Report No. 31, Fiscal Year 1999-2000
REPORT of the OMBUDSMAN
For the Period July 1, 1999 – June 30, 2000
Report No. 31
Presented to the Legislature
pursuant to Section 96-16 of
the Hawaii Revised Statutes
TABLE OF CONTENTS
III. STATISTICAL TABLES
LETTER OF TRANSMITTAL
Mr. President, Mr. Speaker, and Members of the
Hawaii State Legislature of 2001:
In accordance with Section 96-16, Hawaii Revised Statutes, I am pleased to submit the report of the Office of the Ombudsman for fiscal year 1999-2000. This is the thirty-first annual report since the establishment of the office in 1969.
Those who sought assistance from our office during the year would not have been as ably served in a timely, objective, efficient, and professional manner without the dedicated services of Ms. Donna Woo, my First Assistant, and the other professional and support staff members of the office. For their continued commitment and hard work, I convey my personal thanks.
ROBIN K. MATSUNAGA
THE YEAR IN BRIEF
The Office Workload
During fiscal year 1999-2000, the office received a total of 5,796 inquiries. Of these inquiries, 4,187, approximately 72 percent, may be classified as complaints within the jurisdiction of the office. The remaining inquiries consisted of 1,054 requests for information and 555 non-jurisdictional complaints.
The 5,796 inquiries received during fiscal year 1999-2000 represents a significant decrease from the 6,991 inquiries received the previous fiscal year. The number of complaints in fiscal year 1999-2000 also decreased by a similar percentage from the number received in previous fiscal years.
It should be noted, however, that the decrease in total inquiries and complaints received helped alleviate the negative impact on operations which could have resulted due to the installation of the new case management system and a reduction in staffing level during the fiscal year.
A comparison of our workload between the 1998-1999 and 1999-2000 fiscal years is presented in the accompanying table.
TWO-YEAR CASELOAD COMPARISON
In October 1999, Yvette Lum, who had been with our office since March 1993, left to take a position with the Developmental Disabilities Division of the Department of Health. In May 2000, after three years with our office as an analyst, Benedyne Stone left our office to join the Public Utilities Commission as a staff attorney. We wish both of them the best in their new careers. These two positions remained unfilled during the remainder of the 1999-2000 fiscal period.
At the close of the fiscal year, our office consisted of Ombudsman Robin Matsunaga, First Assistant Donna Woo, analysts Herbert Almeida, Gillman Chu, Alfred Itamura, Glenn Mirikidani, Lynn Oshiro, and David Tomatani, and office staff Edna de la Cruz, Debbie Goya, Sue Oshima, and Linda Teruya.
Two of our staff members celebrated their 30th anniversary as public employees this past fiscal year. Gillman Chu has been with the Office of the Ombudsman since September 1975 and Edna de la Cruz since May 1970. Both Mr. Chu and Ms. de la Cruz started their tenure with this office under Herman Doi, Hawaii’s first Ombudsman. We thank them for their many years of commitment and dedicated service to this office.
The decreased number of complaints received by our office during fiscal year 1999-2000 allowed us time to work on reducing the backlog of cases. As a result, the number of cases carried over is at its lowest in the past ten years. The history of the past ten years of the number of cases carried over from one fiscal year to the next is as follows:
|Year||No. of Cases|
Of the 170 carried-over cases, 16 are cases carried over from years prior to fiscal year 1999-2000. Although these cases may be opened for longer than one year, they are under active investigation. The remaining cases are for fiscal year 1999-2000 that were still opened as of June 30, 2000. We believe we are close to achieving our goal of reducing our backlog of cases to an acceptable level. We will continue to work hard to complete our investigations in a timely, thorough, and expeditious manner.
New Case Management System
In October, we replaced our existing case tracking system (CTS) with a new case management system (CMS) that we acquired from the Iowa Ombudsman’s Office. In switching to the CMS, we were able to convert the existing data on complainants and complaint cases from our CTS, creating a database of approximately 13,000 contacts and 25,000 cases. By the close of the fiscal year, we had almost 16,000 contacts and 29,000 cases in our CMS database.
While we continue to learn and work with this new system, identifying modifications needed to customize it to fit our requirements, the CMS has already had a positive impact on our operations. With its extensive database, which continues to grow, and quick search capability, the CMS has improved the efficiency by which we intake and process new complaints that are made via telephone. Upon receiving a telephone call where the caller provides a first and last name, the intake staff enters the caller’s last name into the CMS, which quickly generates a listing of any contacts with that last name. By scrolling down the alphabetized list, the intake staff can find whether the caller had contacted our office previously.
The CMS also generates at the same time a list of the previous complaints or inquiries that each contact has made with our office, the case number assigned to the complaint or inquiry, and the analyst assigned to the case. This information greatly assists the intake staff in routing the caller to the appropriate analyst for assistance.
Another key feature of the CMS that has helped to improve our efficiency is the inclusion of the notes to each case as a part of the data for that case. Under the CTS, the notes on a case were stored only in paper files as the program did not allow the notes to be electronically attached to the case in the database. With the new CMS, the notes are electronically attached to the case, which allows simultaneous access to the case notes by more than one person at a time. Also, as part of the database, the case notes are fully searchable. This allows us to perform simple or complex text searches to find previous cases that we have had that dealt with the same or very similar circumstances.
The new CMS also greatly assists the Ombudsman and First Assistant in the management of caseloads. In addition to providing counts of open cases for each analyst, the CMS also provides statistics such as the number of days a particular case is open, as well as other information that the Ombudsman can use to improve his ability to oversee his staff.
In addition to its positive impact on our services to the public, the new CMS also allows us to capture more detailed data on our cases, which allows us to more accurately record what we do. For example, where the CTS provided only two types of dispositions for jurisdictional complaint cases (discontinued or closed), the CMS provides four choices (declined, assisted, discontinued, or completed). It also provides us with additional data fields that record not only whether a complaint is substantiated, but also the basis for that finding, whether a recommendation for action was made to the agency, and whether and to what degree the agency responded to the recommendation. We hope to incorporate this new information into our next annual report, as we believe it will help to provide a better and clearer understanding of the work that we do.
United States Ombudsman Association
As one of its founding members, our office continues its active participation in the United States Ombudsman Association (USOA). Ombudsman Robin Matsunaga continues to serve on the USOA Board, and chairs its Outreach Committee. He also chairs the special committee to review the bylaws of the Association and was instrumental in proposing and drafting amendments to the bylaws, which are now before the membership for ratification.
As chair of the Outreach Committee, Mr. Matsunaga was invited to speak at the 1999 National Conference of State Legislatures Leadership Staff Section Annual Training Seminar in New Orleans, Louisiana, on the establishment and function of the Ombudsman. He was also a speaker at the USOA/COA (Canadian Ombudsman Association) Conference in Victoria, British Columbia, Canada, in October 1999, and at the Second Ombudsman Leadership Forum Conference in San Francisco, California, in June 2000.
In the investigation of a complaint, we sometimes discover problems or inequities that may require statutory change to resolve, as in the following case (Case No. 00-1255):
A State employee complained that the amounts garnished from his paychecks for an unpaid loan consistently exceeded the amount calculated by statutory formula. He explained that the garnishment amount from his most recent paycheck was $238, but he thought it should have been $135. He believed that the error was due to the fact that the garnishment amounts were based on a percentage of his gross pay when the statute required that the amounts be based on a percentage of his net pay.
In our investigation, we found that there are two separate laws on garnishment: Chapter 652, Hawaii Revised Statutes (HRS), “Garnishment,” and Chapter 653, HRS, “Garnishment of Government Beneficiaries.” The latter chapter defines “government beneficiaries” as officers or employees of the State and counties who receive a salary, stipend, or wages. Since the complainant was a State employee, Chapter 653 was applicable to him.
Both chapters provide identical garnishment rates: 5 percent of the first $100 per month, 10 percent of the next $100 per month, and 20 percent of all sums in excess of $200 a month. However, while Chapter 652 provided that the garnishment rates would be applied to an employee’s pay “remaining after the deduction of any amounts required by law to be withheld,” Chapter 653 contained no such provision and only provided that the rates would be applied to a government employee’s salary, stipend, or wages. Thus, while the garnishment amount from a private sector employee’s paycheck would be based on the amount remaining after deductions required by law, the garnishment amount from a government employee’s paycheck would be based on gross pay. According to our calculations, $238 was the correct amount to be garnished from the complainant’s last paycheck based on his gross pay.
