REPORT TITLE:
Civil Service



DESCRIPTION:
Modernizes civil service

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        3178
THE SENATE                              S.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO MODERNIZATION OF THE CIVIL SERVICE SYSTEM.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The Hawaii Revised Statutes is amended by adding
 
 2 a new chapter to be appropriately designated and to read as
 
 3 follows:
 
 4                             "CHAPTER
 
 5                    PART I.  GENERAL PROVISIONS
 
 6      "§  -1  Chapter takes precedence, unenforceable, or
 
 7 inoperative, when; transition period; state legislature's
 
 8 authority.  (a)  This chapter shall take precedence over
 
 9 conflicting statutes pertaining to the wages, hours, benefits,
 
10 and terms and conditions of employment of public employees and
 
11 other personnel statutes, including those relating to civil
 
12 service, that were in effect prior to the effective date of this
 
13 Act.  The absence of a statutory provision or broad enabling
 
14 language in lieu of specificity in this chapter with respect to
 
15 these matters recognizes there are better, alternative means for
 
16 determining and maintaining these matters; provided that these
 
17 matters are consistent with the requirements and limitations in
 
18 this chapter.  Alternative means includes the director's rule-
 
19 making authority and personnel rules as provided in part II.
 

 
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 1      (b)  This chapter is not intended to diminish, impair,
 
 2 amend, or limit any rights or benefits in statutes, rules,
 
 3 ordinances, executive orders or directives, or collective
 
 4 bargaining agreements in existence prior to the date of this Act,
 
 5 unless expressly stated in this chapter.  Rights or benefits in
 
 6 statutes, rules, ordinances, executive orders or directives, or
 
 7 collective bargaining agreements in existence prior to the date
 
 8 of this Act that are consistent with this chapter shall continue
 
 9 to apply.
 
10      (c)  This chapter shall preempt all contrary provisions in
 
11 rules, ordinances, executive orders or directives, or collective
 
12 bargaining agreements.  A transition period is provided for the
 
13 implementation of this chapter, from the effective date of this
 
14 Act until June 30, 2001, the effective date of repeal of the
 
15 chapters specified in this Act.  During the transition period,
 
16 any rule, ordinance, executive order or directive, or provision
 
17 in a collective bargaining agreement that is not consistent with
 
18 this chapter shall be amended accordingly.  Where new provisions
 
19 are necessary to implement this chapter, the appropriate
 
20 authorities shall ensure inclusion or adoption of these
 
21 provisions as expeditiously as possible during the transition
 
22 period, after discussions with appropriate stakeholders.
 
23 Stakeholders are the persons or groups who can affect or are
 

 
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 1 affected by the provisions.  New or amended provisions that are
 
 2 included or adopted to comply with this chapter may take effect
 
 3 immediately upon inclusion or adoption and shall supercede any
 
 4 conflicting statute that is scheduled to be repealed at the end
 
 5 of the transition period.
 
 6      (d)  This chapter shall not take precedence over or preempt
 
 7 any state or federal law or mandate that applies, without
 
 8 discretion and irrespective of collective bargaining agreements
 
 9 or rules, to employers in general, both private and public.  If
 
10 any provision in a collective bargaining agreement or rules would
 
11 cause an employer or appointing authority to be in violation of
 
12 or non-compliance with any applicable state or federal law or
 
13 mandate, the provision, insofar as it would result in violation
 
14 or non-compliance, shall be unenforceable.
 
15      (e)  If any provision of this chapter jeopardizes the
 
16 receipt by the State or any county of any federal funds, the
 
17 provision, insofar as the fund is jeopardized, shall be
 
18 inoperative.
 
19      (f)  This chapter shall not diminish or impair, in any way,
 
20 the authority of the state legislature to fulfill its obligations
 
21 under the state constitution to define by law a civil service
 
22 governed by the merit principle and the right of public employees
 
23 to organize for the purpose of collective bargaining.
 

 
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 1                      PART II.  CIVIL SERVICE
 
 2      §  -11  Purposes; merit principle.  It is the purpose of
 
 3 this part that each jurisdiction establishes and maintains a
 
 4 separately administered civil service system based on the merit
 
 5 principle.  The merit principle is the selection of persons based
 
 6 on their fitness and ability for public employment and the
 
 7 retention of employees based on their demonstrated appropriate
 
 8 conduct and productive performance.  It is also the purpose of
 
 9 this part to build a career service in government, free from
 
10 coercive political influences, to render impartial service to the
 
11 public at all times, and to render the service according to the
 
12 dictates of ethics and morality and in compliance with all laws.
 
13      In order to achieve these purposes it is the declared policy
 
14 of the State that the human resource program within each
 
15 jurisdiction be administered in accordance with the following:
 
16      (1)  Equal opportunity for all in compliance with all
 
17           applicable laws prohibiting discrimination.  No person
 
18           shall be discriminated against in examination,
 
19           appointment, reinstatement, reemployment, promotion,
 
20           transfer, demotion, or removal, with respect to any
 
21           position when the work may be efficiently performed by
 
22           the person without hazard or danger to the health or
 
23           safety of the person or others;
 

 
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 1      (2)  Impartial selection of individuals for public service
 
 2           by means of tests that are fair, objective, and
 
 3           practical;
 
 4      (3)  Incentives for competent employees within the service,
 
 5           whether financial or promotional opportunities and
 
 6           other performance based group and individual rewards
 
 7           that encourage continuous improvement to achieve
 
 8           superior performance;
 
 9      (4)  Reasonable job security for competent employees and
 
10           elimination of unnecessary or inefficient employees,
 
11           with the right of appeal from improper personnel
 
12           actions;
 
13      (5)  Equal pay for equal work through the systematic
 
14           classification of positions based on objective criteria
 
15           and adequate job evaluation; and
 
16      (6)  Harmonious and cooperative relations between government
 
17           and its employees, including employee organizations
 
18           representing them, to develop and maintain a well-
 
19           trained, efficient, and productive work force for the
 
20           delivery of services to the public.
 
