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NO. CAAP-16-0000739

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, DEPARTMENT OF PUBLIC SAFETY,

Employer-Appellant-Appellee,

 v.

RONALD N. NAUMU, Employee-Appellee-Appellant,

and

MERIT APPEALS BOARD, Agency-Appellee-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CIVIL NO. 15-1-2432)

MEMORANDUM OPINION

(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)

The procedural history of this agency appeal is long

and complex, spanning over a decade of prior proceedings arising

out of Employee-Appellant Ronald N. Naumu's (Naumu) 2001

employment termination. Naumu appealed to the Merit Appeals

Board (MAB) in 2002, and an appeal hearing was held in 2006. 

Following the 2006 MAB hearing, the case subsequently went back

and forth between the MAB and the circuit court for the next ten

years, until a final judgment was entered in 2016. Four appeal

hearings were conducted before the MAB: in 2006, 2010-11, 2013,

and 2015. There were five separate Findings of Fact and

Conclusions of Law (FOF-COL) MAB decisions, issued in 2007, 2009,

2012,1 2013 and 2015. Interspersed with the four MAB appeal

hearings, were four agency appeals to the circuit court, filed in

three different case numbers (Civil No. 12-1-0331-02; Civil No.

1 The 2012 FOF-COL was as a result of the MAB granting a motion for

reconsideration of its 2009 decision.

Electronically Filed

Intermediate Court of Appeals

CAAP-16-0000739

17-FEB-2022

07:57 AM

Dkt. 125 MO
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13-1-3353-12; and Civil No. 15-1-2432-12), taken in 2007, 2012,

2013, and 2015. The agency appeals to the circuit court

resulted, in turn, in three remands to the MAB: the 2007 remand

resulting in a 2010-11 re-hearing, 2012 remand resulting in 2013

re-hearing, and 2015 remand resulting in a 2015 "limited"2

hearing. Following the 2015 limited hearing before the MAB,

Naumu filed his last agency appeal to the circuit court, which

was dismissed in 2016. After the September 30, 2016 Final

Judgment was entered, Naumu timely filed this appeal on October

28, 2016.3

Naumu appeals from the (1) Order Remanding EmployerAppellant State of Hawai#i, Department of Public Safety's (DPS)

Agency Appeal Filed February 3, 2012, filed November 28, 2012 in

Civil No. 12-1-0331-02 (2012 Remand Order) by the Circuit Court

of the First Circuit (Circuit Court);4 (2) Order Denying

Employee-Appellee Ronald N. Naumu's Motion for Relief from "Order

Employer-Appellant State of Hawaii, Department of Public Safety's

Agency Appeal filed February 3, 2012," Filed November 28, 2012,

filed March 3, 2014 in Civil No. 12-1-0331-02 (2014 Order Denying

Rule 60(b) Relief) by the Circuit Court; (3) Findings of Fact,

Conclusions of Law and Order (2013 FOF-COL) dated November 25,

2013 in MAB Case No. 26; (4) Order Remanding Employee-Appellant

Ronald N. Naumu's Agency Appeal Filed December 24, 2013, filed

March 6, 2015 in Civil No. 13-1-3353-12 (2015 Remand Order) by

the Circuit Court; (5) Amended Findings of Fact, Conclusions of

2 As explained infra, the 2015 hearing was limited to reviewing

whether Naumu's dismissal from employment in the 2013 FOF-COL should be

modified. 

3 On October 22, 2020, after determining that this court did not

have jurisdiction over the 2012 and 2014 Orders that Naumu included in his

appeal, we issued an Order of temporary remand to the Circuit Court in Civil

No. 12-1-0331-02, for entry of a judgment on the 2012 order. On October 30,

2020, the Circuit Court entered its Final Judgment in Civil No. 12-1-0331-02.

In Civil No. 13-1-3353-12, a final judgment was not required because the 2015

Order that Naumu included in this appeal was an interlocutory order that was

brought up for review with the Final Judgment in Civil No. 15-1-2432-12. See

Ueoka v. Szymanski, 107 Hawai#i 386, 396, 114 P.3d 892, 902 (2005) ("An appeal

from a final judgment 'brings up for review all interlocutory orders not

appealable directly as of right which deal with issues in the case.'" (quoting

Pioneer Mill Co., Ltd. v. Ward, 34 Haw. 686, 694 (1938)).

4 The Honorable Rhonda A. Nishimura presided. The Honorable James

H. Ashford signed the October 30, 2020 Final Judgment in Civil No. 12-1-0331-

02.

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Law, Decision and Order dated November 19, 2015 in MAB Case No.

26 (2015 FOF-COL); (6) Order Dismissing Employee-Appellant Ronald

N. Naumu's Agency Appeal Filed December 21, 2015, filed September

19, 2016 in Civil No. 15-1-2432-12 (2016 Order Dismissing Appeal)

by the Circuit Court; and (7) Final Judgment filed September 30,

2016 in Civil No. 15-1-2432-12 (2016 Final Judgment) by the

Circuit Court.

On appeal, Naumu contends that the Circuit Court erred

as follows:5 (1) in its 2012 Remand Order by vacating the MAB's

January 11, 2012 FOF-COL (2012 FOF-COL) and remanding the case to

the MAB for a full evidentiary re-hearing; (2) in its 2014 Order

Denying Rule 60(b) Relief by dismissing Naumu's motion brought

under Hawai#i Rules of Civil Procedure (HRCP) Rule 60(b); (3) in

its 2015 Remand Order by finding that Naumu's dismissal from DPS

was substantiated or partially substantiated by the evidence

provided to the MAB; (4) by rejecting Naumu's claim that his due

process rights were violated during the 2015 MAB hearing where

(a) the MAB denied Naumu's pre-hearing request to conduct

additional discovery and present new evidence during the

September 24, 2015 MAB hearing, and (b) only two out of three MAB

members presided over that hearing; and (5) in its 2016 Order

Dismissing Appeal and the MAB erred in its 2015 FOF-COL, by

concluding that modifying DPS's termination of Naumu was not

warranted or just under the circumstances. 

We hold that the Circuit Court did not err in its 2012

Remand Order remanding the case for a full evidentiary re-hearing

5 Naumu's Points of Error section does not comply with Hawai#i Rules

of Appellate Procedure (HRAP) Rule 28(b)(4), as none of the five points

include quotations of the findings or conclusions challenged, or reference to

"appended findings and conclusions." HRAP Rule 28(b)(4)(C). Naumu's points

do not include record references setting forth "where in the record the

alleged error occurred" and "where in the record the alleged error was

objected to or the manner in which the alleged error was brought to the

attention of the court or agency." HRAP Rule 28(b)(4). Instead, some of the

material required to be in the points of error section appears instead in the

"Discussion" section, which appears to be the "argument" section required by

HRAP Rule 28(b)(7). While points not presented in accordance with HRAP Rule

28(b)(4) may be disregarded, to the extent the "remaining sections of the

brief provide the necessary information to identify [Naumu's] argument," we

will address the merits. Marvin v. Pflueger, 127 Hawai#i 490, 496, 280 P.3d

88, 94 (2012). Naumu's counsel is cautioned to comply with this requirement. 

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before the MAB, in its 2014 Order Denying Rule 60(b) Relief, and

in its 2015 Remand Order upholding the 2013 FOF-COL. With

respect to the latest MAB appeal hearing in 2015, we hold that

the Circuit Court did not violate Naumu's due process rights by: 

(1) affirming the MAB's denial of Naumu's request to conduct

additional discovery and to present evidence; and (2) affirming

that the MAB was permitted to conduct the hearing with only two

members rather than the full three-member board presiding. We

also hold that the Circuit Court did not err in affirming the

MAB's 2015 denial of any modification to the MAB's 2013 decision

to affirm Naumu's discharge. We therefore affirm. 

I. BACKGROUND

In 2001, Naumu was employed at Oahu Community

Correctional Center (OCCC) as a Captain, Adult Corrections

Officer (ACO) VI, with DPS. Naumu was the Watch Commander of the

Third Watch, which is from 2:00 p.m. to 10:00 p.m., at OCCC. The

duties of a Watch Commander are to oversee, and be responsible

for, the operations of the entire OCCC facility. The chain of

command at OCCC, in descending order, is as follows: the

Director, the Warden, the Deputy Warden, the Major or Chief of

Security (COS), the Captains, and the Lieutenants.