We contacted the Department of Accounting and General Services (DAGS), which processes State employees’ paychecks. The DAGS confirmed that it must comply with Chapter 653, not Chapter 652, in determining garnishment amounts to be withheld from employees’ paychecks. Thus, the DAGS applied the statutory garnishment rates against the amount of the gross pay of employees, prior to any deductions and withholdings.
The DAGS supervisor with whom we spoke was not aware of the reason for treating government employees differently from non-government employees in this matter. Additionally, in our review of the legislative history of the statutes, we found no stated rationale for the differential treatment.
In the interest of fairness and equity for employees of the State and all four counties, unless there is an overriding reason for the differential treatment, the allowable garnishment amounts should be the same for both government and private sector employees. The Legislature should consider amending the garnishment statutes to reflect a consistent application of allowable garnishment amounts for both public and private sector employees.
NUMBERS AND TYPES OF INQUIRIES
Fiscal Year 1999-2000
| % of Total
MEANS BY WHICH INQUIRIES ARE RECEIVED
Fiscal Year 1999-2000
| % of Total
DISTRIBUTION OF POPULATION AND
INQUIRERS BY RESIDENCE
Fiscal Year 1999-2000
|City & County of Honolulu||864,571||72.9%||4,433||76.5%|
|County of Hawaii||142,390||12.0%||678||11.7%|
|County of Maui||121,997||10.3%||398||6.9%|
|County of Kauai||56,539||4.8%||119||2.1%|
*Source: The State of Hawaii Data Book 1999, A Statistical
Abstract. Hawaii State Department of Business,
Economic Development and Tourism, Table 1.06,
“Resident Population, by Counties: 1980 to 1999.”
DISTRIBUTION OF TYPES OF INQUIRIES
Fiscal Year 1999-2000
|Residence||TYPES OF INQUIRIES|
| C&C of
CITY AND COUNTY OF HONOLULU –
MEANS OF RECEIPT AND TYPES OF INQUIRIES BY MONTH
Fiscal Year 1999-2000
|Means of Receipt||Types of Inquiries|
| % of
NEIGHBOR ISLAND COUNTIES AND OUT-OF-STATE –
MEANS OF RECEIPT AND TYPES OF INQUIRIES
Fiscal Year 1999-2000
|Means of Receipt||Types of Inquiries|
| Percent of
| Percent of
| Percent of
| Percent of
| % of TOTAL
DISTRIBUTION AND DISPOSITION OF
JURISDICTIONAL COMPLAINTS BY AGENCY
Fiscal Year 1999-2000
| State Departments
|Budget & Finance||81||1.9%||10||21||11||19||17||3|
| Business, Economic
Devel. & Tourism
| Commerce &
|Hawaiian Home Lands||12||0.3%||1||6||3||1||1||0|
| Human Resources
| Labor & Industrial
| Land & Natural
| Office of
|University of Hawaii||44||1.1%||5||15||5||11||4||4|
| Other Executive
City & County
|County of Hawaii||32||0.8%||3||11||2||13||1||2|
|County of Maui||22||0.5%||0||4||2||3||2||11|
|County of Kauai||8||0.2%||1||2||2||3||0||0|
| % of Total
DISTRIBUTION AND DISPOSITION OF SUBSTANTIATED
JURISDICTIONAL COMPLAINTS BY AGENCY
Fiscal Year 1999-2000
No Action Necessary
| State Departments
|Budget & Finance||10||10||0|
| Business, Economic
Development & Tourism
| Commerce &
|Hawaiian Home Lands||1||1||0|
| Human Resources
|Labor & Industrial Relations||7||5||2|
|Land & Natural Resources||7||6||1|
|Office of Hawaiian Affairs||0||0||0|
|University of Hawaii||5||5||0|
|Other Executive Agencies||0||0||0|
City & County of Honolulu
|County of Hawaii||3||2||1|
|County of Maui||0||0||0|
|County of Kauai||1||1||0|
| % of Total Substantiated
| % of Total Jurisdictional
DISTRIBUTION OF INFORMATION REQUESTS
Fiscal Year 1999-2000
|Agency||Information Requests||Percent of Total|
| State Departments
Accounting & General Services
|Budget & Finance||25||2.4%|
|Business, Economic Devel. & Tourism||31||2.9%|
|Commerce & Consumer Affairs||128||12.1%|
|Hawaiian Home Lands||3||0.3%|
|Human Resources Development||2||0.2%|
|Labor & Industrial Relations||47||4.5%|
|Land & Natural Resources||18||1.7%|
|Office of Hawaiian Affairs||1||0.1%|
|University of Hawaii||5||0.5%|
|Other Executive Agencies||37||3.5%|
City & County of Honolulu
|County of Hawaii||8||0.8%|
|County of Maui||5||0.5%|
|County of Kauai||3||0.3%|
DISTRIBUTION OF NON-JURISDICTIONAL COMPLAINTS
Fiscal Year 1999-2000
|Jurisdictional Exclusions||Number of Complaints||Percent of Total|
|Multi-State Governmental Entity||0||0.0%|
INQUIRIES CARRIED OVER TO FISCAL YEAR 1999-2000 AND
THEIR DISPOSITIONS, AND INQUIRIES CARRIED OVER
TO FISCAL YEAR 2000-2001
|Types of Inquiries||Inquiries
Over to FY
|Inquiries Carried Over to
FY 99-00 and Closed
During FY 99-00
to FY 99-00
to FY 00-01
SELECTED CASE SUMMARIES
The following are summaries of selected cases investigated by the office. Each case summary is listed under the State government department or the county government involved in the complaint or inquiry. Although some cases involved more than one department or involved both the State and the county, each summary is placed under what we believe to be the most appropriate organization.
LIST OF SUMMARIES
Inadequate notice of animal quarantine fees
Unable to obtain receipt for State ID card
Liability for citations on vehicle no longer owned
Moratorium on the issuance of motor carrier certificates
Received only partial payment of life insurance benefits
Failure to clear overgrown stream
Delay in receipt of late husband’s vacation pay
Not allowed to use playground equipment
Reasonable assurance of continuing employment in disqualification for unemployment benefits
Ineligible to represent school in talent contest
TB testing clinic closing too early
Failure to pay for mentoring services
Registration requirement for family child care home
Unable to obtain license to operate blind vendor shop
Denial of application for medical assistance
State employee ineligible for temporary disability insurance benefits
Found guilty of escape while on furlough
Denial of access to mainland facility’s Table of Contents of confidential policies and procedures
Delay in setting minimum sentence
Nepotism prohibited in airport hiring practices
A mail drop is not a mailbox
Ineligible for employment program due to failure to register for military service
Minor whose parents are divorced required to present divorce decree when applying for driver’s instruction permit
Delay in home renovation caused by permit procedure
DEPARTMENT OF AGRICULTURE
(00-2351) Inadequate notice of animal quarantine fees. A woman complained that she did not receive advance notification of fees that she was assessed for the quarantine of her dog after its arrival in Hawaii. Prior to bringing her dog to Hawaii, she received an informational packet from the Animal Quarantine Station (AQS) informing her about pre- and post-arrival requirements, quarantine station procedures, rules, and fees. However, based on the information she received, she did not understand that she would be assessed a fee by the private satellite quarantine station where her dog was actually quarantined, in addition to the fees charged by the AQS.
Since the complainant resided on the island of Hawaii and the AQS is on Oahu, she had to have her dog quarantined at a satellite quarantine station if she wanted to have it quarantined on Hawaii. In accordance with Department of Agriculture (DOA) rules, private profit-making entities on a neighbor island may operate as satellite quarantine stations provided that the stations meet requirements set forth in the rules. If a satellite quarantine station meets the rule requirements, the Board of Agriculture may issue a permit to allow the operation of the station. These satellite quarantine stations establish their own fee schedules.
The complainant was assessed and paid a $650 quarantine fee to the satellite quarantine station at which her dog was quarantined. Subsequently, she received an unexpected and unexplained bill for $315 from the AQS in Honolulu.
In our investigation we found the DOA rules require that upon arrival in Hawaii, a dog, cat, or other carnivore must be transported to the AQS in Honolulu for recording and processing. Although the normal quarantine period is 120 days, an animal may qualify for a 30-day quarantine if certain pre-arrival and post-arrival measures are taken. Prior to arrival, vaccinations and a rabies test must be administered within specified times and documented. After the animal’s arrival in Hawaii, a second rabies test must be conducted and if the test result is within specified limits, the animal may qualify for a quarantine period of 30 days.
