Report No. 34, Fiscal Year 2002-2003
REPORT of the OMBUDSMAN
For the Period July 1, 2002 – June 30, 2003
Report No. 34
Presented to the Legislature
pursuant to Section 96-16 of
the Hawaii Revised Statutes
TABLE OF CONTENTS
LETTER OF TRANSMITTAL
Mr. President, Mr. Speaker, and Members of the
Hawaii State Legislature of 2004:
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 2002-2003. This is the thirty-fourth annual report since the establishment of the office in 1969.
My dedicated staff and I appreciate the unique role we serve as the link between the people and their government. We are all committed to working to resolve problems and improving the level of public administration in Hawaii, especially during these tough economic times.
On behalf of all the members of the office, I would like to thank the Governor, the Mayors of the various counties, and the State and County department heads and employees for their ongoing cooperation and assistance in our efforts to resolve citizen complaints and to assure fair treatment for the people of Hawaii.
ROBIN K. MATSUNAGA
THE YEAR IN BRIEF
The Office Workload
The office received a total of 6,158 inquiries during fiscal year 2002-2003. Of these inquiries, 4,550, or approximately 74 percent, may be classified as complaints within the jurisdiction of the office. The remaining inquiries consisted of 533 non-jurisdictional complaints and 1,075 requests for information.
The 6,158 inquiries received during fiscal year 2002-2003 represent a 9 percent increase from the 5,638 inquiries received the previous fiscal year. The number of jurisdictional complaints received increased by 13 percent.
A comparison of inquiries received in fiscal year 2001-2002 and fiscal year 2002-2003 is presented in the accompanying table.
TWO-YEAR CASELOAD COMPARISON
Two staff members reached service milestones this past fiscal year. In August 2002, senior analyst David Tomatani celebrated 30 years of service to the State. Mr. Tomatani joined the staff of Herman Doi, Hawaii’s first Ombudsman, in 1981 after previously serving as an administrator with the Corrections Division. In June 2003, executive secretary Linda Teruya celebrated 10 years of service with the office after many years of experience in the private business sector. We thank both of these staff for their dedication and strong commitment to government service, in general, and to the Office of the Ombudsman, in particular.
On June 30, 2003, Glenn Mirikidani, an analyst with our office since 1989, retired after 32 years of State service. We congratulate Mr. Mirikidani and wish him all the best as he embarks on another of life’s exciting journeys.
At the close of the fiscal year, the office consisted of Ombudsman Robin Matsunaga; First Assistant Donna Woo; analysts Herbert Almeida, Mark Au, Gillman Chu, Yvonne Faria, Alfred Itamura, Lynn Oshiro, and David Tomatani; and office staff Sheila Alderman, Edna de la Cruz, Debbie Goya, Sue Oshima, and Linda Teruya.
We continue our efforts to educate the public on the existence and function of the office through the printing of advertisements in the various newspapers in each county. Special focus was placed on the small business community during the fiscal year.
In March 2003, a short article on the office was submitted to and printed in the “Voice of Business”, a monthly publication of the Chamber of Commerce of Hawaii. On April 7, 2003 the Ombudsman participated in a meeting of the Chamber of Commerce on Project Jobs, a business retention program. Later that month, on the 15th, the Ombudsman met with the Small Business Regulatory Review Board to inform the Board members of the function of the office and to answer their questions on how the office can assist small businesses.
On June 21, 2003, Ombudsman Robin Matsunaga and First Assistant Donna Woo participated in the 3rd Annual Hawaii Small Business Fair that was held at the University of Hawaii’s Leeward Community College. The Fair featured panel discussions, workshops, and 30 exhibitors offering programs and services for small businesses.
United States Ombudsman Association
The office continues to play an active role in the United States Ombudsman Association (USOA). The USOA is the nation’s oldest and largest organization of ombudsmen working in government to address citizen complaints. USOA’s membership includes practicing ombudsmen at all levels of government, some of whom have general jurisdiction, and others who have jurisdiction over a specified subject matter or agency.