21      §  -12  Definitions.  As used in this part:
 
22      "Appointing authority" means a department head or designee
 
23 having the power to make appointments or changes in status of
 
24 employees.
 

 
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 1      "Chief executive" means the governor, the respective mayors,
 
 2 the chief justice of the supreme court, and the chief executive
 
 3 officer of the Hawaii health systems corporation.
 
 4      "Civil service" includes all positions within a jurisdiction
 
 5 that must be filled through civil service recruitment procedures
 
 6 based on merit.
 
 7      "Civil service employee" means an employee appointed to a
 
 8 position in the civil service who has met the initial
 
 9 requirements for membership in the civil service and who must
 
10 meet on-going requirements to remain a member in the civil
 
11 service.
 
12      "Class" means a group of positions that reflect sufficiently
 
13 similar duties and responsibilities such that the same title and
 
14 the same pay range may apply to each position allocated to the
 
15 class.
 
16      "Classification plan" means classes of positions arranged in
 
17 a logical and systematic order.
 
18      "Classification system" means the methods, policies, and
 
19 procedures for identifying and organizing positions based on
 
20 duties, responsibilities and required knowledge, skills,
 
21 abilities, and competencies and assigning positions to pay
 
22 ranges.
 
23      "Department" includes any department, board, commission, or
 
24 agency of a jurisdiction.
 

 
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 1      "Director" means the head of the central personnel agency
 
 2 for a jurisdiction regardless of title, whether it is director of
 
 3 human resources development, director of personnel, director of
 
 4 personnel services, or personnel director.
 
 5      "Employee" means any person holding a position in the
 
 6 service of a jurisdiction, irrespective of status or type of
 
 7 appointment.
 
 8      "Employer" or "public employer" means the governor, in the
 
 9 case of the State; the respective mayors, in the case of the
 
10 counties; the chief justice of the supreme court, in the case of
 
11 the judiciary; the board of education, in the case of the
 
12 department of education; the board of regents, in the case of the
 
13 University of Hawaii, and the Hawaii health systems corporation
 
14 board, in the case of the Hawaii health systems corporation, and
 
15 includes any individual who represents one of these employers or
 
16 acts in their interest in dealing with public employees.
 
17      "Exclusive representative" means the employee organization
 
18 certified by the Hawaii labor relations board as the collective
 
19 bargaining agent to represent all employees in an appropriate
 
20 bargaining unit without discrimination and without regard to
 
21 employee organization membership.  
 
22      "Jurisdiction" means the State, the city and county of
 
23 Honolulu, the counties of Hawaii, Maui, and Kauai, the judiciary,
 
24 and the Hawaii health systems corporation.
 

 
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 1      "Legislative body" means the state legislature in the case
 
 2 of the State, the judiciary, and the Hawaii health systems
 
 3 corporation; the city council, in the case of the city and county
 
 4 of Honolulu; and the respective county councils, in the case of
 
 5 the counties of Hawaii, Maui, and Kauai.
 
 6      "Position" means a specific job requiring the full or part-
 
 7 time employment of one person.
 
 8      "Merit appeals board" means the appellate body of each
 
 9 jurisdiction under section    -31 that is authorized to hear
 
10 appeals concerning the civil service of the jurisdiction.
 
11      §  -13  General powers and duties of director.  The director
 
12 shall:
 
13      (1)  Represent the public interest in the improvement of
 
14           human resources administration in the civil service;
 
15      (2)  Assist in fostering the interest of institutions of
 
16           learning and civic, professional, and employee
 
17           organizations in the improvement of human resources
 
18           standards in civil service;
 
19      (3)  Advise the chief executive on policies and problems
 
20           concerning the human resources program; and
 
21      (4)  Make investigations concerning the administration of
 
22           human resources policies in the civil service,
 
23           including any matter respecting the enforcement or
 

 
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 1           effect of this chapter or the rules adopted thereunder,
 
 2           or the action or failure to act of any officer or
 
 3           employee with respect thereto. 
 
 4      §  -14  Specific duties and powers of director.  The
 
 5 director shall direct and supervise all the administrative and
 
 6 technical activities of the director's department.  In addition
 
 7 to other duties imposed upon the director by this chapter, the
 
 8 director shall:
 
 9      (1)  Establish and maintain a roster of all persons in the
 
10           civil service;
 
11      (2)  Appoint employees necessary to assist the director in
 
12           the proper performance of the director's duties and for
 
13           which appropriations shall have been made;
 
14      (3)  Foster and develop, in cooperation with appointing
 
15           authorities and others, programs for the improvement of
 
16           employee efficiency;
 
17      (4)  Cooperate fully with appointing authorities, giving
 
18           full recognition to their requirements and needs, in
 
19           the administration of this chapter to promote public
 
20           service by establishing conditions of service that will
 
21           attract and retain employees of character and
 
22           capability and to increase efficiency and economy in
 
23           governmental departments by continuously improving
 
24           methods of human resources administration;
 

 
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 1      (5)  Encourage and exercise leadership in the development of
 
 2           effective human resources administration within the
 
 3           several departments and make available the facilities
 
 4           of the director's department to this end;
 
 5      (6)  Investigate from time to time the operation and effect
 
 6           of this chapter and the rules adopted thereunder;
 
 7      (7)  Develop and maintain a classification plan;
 
 8      (8)  Ensure that collective bargaining agreements do not
 
 9           violate the merit principle or the principle of equal
 
10           pay for equal work within the jurisdiction and do not
 
11           interfere with the employer's rights and obligations;
 
12      (9)  Make recommendations and advise the chief executive on
 
13           appropriate adjustments for employees excluded from
 
14           collective bargaining; and
 
15     (10)  Perform any other lawful acts deemed by the director to
 
16           be necessary or desirable to carry out the purposes and
 
17           provisions of this chapter.
 