The AQS informational packet informed animal owners that the recording, processing, and testing fee for a 30-day quarantine is about $300. However, the packet did not specifically indicate that this fee was in addition to the fee that would be assessed by the satellite quarantine station. Thus, the complainant thought the only fee that she would be assessed was the satellite quarantine station’s fee.
The AQS informed us that it had received a number of complaints similar to that of the woman who contacted our office. Therefore, the AQS had already begun to include a flyer in the informational packet sent to interested persons to explain that for 30-day quarantine applications, the animal owner must pay a fee of about $300 to the AQS in addition to the fee that would be assessed by a satellite quarantine station.
Unfortunately, the practice was not initiated in time to benefit the complainant. We noted, however, that future animal owners would benefit from the additional information provided by the AQS.
DEPARTMENT OF THE ATTORNEY GENERAL
(00-3125) Unable to obtain receipt for State ID card. A neighbor island resident complained that he was not able to obtain a receipt for the $15 he paid for the State ID card that he just obtained. The neighbor island ID office informed him that the ID card itself served as his receipt. However, in order to obtain reimbursement for the cost of his ID card from a social service agency, he needed a receipt because the fee was not reflected on the ID card.
The ID office supervisor in Honolulu informed us that the ID card itself usually serves as the receipt. However, if there is a need for a receipt which indicates the fee paid for the card, the ID office clerk is supposed to photocopy the card, sign and date the copy, and write thereon a statement acknowledging receipt of the fee. The supervisor stated that she will remind the neighbor island office to abide by this practice.
We thereupon referred the complainant back to the neighbor island office to obtain his receipt.
(00-4498) Liability for citations on vehicle no longer owned. A man complained that he received a Notice of Proposed Tax Refund Setoff, informing him that his State income tax refund of $86 was to be withheld for payment of a debt to the State. When he called the Department of the Attorney General (AG) Collections Unit, he was informed that he had a $100 debt to the State for citations issued in his name for nonpayment of a motor vehicle registration tax and for not having a valid safety inspection certificate for the vehicle. He complained that although he sold the vehicle in March 1994 and the citations were not issued until February 1995, the AG would not release him of responsibility unless he submitted proof that he did not own the vehicle at the time the citations were issued.
Subsequently, the complainant obtained a written statement from the Division of Motor Vehicles and Licensing (DMVL), Department of Customer Services, City and County of Honolulu, that the motor vehicle in question was transferred by him on March 25, 1994, but the transfer was not recorded and the vehicle was not re-registered at the DMVL until March 31, 1995. Additionally, the person who re-registered the vehicle as the new owner on March 31, 1995 was not the person to whom the complainant had sold the vehicle.
We reviewed Section 286-52, Hawaii Revised Statutes, which stated in part:
Procedure when title of vehicle transferred; delivery of certificate mandatory.
. . . .
(j) Every person, other than a dealer, upon transferring a motor vehicle, whether by sale, lease, or otherwise, shall within ten days give notice of the transfer to the director of finance upon the official form provided by the director of finance. . . .
(k) Whenever the registered owner of any motor vehicle or any licensed dealer has given notice to the director of finance of a transfer of the title or interest in the motor vehicle, as provided in subsection (i) or (j), and has delivered the certificate of ownership bearing the transferor’s signature to the transferee as required by subsection (a), the transferor shall be relieved from any liability, civil or criminal, from the date the transferor delivers the motor vehicle into the transferee’s possession, which the transferor might otherwise subsequently incur by reason solely of being the registered owner of the vehicle.
We asked the complainant if he submitted the required notice of transfer and he told us that he did. Upon inquiry, however, the DMVL informed us that it did not have on file a notice of transfer from the complainant. Nevertheless, the DMVL reported that the certificate of ownership of the vehicle, which was filed on March 31, 1995, did contain the complainant’s signature and indicated that the date of his release of ownership was March 25, 1994. The DMVL surmised that the person who bought the vehicle from the complainant did not register it but sold it to another person, who then re-registered it on March 31, 1995. The DMVL suggested that we consult the Traffic Violations Bureau (TVB), an agency of the Judiciary, as to whether the complainant should be held responsible for the citations.
The TVB advised us that it required documentary proof that the complainant did not own the vehicle when the citations were issued in February 1995. We contacted the DMVL, which agreed to provide the TVB with a copy of the certificate of ownership of the vehicle. Upon receipt of the certificate, the TVB informed us that the matter would be brought before a district court judge for a ruling as to whether the certificate would constitute proof that the complainant released ownership of the vehicle on March 25, 1994 and did not own the vehicle when the citations were issued.
The following week, the TVB informed us that the judge reviewed the certificate of ownership, determined that the complainant was not responsible, and dismissed both citations. Thus, the complainant would receive his State tax refund of $86.
The complainant was pleased with the resolution of his complaint.
DEPARTMENT OF BUDGET AND FINANCE
(00-1710) Moratorium on the issuance of motor carrier certificates. Hawaii law requires that in order to conduct business as a common carrier of property by motor vehicle (i.e., one who transports property for the general public for a fee), a certificate of public convenience and necessity (CPCN) must be obtained from the Public Utilities Commission (PUC).
The owner of a trucking company complained that he was unable to obtain a CPCN to transport property because the PUC had imposed a moratorium on the issuance of CPCNs several years before. He also complained that when CPCN holders go out of business, the PUC allowed them to sell their CPCNs to other individuals rather than requiring them to relinquish their CPCNs to the State to make them available to others in the motor carrier business. The complainant contended that the moratorium on the issuance of new CPCNs and the allowance of the sale of existing CPCNs were preventing him from conducting business as a motor carrier.
We reviewed Chapter 271, Hawaii Revised Statutes, titled “Motor Carrier Law.” The law provided that the PUC shall issue a CPCN to a qualified applicant only if “the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise the application shall be denied.”
The PUC informed us that the moratorium on issuing CPCNs was imposed and continued by three separate PUC orders filed in 1994, 1995, and 1996. A temporary moratorium on the filing of property carrier applications was imposed in 1994 in response to complaints from the trucking industry that too many CPCNs were being issued. During the moratorium, the PUC conducted an investigation to determine whether the number of property carriers in the State was at or was approaching a level that the market could not sustain. As part of its investigation, the PUC conducted public hearings in all four Counties, inviting testimony from the trucking industry, State and County agencies, private business, and the general public.
The PUC reviewed the testimony and information gathered at the public hearings and analyzed the annual financial reports that certificated property carriers are required to submit. The PUC noted that despite 17 rate increases approved by the PUC between 1991 and 1994, certificated property carriers reported a decrease in annual gross revenues during this period of more than $12 million and the average annual revenue per carrier dropped from $586,471 to $505,292. Thus, the PUC extended the moratorium for an indefinite period, by two subsequent orders in 1995 and 1996, and continued its monitoring of the property carrier industry.
Since the PUC orders provided information on certificated property carriers’ gross revenues only through 1994, we asked the PUC to provide us with such information for the subsequent years. The PUC provided us the requested information through 1998, which showed a further decline of nearly $12 million in the annual gross revenues of certificated property carriers since 1994.
We informed the complainant that it was within the discretionary authority of the PUC to impose the moratorium and that we concluded there was a reasonable basis for the moratorium.
We further noted that the law allows the holder of a CPCN to transfer it to another person by sale or other transaction, provided that an application for the transfer is made to the PUC and the approval of the PUC is obtained. The PUC informed us that as required by law, it considers the effect that the proposed transaction will have on providing adequate transportation service to the public, other motor carriers, and the employees of the transferring carrier.
Thus, we advised the complainant that in acting upon applications for the sale of CPCNs, the PUC was carrying out its statutory duty and that if the sale of CPCNs were to be prohibited, the law would have to be amended or repealed.
(00-4987) Received only partial payment of life insurance benefits. State law requires the State and Counties to pay into the Hawaii Public Employees Health Fund (HPEHF) a monthly contribution to be used by the HPEHF to secure group life insurance benefits for their employees.
A 63-year-old University of Hawaii (UH) professor passed away while he was actively employed. The professor was employed by the UH for 12 years, was eligible to receive retirement benefits, and his sole beneficiary was his wife. The insurance company sent the professor’s wife a life insurance beneficiary check in the amount of $1800.