Ombudsman Robin Matsunaga was elected to a third consecutive two-year term on the USOA Board of Directors and his second two-year term as president of the organization. As president of the Board, Mr. Matsunaga will continue to guide the USOA toward its long-term goals.
Hawaii was selected as the site for the USOA’s 24th Annual Conference. The office has worked closely with the USOA’s Conferences and Training Committee to develop the program and agenda for the 2003 conference, which will be held in Honolulu in September. Participants are expected from all parts of the United States, as well as from Canada, Mexico, the Caribbean, Asia, and Europe.
NUMBERS AND TYPES OF INQUIRIES
Fiscal Year 2002-2003
| % of Total
MEANS BY WHICH INQUIRIES ARE RECEIVED
Fiscal Year 2002-2003
| % of Total
DISTRIBUTION OF POPULATION AND
INQUIRERS BY RESIDENCE
Fiscal Year 2002-2003
|City & County of Honolulu||896,019||72.0%||4,699||76.3%|
|County of Hawaii||154,794||12.4%||718||11.7%|
|County of Maui||134,139||10.8%||419||6.8%|
|County of Kauai||59,946||4.8%||119||1.9%|
*Source: The State of Hawaii Data Book 2002, A Statistical
Abstract. Hawaii State Department of Business,
Economic Development and Tourism, Table 1.06,
“Resident Population, by Counties: 1980 to 2002.”
DISTRIBUTION OF TYPES OF INQUIRIES
BY RESIDENCE OF INQUIRERS
Fiscal Year 2002-2003
|Residence||TYPES OF INQUIRIES|
| C&C of
| County of
| County of
| County of
MEANS OF RECEIPT AND TYPES OF INQUIRIES
Fiscal Year 2002-2003
|Means of Receipt|
| C&C of
| % of C&C
| County of
| % of County
| County of
| % of County
| County of
| % of County
| % of Out-
|% of TOTAL||100.0%||93.0%||3.8%||1.6%||0.5%||1.0%||0.0%|
DISTRIBUTION AND DISPOSITION OF
JURISDICTIONAL COMPLAINTS BY AGENCY
Fiscal Year 2002-2003
| State Departments
|Budget & Finance||74||1.6%||14||34||5||9||10||2|
| Business, Economic
Devel. & Tourism
| Commerce &
|Hawaiian Home Lands||10||0.2%||1||4||3||1||0||1|
| Human Resources
| Labor & Industrial
| Land & Natural
| Office of
|University of Hawaii||31||0.7%||2||11||4||11||1||2|
| Other Executive
City & County
|County of Hawaii||45||1.0%||0||11||6||26||1||1|
|County of Maui||20||0.4%||1||11||1||7||0||0|
|County of Kauai||15||0.3%||1||2||2||10||0||0|
| % of Total
DISTRIBUTION AND DISPOSITION OF SUBSTANTIATED
JURISDICTIONAL COMPLAINTS BY AGENCY
Fiscal Year 2002-2003
No Action Necessary
| State Departments
|Budget & Finance||14||12||2|
| Business, Economic
Development & Tourism
| Commerce &
|Hawaiian Home Lands||1||1||0|
| Human Resources
|Labor & Industrial Relations||9||8||1|
|Land & Natural Resources||4||4||0|
|Office of Hawaiian Affairs||0||0||0|
|University of Hawaii||2||2||0|
|Other Executive Agencies||1||1||0|
City & County of Honolulu
|County of Hawaii||0||0||0|
|County of Maui||1||1||0|
|County of Kauai||1||1||0|
| % of Total Substantiated
| % of Total Jurisdictional
DISTRIBUTION OF INFORMATION REQUESTS
Fiscal Year 2002-2003
|Agency||Information Requests||Percent of Total|
| State Departments
Accounting & General Services
|Budget & Finance||29||2.7%|
|Business, Economic Devel. & Tourism||18||1.7%|
|Commerce & Consumer Affairs||140||13.0%|
|Hawaiian Home Lands||2||0.2%|
|Human Resources Development||5||0.5%|
|Labor & Industrial Relations||44||4.1%|
|Land & Natural Resources||28||2.6%|
|Office of Hawaiian Affairs||0||0.0%|
|University of Hawaii||3||0.3%|
|Other Executive Agencies||13||1.2%|
City & County of Honolulu
|County of Hawaii||16||1.5%|
|County of Maui||6||0.6%|
|County of Kauai||3||0.3%|
DISTRIBUTION OF NON-JURISDICTIONAL COMPLAINTS
Fiscal Year 2002-2003
|Jurisdictional Exclusions||Number of Complaints||Percent of Total|
|Multi-State Governmental Entity||0||0.0%|
INQUIRIES CARRIED OVER TO FISCAL YEAR 2002-2003 AND
THEIR DISPOSITIONS, AND INQUIRIES CARRIED OVER
TO FISCAL YEAR 2003-2004
|Types of Inquiries||Inquiries
Over to FY
|Inquiries Carried Over to
FY 02-03 and Closed
During FY 02-03
to FY 02-03