18      §  -15  Rules; policies and standards.(a)  Whenever the
 
19 director is required to or finds it necessary to prescribe rules
 
20 for the establishment and maintenance of a human resource program
 
21 in conformance with this chapter, the rules shall be prescribed,
 
22 without regard to chapter 91.  The procedures for rule-making
 
23 shall be as set forth in rules, which shall minimally provide
 
24 for:
 

 
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 1      (1)  Consultation on proposed rules with affected
 
 2           departments and employee organizations representing
 
 3           affected employees;
 
 4      (2)  Adoption of rules at open meetings that permit the
 
 5           attendance of any interested person;
 
 6      (3)  Approval of rules by the chief executive; and
 
 7      (4)  Filing of rules with the lieutenant governor in the
 
 8           case of the State or with the respective county clerks
 
 9           in the case of the counties.
 
10      (b)  The director may also issue policies, standards, and
 
11 procedures consistent with its rules to facilitate and ensure the
 
12 appropriate functioning of the human resources program.
 
13      §  -16  Civil service and exemptions.  (a)  The state
 
14 constitution mandates that the employment of persons in the civil
 
15 service, as defined by law, be governed by the merit principle.
 
16 The legislature declares that it is the public policy of the
 
17 State that the civil service systems of the respective
 
18 jurisdictions include all positions, whether permanent or
 
19 temporary, that should be filled through civil service
 
20 recruitment procedures based on merit.  No position shall be
 
21 exempted from civil service recruitment procedures unless it is
 
22 based on valid reasons as specified in rules.  Valid reasons
 
23 include, but are not limited to, that the appointment and removal
 

 
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 1 of an individual to the position is specified in statute; is
 
 2 subject to rules, policies, or procedures of other appropriate
 
 3 authority, such as, the board of education, the board of regents,
 
 4 or the Hawaii national guard; should be at the discretion of the
 
 5 legislative body; or should be left to the discretion of the
 
 6 chief executive or the appointing authority because the
 
 7 appointment may not extend beyond the chief executive or
 
 8 appointing authority's term of office and the appointee serves at
 
 9 the pleasure of the chief executive or appointing authority.
 
10      (b)  The rules may provide for an exemption from civil
 
11 service recruitment procedures if the appointment to the position
 
12 has a limitation date and it would be impracticable to recruit
 
13 under civil service recruitment procedures because the required
 
14 probation period that is part of the examination process can not
 
15 be completed.  The rules shall not permit multiple exemptions
 
16 from civil service recruitment procedures to the same position
 
17 when the position will be filled for a duration that would be
 
18 sufficient to recruit under civil service recruitment procedures
 
19 and allow for completion of the required probation period.
 
20      (c)  It is also the public policy of the State that all
 
21 civil service positions be covered under the classification plan
 
22 for the jurisdiction, unless the position is exempted from the
 
23 classification plan for valid reasons as set forth in rules.  The
 

 
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 1 rules may provide for the temporary exemption of a position until
 
 2 a new class is established or for a permanent exemption.
 
 3      (d)  The exemption of a position from the classification
 
 4 plan, whether temporary or permanent, or an appointment with a
 
 5 limitation date shall not itself result in an exemption from
 
 6 civil service recruitment procedures.  Civil recruitment
 
 7 procedures based on merit shall be followed for all positions
 
 8 unless exempted pursuant to subsection (a) or (b).  Applicants
 
 9 referred under civil service recruitment procedures shall be
 
10 informed if the position is temporarily or permanently exempted
 
11 from the position classification plan or if the appointment has a
 
12 limitation date.
 
13      (e)  Each director shall be responsible for ensuring that
 
14 all exemptions from civil service recruitment procedures or from
 
15 the classification plan are consistent with rules.  With respect
 
16 to positions exempted prior to the date of this Act, the director
 
17 shall review all positions to determine whether the positions
 
18 should continue to be exempt and if so, whether from civil
 
19 service recruitment procedures or the classification plan, or
 
20 both.  If the director determines that the exemption from either
 
21 or both are not for valid reasons in accordance with rules, it
 
22 shall consult with the appropriate appointing authority and its
 
23 chief executive on removing the exemptions.  With the approval of
 

 
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 1 the chief executive, it shall take whatever action is necessary
 
 2 to remove the exemptions, including proposed statutory
 
 3 amendments.  The positions shall be converted into the civil
 
 4 service or be included in the classification plan, as
 
 5 appropriate, but only upon the approval of the state legislature
 
 6 if a statutory amendment is required.
 
 7      (f)  The director shall establish rules for converting
 
 8 positions into the civil service or including positions in the
 
 9 classification plan.  The rules may allow for incumbents in
 
10 positions to be retained; provided that, the rules shall not
 
11 allow any incumbent to be retained unless the incumbent meets the
 
12 minimum qualification requirements of the position.  The rules
 
13 shall establish the manner for setting the compensation of
 
14 incumbents upon their inclusion into the classification plan,
 
15 which is fair and equitable based on the compensation of other
 
16 incumbents with comparable experience in the same or essentially
 
17 similar classes.  The rules may provide for a temporary
 
18 differential to preserve the incumbent's pay if the incumbent's
 
19 pay exceeds what is considered as fair and equitable in relation
 
20 to incumbents in the class.
 
21      (g)  All positions established after the date of this Act
 
22 shall be included in the civil service and be filled through
 
23 civil service recruitment procedures unless exempted therefrom by
 

 
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 1 the director in accordance with rules or by the legislative body
 
 2 of the jurisdiction.  Employees in positions subject to civil
 
 3 service recruitment procedures shall be entitled to become and
 
 4 remain members of the civil service for the duration of their
 
 5 appointments as provided in section   -23.  Employees in
 
 6 positions exempted from civil service recruitment procedures
 
 7 shall not be entitled to membership in the civil service.
 