The professor’s wife pointed out to the HPEHF that according to the insurance policy, an $1800 benefit was the amount payable if her husband was retired at the time of his death. Since her husband was under age 65 and was an active employee at the time of his death, the policy provided a benefit of $25,000. However, the insurance company explained that it paid the $1800 benefit based on information from the State Employees’ Retirement System (ERS) that the professor was a retiree at the time of his death.
We contacted the HPEHF administrator who informed us that the ERS implemented Section 88-286, Hawaii Revised Statutes (HRS), a retirement system law which provided that when an active employee who was eligible for retirement dies, the surviving spouse is eligible to receive a retirement allowance as if the employee had retired the day prior to death. For its own administrative purposes, the ERS classified the professor as having died as a retiree and provided the professor’s wife a retirement death benefit pursuant to Section 88‑286, HRS.
The HPEHF administrator informed us, however, that the retirement system law had no bearing on the HPEHF group life insurance coverage and the ERS classification did not alter the fact that the professor was an active employee, not a retiree, at the time of his death. By the time we contacted the administrator, he had already written to the insurance company to advise it that the professor passed away while an active employee and his wife was therefore entitled to a benefit payment of $25,000.
The insurance company investigated further and obtained confirmation from the UH that the professor was an active employee on the date of his death. Thus, the company paid the professor’s wife the remaining $23,200, plus interest.
At the time of the professor’s death, the insurance company had been the group life insurance carrier for the HPEHF for only several months. Based on the misunderstanding in the professor’s case, the insurance company contacted State and County departments to determine if there were other employees who died during the months in which it provided the coverage whose beneficiaries should have been paid $25,000 rather than $1800. The HPEHF administrator also met with the insurance company, which agreed to henceforth accept HPEHF certification that the death of an employee occurred while the employee was actively employed, rather than after retirement, to preclude similar underpayments in the future.
DEPARTMENT OF BUSINESS, ECONOMIC DEVELOPMENT AND TOURISM
(00-3091) Failure to clear overgrown stream. A resident of an apartment complained that the State and the City and County of Honolulu (C&C) both disclaimed responsibility for clearing a stream adjacent to her apartment building. The stream and streambed were overgrown with weeds that prevented the water from flowing, and the stagnant water and weeds were a breeding ground for mosquitoes and rats. She reported that the C&C recently cleared an improved section of the stream that ran under a C&C street, but informed her that the State was responsible for the rest of the stream.
Based on our research, we concluded that the responsibility for clearing a stream rested with the owner of the stream. Section 46-11.5, Hawaii Revised Statutes, stated in part:
Maintenance of channels, streambeds, streambanks, and drainageways. Notwithstanding any law to the contrary, each county shall provide for the maintenance of channels, streambeds, streambanks, and drainageways, whether natural or artificial, including their exits to the ocean, in suitable condition to carry off storm waters; and for the removal from the channels, streambeds, streambanks, and drainageways and from the shores and beaches any debris which is likely to create an unsanitary condition or otherwise become a public nuisance; . . . unless such channels, streambeds, streambanks, and drainageways are privately owned or owned by the State, in which event such channels, streambeds, streambanks, and drainageways shall be maintained by their respective owners. (Emphasis added.)
The C&C Department of Facility Maintenance (DFM) confirmed that it cleared an improved concrete-lined section of the stream because it was a C&C drainage easement, but maintained that it was not responsible for clearing the entire stream.
The State Department of Land and Natural Resources (DLNR) informed us that the land on which the stream was situated was once under DLNR’s jurisdiction. However, the DLNR had long since granted the land to the then Hawaii Housing Authority (HHA), now the Housing and Community Development Corporation of Hawaii (HCDCH), for the development of the housing project in which the complainant resided. The HHA subsequently conveyed ownership of the land to the association of owners of the apartments in the housing project.
We obtained from the DLNR the property tax maps and documents, land patents transferring the land from the DLNR to the HHA, and the quitclaim deed conveying ownership of the land from the HHA to the apartment association. It appeared, as reported by the DLNR, that the land where the stream was situated was conveyed from the DLNR to the HHA and then to the apartment association.
We contacted the HCDCH, which was already familiar with the complaint, having investigated it several months ago. The HCDCH reported that it had concluded the stream was on land owned by the apartment association and that it was therefore the apartment owners’ responsibility to clear the stream. The HCDCH had notified the association that the overgrowth in the stream posed a health problem and had requested that the association clear the stream.
We asked the HCDCH to review the land patents and the quitclaim deed to verify that the land whose ownership was transferred to the apartment association included the land on which the stream was situated. After reviewing the documents, the HCDCH concurred with the DLNR that the stream was located on the land that was conveyed to the apartment association.
We advised the complainant of our finding that neither the C&C nor the State was responsible for clearing the stream and that such responsibility rested with the apartment owners.
DEPARTMENT OF EDUCATION
(00-0533) Delay in receipt of late husband’s vacation pay. By statute and collective bargaining agreements, State civil service employees earn vacation leave with pay at the rate of one and three-quarters days for each month of service. Under certain circumstances when an employee terminates employment with unused vacation leave credits, the employee, the employee’s designee, or the employee’s surviving spouse may receive monetary payment for the unused vacation leave credits.
The wife of a custodian at a high school complained to us a year after his death that she did not receive his vacation pay. The Department of Education (DOE) payroll office informed us that the custodian did not designate a beneficiary, so the benefits would go to his estate, not to his wife. When we checked with the Department of Accounting and General Services (DAGS) to confirm that the employee did not designate a beneficiary, however, the DAGS noted that the vacation pay should go to the custodian’s wife if he did not designate a beneficiary.
Section 79-7, Hawaii Revised Statutes, stated in part:
Vacation allowances on termination of employment. . . .If any employee dies with accumulated or current accrued vacation earned but not taken, an amount equal to the value of the employee’s pay over the period of such earned vacation, and any earned and unpaid wages, shall be paid to the person or persons who may have been designated as the beneficiary or beneficiaries by the employee during the employee’s lifetime in a verified written statement filed with the comptroller or other disbursing officer who issues warrants or checks to pay the employee for the employee’s services as a public officer or public employee, or, failing the designation, to the employee’s surviving spouse or reciprocal beneficiary, or, failing the surviving spouse or reciprocal beneficiary, to the employee’s estate. . . . (Emphasis added.)
The DAGS confirmed that the custodian did not file a D-90, or “Employee’s Designation of Beneficiary” form. The DAGS informed the DOE about the provisions of the law. The DOE subsequently requested proof of the complainant’s identity and the custodian’s death certificate. Thereafter, the complainant received the vacation pay, a month after contacting us.
The DOE acknowledged that it did not follow the provisions of the law in this case, but maintained that there were very few instances when an employee did not designate a beneficiary. The DOE informed us it would henceforth follow the provisions of the law.
(00-0778) Not allowed to use playground equipment. The parent of a public elementary school student questioned why students were not allowed to use the school playground equipment. The playground looked new and safe, but was fenced off with “off limits” signs.
In our investigation we learned that Department of Education (DOE) officials, in the process of inspecting playground equipment at all public schools, found that many playgrounds did not comply with new Federal safety standards. Thus, the department had no recourse but to close down aging swings, jungle gyms, and other playground equipment to prevent children from getting injured. Furthermore, DOE officials found that the equipment in many playgrounds was not accessible to students with disabilities and thus violated the standards of the Federal Americans with Disabilities Act (ADA).
In this case, the surface under the play structures was compacted and too hard. National studies showed that many playground injuries resulted from falls to the surface. Thus, the school disallowed students from playing on the equipment until it could replace the surface with padded ground covering to cushion falls.
We advised the complainant of the reasons that the playground equipment was off limits and referred him to the DOE for more information about the safety standards.
We later learned that schools did not normally include the cost of playground equipment in their budget. Playground equipment was traditionally provided through the efforts of parents and community groups. The DOE recognized that the expense of replacing or repairing playground equipment and playgrounds may be prohibitive for parent and community groups and that well‑designed and safe playgrounds provide valuable environments for learning. Therefore, the DOE asked the Legislature to fund the design and construction of playgrounds, to purchase equipment to replace playground equipment that did not meet safety standards, and to provide accessibility to the play areas and equipment in accordance with the guidelines of the ADA. The Legislature responded by appropriating over $3 million toward this effort.
(00-1353) Reasonable assurance of continuing employment results in disqualification for unemployment benefits. A part-time teacher and tutor employed at a public school for five years stated that for the last two years, she and others in her position were required to sign a notice from the school at the end of the school year indicating that there was reasonable assurance that they would be employed the next school year. She complained that because she received reasonable assurance of continuing employment, she was ineligible to collect unemployment insurance (UI) benefits while school was out during the summer.