to FY 03-04
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
DEPARTMENT OF ACCOUNTING AND GENERAL SERVICES
(03-3418) Lawn mowed too early in the morning. A woman complained that the noise from lawn mowing activities at the neighborhood public library at 6:30 a.m. was disturbing her sleep. The complainant had voiced her concerns to the worker operating the lawn mower, his supervisor, and to the police. However, the problem persisted.
We inquired with the staff of the Central Services Division (CSD), which was responsible for groundskeeping at the library, and learned that the library’s groundskeeper was recently assigned a special project in addition to his regular duties and started mowing the library lawn earlier in order to keep up with his duties. The groundskeeper, whose normal start time was 7 a.m., usually began working at the end of the library property farthest from nearby homes. As the complainant thought 8 a.m. would be a reasonable start time, we asked the supervisor if a change in the groundskeeper’s schedule would be possible. He agreed to consider the matter further.
A week later the CSD supervisor notified us that the library groundskeeper would only use hand tools when he started work at 6:30 or 7 a.m. and would not use power equipment until 8 a.m. We notified the complainant of the accommodations made by the groundskeeper.
DEPARTMENT OF EDUCATION
(03-1453) Unauthorized change in marital status for tax withholding from paychecks. A Department of Education (DOE) employee complained that after she was married, her marital status for the purpose of income tax withholdings from her paychecks was changed without her authorization. Although she wanted her tax withholdings to continue at the higher unmarried rate, her withholdings were reduced to the lower married rate.
We learned that the complainant’s marital status was single on both her Federal W-4 form, “Employee’s Withholding Allowance Certificate,” and her State HW-4 form, “Employee’s Withholding Allowance and Status Certificate,” that were on file with the DOE. Although she had not submitted new W-4 and HW-4 forms after she was married, the Federal and State tax withholdings from her paychecks were changed from the single person rate to the married person rate. This change was based on an SF-5A form, “Certificated Employee Notification of Personnel Action,” by which the DOE changed her marital status in her personnel records.
We contacted the DOE and were informed that its usual practice is to change an employee’s marital status from single to married for tax withholding purposes whenever such a change is reflected on an employee’s SF-5A form. The DOE further indicated that if an employee wanted tax withholdings to continue at the higher single rate, the employee must submit new W-4 and HW-4 forms.
As the complainant had already filed new W-4 and HW-4 forms to change her marital status for tax withholding purposes to “Married, but withhold at higher Single rate,” a choice that is afforded an employee who is completing the forms, we did not need to seek corrective action in her case. Instead, we wrote to the DOE to request its review of its practice of changing an employee’s marital status on the basis of a personnel action form, without the employee having filed new W-4 and HW-4 forms. We noted that the practice presumed the employee would choose tax withholdings at the married rate and did not afford the employee the opportunity to continue tax withholdings at the single rate.
Based on our review of Hawaii tax law, it appeared that while an employee whose marital status changes from married to single is required to file a new HW-4 form within 10 days, an employee whose marital status changes from single to married is not required to file a new form. Section 235-61(f), Hawaii Revised Statutes (HRS), stated in part with regard to the filing of the HW-4 form:
Withholding of tax on wages. . . .