 8      (h)  All positions established after the date of this Act
 
 9 shall be included in the classification plan unless exempted
 
10 therefrom by the director in accordance with rules or by the
 
11 legislative body of the jurisdiction.  Employees in positions
 
12 that are exempted from the classification plan, whether
 
13 temporarily or permanently, may be entitled to membership in the
 
14 civil service as provided in subsection (g).
 
15      §  -17  Recruitment.  The director shall determine,
 
16 establish, and maintain the manner in which civil service
 
17 positions are to be filled by rules, which shall be in accordance
 
18 with the requirements in section    -11.  The director shall seek
 
19 continuous improvements to streamline the recruitment process so
 
20 that positions are filled in the most economic, efficient, and
 
21 expeditious manner possible.  This includes maximizing use of new
 
22 technologies and developing more efficient alternatives to ensure
 
23 the availability of qualified applicant pools whether it involves
 

 
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 1 a change in the manner in which initial appointments are to be
 
 2 made, increased delegation to departments, or decentralization to
 
 3 appointing authorities, as necessary and appropriate.
 
 4      §  -18  Recruitment incentives.  Within limits set forth in
 
 5 rules of the director, appointing authorities may pay for all or
 
 6 a portion of the travel and transportation expenses or provide a
 
 7 monetary incentive to enhance the recruitment of persons employed
 
 8 or appointed to critical-to-fill and labor shortage positions.
 
 9      §  -19  Examinations.  There shall be examinations for
 
10 testing the fitness and ability of applicants for positions in
 
11 civil service.  The director shall adopt rules to administer the
 
12 examination programs.
 
13      §  -20  Examination consultants.  (a)  The director or an
 
14 appointing authority may select employees in the state service or
 
15 any individual to act as volunteer subject-matter consultants in
 
16 the preparation and rating of applications and examinations.
 
17 Notwithstanding chapter 92F, the identity of any volunteer
 
18 subject-matter consultant, and any information which would result
 
19 in actual identification of any volunteer subject-matter
 
20 consultant, are confidential and shall not be disclosed, unless
 
21 deemed appropriate by the director.
 
22      (b)  An appointing authority may excuse any employee in the
 
23 appointing authority's department from the employee's regular
 

 
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 1 duties for the time required for the employee's work as a
 
 2 volunteer subject-matter consultant.  Employees shall not be
 
 3 entitled to extra pay for services as volunteer consultants, but
 
 4 shall be entitled to reimbursement for necessary traveling and
 
 5 other expenses.
 
 6      §  -21  Person ineligible for appointment.  A person shall
 
 7 be ineligible for any appointment in the civil service for a
 
 8 specified period of time as determined appropriate by the
 
 9 director for any of, but not limited to, the following:
 
10      (1)  Deception, fraud, or providing false or misleading
 
11           statements of material facts in the application or
 
12           examination process;
 
13      (2)  Unauthorized or improper assistance in an examination;
 
14           or
 
15      (3)  A determination of unsuitability for employment.
 
16      §  -22  Classification.  Each director shall establish,
 
17 implement and maintain one or more classification systems
 
18 covering all civil service positions, unless exempted as provided
 
19 by rules.  The systems shall be constructed with the objective of
 
20 achieving equal pay for equal work within the jurisdiction.  The
 
21 director shall establish rules that allow for review and appeal
 
22 of classification and initial pricing actions.
 
23      §  -23  Membership in civil service; requirements.(a)  All
 
24 employees appointed to civil service positions shall constitute
 

 
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 1 the membership of the civil service, but no employee shall be
 
 2 entitled to membership in civil service unless the employee:
 
 3      (1)  Successfully serves the initial probation period that
 
 4           is required as part of the examination process to
 
 5           determine the employee's fitness and ability for the
 
 6           position; and 
 
 7      (2)  Satisfies all qualifications.  
 
 8 Any employee who does not meet the requirements of this
 
 9 subsection shall not become a member in the civil service and
 
10 shall be allowed to resign from the position, otherwise the
 
11 employee shall be terminated from the position.
 
12      (b)  Upon becoming a member in the civil service, the
 
13 employee shall be entitled to hold the member's position for the
 
14 duration of the member's appointment during good behavior and
 
15 while meeting all qualification and performance requirements of
 
16 the position; provided that:
 
17      (1)  An employee may be subject to suspension, demotion, or
 
18           dismissal for disciplinary reasons;
 
19      (2)  An employee may be subject to demotion or termination
 
20           for failure to meet qualification or performance
 
21           requirements of the employee's position; or
 
22      (3)  An employee may be subject to termination for lack of
 
23           work, lack of funds, or other legitimate reasons.
 

 
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 1 All civil service employees with permanent appointments,
 
 2 including an employee who has the return rights to a position in
 
 3 which the employee has a permanent appointment, shall have layoff
 
 4 rights pursuant to section   -28.  All other civil service
 
 5 employees whose appointments have a limitation date shall not
 
 6 have layoff rights and shall be released at the end of their
 
 7 appointments or earlier if there is lack of work, funds, or other
 
 8 legitimate reasons.
 
 9      (c)  To retain membership in the civil service, including
 
10 the right to return to a former position, all employees must
 
11 continue to demonstrate their fitness and ability for their
 
12 current positions by meeting all of the qualification and
 
13 performance requirements.  Whenever an employee is not meeting
 
14 qualification or performance requirements of the position, the
 
15 employee shall be allowed the option to resign from civil
 
16 service, otherwise the employee shall be terminated from the
 
17 civil service.
 
