§7-1 Purpose
§7-2 Applicability
§7-3 General
Provisions
§7-4 Establishment
of the internal complaint
§7-5 Appeals
to the commission
§7-1 Purpose. The purpose of this chapter
is to establish a uniform complaint procedure to consolidate multiple existing
complaint procedures within each department to minimize confusion and possible
loss of rights in filing a complaint by employees and members of the public.
(Auth: HRS §76-42)
§7-2 Applicability. This chapter shall
apply to all employees in all positions in the County service and members of
the general public. (Auth: HRS §76-42)
§7-3 General Provisions. (a) A complaint
is defined as a misinterpretation, misapplication, or violation of a personnel
statute, rule, or written policy as to the employee and shall pertain to
matters covered under section 76-14, HRS.
(b) Nothing
in these rules restricts the right of any employee or member of the general
public to lodge a complaint concerning any matter relating to county government
except those complaints by employees that are required to be disposed of in
accordance with collective bargaining agreements. These rules set forth the procedures for
those complaints that require action on the part of county officials.
(c) Specifically,
these rules are intended to insure that any employee covered by chapter 76,
HRS, or any member of the general public disqualified during the recruitment
process by virtue of failure to meet minimum qualifications or unsuitability is
provided the opportunity to lodge an internal complaint concerning a matter
within the jurisdiction of the commission as set forth in section 76-14, HRS.
(d) The
complainant shall be assured freedom from coercion, discrimination, or
reprisal, and has the right to be represented by a person or persons of the
complainant’s own choosing at any stage in the presentation of the complaint.
(e)
Matters subject to collective
bargaining grievance procedures shall not be considered a complaint under this
chapter.
(f)
All proceedings shall be conducted
during the employee’s work hours as practicable and, for a complainant who is
not an employee, during office hours at times convenient to the complainant.
(Auth: HRS §76-42)
§7-4 Establishment of the internal complaint
procedure. The Director shall establish a uniform internal complaint
procedure applicable to all employees concerning employees and members of the
general public whose complaints are within the jurisdiction of the
commission. Each department head may
establish a uniform internal complaint procedure applicable to all employees
and the general public for all other complaints which are not within the
jurisdiction of the commission in accordance with the following guidelines:
(1)
For complaints in general:
(A)
The DPS shall prepare a standardized
complaint form for use in the submission of a complaint. To the maximum extent possible this form
should replace existing complaint forms unless a specific form is required by
law. Nothing in this section prevents
any agency from supplementing any standardized complaint form to obtain
additional information necessary to efficiently process complaints related to
the requirements of specific programs.
(B)
An applicant or employee may request in
writing any relevant information subject to 92F, HRS, needed to investigate and
process a complaint. The department
shall respond to the request for information within ten (10) calendar days.
(C)
Complaint forms, instructions, and the
complaint procedures shall be easily accessible to employees and the general
public at the department of personnel services and department’s personnel
office.
(D)
Management need not consider any
complaint not filed in accordance with the procedure contained herein; provided
that the parties may mutually agree to waive or extend any specific time
limitation set forth in the procedure;
(E)
Complaints concerning matters that are
subject to collective bargaining grievance procedures shall be returned to the
complainant. If the complainant disputes
whether the complaint involves matters subject to collective bargaining
grievance procedures, the complainant may submit the matter to the Hawaii Labor
Relations Board pursuant to the board’s rules of practice and procedure;
(F)
A written decision shall be issued to the
complainant on the outcome of any efforts to resolve the complaint at the
informal step;
(G)
If the complaint cannot be resolved at
the informal step, the decision shall be accompanied by information on the
filing of a formal complaint with the department or the commission, as
applicable;
(H)
If the last calendar day for filing
within the internal complaint procedure falls on a holiday, Saturday or Sunday,
the deadline shall be advanced to the next business day.
(2)
For human resources complaints within the
jurisdiction of the commission, the following procedures apply:
(A)
Members of the general public may only
file a complaint involving denial of opportunity to pursue a vacancy for reason
of failure to meet the minimum qualification for that vacant position for which
the complainant had filed a formal application or for determinations of
unsuitability;
(B)
Only employees covered by chapter 76,
HRS, may file a complaint concerning classification and reclassification of a
particular position and initial pricing of classes;
(C)
Only employees covered by chapter 76,
HRS, who are excluded from collective bargaining may file a complaint
concerning other employment actions under chapter 76 or chapter 89C, HRS,
including disciplinary actions and adverse actions for failure to meet
performance requirements;
(D)
A complaint under subsection (c) must be
filed within:
(i)
Ten (10) calendar days from the date of
the alleged occurrence for all recruitment and examination complaints;
(ii)
Twenty (20) calendar days from the date
of notice for all complaints on classification and initial pricing actions;
(iii)
Ten (10) calendar days for all other
human resource complaints.
(E)
For classification and initial pricing
issues, the filing of the formal complaint is the request for administrative
review. For recruitment and examination,
the filing of the formal complaint is an appeal to the commission. For all other human resource issues, the
formal complaint procedure shall be as described in (4) below.
(3)
For complaints not within the
jurisdiction of the commission:
(A)
The filing of a written complaint shall
be within twenty (20) calendar days from the date that the alleged violation
occurred unless the filing deadline is otherwise established by law in which
case that deadline shall govern;
(B)
If the complaint is not satisfactorily
resolved at the informal step, the employee complainant shall file a formal
complaint pursuant to procedures established by the director or otherwise
established by law. (Auth: HRS §76-42)
(4)
Filing of a formal complaint.
(A) Step 1 – The employee
complaint shall be filed with the department head or designee within ten (10)
calendar days after receiving the informal written response. The department head or designee need not
consider any complaints in step 1 which encompasses different alleged
violations or charges other than those presented in the informal step. A meeting to discuss the employee complaint
shall be held within ten (10) calendar days after receipt of the appeal. The department head, or designee, shall reply
in writing to the complainant within ten (10) calendar days after the close of
the meeting.
(B)
Step 2 – In the event the complaint
is not resolved at step 1, the complainant may file a letter of appeal with the
director or designee specifying the reason for the appeal together with a copy
of the complaint and a copy of the step 1 decision within ten (10) calendar
days after the receipt of the step 1 response.
Within ten (10) calendar days after receipt of the appeal, the director
or designee, the complainant, and departmental representative shall meet in an
attempt to resolve the complaint. The
director or designee need not consider any complaint in step 2 which
encompasses a different alleged violation or charge than those in step 1. The director or designee shall reply in
writing to the complainant within ten (10) calendar days after the close of the
meeting.
(C)
Step 3 – If the employee complaint is not
satisfactorily resolved at step 2, the complainant may appeal to the commission
within ten (10) calendar days after the step 2 response was sent by the
director. The commission need not
consider any complaint in step 3 which encompasses a different alleged
violation or charge than those in step 2.
For purpose of filing appeals to the commission, the date the step 2
response was sent shall be as defined in Part 2, Rules of the
§7-5 Appeals to the commission. The
internal complaint procedures shall be exhausted before an appeal is filed with
the commission. Appeals to the
commission shall be in accordance with section §76-14, HRS, and in accordance
with such rules of practice and procedure as may be adopted by the commission.
(Auth: HRS §76-42)
§7-6 Other appeals processes. When an
appeal is not under the jurisdiction of the commission but some other
administrative agency or appellate body, the complainant is responsible for the
timely filing of an appeal with the appropriate agency regardless of whether
the internal complaint procedure under this chapter was used.
(Auth: HRS §76-42)