-1-2271)
________________________________________________________________
                             SCWC-XX-XXXXXXX
          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                         (CAAP-XX-XXXXXXX)
                              JUNE 28, 2018
 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                 OPINION OF THE COURT BY WILSON, J.

           Bernard Kuamoo, Denise Gabriel, Arasi Mose, Kelii Lau,

and Fiafia Sataraka (the employees or applicants) are employed

by the Department of Public Safety as Adult Correction Officers.

Each applied for promotion to open supervisory positions, and

each was rejected based on an unwritten department policy.

Under the unwritten policy, the department precludes from

promotion to supervisory positions all employees who have been

suspended for violation of the department’s standards of conduct

in the prior two years.      The unwritten policy applies without

exception.   Each applicant had passed the relevant examination

and was otherwise qualified for the supervisory position prior

to being deemed “unsuitable” under the unwritten policy.

           At issue is whether the department’s policy violates

aspects of the merit principle on which the Hawaiʻi civil service

system is founded.     See Haw. Const. art. XVI, § 1 (mandating

that the “employment of persons in the civil service, as defined

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by law . . . shall be governed by the merit principle”); HRS §

76-1.    As explained below, we hold the department’s unwritten

policy violates the merit principle.

                              I.   BACKGROUND

            The applicants are Adult Corrections Officers (ACO)

employed by the Department of Public Safety (PSD or the

department).    Each applied for a promotion to an open

supervisory position, either ACO IV (sergeant) or ACO V

(lieutenant) positions.      Each was informed by department letter

that his or her application had been denied.          The letters noted

that a background check revealed the applicant had violated the

department’s standards of conduct and been suspended, sometimes

for as little as one day.      According to the letters, the

department deemed each applicant “unsuitable” for promotion for

the following two reasons:

     1.   Inadequate amount of elapsed time from the effective
     date of your suspension to show rehabilitation.

     2.   Your decision to violate or disregard the Standards of
     Conduct.

The department characterized its decision as a determination

that the applicant is deemed “temporarily unsuitable” for the

position.

            The employees individually challenged PSD’s denial of

their application for promotion to the Merit Appeals Board

(MAB).    According to testimony before the MAB, the selection


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process for ACO IV and V positions consists of several stages.

The department first administers a written examination to

applicants.   Applicants must receive a minimum score of 70

percent on the examination in order to be considered qualified

for the positions.     Those applicants who pass the written

examination are then ranked by seniority.          Depending on how many

vacancies are available, the department contacts applicants by

seniority and solicits permission to conduct a background check

regarding the applicant’s “suitability,” which includes a review

of employment records.      If review of an applicant’s employment

records reveals a suspension within the prior two years, the

applicant is deemed “temporarily unsuitable.”

           The department’s unwritten policy deems as unsuitable

any applicant for promotion into a supervisory position who has

been suspended within the prior two years.          That policy was

developed in 2005 to address concerns by wardens about ACOs with

recent suspensions being promoted.        A department personnel

specialist conceded there is no written documentation of the

concerns giving rise to the policy.        But the specialist asserted

that the policy attempted to “make sure that whoever we’re

promoting [is] going to follow the same Standards of Conduct

that they’re going to enforce upon whoever they supervise.”

ACOs receiving a suspension were never informed that the

suspension would act as a bar on promotions for the next two

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years.   While applicants to supervisory ACO positions were

informed about the other minimum qualifications before applying,

they were never informed of the existence of the suspension

policy until after their application was denied.           The MAB denied

each of the employees’ appeals.

           The applicants individually appealed the MAB decisions

to the First Circuit Court.1       The circuit court consolidated the

five appeals, affirmed the MAB’s findings of fact and

conclusions of law, and dismissed the applicants’ consolidated

appeals.   The court explained that the department had advanced a

reasonable basis for the suspension policy, namely, “that

suspensions for violations of the Department’s Standards of

Conduct specifically correlate to both the ability to properly

and safely perform this very demanding job and supervise others

who do so.”   The circuit court found that the same reasons

explained why the department treated suspensions “as a bright

line barrier to future promotions for two years, as opposed to

looking at each violation on a case by case basis, as is done by

the Department with regard to pre-employment past criminal

convictions.”    The applicants appealed to the ICA, and the ICA

affirmed the circuit court.       Matter of Kuamoo, 138 Hawaiʻi 494,

505, 382 P.3d 306, 317 (App. 2016).



     1
           The Honorable Rhonda A. Nishimura presided.

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           The ICA held that the circuit court correctly ruled

that the MAB’s findings of fact were not clearly erroneous, that

the MAB’s conclusions of law were supported by its findings of

fact, and that the conclusions of law were not errors of law.