18      (d)  If an employee is not meeting performance requirements
 
19 but the appointing authority deems that the employee's
 
20 deficiencies are correctable within a reasonable period, the
 
21 appointing authority may provide the employee an opportunity to
 
22 re-qualify for the position.  The appointing authority may
 
23 require the employee to successfully complete a special probation
 

 
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 1 period, not exceeding a period of three months, to demonstrate
 
 2 the employee's fitness and ability for the position by meeting
 
 3 all performance requirements.  While serving a special probation
 
 4 period, the employee shall not be granted any pay increase that
 
 5 is provided to other employees for successfully meeting all
 
 6 performance requirements of their respective positions.  If an
 
 7 employee does not successfully complete the special probation
 
 8 period, subsection (c) shall apply.
 
 9      (e)  A member who voluntarily moves from the employee's
 
10 position to another position in the civil service may be required
 
11 to successfully serve a new probation period as part of the
 
12 examination process to determine the employee's fitness and
 
13 ability for the new position.  A member who does not successfully
 
14 complete the new probation period after moving voluntarily from
 
15 the employee's former position shall be allowed to return to the
 
16 employee's former or a comparable position or to resign from
 
17 civil service, otherwise the employee shall be terminated from
 
18 civil service.
 
19      (f)  A member who is involuntarily moved from the employee's
 
20 position to another position in the civil service may be required
 
21 to successfully serve a new probation period as part of the
 
22 examination process to determine the employee's fitness and
 
23 ability for the new position.  A member who does not successfully
 

 
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 1 complete the new probation period after being moved involuntarily
 
 2 from the employee's former position shall be allowed the option
 
 3 to resign from civil service, otherwise the employee shall be
 
 4 terminated from civil service.
 
 5      (g)  The resignation or termination of an employee under
 
 6 this section shall not itself serve as a bar for future
 
 7 employment in public service, but the employee's inability to
 
 8 meet qualification or performance requirements may be considered
 
 9 in determining the employee's fitness for positions essentially
 
10 similar to the position from which the employee resigned or was
 
11 terminated.
 
12      (h)  An employee serving an appointment with a limitation
 
13 date may subsequently be appointed to the same position or a
 
14 related position in the same class within the department when a
 
15 permanent position is established or is vacated; provided that
 
16 the employee was initially hired through civil service
 
17 recruitment procedures and the period of service as a temporary
 
18 appointee immediately preceded the appointment to the permanent
 
19 position.  The period of service as a temporary appointee may be
 
20 credited toward the probation period if the appointing authority
 
21 certifies that the employee's performance as a temporary
 
22 appointee was satisfactory and encompassed duties essentially
 
23 similar to those required during an initial or new probation
 

 
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 1 period.  Upon certification, the period of service performed as a
 
 2 temporary appointee shall be credited toward the probation period
 
 3 and the employee shall be required to serve only the remainder of
 
 4 the probation period, if any.
 
 5      §  -24  Performance appraisal systems; rewards.(a)  Each
 
 6 director shall ensure that there are adequate performance
 
 7 appraisal systems in place for civil service employees to carry
 
 8 out the purposes and policies of section   -11.
 
 9      (b)  Each director shall develop, implement, and monitor a
 
10 system of awarding wage increases based on merit.  The merit pay
 
11 system developed by each director shall be subject to
 
12 consultation with the employee representative but is not subject
 
13 to mutual agreement.
 
14      §  -25  Non-disciplinary adverse actions; procedures and
 
15 appeal rights.(a)  An appointing authority may demote or
 
16 terminate any employee for failing to meet qualification and
 
17 performance requirements of the employee's position and for other
 
18 non-disciplinary reasons that will promote efficiency of
 
19 government service.  Procedures for taking non-disciplinary
 
20 actions shall be as provided in this part and rules.
 
21      (b)  Adverse actions taken by the appointing authority
 
22 because of an employee's failure to meet qualification and
 
23 performance requirements of the position or to successfully
 

 
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 1 complete a probation period may be grieved internally up to the
 
 2 level of the chief executive, through the departmental complaint
 
 3 procedure or collective bargaining procedure, as applicable.  If
 
 4 the grievance has not been resolved internally through the
 
 5 departmental complaint procedure or collective bargaining
 
 6 procedure, civil service employees may appeal to the merit
 
 7 appeals board; provided that the grievance does not involve
 
 8 matters under the authority of another appellate body or
 
 9 administrative agency.
 
10      (c)  Adverse actions taken for non-disciplinary reasons
 
11 shall not be referred to arbitration under a collective
 
12 bargaining agreement.
 
13      §  -26  Disciplinary actions; procedures and appeal rights.
 
14 (a)  An appointing authority, for disciplinary purposes, may
 
15 suspend, dismiss, or demote any employee that the appointing
 
16 authority considers appropriate.  Procedures for taking
 
17 disciplinary actions, including appropriate notice and placing an
 
18 employee on leave without pay pending an investigation, shall be
 
19 as provided by rules or as may be negotiated under collective
 
20 bargaining agreements, as applicable.
 
21      (b)  Any civil service employee who is suspended, dismissed,
 
22 or demoted for disciplinary reasons may grieve and appeal the
 
23 disciplinary action.  Civil service employees covered by
 

 
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 1 collective bargaining agreements shall grieve under the grievance
 
 2 procedure in collective bargaining agreements and the grievance
 
 3 may be submitted to arbitration.  Civil service employees
 
 4 excluded from collective bargaining coverage shall grieve under
 
 5 the departmental complaint procedure provided by rules and the
 
 6 grievance may be appealed to the merit appeals board.
 
 7      §  -27  Tenure; resignations.(a)  Every member of the
 
 8 civil service shall be entitled to hold the member's position for
 
 9 the duration of the member's appointment as provided in
 
10 section   -23.
 
11      (b)  When an employee resigns, the resignation shall be in
 
12 writing in accordance with rules.  In case an employee resigns
 
13 without submitting a resignation or the resignation is not
 
14 accepted for reasons allowed by rules, the appointing authority,
 
15 within fifteen days following the resignation, shall file with
 
16 the director a statement showing termination of employment.
 