January 17, 2001 Inmate Escape

On January 17, 2001, during the Third Watch, inmate

Kerbert Silva (Inmate Silva) escaped from the OCCC recreation

field. Inmate Silva was eventually recaptured and returned to

OCCC. Naumu was the Watch Commander on the Third Watch during

Inmate Silva's escape.

As a result of the escape, DPS issued notices of

investigation to Naumu, along with eight other ACOs. DPS

requested the assistance of the National Institute of Corrections

(NIC), a subdepartment of the U.S. Department of Justice, with

the investigation and to conduct an audit of the security

procedures at OCCC. The NIC's March 16, 2001 audit report

highlighted various security deficiencies, such as in the OCCC

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Holding Unit.6 On March 16, 2001, OCCC COS John Manumaleuna (COS

Manumaleuna) met with Naumu and the rest of the Third Watch team

to inform them of the NIC audit findings, including concerns with

the Holding Unit, such as "doors open, gates not secured,

sergeant not cooperative with NIC auditors by not answering

questions (attitude)."

March 21, 2001 Inmate Escape

On March 21, 2001, Inmate Silva and two other inmates

escaped from OCCC during the Third Watch. Naumu was on duty as

Watch Commander during the Third Watch. ACO Sergeant Ben

Almadova (Sgt. Ben Almadova) worked the Third Watch and was

assigned to the Holding Unit as the "sergeant in charge," which

is an essential, required post. On the night of the March 21

escape, Sgt. Ben Almadova asked Naumu if he and his wife, ACO

Sergeant Pamela Almadova (Sgt. Pamela Almadova), who was on duty

at the time, could take their meal break together (collectively

the Almadovas). Naumu allowed the Almadovas to take their meal

break pursuant to an "unwritten" OCCC policy (Chow Policy) that

allowed ACOs to leave the facility for twenty minutes to purchase

a meal and return to OCCC during their forty-minute meal break.

Various activities occurred at OCCC during the evening

of March 21. Some of the scheduled events included the OCCC

talent show; inmate transfers for medical treatment; and

scheduled inmate phone calls. These activities required that the

ACOs make checks that there was sufficient manpower to handle the

security needs in the Holding Unit and other OCCC modules.

Prior to leaving OCCC for meal break, Sgt. Ben Almadova

instructed ACO Thomas Lepere (ACO Lepere) to keep the first floor

inmates locked down. Sgt. Ben Almadova further instructed ACO

Lepere to allow inmate Paul Damas (Inmate Damas) to make a

regularly scheduled phone call. The Almadovas left OCCC at

approximately 6:30 p.m.

6 The Holding Unit houses inmates who cannot be housed with the OCCC

general population because of poor behavior, protective custody,

classification as maximum security, or inability to get along with the other

inmates.

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At around 7:15 p.m., ACO Lepere let Inmate Damas out of

his cell for his routine phone call. ACO Lepere failed to

properly lock the cell-door control panel box, which led to

Inmate Damas accessing the control panel and releasing Inmate

Silva and inmate Eric Vance (Inmate Vance) from their cells. 

Inmates Silva and Vance overpowered ACO Lepere and locked him

into another inmate's cell. Inmates Damas, Vance, and Silva then

escaped from the Holding Unit but were eventually captured. At

the time of the escape, Naumu was dealing with a malfunctioning

lock in OCCC Annex 2. The Almadovas returned to OCCC a little

after 8:00 p.m.

At approximately 1:00 a.m., Sgt. Ben Almadova ran into

Naumu as they were leaving OCCC. Sgt. Ben Almadova apologized

for taking such a long break and explained that he and Sgt.

Pamela Almadova left to pick up their new car. This was the

first time that Naumu learned about where the Almadovas went on

their meal break.

DPS Investigation of the March 21 Inmate Escape

Following the March 21 inmate escape, the DPS Internal

Affairs Office (Internal Affairs) conducted a formal

investigation of the incident. Pending the investigation, Naumu

was placed on thirty days of administrative leave without pay by

COS Manumaleuna. DPS Internal Affairs Investigator Andrew

Glushenko (Investigator Glushenko) conducted the investigation

and wrote the follow-up reports on Naumu (Case No. IA-010331),

Sgt. Ben Almadova (Case No. IA-010330), and ACO Lepere (Case No.

IA-010324) for the investigation. In the April 24, 2001 followup report, the DPS investigation conducted by Investigator

Glushenko concluded that the primary cause of the March 21 inmate

escape was the failure of ACO Lepere to follow "precautionary

security procedures in bringing inmate Paul Damas out from his

cell" for his phone call. However, the report also cited Naumu's

failure to adhere to the OCCC security procedures and policies as

"probably contribut[ing] towards the initial success of the

escape attempts," and cited Naumu's discretionary errors in

judgment regarding "proper security presence at OCCC" and

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sufficient manpower. The report concluded that Naumu violated

seven Articles in the DPS Standards of Conduct.7

With regard to the Chow Policy, the April 24 follow-up

report concluded that the Chow Policy was a "'discretionary'

policy that was delegated to the Watch Commanders . . . that

allowed some ACO's to leave the facility for their meal breaks,

at the sole discretion of the Watch Commander." The report

stated that the investigation revealed that "there is no such

written policy or contract policy that allows an ACO a maximum

time limit of 45 minutes for his meal break, and that an

'arbitrary' policy that can be loosely applied by superiors

places a 'flexible' time limit of 20 minutes for a scheduled meal

break . . . ." The report concluded that while Naumu claimed

that this was part of a written directive from a former OCCC COS,

the claim was disputed by the said former OCCC COS, and it was

the investigator's belief that it remained uncertain "as to

whether [Naumu] disregarded the 'unwritten' policy intentionally

or whether his actions were a continuation of a 'past practice.'" 

The report concluded that Naumu was in violation of established

procedures involving meal breaks for ACOs.

Pre-Disciplinary Hearing and Pre-Dismissal Hearing8

On May 15, 2001, DPS held a pre-disciplinary due

process hearing regarding Naumu's violation of the DPS Standards

of Conduct. The hearing was conducted by DPS Administrative

Hearings Officer Laurie Nadamoto (Hearings Officer Nadamoto).

On June 5, 2001, at Hearings Officer Nadamoto's request

to have a record in writing, COS Manumaleuna wrote a memo

summarizing the March 16, 2001 debriefing meeting regarding the

NIC and its audit findings.

7 The DPS Standards of Conduct are standards that the ACOs are held

to at OCCC and other Hawai#i state correctional facilities.

8 DPS has two levels of due process concerning dismissal of a DPS

employee. The first is an initial pre-disciplinary hearing, described supra,

for an employee being orally reprimanded. If the sanction, based on the predisciplinary meeting, is to discharge the employee, the employee is afforded a

subsequent pre-dismissal hearing to argue why discharge may not be

appropriate.

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 Hearings Officer Nadamoto met with DPS Director Ted

Sakai (Director Sakai) to discuss Naumu's pre-disciplinary

hearing and the March 21 escape. Hearings Officer Nadamoto and

Director Sakai discussed what was presented at the hearing, the

actions taken by Naumu, and what discipline would be imposed.

Director Sakai informed Naumu, via letter, that he was being

dismissed from his employment with DPS.

On July 9, 2001, DPS conducted a pre-dismissal hearing

to afford Naumu an opportunity to contest the dismissal decision. 

DPS Departmental Hearing Officer Shelley Nobriga (Hearings

Officer Nobriga) presided over the hearing. During this hearing,

Naumu discussed and detailed the Chow Policy to Hearings Officer

Nobriga.

Following the hearing, Hearings Officer Nobriga met

with Director Sakai. Director Sakai was not aware of the Chow

Policy and, subsequent to the March 21 inmate escape, he stopped

the practice of allowing ACOs from leaving the prison campus to

pick up meals. Hearings Officer Nobriga agreed with upholding

the dismissal decision.

August 13, 2001 Termination

On July 10, 2001, Hearings Officer Nobriga issued a

letter to Naumu, signed by Director Sakai, indicating that based

on the evidence Naumu presented at the pre-dismissal hearing, his

dismissal was sustained. Naumu was officially terminated by DPS

on August 13, 2001. The other ACOs involved in the incident were

disciplined as well: ACO Lepere was suspended, as well as Sgt.

Ben Almadova, but they were not discharged for the incident.