As unexpected loss of employment creates a financial hardship for a worker, UI benefits temporarily provide relief while the worker searches for employment. However, UI benefits were not meant to provide compensation to workers in certain occupations or professions, like teachers who have a scheduled break in employment between school years but who are assured of employment in the coming school year. Section 383‑29(b)(1), Hawaii Revised Statutes, stated the following:
Benefits based on service in an instructional, research, or principal administrative capacity in an institution of education shall not be paid to an individual for any week of unemployment which begins during the period between two successive academic years, or during a similar period between two regular terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual’s contract, if the individual performed such services in the first of such academic years or terms and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any institution of education in the second of such academic years or terms. (Emphasis added.)
Thus, the complainant’s ineligibility for UI benefits comported with the law.
We contacted the Department of Education (DOE) and learned that several years ago, the DOE developed a form entitled “Notification of Employment Status to Employee,” by which employees received reasonable assurance of employment in the next school year. The form was devised in part to facilitate a determination by the Department of Labor and Industrial Relations, which administers the UI program, on a UI claim filed by a person whose principal occupation is providing services in an educational institution.
We were concerned that a school may require all employees to sign the notice, without consideration as to which employees the school did not intend to hire the following year, in order to reduce the State’s UI expenses. However, we found that specific instructions were given to principals by the Superintendent of Education to notify employees, especially casual employees like part-time teachers and educational assistants who did not receive contracts or personnel action employment forms at the end of the school year, whether or not they have reasonable assurance of returning in the fall. The Superintendent specified the conditions under which such assurance was to be given:
a) Funding is available or customarily arrives after school dismissal;
b) Student enrollment in the class/program routinely has been sufficient to result in employment of the employee;
c) The employee
– has a history of returning for several years
– will likely return in the same capacity . . . .
Thus, we were satisfied that principals were properly instructed to consider each employee’s case on an individual basis and to follow certain guidelines in deciding whether to issue a notice of reasonable assurance of continuing employment to an employee.
We informed the complainant of our findings.
(00-4469) Ineligible to represent school in talent contest. A parent complained that her daughter was deemed ineligible to represent her school in a statewide talent contest, a privilege she earned by winning the school talent contest held about five months earlier. Although the student thought that she only needed a grade point average (GPA) of 2.0 to be eligible, she was informed that she was ineligible because she had failing grades in a math course.
The vice-principal of the school referred us to the Department of Education (DOE) policy governing academic requirements for participating in co-curricular activities. The policy stated that in addition to having at least an overall GPA of 2.0, students participating in co-curricular activities must have passing grades in core courses required for graduation. Since math is a required core course for graduation and the talent contest was considered a co-curricular activity, the complainant’s daughter was ineligible to participate.
The vice-principal also noted that all contestants were notified of these requirements in a general informational meeting held prior to the school contest.
Upon reviewing the DOE policy, we noted that coaches, athletic directors, student activities coordinators, and advisors are to conduct academic checks to assure that students meet the academic requirements for participation in school sports and other co-curricular activities. If a student is found to be ineligible, the student is placed on “academic review status” or probation. Thereafter, school officials and parents are to work together to provide support services, such as remedial or tutorial services, and the student is required to participate in all assigned support services.
In this case, the vice-principal acknowledged that the student’s advisor erred. The advisor checked the student’s grades and found that the student had at least a 2.0 GPA, but the advisor failed to check further to determine if she had any failing grade in a core subject. Also, whereas the continuity of sports and other co-curricular activities over a span of several months served as a reminder to an advisor to monitor the grades of the participating students, there was no other activity after the school talent contest until the statewide contest five months later. Thus, an advisor who is busy with other activities, duties, and responsibilities may forget to conduct grade checks on the student during the period between the school contest and the statewide contest. As a corrective action, the principal instructed the Student Activity Coordinator to remind all advisors about the importance of monitoring the academic status of all students participating in co-curricular activities, with regard to both GPA and core course requirements.
We also believe that a student must assume responsibility for the student’s own grade. In this case, the student knew that she received failing grades in math for two quarters but apparently did not seek help nor make an effort to improve her grades.
When we advised the parent of our findings, she acknowledged that her daughter as a student was equally responsible for what occurred and hoped that the disappointment of not being able to represent the school in the contest would serve as a learning experience for her. The parent was also glad that the principal issued a reminder to student advisors to monitor students’ academic performances more carefully.
DEPARTMENT OF HEALTH
(99-4461) TB testing clinic closing too early. A person complained that tuberculosis (TB) testing services at the Lanakila Health Center Chest Clinic were not available after 3 p.m. The clinic provides TB diagnostic testing such as skin tests and chest X rays as well as treatment for members of the public.
A clinic administrator confirmed that the Chest Clinic doors were open only from 7:45 a.m. to 3 p.m. He explained that the clinic stopped the intake of new clients by 3 p.m. in order to have adequate time to process, diagnose, and prescribe treatment for TB patients seen up to that time before the clinic building closed at 4:30 p.m., the official end of the business day. If new clients were seen after 3 p.m., there would not be adequate time to process and evaluate all patients before the scheduled 4:30 p.m. closing time. Clinic staff needed time to complete client evaluations, finish administrative work, and clean up the worksite. Furthermore, the program did not have funds for overtime pay and not all personnel were issued keys to the building doors which were locked at 4:30 p.m.
Section 80-1, Hawaii Revised Statutes, establishes the office hours for State and County government offices. The section stated in part:
Offices of the State and counties, and independent boards and commissions thereof, shall be open for the transaction of public business between the hours of 7:45 a.m. and 4:30 p.m., Monday to Friday, inclusive. By executive order or directive, the chief executive of the State or of any county may modify the hours and days for the transaction of public business in their respective jurisdiction to meet a demonstrated need for public services, provide for the efficient operation of business, encourage energy conservation, and reduce traffic congestion. . . .
We informed the administrator of the provisions of the law and he admitted that the clinic had not obtained official approval for its modified hours. As there appeared to be a reasonable basis for closing the clinic’s doors at 3 p.m., we provided the administrator with copies of executive orders issued to other State offices which had found the need to modify their office hours and recommended that he obtain a similar executive order.
We were subsequently provided with a copy of Executive Order 99-05 that modified and established “the public business transaction hours of the Tuberculosis Control Branch, Lanakila Health Center Chest Clinic to be from 7:45 a.m. until 4:30 p.m.; provided that the public business transaction hours for the intake of new clients shall be from 7:45 a.m. until 3:00 p.m., Mondays through Fridays, . . .”
(99-6899) Failure to pay for mentoring services. A therapeutic aide complained that the Department of Health (DOH) failed to pay her for 23 of the 43 hours of mentoring services she provided a DOH client. She filed a wage claim with the Department of Labor and Industrial Relations (DLIR), but was referred to our office by the DLIR because the DOH did not respond to the DLIR’s inquiry.
We learned from the DLIR that the complainant was employed by a provider contracted by the DOH to provide services to certain DOH clients. The provider had not paid the complainant because it sent the invoice to the DOH more than 45 days after the month of service, which was the deadline established by contract. Additionally, the DOH already paid for 20 hours of services, the number of hours officially authorized by the DOH coordinator. However, the complainant contended that the coordinator approved the additional 23 hours, and the coordinator confirmed that she gave the authorization. It appeared the aide’s complaint was actually against her employer, but we decided to investigate the complaint because the provider’s failure to pay the complainant was due to the DOH’s nonpayment of the provider.
A DOH fiscal officer confirmed that according to the contract, the provider must submit claims for payment within 45 calendar days after the end of each month in which services were delivered. However, exceptions were allowed.
The provider reported that the information needed to submit an invoice for the additional hours was not received from the DOH until March for services which were provided in December of the previous year. Contrary to what we were told by the DLIR, the provider did not even submit a claim because the 45-day deadline already expired and the DOH was very strict about not paying late claims. The provider further explained that the provider must authorize an employee to provide services, but in this case the complainant worked directly with the DOH coordinator and provided services without first obtaining authorization. As the provider did not authorize the complainant to provide the services, the provider felt that it did not have a strong basis to request a late payment.
When we informed the DOH fiscal officer that the provider did not submit an invoice, the officer stated that she also contacted the provider, found likewise, and instructed the provider to submit a claim.
We later confirmed that the complainant was paid, eight months after the month she provided services.