17      (c)  An employee may be deemed to have resigned if the
 
18 employee does not report to work for fifteen days without
 
19 authorization and did not express any desire to the appointing
 
20 authority during the fifteen-day period to continue employment.
 
21 The appointing authority shall file with the director a statement
 
22 showing termination of employment at the end of the fifteen-day
 
23 period.
 

 
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 1      (d)  Statements regarding terminations under this section
 
 2 shall include any supporting information why the employee has
 
 3 been deemed to have resigned, including but not limited to:  
 
 4      (1)  The employee stated a desire to quit or an
 
 5           unwillingness to continue employment; 
 
 6      (2)  The absence follows the end of an authorized leave; 
 
 7      (3)  The employee is engaged in other employment; 
 
 8      (4)  The employee is able, but not available for employment;
 
 9           or 
 
10      (5)  The employee attempted to resign while an investigation
 
11           was pending against the employee.  
 
12 A termination under this section shall be considered as a
 
13 voluntary separation of employment that is employee initiated and
 
14 shall not be grieved or appealed.
 
15      (e)  If the employee does not report for work for fifteen
 
16 days without authorization, but expressed during the fifteen-day
 
17 period a desire to continue employment, the employee shall not be
 
18 deemed as having resigned.  The appointing authority may take
 
19 appropriate disciplinary action, up to and including dismissal,
 
20 in consideration of the reasons for the employee's absence.  The
 
21 disciplinary action may be grieved under the appropriate internal
 
22 review procedure and appealed to the appropriate authority,
 
23 whether the merit appeals board or to arbitration under a
 
24 collective bargaining agreement.
 

 
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 1      §  -28  Layoff.  When it is necessary to release employees
 
 2 from their positions due to lack of work, lack of funds, or other
 
 3 legitimate reasons, employees with permanent appointments in
 
 4 civil service positions shall have layoff rights.  Layoffs shall
 
 5 be made in accordance with the procedures provided in rules or as
 
 6 may be negotiated under collective bargaining agreements, as
 
 7 applicable.
 
 8      §  -29  Forms required of appointing authorities.  Each
 
 9 director shall develop and administer an employment records
 
10 management system and require appointing authorities to transmit
 
11 records that the director may request.  Appointing authorities
 
12 shall maintain all records of all appointments, terminations of
 
13 employment, transfers, resignations, suspensions, demotions, and
 
14 dismissals or other employment records and forms deemed
 
15 appropriate by the director.
 
16      §  -30  Complaints and grievances; procedures.  (a)  Any
 
17 person suffering legal wrong because of any action by the
 
18 director or an appointing authority, or adversely affected or
 
19 aggrieved by an action, shall have an exclusive internal review
 
20 procedure available to have the complaint or grievance heard and
 
21 resolved expeditiously:
 
22      (1)  Persons who are not employees and employees who are
 
23           excluded from collective bargaining coverage shall
 

 
Page 27                                                    3178
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 1           utilize the departmental complaint procedure provided
 
 2           by rules in accordance with subsection (b); or
 
 3      (2)  Employees who are covered under collective bargaining
 
 4           agreements shall utilize the contractual grievance
 
 5           procedure, up to the level of the chief executive, as
 
 6           their internal review procedure.
 
 7      (b)  The departmental complaint procedure shall be in
 
 8 accordance with rules that shall provide the following:
 
 9      (1)  The procedure shall encourage informal and expeditious
 
10           resolution of the complaint.  Informal resolution
 
11           includes the use of any administrative review process
 
12           available.  A written decision shall be issued to the
 
13           complainant on the outcome of any efforts to resolve
 
14           the complaint informally;
 
15      (2)  In presenting the complaint, the complainant shall be
 
16           assured freedom from coercion, discrimination or
 
17           reprisal;
 
18      (3)  The complainant shall have the right to be represented
 
19           by a person or persons of the complainant's choosing at
 
20           any stage in the presentation of the complaint;
 
21      (4)  To minimize confusion and loss of rights, the time and
 
22           manner for filing a formal complaint shall be as
 
23           uniform and easily understandable as possible to the
 

 
Page 28                                                    3178
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 1           general public.  Complaint forms, instructions, and the
 
 2           complaint procedure should be readily accessible.
 
 3           Complaints should be required to be filed at central
 
 4           locations convenient to the public, then the complaint
 
 5           should be referred to the lowest level of the complaint
 
 6           procedure that has the authority to act.  The deadline
 
 7           for filing a formal complaint shall be tolled after a
 
 8           reply is received to the informal complaint if efforts
 
 9           were made to resolve the complaint informally;
 
10      (5)  All proceedings relating to the handling of a complaint
 
11           by a person who is not an employee, so far as
 
12           practicable, shall be conducted at times convenient to
 
13           the complainant.  All proceedings relating to the
 
14           handling of an employee complaint, so far as
 
15           practicable, shall be conducted during the employee's
 
16           work hours to permit the employee time off from work
 
17           with pay; and
 
18      (6)  The departmental complaint procedure shall culminate in
 
19           a written decision by the chief executive or the chief
 
20           executive's designee, whether the director or the
 
21           appointing authority, who has been assigned
 
22           responsibility and is accountable for the action being
 
23           complained.
 

 
Page 29                                                    3178
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 1      (c)  The applicable internal review procedure shall be
 
 2 exhausted before an appeal is filed with the merit appeals board.
 
 3 The complainant or grievant is responsible for the timely filing
 
 4 of an appeal filed with the appropriate agency or appellate body
 
 5 regardless of whether the applicable internal review procedure is
 
 6 utilized.
 
 7      §  -31  Merit appeals boards; establishment.  (a)  Each
 
 8 jurisdiction shall establish a merit appeals board that shall
 
 9 have exclusive authority to hear and decide appeals concerning
 
10 the civil service of the jurisdiction under this part; provided
 
11 that the appeal does not involve prohibited acts that are under
 
12 the authority of another administrative agency or appellate body
 
13 or may be referred to arbitration under a collective bargaining
 
14 agreement.
 