Naumu's 2002 Appeal to the MAB

Naumu appealed his termination to the Civil Service

Commission on January 15, 2002. Naumu's appeal was transferred

to the MAB once the MAB replaced the Civil Service Commission.9

9 We take judicial notice that in 2003, the MAB replaced the Civil

Service Commission as the appellate body to hear appeals of this nature. See

Hawaii Revised Statutes (HRS) § 76-47 (2000); Uyeda v. Schermer, 144 Hawai#i

163, 172, 439 P.3d 115, 124 (2019) ("A fact is a proper subject for judicial

notice if it is common knowledge or easily verifiable.") (citing Almeida v.

Correa, 51 Haw. 594, 605, 465 P.2d 564, 572 (1970) (brackets omitted)).

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Naumu's first MAB hearing was held on August 31, 2006.

Naumu, self-represented, appeared before MAB members David B.

Knight (Knight), Chair, and Alvin M. Yoshimori (Yoshimori).10

The MAB was asked to decide, "Did [DPS] comply with established

laws, rules, policies, procedures and/or practices governing the

dismissal process with respect to [Naumu]'s dismissal from

employment with [DPS]?" In its FOF-COL (2007 FOF-COL), the MAB

failed to reach a majority decision on the issue of whether DPS

"carried its burden of substantiating or partially substantiating

the reasons for" Naumu's dismissal, yet still found in favor of

Naumu. The MAB ordered Naumu to be reinstated to his former

position without loss of pay.

DPS's 2007 Appeal to the Circuit Court

On March 22, 2007, DPS appealed the MAB's 2007 FOF-COL

to the Circuit Court (Civ. No. 07-1-0533-03).11 DPS contended

that the MAB made an error of law as to the MAB functioning with

two Board members instead of three. Naumu was now represented by

counsel. In its Decision and Order for Dismissal and Judgment

filed October 23, 2007, the Circuit Court dismissed the appeal

and remanded the case back to the full MAB for re-hearing on the

grounds that as "the MAB failed to achieve a concurrence of a

majority on the substantive merits of the case, (i.e. whether

[DPS] carried its burden), there has not been a final order from

which to appeal, hence depriving the [Circuit] Court of

jurisdiction over the substantive merits of the underlying case." 

The Circuit Court noted that, as third MAB member Ted Hong, Esq.

was appointed in early May 2007, the MAB had the "ability to

decide cases before it without the possibility of another 'tie'

result." A judgment was also entered on October 23, 2007. There

was no appeal from that judgment.

10 HRS § 26-5(c)(2000) requires that the MAB consist of three

members; however, at the time of Naumu's first hearing, the MAB only had two

members (Knight and Yoshimori). See HRS § 26-5(c).

11 The Honorable Eden E. Hifo presided.

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The MAB's 2009 FOF-COL

Following the Circuit Court's 2007 decision, Colleen

Meyer (Meyer) replaced Ted Hong and was appointed in January

2009. The MAB did not conduct a re-hearing on the case; however,

Meyer reviewed all the submissions, documents, and audio-taped

recordings of the August 31, 2006 hearing. On October 29, 2009,

the MAB issued a new FOF-COL (2009 FOF-COL) that granted Naumu's

appeal and ordered his reinstatement to his former position

without loss of pay.

DPS moved for reconsideration of the MAB's 2009 FOFCOL. In its motion, DPS argued that the MAB should have held a

re-hearing on the substantive merits of the case pursuant to the

Circuit Court's order in Civ. No. 07-1-0533, instead of having

Meyer review the prior proceedings. The MAB granted the motion

and held a full evidentiary hearing on September 30, 2010. The

hearing was continued to January 27, 2011, but due to Meyer's

absence, the hearing was continued to July 28, 2011 to ensure

that the full MAB would be in attendance. By the conclusion of

the hearing, DPS and Naumu presented their cases via documentary

evidence, written evidence, and/or live testimony. DPS called

Hearings Officer Nadamoto, Hearings Officer Nobriga, and Director

Sakai as witnesses; Naumu, who was self-represented, crossexamined each of DPS's witnesses and presented his own testimony.

On January 11, 2012, the MAB issued its 2012 FOF-COL

finding in favor of Naumu, requiring his reinstatement in his

former position without loss of pay.

DPS's 2012 Appeal to the Circuit Court

On February 3, 2012, DPS appealed the 2012 FOF-COL to

the Circuit Court (Civ. No. 12-1-0331-02).12 DPS argued that the

MAB improperly relied on HRS § 76-4613 and "exceeded its

12 The Honorable Rhonda A. Nishimura presided.

13 HRS § 76-46 (2000) states,

An appointing authority may discharge or demote any

employee when the appointing authority considers that the

good of the service will be served thereby. Discharges may

be made only for such causes that will promote the

(continued...)

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authority, pursuant to HAR § 14-25.1-4(y),14 by substituting its

judgment for that of the appointing authority ([DPS]) in granting

Naumu's appeal and reversing the dismissal decision." (Footnote

added). DPS also argued that the MAB

erred as a matter of law because it failed to address

whether [DPS] substantiated or partially substantiated the

reasons for Naumu's dismissal from employment, as required

by HAR §14-25.l-4(x), instead commenting on the "credible

evidence" or argument presented by Naumu in concluding that

his termination was not fair and impartial, which is

contrary to the MAB's findings that [DPS] substantiated or

partially substantiated the reasons for Naumu's dismissal

and that Naumu was afforded his due process rights.

The Circuit Court heard arguments for DPS's appeal on October 3,

2012.

On November 28, 2012, the Circuit Court issued its 2012

Remand Order vacating the MAB's 2012 FOF-COL and remanding the

case back to the MAB for rehearing. The Circuit Court found

that:

[the] language in certain Conclusions of Law in the Order

may contain certain findings of fact, to wit, these

conclusions speak to the credibility of evidence. The Court

finds that the Findings of Fact in the Order do not comport

or address that part of the Conclusions of Law that speak to

the credibility of certain evidence.

13(...continued)

efficiency of government service.

Demotions or discharges shall be in accordance with

procedures negotiated under chapter 89 or established under

chapter 89C, as applicable.

14 Hawaii Administrative Rules (HAR) 14-25.1-4(y) (effective 2003)

states in pertinent part:

In conducting its business and rendering its decision,

the board shall serve as an appellate body and shall not

impinge on the authority of the director in matters of

policy, methodology, and administration. All decisions and

orders of the board shall be made in accordance with

personnel laws, rules, policies, and practices, and

accompanied by a technical explanation of the decision or

order. Every decision and order adverse to a party to the

proceeding, rendered by the board, shall be in writing or

stated in the record and shall be accompanied by separate

findings of fact and conclusions of law. If any party to

the proceeding has filed proposed findings of fact, the

board shall incorporate in its decision a ruling upon each

proposed finding presented. The findings and decisions of

the board shall be final on all appeals, unless an appeal is

taken pursuant to section 91-14, Hawaii Revised Statutes.

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The MAB's 2013 FOF-COL

The MAB heard Naumu's appeal on remand on April 25,

2013; July 25, 2013; and August 27, 2013. At this time, the MAB

consisted of entirely new members: Janice T. Kemp, Laurie

Santiago (Santiago), and Valerie Pacheco (Pacheco). During the

hearing, DPS called Hearings Officer Nadamoto, Hearings Officer

Nobriga, and Director Sakai as witnesses.

On November 25, 2013, the MAB issued its FOF-COL (2013

FOF-COL) denying Naumu's appeal and finding in favor of DPS. The

MAB found that DPS provided credible evidence that Naumu's

termination "complied with all established laws, rules, policies,

procedures and/or practices governing the dismissal process."

Naumu's 2013 Motion for Relief and 2013 Appeal 

to the Circuit Court

On December 24, 2013, Naumu appealed the MAB's 2013

FOF-COL to the Circuit Court (Civ. No. 13-1-3353-12). 

Contemporaneously, on December 26, 2013, in Civ. No. 12-1-0331-

02, Naumu filed an HRCP Rule 60(b)15 Motion for Relief from the

15 HRCP Rule 60(b) (2000) states in pertinent part:

Rule 60. Relief from judgment or order.

. . . . 