Id. at 500-03, 382 P.3d at 312-15.        In particular, the ICA

concluded that the department’s suspension policy did not

violate the merit principle.       The ICA noted that the department

is vested with authority to make “suitability determinations”

under the Hawaiʻi Administrative Rules (HAR).          Id. at 502–03, 382

P.3d at 314–15 (citing HAR § 23-10-2(b)).          According to the

department, suspensions on an ACO’s record indicate that the ACO

could “not follow their own Standards of Conduct.”            Id. at 503,

382 P.3d at 315.    As the ICA explained, “PSD wanted to ‘make

sure that whoever [PSD is] promoting [is] going to follow the

same Standards of Conduct that they’re going to enforce upon

whoever they supervise.’”      Id. (citing PSD testimony).

           Given the department’s authority to make suitability

determinations, as well as the department’s proffered rationale

for the suspension policy, the ICA concluded that the policy did

not violate the merit principle of impartial selection of

individuals based on objective criteria.

     PSD’s suspension policy is objective and speaks directly to
     PSD's responsibility to ensure that whomever it promotes to
     the Supervisory Positions has the necessary fitness and
     character to fulfill the duties of the Supervisory
     Position, which includes ensuring that other ACOs do not


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        violate the Standards of Conduct. PSD’s suspension policy,
        therefore, does not violate the “merit principle” pursuant
        to HRS § 76–1.

Id.

              The ICA also rejected the employees’ argument that the

selection process was not “fair and impartial,” as required by

the merit principle.        The employees had argued that applicants

for the supervisory position with prior criminal records were

given case-by-case suitability determinations.              In contrast,

applicants who were merely suspended for as little as a day for

violating one of the department’s standards of conduct within

the two-year window were uniformly denied promotion rather than

afforded a case-by-case suitability determination.               The ICA

rejected the applicants’ argument, observing that the

department’s regulations give it the authority to decide a

prospective employee’s fitness for department positions.                Id.

(citing HAR § 23-10-6).         HAR § 23-10-6 authorizes suitability

determinations to be made based on “fitness for employment.”

The regulation allows the department’s suitability determination

to draw on information from criminal history records, employment

records, or other sources of information.             The purpose of the

suitability determination is to “ensure that staff members and

prospective staff members are of reputable and responsible

character, and are capable of performing the duties of the job.”

Id.; Kuamoo, 138 Hawaiʻi at 502-03, 382 P.3d at 314-15.

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           On certiorari, the employees argue that the ICA’s

opinion sanctions “the use of undisclosed criteria” in hiring,

which could “in turn sanction the retroactive use of similar

secret standards in a way that is antithetical to the merit

principle.”2

                        II.   STANDARDS OF REVIEW

           Under Hawaii’s Administrative Procedure Act, we review

agency decisions and orders for constitutional or statutory

violations, actions beyond the agency’s authority or

jurisdiction, clearly erroneous findings of fact, unlawful

procedure or other errors of law, arbitrary and capricious

decisions or orders, and abuses of discretion or clearly

unwarranted exercises of discretion.         HRS § 91–14(g)(1)-(6)

(2012).   We review conclusions of law presenting mixed questions

of fact and law “under the clearly erroneous standard because

the conclusion is dependent upon the facts and circumstances of

the particular case.”      Save Diamond Head Waters LLC. v. Hans

Hedemann Surf, Inc., 121 Hawaiʻi 16, 25, 211 P.3d 74, 83

(2009)(citation omitted).       When we review an agency decision

that has been appealed to the circuit court sitting in its
     2
            In their application, the employees assert that the ICA
“mistakenly construed the present dispute as one over whether the Employer’s
duty to negotiate with the Union when that contention was never addressed by
the Union or the Appellants.” Instead, the employees assert, they “simply
contended that the ban and its non-disclosure violated the openness,
fairness, and objectivity mandated by the merit principle as defined in HRS §
76-1. Accordingly, we do not address any implications of the suspension
policy for collective bargaining. See Kuamoo, 138 Hawaiʻi at 500-502, 382
P.3rd at 312-314.

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appellate capacity, we apply “the same standard of review as

that applied upon primary review by the circuit court.”

AlohaCare v. Ito, 126 Hawaiʻi 326, 341, 271 P.3d 621, 636 (2012)

(citation omitted).

                              III.    DISCUSSION

             The employees argue that the department’s policy, and

the ICA’s affirmance of the MAB orders upholding the policy,

“sanction the use of undisclosed criteria” in hiring, which

could “in turn sanction the retroactive use of similar secret

standards in a way that is antithetical to the merit principle.”

A.     The merit principle

              “The employment of persons in the civil service, as

defined by law . . . shall be governed by the merit principle.”