In subsequent contracts, the time to submit invoices was extended to 90 calendar days. Reconciliation of any claims must also be completed within this time frame as the DOH felt that 90 days was sufficient time to resolve any problems regarding a bill.
DEPARTMENT OF HUMAN SERVICES
(00-2465) Registration requirement for family child care home. A woman complained that she was given erroneous information over the telephone by Child Care Connection (CCC), the agency that issues certificates of registration for family child care homes (FCCH). As a result, she was fined $250 for operating an FCCH without a certificate of registration. She alleged that when she called the agency again thereafter, she was given the same erroneous information.
According to the complainant, the CCC informed her that she could serve as a care provider for three children who were unrelated to her, without being registered as the operator of an FCCH, as long as she did not provide care for all three children at the same time. However, she was later fined for serving as the child care provider for the three children because she was unregistered as an FCCH operator.
Section 346-151, Hawaii Revised Statutes (HRS), defines an FCCH as “a private home at which care may be provided for three to no more than six children, who are unrelated to the caregiver by blood, marriage, or adoption, at any given time.” Furthermore, Section 346-171, HRS, provides that no person shall operate an FCCH unless registered to do so by the Department of Human Services.
When we contacted the CCC, a supervisor informed us that calls from the public are referred to staff members who are well-versed in the applicable statutes. Thus, he doubted that a staff member gave the complainant erroneous information when she called.
Thereafter, we called the CCC without identifying ourselves and asked whether a person was required to be registered as the operator of an FCCH if the person provided child care for three children, even if care was provided to no more than two of the three children at the same time. The staff member correctly informed us that the person would have to be registered as an FCCH operator, since child care was being provided for three children, even if not more than two children were cared for at the same time.
We contacted the complainant and informed her that we found the CCC was providing the public with information that was in accordance with the law.
(00-3067) Unable to obtain license to operate blind vendor shop. A blind man who in the past operated a blind vendor facility complained that the Department of Human Services (DHS) would not reissue to him a license to operate a blind vending facility. The vending facility in the airport on the island where he lived had a vacancy, but he was informed that only currently licensed vendors were eligible to apply for the opening. The complainant operated a vending facility five years earlier and thought that he fulfilled the requirements for relicensure.
Under the Federal Randolph-Sheppard Act, the DHS administers the vending facility program for the purpose of providing blind and visually handicapped persons with remunerative employment, enlarging their economic opportunities and encouraging them to become self-supporting. Commonly known as blind vendors, these individuals are given priority by the DHS to operate vending facilities on State, County, or other designated properties.
A DHS official explained that only blind persons who are certified and licensed may be authorized to operate a vending facility. Certification is issued to a blind person who has successfully completed textbook training in the skills and knowledge required to run a vending facility. The person must also pass a written examination. Thereafter, the certified blind person is assigned to a vending facility for a probationary period of at least six months. Upon successful completion of the probationary period, a license is issued authorizing the blind person to operate a vending facility.
There are about 35 vending facilities throughout the State. Some are more desirable than others for various reasons, such as profitability or location. According to DHS rules, when there is a vacancy, licensed blind vendors who are already operating other vending facilities have priority in applying for and filling the vacancy. The vending facility of the selected vendor then becomes vacant and the remaining vendors may apply for that vacancy. This process is continued until a vacancy occurs for which no vendors apply, resulting in that vacancy becoming available to a new blind vendor.
As the complainant had not operated a vending facility for several years, he needed to be recertified and relicensed. The DHS waived the textbook training and written exam because of his prior experience and certified him. He was subsequently offered probationary assignments in several vacancies, but he declined because the vacancies were on another island and he did not want to relocate his family.
The vacancy that the complainant wanted was in an airport on the island on which he lived and was a desirable facility because it was profitable. However, the vacancy was being offered to licensed blind vendors who were already operating facilities. The complainant was ineligible for consideration because he was only certified and was not licensed. The vending program administrator said that the complainant must “pay his dues” and operate a vending facility that may not be ideal in location or profitability in order to become licensed and attain the preference afforded other licensed vendors.
Although the complainant thought the program was not considering his former experience, we told him that since he was no longer operating a facility, he was not licensed. As only licensed vendors may vie for the vacancy, he was not eligible to apply.
(00-4886) Denial of application for medical assistance. An applicant for medical assistance complained that his application was denied because he missed a scheduled appointment for an interview to determine his eligibility for assistance. He explained that he missed the appointment because he was sick and had mistakenly thought the appointment was scheduled for the following day. His appointment was at 8 a.m. and he realized his error at 12 noon. He immediately called the applications unit and asked if he could come in on a standby basis in the event another applicant missed an appointment, but was told that he would need to reapply and wait for another scheduled appointment.
We contacted the unit and questioned why the complainant needed to reapply. A supervisor explained that the policy is clearly stated in the interview appointment letter which is sent to applicants. The letter stated in part:
If you are more than 10 minutes late for your interview, your application will be denied and you will need to reapply for medical assistance.
. . . .
This is the only scheduled appointment time we will provide. If you are unable to attend this scheduled appointment, you must come in on a stand-by basis prior to your scheduled appointment. If an interview does not occur by your original scheduled appointment date, your application will also [be] denied and you must re-apply for medical assistance. . . .
However, we could not find a provision in the administrative rules that stipulated that missing a scheduled appointment to determine eligibility constituted grounds for denial. Instead, Section 17-1711-13(j), Hawaii Administrative Rules, stated:
An applicant who does not attend a scheduled interview and does not contact the department to express interest in pursuing the application shall be sent a notice of discontinuance not earlier than the thirtieth day from the date of application. (Emphasis added.)
We pointed out the apparent conflict between the rules of the Department of Human Services and the applications unit’s policy and practice. In this case, the applicant contacted the agency on the very same day of his interview and expressed interest in pursuing the application. Although the unit had not yet issued the applicant a notice of denial, there did not appear to be a valid reason to discontinue nor deny his application. Instead, we felt that the applicant should be given an opportunity to pursue his current application and should not be required to reapply.
Upon further consideration after consultation with the departmental program staff, the supervisor acknowledged that the unit’s policy and practice was inconsistent with departmental rules and stated that the interview appointment letter would be amended. In addition, the complainant was afforded a telephone interview at the earliest possible time to determine eligibility.
DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS
(00-0762) State employee ineligible for temporary disability insurance benefits. Over 30 years ago the State Legislature enacted the Hawaii Temporary Disability Insurance (TDI) Law to provide employees reasonable compensation for wage loss caused by disablingnonoccupational sickness or accident where the disability is temporary in nature and exceeds the period of one work week. When an illness or injury is work-related, the workers’ compensation law afforded protection against wage loss. However, the Legislature found that a large portion of the labor force is annually disabled by reason of nonoccupational sickness or accident and as a result suffers serious loss of income. In approximately 10 percent of the cases the employees were unable to work for more than one week. Many employers provided their employees either no protection against wage loss or protection for only short periods of time. As the hardship for workers and their families increases with the duration of the disability, the TDI law was enacted to provide better protection to workers.
A State employee who was unable to work for about five weeks due to surgery complained that he was unable to obtain TDI benefits. He received his full salary for a little over a week because he had 44 hours of sick leave. When he ran out of sick leave, he applied for TDI coverage but his application was denied.
In our investigation, we found that the law required employers to provide TDI plans that would provide employees at least a certain level of disability benefits. The law also required the insurance commissioner to establish a set of tables to determine whether an employer’s TDI plan meets the minimum level of disability benefits required by the law. In the State’s case, it was determined that the minimum level of disability benefits would be met and an employee would be disqualified from receiving TDI benefits if the employee’s “Sick Leave Computation” amounted to three weeks (120 hours) or more at the beginning of the calendar year or at the onset of disability. “Sick Leave Computation” is the total of an employee’s sick leave hours used during the current calendar year preceding the disability, plus the employee’s remaining earned but unused sick leave hours at the onset of the disability.
In this case, the complainant already used 80 hours of sick leave earlier in the calendar year and had earned but not used 44 hours for a total “Sick Leave Computation” of 124 hours. Thus, he did not qualify for TDI benefits and his ineligibility comported with the requirements of the law.
DEPARTMENT OF PUBLIC SAFETY
(99-3099) Found guilty of escape while on furlough. An inmate complained that he was found guilty of escape by the facility Adjustment Committee because the staff did not know of his whereabouts while he was on furlough. The inmate maintained that he had not escaped nor attempted to escape. As a result of the guilty finding, he was terminated from the furlough program and transferred to a facility of greater security.