(b) Mistakes; Inadvertence; Excusable Neglect; Newly

Discovered Evidence; Fraud, etc. On motion and upon such

terms as are just, the court may relieve a party or a

party's legal representative from a final judgment, order,

or proceeding for the following reasons: (1) mistake,

inadvertence, surprise, or excusable neglect; (2) newly

discovered evidence which by due diligence could not have

been discovered in time to move for a new trial under Rule

59(b); (3) fraud (whether heretofore denominated intrinsic

or extrinsic), misrepresentation, or other misconduct of an

adverse party; (4) the judgment is void; (5) the judgment

has been satisfied, released, or discharged, or a prior

judgment upon which it is based has been reversed or

otherwise vacated, or it is no longer equitable that the

judgment should have prospective application; or (6) any

other reason justifying relief from the operation of the

judgment. The motion shall be made within a reasonable

time, and for reasons (1), (2), and (3) not more than one

year after the judgment, order, or proceeding was entered or

taken. A motion under this subdivision (b) does not affect

the finality of a judgment or suspend its operation. This

rule does not limit the power of a court to entertain an

independent action to relieve a party from a judgment,

order, or proceeding, or to set aside a judgment for fraud

(continued...)

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Circuit Court's "2012 Remand Order filed November 28, 2012." The

motion was heard on February 13, 2014.

On March 3, 2014, the Circuit Court denied Naumu's

Motion for Rule 60(b) Relief in Civ. No. 12-1-0331-02. In its

2014 Order Denying Rule 60(b) Relief, the Circuit Court ruled

that:

The propriety of filing the Motion for Relief under HRCP

Rule 60(b)(6) is at issue when the Court had previously

vacated the MAB's Findings of Fact, Conclusions of Law and

Order, dated January 11, 2012 and remanded the case back to

the MAB for a rehearing. Since the remand, the MAB conducted

a rehearing, the parties submitted proposed Findings of Fact

and Conclusions of Law, and the MAB issued Findings of Fact,

Conclusions of Law and Order, dated November 25, 2013. In

this instance, the Motion for Relief under HRCP Rule

60(b)(6) is not appropriate for the relief requested. 

. . . .

Even assuming there were grounds for Employee-Appellee Naumu

to file the motion under the guise of HRCP Rule 60(b)(6), it

does not fit within the extraordinary circumstances that

must exist for the basis of seeking relief under those

grounds.

In Civ. No. 13-1-3353-12, the Circuit Court heard oral

arguments regarding Naumu's appeal of the MAB's 2013 FOF-COL on

February 13, 2015. On March 6, 2015, the Circuit Court issued

the 2015 Remand Order. In the 2015 Remand Order, the Circuit

Court found that:

[I]n reviewing the [MAB's 2013 FOF-COL], the Court finds it

is unclear whether the MAB considered the circumstances of

the case so required the MAB to utilize its discretion to

modify the action of [DPS] in dismissing Naumu from

employment and whether the circumstances are such that any

modification would be deemed just, as set forth in HRS

§76-47(e) and HAR §14-25.1-4(x).16

(Footnote added). The Circuit Court remanded the case to the MAB

for a "limited hearing to only consider the discrete issue of

whether the circumstances of the case warrants the MAB to

exercise its discretion to modify the dismissal action and

whether the circumstances are such that any modification would be

15(...continued)

upon the court. . . .

(Bolding in original).

16 HRS § 76-47(e) and HAR § 14-25.1-4(x) are set forth infra.

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deemed just." The Circuit Court further instructed the parties

that, "Upon remand for a limited hearing as to the discrete

issue, the Hearings Officer has the discretion whether or not to

allow the parties to recall witnesses and/or present new

evidence." The Circuit Court further ordered the MAB to "modify

the Findings of Fact and Conclusions of Law in its Order to

address this particular issue."

The MAB's 2015 FOF-COL

Pursuant to the Circuit Court's 2015 Remand Order, the

MAB scheduled a limited hearing on remand for May 28, 2015. The

MAB submitted a memorandum to inform the parties that the MAB

determined that the parties would not be allowed to recall

witnesses or present new evidence at the hearing, but could

present written argument. Naumu objected to the MAB's decision

to not recall witnesses or present new evidence at the hearing.

The MAB reaffirmed its position.

The hearing was continued, by agreement, to September

24, 2015. At the September 24 hearing, the parties were informed

that MAB Chair Paul K. W. Au (Chair Au) would not be present for

the hearing and that the hearing would be conducted in front of

the remaining two MAB members, Santiago and Pacheco, who, in

Chair Au's absence, filled the role as Acting Chair. The parties

were informed that if there was a tie in the MAB's decision,

Chair Au would review the transcripts, records, and documents,

and would "be the deciding vote." Upon Naumu's inquiry, Pacheco

informed the parties that Chair Au would not be present at the

hearing because "he was not present at the original [2013]

hearing." Naumu objected and requested that the hearing be

continued to allow the full MAB to be present. The two-member

MAB deliberated and determined as follows:

For the record, although the Merit Appeals Board 

didn't provide official notice that the two members who

originally heard Mr. Naumu's appeal would hear his -- this

remand, the Merit Appeals Board has decided that it was

proper that the two original members hear the limited issue

for the discrete issue of whether the circumstances of the

case warrant the Merit Appeals Board, in exercising its

discretion, to modify Naumu's dismissal and whether the

circumstances are such that any modification would be deemed

just.

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The parties will not be allowed to recall witnesses

or present new evidence at the hearing. Parties may, but

are not required, to submit written argument regarding their

position to the Merit Appeals Board.

In addition, each party may present oral argument to

the Board. Written or oral argument should be limited to

the issue remanded by the Court, and it should also be noted

for the record that the letter dated May 5th, 2015, was

signed on my behalf as Acting Chair, as was the May 18th

letter so the parties were aware that I would be Acting

Chair.

If there is a split decision, then the Chairman,

Mr. Au, will be tasked with reviewing the previous MAB

records and recordings and providing the tie-breaking vote;

therefore, this hearing will continue today, so thank you.

The hearing went forward as scheduled.

On November 19, 2015, the MAB issued its 2015 FOF-COL

denying Naumu's appeal on remand and finding in favor of DPS. 

The MAB "majority" found that DPS "carried its burden of

substantiating or partially substantiating the reasons for

dismissal of [Naumu] from employment" and that "the MAB, in

exercising its discretion, [would] not modify [Naumu's] dismissal

because the circumstances presented [did] not require

modification of [DPS]'s actions." The MAB determined that, in

exercising its discretion, any modification of DPS's decision,

pursuant to HRS § 76-47(e) and HAR § 14-25.1-4(x), "would not be

proper or just under the circumstances."

Naumu's 2015 Appeal to Circuit Court

On December 21, 2015, Naumu appealed the MAB's 2015

FOF-COL to the Circuit Court (Civ. No. 15-1-2432-12). Oral

arguments were held on August 26, 2016, and the Circuit Court

dismissed Naumu's appeal on September 19, 2016. The Circuit

Court entered its Final Judgment in Civil No. 15-1-2432-12 on

September 30, 2016, and Final Judgment in Civil No. 12-1-0331-02

on October 30, 2020.

II. STANDARDS OF REVIEW

A. Administrative Agency-Secondary Appeals

Review of a decision made by the circuit court upon

its review of an administrative decision is a secondary

appeal. Ahn v. Liberty Mut. Fire Ins. Co., 126 Hawai#i 1,

9, 265 P.3d 470, 478 (2011) (citation omitted). The circuit

court's decision is reviewed de novo. Id. The agency's

decision is reviewed under the standards set forth in HRS §

91-14(g). Id. HRS § 91–14(g) (1993) provides:

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(g) Upon review of the record the court may affirm the

decision of the agency or remand the case with

instructions for further proceedings; or it may

reverse or modify the decision and order if the

substantial rights of the petitioners may have been

prejudiced because the administrative findings,

conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory

provisions; or

(2) In excess of the statutory authority or

jurisdiction of the agency; or

(3) Made upon unlawful procedure; or

(4) Affected by other error of law; or

(5) Clearly erroneous in view of the reliable,

probative, and substantial evidence on the whole

record; or

(6) Arbitrary, or capricious, or characterized by

abuse of discretion or clearly unwarranted exercise of

discretion.

Under HRS § 91-14(g), conclusions of law are reviewable

under subsections (1), (2), and (4); questions regarding

procedural defects under subsection (3); findings of fact

under subsection (5); and an agency's exercise of discretion

under subsection (6). Sierra Club v. Office of Planning, 109 Hawai#i 411, 414, 126 P.3d 1098, 1101 (2006) (citation,

internal quotation marks and brackets omitted).