Haw. Const. art. XVI, § 1.         As embodied in the Hawaiʻi

Constitution, the merit principle “simply means that the civil

service, however defined, is to be governed by merit

principles.”      Konno v. Cty. of Hawaiʻi, 85 Hawaiʻi 61, 70, 937

P.2d 397, 406 (1997).        The Hawaiʻi Constitution does not itself

“establish an independently enforceable right to the protection

of merit principles.”        Id.   Rather, the constitution “expressly

refers to other sources for a definition of ‘civil service,’”

such as statutory and case law.          Id.

             The civil service statute defines the merit principle

broadly as “the selection of persons based on their fitness and

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ability for public employment and the retention of employees

based on their demonstrated appropriate conduct and productive

performance.”    HRS § 76-1 (2000).       In order to achieve the broad

purpose of selecting civil service employees based on fitness

and ability, the statute requires, among other things,

“[i]mpartial selection of individuals for public service by

means of competitive tests which are fair, objective, and

practical[.]”    HRS § 76-1(2).     As we have explained, our civil

service system “embodies positive principles of public

administration such as openness, merit, and independence.

Openness is served through public announcement of job vacancies,

clear articulation of qualifications, open application to all

persons, and selection according to objective criteria.”             Konno,

85 Hawaiʻi at 68, 937 P.2d at 404 (citations omitted); Salera v.

Caldwell, 137 Hawaiʻi 409, 417, 375 P.3d 188, 196 (2016).

B. The unwritten “brightline” suspension policy violates the
merit principle of openness in the application process for civil
service positions

           The employees assert that the department’s “complete

failure to disclose the two-year bar on suspensions for

employees seeking promotion is the antithesis of the openness

and public articulation of objective standards required by the

merit principle.”     We agree that the failure to disclose the

two-year bar violates the merit principle.



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           As a general matter, the merit principle requires

“clear articulation of qualifications” and “open application to

all persons[.]”    Konno, 85 Hawaiʻi at 68, 937 P.2d at 404

(citations omitted).     Here, the department failed at the outset

of the application process to make known to applicants for the

supervisory positions a critical requirement for the positions.

If an applicant had been suspended for any reason and for any

length of time in the prior two years, the applicant was deemed

by the department’s unwritten suspension policy to be

“temporarily unsuitable” for the supervisory positions, even if

the applicant was otherwise qualified for the positions.

           The suspension policy was a brightline rule applied

without exception.     For that reason, the absence of a suspension

within the prior two years was the functional equivalent of a

significant minimum qualification for the position.            Yet that

qualification (or disqualifying factor) was never included in

any announcement of the position openings, and the applicants

were made aware of that qualification only at the end of the

process, by the department’s letters rejecting the applicants

for the positions.     Moreover, as embodied in an unwritten

policy, the additional qualification for the position was not

articulated at all.     This lack of openness regarding a

significant qualification (or disqualifying factor) for the

supervisory positions was compounded by the “notice of

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disposition of application” sent to the applicants.            It states:

“You have met the minimum qualification and other requirements

for this vacancy.”      (Emphasis added).     The notice then provides

instructions on taking the written examination, which each of

the applicants later passed.

           The language in the “notice of disposition of

application” is inaccurate; there were, in fact, additional

“other requirements” for the supervisory positions.            However,

those other requirements, embodied in the unwritten brightline

suspension policy, remained unarticulated and unannounced.

Applicants were given no notice of the full set of significant

minimum requirements for the position until after they were

rejected for the positions.3       In sum, the silent imposition of a

de facto minimum qualification for the supervisory positions

violated the merit principles of openness and clear articulation

of qualifications.

           We hold that an unwritten policy which imposes a

significant qualification or disqualification for a position,

and which is not otherwise made known to applicants at or near

the outset of the application process, violates the merit


      3
             We recognize there is a difference between meeting the minimum
requirements for an ACO IV or V position and the further step of receiving a
positive suitability determination. See HAR § 23-10-2(b). Here, however,
precisely because the suitability determination was based on the brightline
suspension policy and was applied without exception, the unwritten policy
operated as a minimum requirement for the supervisory positions.


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principle of openness.      HRS § 91-14(g)(4)(authorizing an

appellate court to reverse an agency decision or order if

substantial rights of petitioners may have been prejudiced

because the administrative findings, conclusions, decisions, or

orders are affected by an error of law).

                             IV.   CONCLUSION

           For the reasons stated above, we vacate the ICA’s

opinion and judgment on appeal, as well as the circuit court’s

order dismissing the applicants’ consolidated appeal.            We remand

to the circuit court with instructions to remand to the Merit

Appeals Board for proceedings consistent with this opinion.


Lowell K.Y. Chun-Hoon              /s/ Mark E. Recktenwald
Tatjana A. Johnson
For petitioners                    /s/ Paula A. Nakayama

                                   /s/ Sabrina S. McKenna
James E. Halvorson
Deputy Attorney General            /s/ Richard W. Pollack
For respondent
                                   /s/ Michael D. Wilson




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