The facility informed us that the inmate was on an electronically monitored furlough, which allowed him to reside at home. His presence at his residence could be verified by telephone through an electronic monitoring device worn around his ankle. Electronically monitored furloughs did not have expiration dates or times and inmates on such furloughs did not carry furlough passes and were not required to return to the facility. Instead, the facility staff monitored the inmate electronically and by in-person visits.
The facility informed us that it learned, a few days after the fact, that the police conducted a drug raid of the complainant’s residence. The facility attempted to locate the inmate at his residence and his place of employment but was unsuccessful. Thus, the complainant was reported to the police as an escapee. Thereafter, the complainant learned through the newspaper that he had been reported as an escapee and turned himself in to the police.
The Adjustment Committee found the complainant guilty of escape and of violating a condition of furlough. We obtained and reviewed the complainant’s Electronically Monitored Furlough Agreement, which stipulated the conditions of his furlough, and the misconduct reports pertaining to the incident. The reports verified that the basis for finding the inmate guilty of escape was his failure to keep the facility informed of his whereabouts.
We reviewed the Department of Public Safety (PSD) policy on inmate furloughs, which contained furlough rules and regulations. The policy required all furloughees to carry a furlough pass issued by the facility and defined escape as follows:
An inmate on furlough who fails to return from an authorized furlough within 30 minutes of the expiration of the furlough pass shall be processed as an escapee.
Since the complainant was not issued a furlough pass and his furlough had no expiration date or time, he could not have failed to return to the facility upon the expiration of his furlough pass. Thus, his conduct did not meet the PSD’s own definition of escape. On the other hand, the inmate was required by the terms of his furlough agreement to keep the facility informed of his whereabouts and to report any contact he had with law enforcement authorities.
We concluded that there was a reasonable basis for finding the inmate guilty of violating a condition of furlough, which resulted in his termination from the furlough program and transfer to the greater security facility. However, we asked the warden and his superior, the institutions division administrator, to reconsider whether the complainant should have been found guilty of escape. We pointed out that if a furloughee’s whereabouts becomes unknown or there is reason to believe that the furloughee has violated a condition of furlough, it is not necessary to report the inmate as an escapee because the warden is authorized by law to issue a warrant for the furloughee’s arrest. We also requested that the facility’s practice of issuing electronically monitored furloughs that have no expiration dates and times be reviewed for consistency with the PSD’s furlough policy.
The institutions division administrator upheld the finding that the complainant was guilty of escape because the furlough agreement contained the following two provisions: (1) when an inmate’s furlough is canceled and he fails to return to the facility, the inmate may be charged with escape; and (2) the inmate is subject to disciplinary action for violation of furlough conditions.
We noted, however, that the first provision of the furlough agreement cited by the administrator stipulated that the inmate may be charged with escape after failure to return to the facility as directed when the inmate’s furlough is canceled. In this case, the facility did not inform the inmate that his furlough was canceled and did not direct him to return to the facility. We concluded that the second provision in the furlough agreement cited by the administrator was a general condition whereby a violation of a furlough condition would subject the inmate to disciplinary action.
As we disagreed with the administrator’s response, we asked the PSD director to review the case to determine whether the complainant should have been found guilty of escape. We also asked the director whether changes will be made to the facility’s practice of issuing electronically monitored furloughs that have no expiration dates and times.
After reviewing the case, the director agreed with our position and informed us that the escape violation would be expunged from the complainant’s files. Moreover, the director informed us that the facility implemented a change whereby a furlough pass with an expiration date would be issued for all electronically monitored furloughs.
At our request, the facility warden subsequently wrote to the inmate and sent a copy to our office to verify that the escape misconduct was expunged from his files.
(99-6778) Denial of access to mainland facility’s Table of Contents of confidential policies and procedures. Several years ago, in order to relieve overcrowding at its correctional facilities and to reduce costs, Hawaii contracted with a private corrections corporation to provide for the incarceration of Hawaii inmates in facilities at various locations on the mainland.
A Hawaii inmate at a Minnesota facility complained that inmates were not allowed access to the Table of Contents of the facility’s confidential policies and procedures. The inmate noted that under Hawaii law, inmates have access to the complete Table of Contents of the policies and procedures of the Hawaii Department of Public Safety (PSD), including those that are restricted.
In Hawaii, the State’s Uniform Information Practices Act (UIPA), Chapter 92F, Hawaii Revised Statutes, determines public access to government agency records. The UIPA also establishes an Office of Information Practices (OIP) to carry out the Act. In 1991 the OIP issued an opinion stating that pursuant to the UIPA, the entire Table of Contents of the PSD policies and procedures, including confidential policies and procedures, must be made available for inspection and copying by any person, including inmates. In its opinion, the OIP noted that since the Table of Contents contained only policy numbers and titles, public access would not pose a significant risk to prison security.
When we contacted the PSD, we learned that it was in the process of conducting the research necessary to respond to the inmate’s complaint. We advised the complainant to await the PSD’s response and advised him that he could write to us again if he were dissatisfied with that response.
Several weeks later, the inmate complained that the PSD upheld the Minnesota facility’s denial of access to the portion of the Table of Contents pertaining to confidential policies and procedures. The inmate argued that under the PSD’s contract with the private corrections corporation, Hawaii inmates’ rights were protected under Hawaii law.
In our review of the contract, we found that it contained the following provision:
Confidentiality of Material.
. . . .
All information, data, or other material provided by the CONTRACTOR to the STATE shall be subject to the Uniform Information Practices Act, Chapter 92F, Hawaii Revised Statutes.
Based on the contract provision, it appeared that if the Minnesota facility provided PSD with the complete Table of Contents of its policies and procedures, that material would be subject to the UIPA. In that event, since the OIP had already determined that the complete Table of Contents for PSD policies and procedures must be accessible to inmates, it appeared that the complete Table of Contents for the Minnesota facility’s policies and procedures might also be deemed accessible to inmates.
We inquired with the PSD as to whether the Minnesota facility already provided PSD with the complete Table of Contents of its policies and procedures and, if it had, whether the complete Table of Contents must be shared with Hawaii inmates at the Minnesota facility pursuant to UIPA and the above-quoted contractual provision.
The PSD subsequently informed us that it did receive the complete Table of Contents for the Minnesota facility’s policies and procedures and that the complainant was provided a copy. Additionally, a complete Table of Contents would be made available in the facility’s library to all inmates.
We informed the complainant of the action taken.
(00-2913) Delay in setting minimum sentence. Nineteen months after she was sentenced by the court and committed to the custody of the Department of Public Safety, an inmate complained that the Hawaii Paroling Authority (HPA) did not set her minimum sentence.
The procedure for the setting of minimum sentences is established by the Hawaii Penal Code in the Hawaii Revised Statutes (HRS). Section 706-669, HRS, stated in part:
Procedure for determining minimum term of imprisonment. (1) When a person has been sentenced to an indeterminate or an extended term of imprisonment, the Hawaii paroling authority shall, as soon as practicable but no later than six months after commitment to the custody of the director of the department of [public safety] hold a hearing, and on the basis of the hearing make an order fixing the minimum term of imprisonment to be served before the prisoner shall become eligible for parole. (Emphasis added.)
The HPA acknowledged a delay in holding the complainant’s minimum sentence hearing. The HPA attributed the delay to the lateness in receiving documents from the sentencing court, eight months after the inmate was sentenced. The HPA’s receipt of the sentencing documents would trigger the scheduling of the minimum sentence hearing. A hearing was held 12 months after the inmate’s commitment, but the hearing was continued because the inmate was to be sentenced by the court on another conviction. Subsequently, the continued hearing was held 18 months after the inmate’s commitment, but was once again continued because a presentence investigation report was missing. As the continued hearing was already scheduled for the following month, it was not feasible to move up the hearing. We advised the inmate of the reasons for the delays.
We checked our computerized record-keeping system to determine the number of complaints we received from inmates regarding delays in holding minimum sentence hearings, as we were interested to see if there was a pattern of recent cases in which inmates’ minimum sentencing hearings were not held within six months of sentencing by the court. We found that we received five such complaints during the three years preceding this complaint. However, all five complaints were received during the first half of the three-year period and none was received in the latter 18 months.
We decided the number of complaints did not warrant further inquiry on our part, but that it was an area to be monitored through future complaints.