Watanabe v. Employees' Retirement Sys., 148 Hawai#i 508, 513, 479

P.3d 126, 131 (2021) (quoting Liberty Dialysis-Hawaii, LLC v.

Rainbow Dialysis, LLC, 130 Hawai#i 95, 102-03, 306 P.3d 140, 147-

48 (2013)).

B. Agency's Findings of Fact and Conclusions of Law

"An agency's conclusions of law are reviewed de novo,

while an agency's factual findings are reviewed for clear

error[.]" Del Monte Fresh Produce (Hawaii), Inc. v. Int'l

Longshore & Warehouse Union, Local 142, AFL–CIO, 112 Hawai#i

489, 499, 146 P.3d 1066, 1076 (2006) (citations omitted)). 

A finding of fact is clearly erroneous when "(1) the record

lacks substantial evidence to support the finding or

determination, or (2) despite substantial evidence to

support the finding or determination, the appellate court is

left with the definite and firm conviction that a mistake

has been made." Id. (internal quotations omitted) (quoting

In re Water Use Permit Applications, 94 Hawai#i 97, 119, 9

P.3d 409, 431 (2000)). "Substantial evidence is credible

evidence which is of sufficient quality and probative value

to enable a person of reasonable caution to support a

conclusion." Del Monte, 112 Hawai#i at 499, 146 P.3d at

1076 (internal quotations omitted) (quoting In re Water Use

Permit, 94 Hawai#i at 119, 9 P.3d at 431).

Martinez v. State Bd. of Nursing, 137 Hawai#i 83, 87-88, 365 P.3d

1012, 1016-17 (2016)(brackets and italics in original). 

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C. Interpretation of Agency Rules

When interpreting agency rules, this court has stated

that "[g]eneral principles of statutory construction apply,"

which requires "look[ing] first at an administrative rule's

language." Liberty Dialysis-Haw[aii], LLC v. Rainbow

Dialysis, LLC, 130 Hawai#i 95, 103, 306 P.3d 140, 148

(2013).

If an administrative rule's language is

unambiguous, and its literal application

is neither inconsistent with the policies

of the statute the rule implements nor

produces an absurd or unjust result,

courts enforce the rule's plain meaning.

While an agency's interpretation of its

own rules is generally entitled to

deference, this court does not defer to

agency interpretations that are plainly

erroneous or inconsistent with the

underlying legislative purpose.

Id. (internal citations and quotation marks omitted).

Community Ass'n of Hualalai, Inc. v. Leeward Planning Comm'n, 150

Hawai#i 241, 252, 500 P.3d 426, 437 (2021).

D. HRCP Rule 60(b)

A circuit court's decision on an HRCP Rule 60(b) motion

is reviewed for abuse of discretion:

[T]he trial court has a very large measure of discretion in

passing upon motions under [HRCP] Rule 60(b) and its order

will not be set aside unless we are persuaded that under the

circumstances of the particular case, the court's refusal to

set aside its order was an abuse of discretion.

PennyMac Corp. v. Godinez, 148 Hawai#i 323, 327, 474 P.3d 264,

268 (2020) (brackets in original) (quoting Hawai#i Hous. Auth. v.

Uyehara, 77 Hawai#i 144, 147, 883 P.2d 65, 68 (1994)). "The

burden of establishing abuse of discretion [in denying an HRCP

Rule 60(b) motion] is on the appellant, and a strong showing is

required to establish it." Id. (brackets in original) (quoting

Ditto v. McCurdy, 103 Hawai#i 153, 162, 80 P.3d 974, 983 (2003)).

III. DISCUSSION

A. Naumu's First Point of Error, 2012 Remand 

Order

Naumu contends that the Circuit Court erred in vacating

the 2012 FOF-COL in its entirety and remanding the case to the

MAB for a full evidentiary re-hearing. Naumu argues that the

Circuit Court's "ruling that a lack of clarity between the

findings of fact and conclusions of law was an insufficient basis

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to remand the case for a full evidentiary re-hearing usurped the

authority and purpose of the MAB and its full evidentiary

hearings." Naumu maintains that because the MAB already

conducted "a full evidentiary hearing where the MAB questioned

the credibility of DPS's witnesses and the reasons for Naumu's

termination," the Circuit Court should have instead had the MAB

review the record to clarify and revise the 2012 FOF-COL, in lieu

of a full hearing.

In the 2012 Remand Order, the Circuit Court vacated the

2012 FOF-COL because

language in certain Conclusions of Law in the Order may

contain certain findings of fact, to wit, these conclusions

speak to the credibility of evidence. The Court finds that

the Findings of Fact in the Order do not comport or address

that part of the Conclusions of Law that speak to the

credibility of certain evidence.

(Emphasis added). The Circuit Court's 2012 Remand Order does not

reference which specific FOFs and COLs in the 2012 FOF-COL were

at issue. Naumu also does not specifically identify the FOFs or

COLs at issue; nor does Naumu address why the Circuit Court was

wrong in concluding the FOFs did not comport with the COLs

regarding credibility. Naumu does not present any

counterargument that the FOFs and COLs were consistent with each

other. Instead, Naumu only argues that the underlying evidence

supported the MAB's ultimate decision ordering Naumu's

reinstatement. Naumu's argument is unpersuasive.

Under HRS § 91-14(g) (1993), the Circuit Court may,

inter alia, "reverse or modify" an agency's decision affected by

a prejudicial error of law. "[A]n agency's findings should be

'sufficient to allow the reviewing court to track the steps by

which the agency reached its decision.'" Matter of Gas Co., LLC,

147 Hawai#i 186, 202, 465 P.3d 633, 649 (2020) (quoting Matter of

Hawai#i Elec. Light Co., Inc., 145 Hawai#i 1, 11, 445 P.3d 673,

683 (2019)). "Where they are not, a 'remand pursuant to HRS §

91-14(g) is appropriate,' as the 'agency's findings are

incomplete and provide no basis for review.'" Id. (quoting

Matter of Hawai#i Elec. Light Co., Inc., 145 Hawai#i at 24, 445

P.3d at 696)).

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Here, the Circuit Court determined that there was a

disconnect between the COLs regarding the "credibility of the

evidence" and the absence of FOFs that addressed the

"credibility" determinations.17 The Circuit Court was not wrong

in concluding that MAB's findings were insufficient to allow the

Circuit Court to track how the MAB made its decision. See Matter

of Gas Co., LLC, 147 Hawai#i at 202, 465 P.3d at 649. As the

MAB's FOFs were inadequate to support or explain the COLs, it was

within the discretion of the Circuit Court to vacate and remand

the 2012 FOF-COL. See id.; see also Application of Kauai Elec.

Div. of Citizens Utilities Co., 60 Haw. 166, 185, 590 P.2d 524,

538 (1978) (determining that remand is proper where an agency

made "invalid, inadequate or incomplete findings.").

Naumu argues that if there was a lack of clarity

regarding the FOFs and COLs in the 2012 FOF-COL, then the Circuit

Court should have remanded the case for the MAB to modify the

2012 FOF-COL. Naumu does not provide any authority to support

this contention. Pursuant to HRS § 91-14(g), there is no

requirement that the Circuit Court must order an agency to modify

the agency's order. Both DPS and Naumu also note, in their

briefs, how the MAB composition had completely changed between

17 The 2012 FOF-COL contained the following COLs that addressed

credibility and the MAB's ultimate conclusion to grant Naumu's appeal:

6. Appellant did present credible evidence or argue

convincingly that the [DPS] committed violations of

established laws, rules, regulations, policies,

procedures, and/or practices governing the dismissal

of Appellant.

7. Conversely, Respondent [DPS], through its

presentation, documentation, and the testimony of its

witnesses, did not provide credible evidence that the

termination of Appellant was fair and impartial.

8. In view of the above, the Board finds that the action

taken by the Respondent [DPS] was without merit, thus

the Appellant's appeal is GRANTED.

There were no corresponding findings or conclusions that supported the

determination in COL 6, that DPS "committed violations" of any "laws, rules,

regulations, policies, procedures, and/or practices" regarding Naumu's

dismissal. There were also no corresponding findings or conclusions that

explained COL 7's conclusion that DPS "did not provide credible evidence that

the termination of [Naumu] was fair and impartial."

