Hawaii Administrative Rules › Title 8 - DEPARTMENT OF EDUCATION › Subtitle 2 - EDUCATION › Part 1 - PUBLIC SCHOOL › Chapter 62 - MERIT APPEALS BOARD › Subchapter 5 - RULES APPLICABLE TO APPEALS › Section 8-62-36 - Appeal hearing

Current through June, 2024
(a) The board
					 shall, upon receipt of an appeal, order the matter set for hearing. In any
					 appeal, all parties shall be afforded an opportunity for a hearing after
					 reasonable notice. Opportunities shall be afforded all parties to present
					 evidence and support their position on all issues involved. Any procedure may
					 be modified or waived by stipulation of the parties and informal disposition
					 may be made of any appeal by stipulation of the parties and informal
					 disposition may be made of any appeal by stipulation, agreement, consent order,
					 or default.
(b) The hearing shall
					 be held at the time and place set forth in the notice of hearing, but may, at
					 the time and place, be continued from day to day, to a later day, or to a
					 different place without notice other than the announcement thereof by the
					 presiding officer at the hearing.
(c) Appeals shall be heard before the board
					 or its appointee.
(d) When a
					 proceeding is conducted before the board itself, the proceeding shall be
					 presided over the chairperson of the board, or, in the chairperson's absence,
					 by another member designated by the board.
(e) The presiding officer at a proceeding
					 shall have authority to control the course of the hearing; to hold conferences
					 on which the parties have had notice, for settling or simplifying issues; to
					 administer oaths and affirmations; to grant application for and issue
					 subpoenas; to take or cause depositions to be taken; to rule upon offers of
					 proof and receive relevant evidence; to limit lines of questioning or testimony
					 that are irrelevant, immaterial or repetitious; to rule upon all objections,
					 procedural requests and motions that do not involve the final determination of
					 proceedings; to dispose of any other matter that normally and properly arises
					 in the course of the proceeding; and to take all other actions authorized by
					 chapter
					 76, Hawaii Revised Statutes, rules of
					 the board, or by any other statute, that are deemed necessary to the orderly
					 and just conduct of the hearing.
(f) No member of the board, or its appointee
					 who has any pecuniary interest in any matter or business involved in the
					 proceeding; who is related within the second degree by blood or marriage to any
					 party to the proceeding; who has participated in an investigation preceding the
					 institution of the proceeding or in a determination that it should be
					 instituted or in the development of the evidence to be introduced therein; or
					 where the circumstances fairly give rise to an appearance of impropriety and
					 reasonably cast suspicion on the person's impartiality shall be assigned to
					 serve in any proceeding.
(g) The
					 record of the hearing shall be compiled. The board shall make provisions for
					 recording testimony, but need not transcribe the record unless requested for
					 purposes of rehearing or court review. A copy of the record of a hearing or any
					 part thereof may be obtained as provided under board rules.
(h) Subpoenas requiring the attendance of
					 witnesses or the production of documentary evidence from within the State may
					 be compelled at any designated place of a hearing as may be issued by the
					 presiding officer, any designated member of the board, or its appointee.
					 Application for subpoenas shall be made in writing to the board. The
					 application shall specify the particular documents or data desired and shall
					 show their relevancy to the issues involved. Applications shall be made at
					 least ten days prior to the hearing. If the application is made at a later
					 time, the board or its appointees may, in its discretion, issue subpoenas or
					 continue the hearing or any part thereof or both. Enforcement of obedience to
					 subpoenas issued and served pursuant to these rules shall be effected by
					 written application of any member of the board to any circuit court
					 judge.
(i) Witnesses summoned shall
					 be paid the same fees and mileage as are paid witnesses in circuit courts of
					 the State and the fees and mileage shall be paid by the party at whose instance
					 the witnesses appear. Fees for the depositions shall be paid by the party at
					 whose instance the depositions are taken. Witnesses shall be placed under oath
					 or affirmation prior to testifying.
(j) At the commencement of the hearing, the
					 presiding officer shall read the notice of hearing and shall then outline
					 briefly the procedure to be followed.
(k) All parties shall be given reasonable
					 opportunity to offer testimony with respect to the matters relevant to the
					 proceeding. All witnesses, before proceeding to testify, shall state their
					 name, address, and whom they represent at the hearing and shall give such
					 information respecting their appearance relevant to the proceedings as the
					 presiding officer may request. The presiding officer shall confine the
					 testimony to the matters for which the hearing has been called, but need not
					 apply the technical rules of evidence except as required by statute. Each
					 witness shall be subject to questioning by members of the board and its
					 appointees. Each witness shall also be subject to cross-examination by the
					 adverse party. Each party shall have the right to submit rebuttal evidence and
					 rebuttal arguments.
(l) The
					 presiding officer shall take notice of judicially recognizable facts and may
					 take notice of generally recognizable technical or scientific facts within the
					 board's or its appointee's specialized knowledge when parties are given notice
					 either before or during the hearing of the material so noticed and are afforded
					 the opportunity to contest those facts.
(m) At the hearing, the presiding officer may
					 require the production of further evidence upon any issue.
(n) After all the evidence has been
					 presented, the presiding officer shall give the parties an opportunity to
					 summarize their respective positions. Within a reasonable time after such final
					 arguments have been completed and all requested memoranda submitted, the
					 presiding officer shall bring the matter to a close.
(o) The board or its appointee shall permit
					 parties to file proposed findings and conclusions of law, together with the
					 reasons thereof at the close of the hearing or within the time specified by the
					 board or its appointee. The proposal shall be in writing and shall contain
					 reference to the record and to the authorities relied upon. Copies thereof
					 shall be furnished to all parties.
(p) Board action on appeals shall be as
					 follows:
(1) For actions taken by the
					 superintendent, assistant superintendent, or appointing authority based on
					 failure to meet performance requirements, the board shall determine whether the
					 conditions listed in section
					 76-41(b),
					 Hawaii Revised Statutes, were met when determining whether or not the action is
					 with or without merit.
(2) If
					 reasons for the action by the superintendent, assistant superintendent 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 in pay.
(3) If the reasons are
					 substantiated or are only partially substantiated, the board shall sustain the
					 action of the superintendent, assistant superintendent, or appointing
					 authority; provided that the board may modify the action of the superintendent,
					 assistant superintendent, or appointing authority if it finds the circumstances
					 of the case so require and may order the disposition of the case it deems just
					 provided that the disposition is consistent with laws, rules, and
					 policies.