DEPARTMENT OF TRANSPORTATION
(99-6587) Nepotism prohibited in airport hiring practices. A mother complained that her daughter, a high school student, was denied a summer position at a State airport as a greeter in the Visitor’s Information Center because the girl’s uncle was a groundskeeper at the same airport. The complainant was told that the Department of Transportation (DOT) had an anti-nepotism policy that prohibited the hiring of students at the same facility where family members were also employed. The complainant was given a copy of the policy but felt that the policy was inapplicable to her daughter’s situation.
In our research, we learned that there was no statewide anti-nepotism law, rule, or policy. The DOT relied upon Section 4.4.02(d) of its department policy manual, which stated:
1. A supervisor shall not advocate a relative’s appointment or promotion anywhere in his organization or in an organization over which he exercises jurisdiction or control. A supervisor is considered to advocate a relative’s appointment or promotion if he recommends the action either orally or in writing; or if he simply refers the relative for consideration to one of his subordinates.
2. The term “relative” includes the specific relationships, i.e., father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister. When popular and legal usage differ, the strict or legal definition is applied to all these terms.
3. A supervisor shall not appoint or promote one of his own relatives in his organization or in an organization over which he exercises jurisdiction or control. A relative of a supervisor may be appointed or promoted if the supervisor himself is in no way involved in the action.
4. The appointment of a new employee to fill a vacant position should not create a supervisory relationship between relatives.
After reviewing the policy, we agreed with the complainant that the policy seemed inapplicable to her daughter’s situation because her uncle was not in a supervisory capacity. Therefore, none of the prohibited conditions would have resulted from the hiring of his niece.
Upon inquiry with an airports administrator, we ascertained that there was no written anti-nepotism policy prohibiting the employment of the complainant’s daughter. However, there did appear to be an “unwritten policy” that family members could not work in the same facility.
We asked the DOT whether its “unwritten policy” should be set forth specifically and in writing. The DOT informed us that at the time of the complaint, it was in the process of incorporating an anti-nepotism policy in its department staff manual. Within a month we received a copy of the DOT’s written anti-nepotism policy, which clarified restrictions applied to the hiring of student helpers and interns, as well as other restrictions.
Although the new policy was not promulgated in time to benefit the complainant’s daughter, it appeared that it would benefit both the DOT and potential hires in the future.
(00-1515) A mail drop is not a mailbox. A woman complained that she was unable to find out whether a box into which she deposited her mail at the Honolulu International Airport was an official U.S. Postal Service mailbox. She recalled that the box was marked “mail drop” but she did not recall seeing any U.S. Postal Service markings on the box. She was concerned because a creditor informed her that a bill payment she dropped into the box was not received. She called the airport but no one she spoke with could tell her anything about the box.
We called the airport manager and learned that the box in question was not an official U.S. Postal Service mailbox. Instead, it was one of three mail drop boxes that the airport management installed in various locations as a public convenience because the only U.S. Postal Service mailbox was located in the main terminal and the U.S. Postal Service did not wish to put up more mailboxes at the airport. The airport staff picked up the mail from the mail drop boxes once each day and transported the mail to the official mailbox in the main terminal.
The airport manager checked with his staff and determined that the mail was picked up from the mail drop boxes on the date about which the woman was concerned. We advised the complainant that her creditor should soon receive payment.
We then suggested that the airport manager consider the placement of notices on the mail drop boxes to inform the public that they were not official U.S. Postal Service mailboxes. After consulting the U.S. Postal Service, the airport manager had the following notice affixed to each of the mail drop boxes:
THIS IS NOT AN OFFICIAL U.S. MAIL DEPOSIT BOX. THIS MAIL DROP SERVICE IS PROVIDED BY THE STATE OF HAWAII, AIRPORTS DIVISION AS A COURTESY. THE STATE IS NOT LIABLE OR RESPONSIBLE FOR ANY UNDELIVERED MAIL.
We believed the notice concisely explained the mail drop service and would in the future help to alleviate the type of concern expressed by the complainant.
CITY AND COUNTY OF HONOLULU
(00-0001) Ineligible for employment program due to failure to register for military service. A man complained that he was deemed ineligible for “Work Hawaii,” a City and County of Honolulu (C&C) employment assistance program, because he did not register for military service upon attaining age 18, since he was a conscientious objector.
Although the Work Hawaii program is administered by the C&C, it is funded and governed by the Federal Job Training Partnership Act (JTPA). We reviewed the JTPA and confirmed that an individual who has violated the Military Selective Service Act (MSSA) by not registering for military service, if he was required to register, was ineligible to participate in any program or receive any assistance or benefit established under the JTPA.
When we contacted Work Hawaii, it was in the process of consulting with the State Department of Labor and Industrial Relations (DLIR) as to whether the MSSA excused conscientious objectors from having to register for military service. The DLIR was involved because it received and allocated the Federal funds for the JTPA employment assistance programs in each of the four counties.
The DLIR informed us that it did not believe an individual who did not register for military service on the basis of being a conscientious objector would be eligible to participate in any JTPA program. Instructions that the DLIR received from the U.S. Department of Labor listed categories of individuals who were exempt from registration for military service, and conscientious objectors was not one of the categories.
We noted, however, that males born prior to January 1, 1960 were exempted. The MSSA authorized the President to determine by proclamation when, where, and in what manner individuals must register for military service. By Presidential Proclamation No. 4771, dated July 2, 1980, President Jimmy Carter required that only males born on or after January 1, 1960 and who attained age 18 were required to register.
We recalled that the complainant mentioned to us that he was 43 years old. We checked with the complainant and confirmed that he was born in 1955. Thus, pursuant to the presidential proclamation, he was not required to register for military service because he was not born on or after January 1, 1960.
Upon learning that the complainant was born in 1955, the DLIR informed us that the complainant was not required to register for military service. Accordingly, he was not deemed to have violated the MSSA registration requirement and his eligibility for JTPA programs was unaffected. The DLIR so informed Work Hawaii.
Subsequently, we verified with the complainant that he was deemed eligible for the Work Hawaii program.
(00-3313) Minor whose parents are divorced required to present divorce decree when applying for driver’s instruction permit. A divorced mother complained that her minor daughter was unable to obtain a driver’s instruction permit because she did not present her parents’ divorce decree to the Driver License Section (DLS), Department of Customer Services, City and County of Honolulu. The complainant questioned the basis for this requirement.
We reviewed the driver’s licensing laws and found that Section 286-112(a), Hawaii Revised Statutes, stated in part:
The application of any person under the age of eighteen years for an instruction permit or driver’s license shall be signed and verified before a person authorized to administer oaths by the appropriate one of the following:
(1) If both the father and other of the applicant have custody of the applicant, by both the father and mother of the applicant; or
(2) If only one parent has custody of the applicant, by the custodial parent; . . .
The DLS administrator informed us that since the law requires the minor applicant’s legal custodian(s) to sign the application, the divorce decree is needed to verify which parent(s) has legal custody of the minor, in order to determine which parent(s) must sign the application.
We concluded that the divorce decree requirement was reasonable and notified the complainant.
(00-3778) Delay in home renovation caused by permit procedure. A man wanted to add a porch to his house that was located near a beach. During the final phase of the approval process, the Department of Planning and Permitting (DPP), City and County of Honolulu, informed him that a shoreline survey was required. The survey would delay the renovation work for about three months and because he had crews ready to work, every day of delay would cost him money.
The man complained about the lack of communication from the DPP during the permitting process. Had he been made aware of all the necessary steps in the process simultaneously, rather than sequentially, he could have avoided the delay in getting his permit approved.
The DPP had an electronic tracking system that documented the dates of all completed steps in the building permit process. The DPP reviewed the action taken on the complainant’s application and determined that much of the delay was caused by the complainant’s architect who failed to act on the permit for a while and who apparently was not familiar with the permit procedures. The DPP considered waiving the shoreline requirement, which was permissible by law under certain limited circumstances. After inspection of the site by a DPP inspector, however, the DPP found that the complainant’s project did not qualify for a waiver.
The requirement for a certified shoreline survey is stated in the DPP rules, which constitutes notice to the public. However, since the public may not be aware of the rule requirement, the DPP concurred with the complainant’s observation that he should have been notified of the survey requirement simultaneously rather than sequentially.
As a result of the complainant’s experience, the DPP took steps to improve service by “red flagging” building permit applications for shoreline properties. Because coastal zone management and construction was a specialized field, staff were trained to better assist shoreline property owners and design professionals who were unaware of the applicable requirements.