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the 2010-11 hearing and the 2013 MAB hearing. At the October 3,

2012 hearing18 on Naumu's appeal to the Circuit Court, the

parties informed the Circuit Court that if the court decided to

remand, the case would be heard by an entirely new MAB, which

could pose difficulties. We note that it would be difficult, if

not impossible, for an entirely new MAB to be bound by

credibility determinations and COLs made by a prior MAB, and be

tasked with crafting clarifying findings. Under these

circumstances, the Circuit Court did not err in vacating the

MAB's 2012 FOF-COL and remanding for a full evidentiary rehearing. See Watanabe, 148 Hawai#i at 513, 479 P.3d at 131;

Martinez, 137 Hawai#i at 87-88, 365 P.3d at 1016-17.

B. Second Point of Error, 2014 Order Denying 

Rule 60(b) Relief

Naumu contends that the Circuit Court erred in denying

his 2014 HRCP Rule 60(b) Motion for Relief because the record

supported the MAB's decision to sustain Naumu's appeal and order

his reinstatement. Naumu also argues that the 2013 FOF-COL

issued by the MAB was the first time the MAB issued a thorough

FOF, COL, and Order that included new language that was not

contained in any of previous FOF-COLs.19

The Circuit Court did not err in denying Naumu's Motion

for Relief. HRCP Rule 60(b)(6) provides that a court, "on motion

and upon such terms as are just," may relieve a party from a

final judgment, order, or proceeding "for any other reason

justifying relief from the operation of the judgment." 

Essentially, "the primary purpose of the [HRCP Rule 60(b)(6)]

motion 'is to authorize the reopening of a closed case or final

order.'" PennyMac Corp., 148 Hawai#i at 328, 474 P.3d at 269

18 Naumu did not request the October 3, 2012 hearing transcript, as

required by HRAP Rule 10(b)(1)(A). The transcript of the October 3, 2012

hearing is only available in the record as an exhibit to Naumu's Reply to his

Motion for Relief from "Order Remanding Employer-Appellant State of Hawaii,

Department of Public Safety's Agency Appeal Filed February 3, 2012," Filed

November 28, 2012, filed January 29, 2014.

19 Naumu did not request the pertinent transcript, as required by

HRAP Rule 10(b)(1)(A), of the February 13, 2014 hearing on the HRCP Rule 60(b)

motion. 

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(quoting Cho v. State, 115 Hawai#i 373, 383, 168 P.3d 17, 27

(2007)). HRCP Rule 60(b)(6) "provides for extraordinary relief

and is only invoked upon a showing of exceptional circumstances." 

Uyehara, 77 Hawai#i at 148, 883 P.2d at 69.

The record reflects that in the Order Denying Naumu's

Motion for Rule 60(b) Relief, the Circuit Court stated that it

was denying the motion as improper because the MAB had already

conducted the rehearing and had since issued its 2013 FOF-COL. 

See Part I supra. While the 2012 FOF-COL found in favor of

Naumu, the MAB's 2013 FOF-COL found in favor of DPS. The purpose

of HRCP Rule 60(b)(6) is not to automatically relieve Naumu of an

outcome that was detrimental to him by reinstating the 2012 FOFCOL. See Citicorp Mortg., Inc. v. Bartolome, 94 Hawai#i 422,

436, 16 P.3d 827, 841 (App. 2000), abrogated on other grounds by

Chen v. Mah, 146 Hawai#i 157, 457 P.3d 796 (2020). 

Assuming arguendo that Naumu's motion was proper under

HRCP Rule 60(b)(6), the Circuit Court did not abuse its

discretion in finding that there were no extraordinary

circumstances warranting relief under HRCP Rule 60(b)(6). See

Uyehara, 77 Hawai#i at 148, 883 P.2d at 69. Here, Naumu does not

proffer any extraordinary circumstances that afford him relief

under HRCP Rule 60(b)(6). The only point that Naumu argues is

that the Circuit Court should have granted his motion because "in

[the MAB's 2013 FOF-COL], the MAB for the first time issue[d] a

thorough" FOF, COL, and Order, and that the new FOFs and COLs

included in the 2013 FOF-COL "could have and should [sic] been

employed in construing [2012 FOF-COL] considering that the MAB's

decision was adequately support[ed] by the documentary evidence,

written evidence, and/or recording or transcript of MAB3 [sic],

and Naumu's and MAB's answering briefs." Naumu does not provide

any authority that says the MAB issuing a more detailed FOF-COL

is an extraordinary circumstance. See Uyehara, 77 Hawai#i at

148-49, 883 P.2d at 69-70. We conclude that the Circuit Court

did not abuse its discretion in denying Naumu's HRCP Rule 60(b)

Motion for Relief. See PennyMac Corp., 148 Hawai#i at 327, 474

P.3d at 268.

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C. Third Point of Error, 2015 Remand Order

Naumu contends that the Circuit Court erred in its 2015

Remand Order by upholding the MAB's 2013 FOF-COL finding that

Naumu's dismissal from employment was substantiated by the

evidence provided to the MAB pursuant to HRS § 76-47(e) and HAR §

14-25.1-4(x).20 Naumu claims that: the MAB failed to comply

20 HRS § 76-47(e) (2000) provides, in pertinent part:

Any civil service employee, who is suspended, discharged, or

demoted and who is not included in an appropriate bargaining

unit under section 89-6, may appeal to the merit appeals

board within twenty days after a final decision is made

under the internal complaint procedures.

Upon the appeal, both the appealing employee and the

appointing authority shall have the right to be heard

publicly, present evidence and be represented by counsel,

who shall have the right to examine and cross-examine

witnesses. At the hearing technical rules of evidence shall

not apply and the evidence shall be taken stenographically

or recorded by machine. For the purpose of hearing the

appeals fairly and expeditiously, the board may at any time

appoint a competent and qualified disinterested person to

act as its hearing officer. The hearing officer shall hear

the matter in the same manner as if it were before the board

and upon the conclusion of the hearing, shall report the

hearing officer's findings of fact and the hearing officer's

conclusions and recommendations based thereon to the board

and to the employee. The board shall render the final

decision in accordance with section 91-11.

If the board finds that the reasons for the action are not

substantiated in any material respect, the board shall order

that the employee be reinstated in the employee's position,

without loss of pay, but if the board finds that the reasons

are substantiated or are only partially substantiated, the

board shall sustain the action of the appointing authority,

provided that the board may modify the action of the

appointing authority if it finds the circumstances of the

case so require and may thereupon order such disposition of

the case as it may deem just.

The findings and decisions of the board shall be final on

all appeals, unless an appeal is taken as provided in

chapter 91.

HAR § 14-25.1-4(x) (effective 2003) provides, in pertinent 

part:

(x) In its action on an appeal by a civil service employee

who has been suspended, discharged, or demoted, both the

appealing employee and the appointing authority shall have

the right to be heard publicly, present evidence, and be

represented by counsel who shall have the right to examine

and cross-examine witnesses. At the hearing, technical

rules of evidence shall not apply and the evidence shall be

taken stenographically or recorded by machine.

(continued...)

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with HAR § 14-25.1-4(y) as it failed to make a ruling on Naumu's

proposed findings of fact; failed to include certain "undisputed

facts" on the Chow Policy in the 2013 FOF-COL; and the MAB's

sustaining Naumu's dismissal was an arbitrary, capricious, abuse

of discretion.

We reject Naumu's argument that the 2013 FOF-COL

violated HAR § 14-25.1-4(y) for failing to include "undisputed

facts" about the "Chow policy." Naumu argues that his fifty-four

proposed FOFs "included findings related to the existence of and

Naumu's adherence to the Chow Policy." DPS argues that there was

no "chow or meal 'policy'" and thus no need for the MAB to make

findings in that regard. Yet, Naumu concedes that a separate

ruling on each proposed finding filed by a party "is not strictly

required," as long as the agency incorporate its findings in its

decision and its findings are reasonably clear. See Application

of Terminal Transp., Inc., 54 Haw. 134, 139, 504 P.2d 1214, 1217

(1972). This argument is without merit. 

The record supports the MAB's finding that Naumu's

dismissal was substantiated or partially substantiated by the

evidence. See Martinez, 137 Hawai#i at 87-88, 365 P.3d at 1016-

17. At the April 25, 2013 hearing before the MAB, Director Sakai

testified that Naumu was investigated for his role in the March

21 inmate escape (FOF 19); that Naumu was subject to the DPS

standards of conduct (FOF 25); that the OCCC holding unit was not

properly staffed and that although ACO Lepere21 made mistakes,

20(...continued)

(1) If reasons for an action by the director or

appointing authority are not substantiated in any material

respect, the board shall order that the employee be

reinstated in the employee's position, without loss of pay.