15      (b)  Members of the merit appeals board shall be persons who
 
16 can objectively apply the merit principle to public employment.
 
17      (c)  No person who occupies any elective or appointive
 
18 office or any position under the state or county government shall
 
19 be eligible for membership on or continue to be a member of the
 
20 merit appeals board.  No member of the board, during the member's
 
21 term of office, shall serve as an officer or committee member of
 
22 any political party organization, including a precinct
 
23 organization, or present oneself as a candidate or be a candidate
 

 
Page 30                                                    3178
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 1 for nomination or election to any public office at any election.
 
 2 The office of any member who violates this section shall be
 
 3 conclusively presumed to have been abandoned and vacated by
 
 4 reason thereof and thereupon a qualified person shall be
 
 5 appointed to fill the vacancy.  As an alternative remedy,
 
 6 proceedings in the nature of quo warranto may be brought by any
 
 7 person to oust any member who violates this subsection.
 
 8      (d)  Any other qualifications or limitations on board
 
 9 members, whether the number of members, the manner of
 
10 appointment, the term of office, any limitation on terms, the
 
11 appointment or designation of a chairperson, or the removal of
 
12 members, and the designated name of the merit appeals board,
 
13 shall be left to the determination of each jurisdiction based on
 
14 its own preferences and needs.  Section 26-34 shall not apply.
 
15      (e)  The members on each jurisdiction's civil service
 
16 commission or appeals board on the effective date of this Act
 
17 shall continue in office in accordance with their appointments.
 
18 A jurisdiction may use its civil service commission or appeals
 
19 board, with or without modification as provided under subsection
 
20 (d), as its merit appeals board and assume all of the functions
 
21 and responsibilities under this part, as soon as practicable,
 
22 beginning with the adoption of rules of practice and procedure.
 
23      (f)  Official business of the merit appeals board, other
 
24 than mediation as provided in section    -32(c), shall be
 

 
Page 31                                                    3178
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 1 conducted in meetings open to the public, unless otherwise
 
 2 provided in chapter 92.  The majority of members to which the
 
 3 board is entitled shall constitute a quorum.
 
 4      (g)  Each member of the merit appeals board shall serve
 
 5 without compensation, unless otherwise provided by the chief
 
 6 executive.  When any member is required to travel in the
 
 7 performance of duties, the chief executive shall provide for
 
 8 reasonable traveling expenses.
 
 9      §  -32  Merit appeals board; duties, and jurisdiction.  (a)
 
10 The merit appeals board of each jurisdiction may render a final
 
11 and binding decision on actions under this part taken by the
 
12 chief executive, the director, an appointing authority, or a
 
13 designee acting on behalf of one of these individuals, including
 
14 but not limited to:
 
15      (1)  The classification, reclassification, allocation, and
 
16           reallocation of a particular position;
 
17      (2)  The initial pricing of classes;
 
18      (3)  The filling of vacancies, including the publication of
 
19           a vacancy announcement, examination of applicants, and
 
20           eligibility for referral;
 
21      (4)  The non-disciplinary termination of a civil service
 
22           employees for failure or inability to meet
 
23           qualification or performance requirements of the
 
24           employee's position; and
 

 
Page 32                                                    3178
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 1      (5)  The disciplinary action taken against a civil service
 
 2           employee who is not covered under a collective
 
 3           bargaining agreement.  With respect to disciplinary
 
 4           action taken against a civil service employee who is
 
 5           covered under a collective bargaining agreement, the
 
 6           merit appeals board shall not accept an appeal, unless
 
 7           it is filed with a written agreement.  The written
 
 8           agreement must be signed by the employee, the exclusive
 
 9           representative, and the employer stating that all
 
10           parties mutually agree that an appeal may be filed with
 
11           the merit appeals board, in lieu of arbitration under
 
12           the collective bargaining agreement.
 
13      (b)  A person, an employee, or an exclusive bargaining
 
14 representative acting on behalf of an employee, shall be entitled
 
15 to submit an appeal to the merit appeals board for a decision
 
16 regarding an action under subsection (a).  The appropriate
 
17 internal review procedure shall be exhausted before an appeal is
 
18 filed with the merit appeals board.  The appeal shall be subject
 
19 to the following:
 
20      (1)  If the act complained of constitutes an unlawful act
 
21           that is under the jurisdiction of an appellate body or
 
22           administrative agency, the merit appeals board shall
 
23           not act, but shall defer to the authority of the
 
24           appropriate agency.
 

 
Page 33                                                    3178
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 1      (2)  If the act complained of is arbitrable under a
 
 2           collective bargaining contract, the merit appeals board
 
 3           shall not act, unless there is an agreement as provided
 
 4           in subsection (a)(5) or the matter is referred to it
 
 5           under paragraph (3).
 
 6      (3)  In the event of controversy on the appropriate
 
 7           authority to hear an appeal, the merit appeals board
 
 8           shall hold any proceedings before it on the appeal in
 
 9           abeyance until the matter is determined by the Hawaii
 
10           labor relations board.  The appeals board shall not act
 
11           or shall proceed in accordance with the determination
 
12           of the Hawaii labor relations board.
 
13      (4)  Employees who are not members of the civil service may
 
14           utilize the appropriate internal review procedure, but
 
15           shall have no right to appeal actions of their
 
16           respective appointing authorities to the merit appeals
 
17           board unless they are applicants affected by actions
 
18           under subsection (a)(3).
 
19      (c)  Whenever the board determines that mediation may result
 
20 in a satisfactory resolution of an appeal, may narrow the issues
 
21 on appeal, or otherwise expedite a decision, the board may
 
22 require the parties to submit the issues to mediation.  Mediation
 
23 may be provided by any member or members of the merit appeals or
 

 
Page 34                                                    3178
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 1 by a public or nonprofit agency, which offers mediation or
 
 2 similar services for resolving or narrowing differences.  If
 
 3 mediation is used but the appeal is not resolved, the merit
 
 4 appeals board shall conduct a hearing and issue a decision on all
 
 5 unresolved issues.
 
 6      (d)  Both the appealing employee and the appointing
 
 7 authority shall have the right to be heard publicly, present
 
 8 evidence and be represented by counsel, who shall have the right
 
 9 to examine and cross-examine witnesses.  At the hearing technical
 
10 rules of evidence shall not apply.  The merit appeals board shall
 
11 have the power to compel the attendance of witnesses and
 
12 administer oaths to witnesses.
 
13      (e)  For the purpose of hearing appeals fairly and
 
14 expeditiously, the merit appeals board, at any time, may appoint
 
15 a competent and qualified disinterested person to act as its
 
16 hearing officer.  The hearing officer shall hear the matter in
 
17 the same manner as if it were before the merit appeals board and
 
18 upon the conclusion of the hearing and shall report the hearing
 
19 officer's findings of fact, conclusions, and recommendations to
 
20 all parties and the merit appeals board.  The merit appeals board
 
21 shall render a decision after reviewing the hearing officer's
 
22 report.
 
23      (f)  All decisions of the merit appeals board shall be final
 
24 and binding and shall not be subject to chapter 91.
 

 
Page 35                                                    3178
                                     S.B. NO.           
                                                        
                                                        

 
 1      (g)  Each merit appeals board shall adopt rules of practice
 
 2 and procedures without regard to chapter 91, but in accordance
 
 3 with the same rule-making requirements in section   -15
 
 4 applicable to each director.  The rules shall recognize that
 
 5 matters of technique and administration are left for execution by
 
 6 the director.  The rules may provide for reimbursement or the
 
 7 sharing of specific expenses directly incurred as a result of the
 
 8 appeal if the merit appeals board deems that it would be
 
 9 equitable and appropriate.  The rules may include expenses of a
 
10 hearings officer, mediation services not provided by members of
 
11 the board, transcription if requested by the parties, traveling
 
12 and per diem for individuals other than board members or
 
13 permanent staff of the board, and other related expenses.
 
14      (h)  The legal counsel for each merit appeals board shall be
 
15 decided by agreement of the chief legal officers of all
 
16 jurisdictions in consideration of their need to avoid conflicts
 
17 in representation and the merit appeals boards' functions and
 
18 responsibilities.
 
19      §  -33  Director; deputy director.  (a)  Any other provision
 
20 of law to the contrary notwithstanding, the merit appeals board
 
21 of each jurisdiction shall appoint and may at their pleasure
 
22 remove a director, who shall be the head of the department or
 
23 other organizational segment that includes the central personnel
 

 
Page 36                                                    3178
                                     S.B. NO.           
                                                        
                                                        

 
 1 agency of the jurisdiction.  The director, at the time of the
 
 2 director's appointment, and thereafter, shall be thoroughly
 
 3 familiar with the principles and methods of personnel
 
 4 administration and shall believe in applying the merit principle
 
 5 and scientific administrative methods to public personnel
 
 6 administration.
 
 7      (b)  Because cumulative experience and continuity in office
 
 8 are essential to the proper administration of this chapter, it is
 
 9 declared to be in the public interest to continue the director in
 
10 office as long as efficiency is demonstrated.  The provisions of
 
11 section 26-31 or any similar limitation on a term that expires at
 
12 the end of the chief executive's term shall not apply.
 
13      (c)  The director may designate a qualified person as the
 
14 director's deputy.  The deputy shall be thoroughly familiar with
 
15 the principles and methods of personnel administration and shall
 
16 believe in applying the merit principle and scientific
 
17 administrative methods to public personnel administration.
 
18      (d)  In case of a vacancy in the office of director or of
 
19 the absence of the director or the director's inability from any
 
20 cause to discharge the powers and duties of the director's
 
21 office, the powers and duties shall devolve upon the director's
 
22 deputy.
 
23      (e)  The compensation of the director and the director's
 
24 deputy shall be equivalent to the compensation provided for other
 

 
Page 37                                                    3178
                                     S.B. NO.           
                                                        
                                                        

 
 1 heads of departments and deputies, unless otherwise determined by
 
 2 appropriate authority.
 
 3      §  -34  State merit appeals board; establishment and
 
 4 exceptions.  (a)  The merit appeals board for the State shall be
 
 5 comprised of three members appointed by the governor.  All
 
 6 members shall have prior experience in public employment and
 
 7 knowledge of public employment laws.  One member shall have
 
 8 experience as a representative of an employee organization and
 
 9 one member shall have experience as a representative of
 
10 management.  The governor shall consider the names of qualified
 
11 individuals submitted by employee organizations and management
 
12 before appointing the members of the appeals board.  The
 
13 chairperson of the merit appeals board shall be designated as
 
14 provided in rules established by the board.
 
15      (b)  Because cumulative experience and continuity in office
 
16 are essential to the proper administration of this part, it is
 
17 declared to be in the public interest to continue board members
 
18 in office as long as efficiency is demonstrated.  Section 26-34
 
19 shall not apply.  Members shall be appointed for five-year terms
 
20 and may be re-appointed without limitation as long as efficiency
 
21 is demonstrated.  The governor shall fill any vacancy by
 
22 appointing a new member for a five-year term.  The governor may
 
23 remove for cause any member after due notice and public hearing.
 

 
Page 38                                                    3178
                                     S.B. NO.           
                                                        
                                                        

 
 1      (c)  All provisions with respect to the merit appeals board
 
 2 of each jurisdiction shall apply to the state merit appeals
 
 3 board."
 
 4      SECTION 2.  Chapter 76, Hawaii Revised Statutes, is
 
 5 repealed.
 
 6      SECTION 3.  This Act shall take effect upon its approval.
 
 7 
 
 8                       INTRODUCED BY:  ___________________________