(2) If the reasons are substantiated or are only

partially substantiated, the board shall sustain the action

of the director or appointing authority; provided that the

board may modify the action of the director or appointing

authority if it finds the circumstances of the case so

require and may order the disposition of the case it may

deem just provided that the disposition is consistent with

laws, rules, and policies.

21 The hearing transcript misspells ACO Lepere's name as "ACO

LaPair."

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the inmate escape was due to the improper staffing (FOF 21); and

Sgt. Ben Almadova was allowed to leave the facility on a busy

night during the Third Watch, leaving only two officers, instead

of four, in the holding unit (FOFs 21, 24). Thus, the MAB's

findings in the 2013 FOF-COL were substantiated or partially

substantiated by the evidence pursuant to HRS § 76-47(e) and HAR

§ 14-25.1-4(x). See Application of Terminal Transp., Inc., 54

Haw. at 139, 504 P.2d at 1217. We conclude that the Circuit

Court did not err in its 2015 Remand Order by upholding the 2013

FOF-COL in this regard. See Watanabe, 148 Hawai#i at 513, 479

P.3d at 131.

D. Fourth Point of Error, the September 2015 MAB

hearing

In his fourth point of error, Naumu contends that the

Circuit Court and the MAB erred and violated his due process

rights when: (1) the MAB denied Naumu's pre-hearing request to

conduct additional discovery and present evidence during the

September 24, 2015 hearing; and (2) that it was improper for the

MAB to "unilaterally" determine that two MAB members would

preside over the hearing, and not require the attendance of MAB

Chair Au at the hearing based on his absence from the prior MAB

hearings. Naumu's contentions are without merit.

1. The MAB's denial of Naumu's pre-hearing 

request to conduct additional discovery and 

to present evidence did not violate due 

process under the circumstances of this case.

Relying on HAR § 14-25.1-4(a) and (d),22 Naumu argues

that, "[a]s a matter of law," at the September 24, 2015 MAB

hearing, he had the right to conduct additional discovery and

present evidence on the remanded issue.

22 HAR § 14-25.1-4(a) (effective 2003) states in pertinent part, "An

appeal shall be conducted as a contested case under chapter 91, Hawaii Revised

Statutes. The board shall order the matter set for hearing. . . . 

Opportunities shall be afforded all parties to present evidence and argument

on all issues involved."

HAR § 14-25.1-4(d) (effective 2003) states in pertinent part, "An

application for subpoena requiring the attendance of witnesses or the

production of documentary evidence from any place within the State at any

designated place or hearing shall be made in writing to the board . . . ."

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The authority Naumu relies on, comes from the "Appeal

hearing" rule of HAR § 14-25.1-4, under the "Rules of Practice

and Procedure, State Merit Appeals Board." See generally HAR,

Title 14, Chapter 21.1. The appeal hearing rule sets forth the

procedure and process for appeal hearings before the Board. 

While the appeal hearing rule requires that parties be afforded

opportunities to present evidence on "all issues involved" in

subsection (a), and provides for subpoenas for the production of

documentary evidence in subjection (d), the rule also confers

discretion and authority to the officer presiding over the MAB

hearing to set forth the procedure appropriate for the hearing

and to control the course and scope of the hearing itself. See

HAR §§ 14-25.1-4(i), (l), and (n). Subsection (i) provides that: 

[t]he presiding officer at a proceeding shall have authority

to control the course of the hearing; . . . to grant

application for and issue subpoenas; . . . to rule upon

offers of proof and receive relevant evidence; to limit

lines of questioning or testimony that are irrelevant,

immaterial, or repetitious; . . . . and to take all other

actions authorized by [HRS] chapters 76 and 91 . . . , rules

of the board or by any other statute that are deemed

necessary to the orderly and just conduct of the hearing.

(Emphases added). In addition to the specific "authority to

control the course" of the hearing conveyed in subsection (i),

the appeal hearing rule provides the presiding officer control

over the scope and manner of the presentation of evidence at the

hearing. Subsection (n) affords a "reasonable opportunity to

offer testimony with respect to the matters relevant to the

proceeding." (Emphases added). Subsection (n) specifically

requires the officer to properly confine testimony: "The

presiding officer or hearing officer shall confine the testimony

to the matters for which the hearing has been called . . . . " 

(Emphasis added).

Here, the Circuit Court's 2015 Remand Order gave the

MAB "the discretion whether or not to allow the parties to recall

witnesses and/or present new evidence." The remand was for a

"limited hearing to only consider the discrete issue" as to

whether the MAB should exercise its discretion to modify the

dismissal action. The 2015 MAB appeal hearing was a remand from

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an appeal of the prior 2013 MAB appeal hearing, which had lasted

three days: April 25, 2013; July 25, 2013; and August 27, 2013.

During the 2013 three-day hearing, Naumu, Director Sakai,

Hearings Officers Nobriga and Nadamoto testified. The 2013 MAB

hearing was also the third time the case was heard by the MAB,

following the first 2006 appeal hearing, and the second 2010-11

appeal re-hearing. Thus, the record reflects that Naumu did have

an opportunity "to present evidence and argument on all issues

involved." HAR § 14-25.1-4(a). We conclude that the MAB did not

abuse its discretion by not allowing the parties to conduct

additional discovery or present new evidence at the hearing.

Naumu's argument that he was entitled to present new

evidence at the 2015 limited appeal hearing is not persuasive. 

In Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan, 87

Hawai#i 217, 239-41, 953 P.2d 1315, 1337-39 (1998), the supreme

court determined that HRS Chapter 91, the Hawai#i Administrative

Procedures Act does not require that a contested case hearing be

conducted de novo with evidence not already considered by the

agency. The Korean Buddhist Court found that the appellant

Buddhist temple had numerous opportunities to submit evidence and

had the right to cross-examine witnesses at prior hearings, and

thus the record in those proceedings was sufficient for the

agency to review. Id. at 240, 953 P.2d at 1338. Here, the MAB

similarly had access to the record of the previous 2013 appeal

re-hearing, which included the transcripts of the prior

testimonies of Director Sakai, Hearings Officer Nadamoto and

Nobriga, and Naumu. Thus, the record was sufficient for the MAB

to review.

"[D]ue process is flexible and calls for such

procedural protections as the particular situation demands." 

Sandy Beach Def. Fund v. City Council of Cty. of Honolulu, 70

Haw. 361, 378, 773 P.2d 250, 261 (1989) (citation omitted). 

Naumu's due process rights were not violated by the MAB's

discretionary decision not to reopen his case to further

witnesses and testimony. See Korean Buddhist, 87 Hawai#i at 240,

953 P.2d at 1338. The MAB's exercise of its discretion was

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consistent with the Circuit Court's order and the appeal hearing

rule, and did not constitute an abuse of discretion because Naumu

had previously been afforded opportunities to be heard in a

meaningful time and a meaningful manner, consistent with

procedural due process. See HAR §§ 14-25.1-4(i), (l), and (n);

Sandy Beach Def. Fund, 70 Haw. at 378, 773 P.2d at 261. We

conclude that the Circuit Court did not err in rejecting Naumu's

claim of a due process violation on this basis. See Watanabe,

148 Hawai#i at 513, 479 P.3d at 131.

2. The plain language of the appeal hearing

rule, HAR § 14-25.1-4, does not require 

the full three-member MAB to preside 

over the appeal hearing.

Naumu contends that he had the right to have the

September 24, 2015 hearing to be heard by the full three-member

MAB pursuant to HAR § 14-25.1-4(f).23 Naumu argues that there is

no rule under HAR Title 14 that allows the MAB to "unilaterally"

decide that a Board Member need not attend a hearing "simply

because that Board Member was not present during a prior

hearing," nor to allow the absent Board Member to "act as a tiebreaking vote in the event the two other Board Members cannot

agree." Naumu argues that the plain language of the words

"before the board" in subsection (f) means the full Board and not

a partial Board.

We do not agree with Naumu that "before the board" in

the appeal hearing rule must mean the full three-member Board. 

HAR § 14-25.1-4(f) (effective 2003) provides: "Appeals shall be

heard before the board or a hearing officer or panel of subject

matter experts duly appointed by the board." The rule's language

unambiguously permits even a single hearing officer or a panel of

subject matter experts to hear appeals, in addition to the board. 

The very next subsection, HAR § 14-25.1-4(g) (effective 2003)

provides: "[t]he chairperson shall preside over appeals heard by

the board itself. In the absence of the chairperson, another

23 In his Opening Brief, Naumu erroneously cites to the rule as HAR §

14-21.1-4(f).

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member, designated by the board, shall preside." Thus, if the

chairperson is not present at the appeal hearing, another MAB

member is designated as acting chairperson. HAR § 14-25.1-4(g). 

The appeal hearing rule plainly and unambiguously allows two of

the three MAB members to conduct the hearing. See Community

Ass'n of Hualalai, 150 Hawai#i at 252, 500 P.3d at 437. 

The MAB's decision to conduct the hearing with only

Pacheco and Santiago was permitted by HAR § 14-25.1-4(g), and

there was no due process violation. The Circuit Court's

conclusion that the MAB was allowed to conduct the hearing with

only two MAB members was not wrong.24 See Martinez, 137 Hawai#i

at 87-87, 365 P.3d at 1016-17. The Circuit Court did not err in

rejecting Naumu's claim of a due process violation on this basis. 

See Watanabe, 148 Hawai#i at 513, 479 P.3d at 131.

E. Fifth Point of Error, 2016 Order Dismissing 

Appeal and 2015 FOF-COL.

In his final point of error, Naumu contends that the

Circuit Court, in its 2016 Order Dismissing Appeal and the MAB in

its 2015 FOF-COL, erred in not modifying Naumu's dismissal and in

not finding that the circumstances were such that modification

would be deemed just. Naumu argues that it was an abuse of

discretion to not overturn his dismissal based on the facts and

circumstances of the case. Naumu's contention is without merit.

First, Naumu argues that the MAB's decision to uphold

DPS's termination of Naumu was "premised on the idea that Naumu

violated a DPS rule, policy or procedure." Naumu alleges that

the MAB "disregarded the undisputed evidence that Naumu did not

violate any DPS policy, but rather followed one [the Chow

Policy], and thus there was no cause for his termination."

An appellant seeking to overturn an agency's

determination made within the agency's expertise "has a high

burden to demonstrate that the agency abused its discretion." 

Paul's Elec. Serv., Inc. v. Befitel, 104 Hawai#i 412, 429, 91

24 In light of our disposition based on the plain language of the

appeal hearing rule, it is not necessary to address DPS's and the MAB's

counter-argument that a two-member MAB was permissible because two members

constituted a "quorum" under HRS § 92-15 and HAR § 14-1.1-10.

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P.3d 494, 501 (2004). "[A] determination made by an

administrative agency acting within the boundaries of its

delegated authority will not be overturned unless 'arbitrary, or

capricious, or characterized by . . . [a] clearly unwarranted

exercise of discretion.'" Id. (citation omitted).

Here, Naumu has not sustained his burden of

demonstrating that the MAB abused its discretion in not

overturning Naumu's dismissal. See id. The record reflects that

the Circuit Court's 2015 Remand Order specifically ordered the

MAB to conduct a limited hearing on the "discrete issue" of

whether the MAB should modify DPS's dismissal action. The MAB

was not directed to reopen the hearing to allow Naumu to

relitigate the existence of the "Chow Policy" at OCCC. The MAB

is authorized to reinstate a civil service employee to the

employee's position if the "action by the director or appointing

authority are not substantiated in any material respect." HAR §

14-25.1-4(x); see HRS § 76-47(e); Paul's Elec. Serv., Inc., 104

Hawai#i at 419, 91 P.3d at 501. The MAB found that the decision

by DPS was substantiated by the evidence that Naumu violated

various Standards of Conduct relevant to his position as Captain: 

Naumu was informed of the NIC audit findings concerning improper

security measures following the January 17, 2001 inmate escape

(FOF 27); DPS's internal investigation determined that Naumu's

failure to adhere to the OCCC security procedures and policies

probably contributed to the escape attempt (FOF 20); Naumu did

not inform the immediate supervisor for the Almadovas that both

Almadovas were being permitted to leave the premises (FOF 14);

the March 21, 2001 inmate escape occurred on Naumu's watch (FOF

21); Naumu's permission for Sgt. Ben Almadova to be absent for an

extended period of time contributed to an insufficiency of

personnel (FOF 22); and allowing the Almadovas to leave for a

meal break was a discretionary error in judgment regarding the

manpower and security presence in the Holding Unit during the

March 21, 2001 inmate escape (FOFs 22, 27). Thus, the MAB's

finding that the DPS's dismissal of Naumu was substantiated by

the record, and the MAB's decision to not overturn DPS's

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determination, did not constitute an abuse of discretion by the

MAB.25 See Paul's Elec. Serv., Inc., 104 Hawai#i at 419, 91 P.3d

at 501. We conclude that the Circuit Court did not err in its

2016 Order Dismissing Appeal affirming the MAB's decision to not

modify Naumu's dismissal in its 2015 FOF-COL. See Watanabe, 148

Hawai#i at 513, 479 P.3d at 131.

IV. CONCLUSION

For the reasons set forth above, we affirm the (1)

Order Remanding Employer-Appellant State of Hawai#i, Department

of Public Safety's Agency Appeal Filed February 3, 2012, filed

November 28, 2012 in Civil No. 12-1-0331-02 by the Circuit Court

of the First Circuit; (2) Order Denying Employee-Appellee Ronald

N. Naumu's Motion for Relief from "Order Remanding EmployerAppellant State of Hawaii, Department of Public Safety's Agency

Appeal filed February 3, 2012," Filed November 28, 2012, filed

March 3, 2014 in Civil No. 12-1-0331-02 by the Circuit Court of

the First Circuit; (3) Findings of Fact, Conclusions of Law and

Order dated November 25, 2013 in Merit Appeals Board Case No. 26;

(4) Order Remanding Employee-Appellant Ronald N. Naumu's Agency

Appeal Filed December 24, 2013, filed March 6, 2015 in Civil No.

13-1-3353-12 by the Circuit Court of the First Circuit; (5)

Amended Findings of Fact, Conclusions of Law, Decision and Order

dated November 19, 2015 in Merit Appeals Board Case No. 26; (6)

25 We also reject Naumu's challenges to FOFs 20 and 22, that appear 

for the first time on the last page of the "Discussion" section of the Opening

Brief, alleging that these FOFs were "incorrect." In FOF 20, Naumu takes

issue with the phrase "Sergeant Almadova probably contributed in part to the

escape opportunity" and argues that the evidence shows that Almadova did

contribute rather than just "probably" contributed. (Emphasis added). Naumu

argues that FOF 22 is not supported by the record and that the record reflects

that Naumu believed that Sgt. Ben Almadova was immediately returning to the

facility after buying dinner.

Naumu's challenges go to the weight of the evidence and resolution

of conflicts in testimony -- all of which are not the province of an appellate

court. See Application of Hawaiian Elec. Co., Inc., 81 Hawai#i 459, 465, 918

P.2d 561, 567 (1996) (observing that appellate courts "decline to consider the

weight of the evidence to ascertain whether it weighs in favor of the

administrative findings, or to review the agency's findings of fact by passing

upon the credibility of witnesses or conflicts in testimony, especially the

findings of an expert agency dealing with a specialized field.") (citation

omitted)). FOFs 20 and 22 have not been shown to be clearly erroneous. See

id.; Martinez, 137 Hawai#i at 87-88, 365 P.3d at 1016-17.

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Order Dismissing Employee-Appellant Ronald N. Naumu's Agency

Appeal Filed December 21, 2015, filed September 19, 2016 in Civil

No. 15-1-2432-12 by the Circuit Court of the First Circuit; (7)

Final Judgment filed September 30, 2016 in Civil No. 15-1-2432-12

by the Circuit Court of the First Circuit; and (8) Final Judgment

filed October 30, 2020 in Civil No. 12-1-0331-02 by the Circuit

Court of the First Circuit.

DATED: Honolulu, Hawai#i, February 17, 2022.

On the briefs:

Sunny S. Lee

(Bronster Fujichaku Robbins)

for Employee/AppelleeAppellant

Kimberly Tsumoto Guidry

Deputy Solicitor General

for Employer/AppellantAppellee

Ernest H. Nomura

Deputy Corporation Counsel

City and County of Honolulu

for Agency-Appellee-Appellee

/s/ Keith K. Hiraoka

Presiding Judge

/s/ Karen T. Nakasone

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge

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