. . . .
(f) On or before the date of the commencement of employment with an employer, the employee shall furnish the employer with a signed certificate relating to the number of exemptions which the employee claims, . . . and also showing whether the employee is married and is, under section 235-93, entitled to make a joint return. . . .
If, on any day during the calendar year, there is a change in the employee’s marital status and the employee no longer is entitled to make a joint return, . . . the employee shall within ten days thereafter furnish the employer with a new certificate showing the employee’s present marital status, . . . If, on any day during the calendar year, there is a change in the employee’s marital status and though previously not entitled to make a joint return the employee now is so entitled, . . . the employee may furnish the employer with a new certificate showing the employee’s present marital status, . . . (Emphasis added.)
We noted that in accordance with Section 235-61(f), HRS, the Department of Taxation’s instructions to employees for the HW-4 form contained the following directive:
FILING A NEW CERTIFICATE—You SHOULD file a new certificate if you get married or are entitled to claim more withholding allowances. You MUST file a new certificate within 10 days if ANY of the following occurs:
(a) If you are divorced or legally separated.
We found that the Internal Revenue Code (IRC) contained essentially the same provisions as Section 235-61(f), HRS, with regard to the filing of an initial W-4 form and the conditions under which the filing of a new form is mandatory or optional. Thus, according to both the IRC and the HRS, the filing of new W-4 and HW-4 forms by an employee who gets married is not required.
Furthermore, according to the IRC, the marital status reported by an employee on the W-4 form on file with the DOE may be changed only by the employee’s filing of a new W-4 form. If an employee does not file a new W-4 form after getting married, the W-4 form already on file with the DOE must remain in effect. The IRC stated in 26 USCA Section 3402(f)(4):
(4) Period during which certificate remains in effect.—A withholding exemption certificate which takes effect under this subsection, or which on December 31, 1954, was in effect under the corresponding subsection of prior law, shall continue in effect with respect to the employer until another such certificate takes effect under this subsection. (Emphasis added.)
Based on the foregoing, it appeared that the DOE’s practice of changing an employee’s marital status from single to married for tax withholding purposes on the basis of a personnel form should be discontinued. Instead, such a change should be made only upon the employee’s filing of new W-4 and HW-4 forms. Thus, we recommended that the DOE cease its practice and consider implementing a procedure to inform an employee whose marital status has changed from single to married of the option of filing new W-4 and HW-4 forms to change the employee’s tax withholding rate.
After reviewing the matter, the DOE concurred and advised us that no changes in an employee’s tax withholding status shall be made unless the employee submits new W-4 or HW-4 forms to supersede the forms already on file.
We informed the complainant of the DOE’s corrective action.
DEPARTMENT OF HEALTH
(02-3062) Identification and residency for disabled parking permit. A man complained that the Customer Services Department of the City and County of Honolulu refused to renew his disabled parking permit because he was unable to present any form of valid identification (ID). The complainant did not drive so he had no valid driver’s license, and he had lost his State ID card that he used to renew his disabled parking permit the last time. He did have his disabled parking ID card on which his photograph was displayed, but this ID card was not acceptable because it had expired. The complainant felt it made no sense that the disabled parking ID card, even though expired, was not accepted by the very same agency that had issued him the card.
Although disabled parking permits are issued by each of the four counties, the program is governed by rules promulgated by the Disability and Communication Access Board (DCAB) of the State Department of Health. We found that the DCAB rules required an applicant for a disabled parking permit to present proof of residency, as well as identity. Section 11‑219‑5(5), Hawaii Administrative Rules (HAR), stated:
The applicant shall present proof of being a legal resident of the State of Hawaii by providing one of the following:
(A) Current Hawaii drivers license;
(B) State of Hawaii ID;
(C) State of Hawaii Tax Clearance Certificate of Residency Status;
(D) Valid military ID by personnel who are stationed in Hawaii;
(E) Valid military ID of a spouse or dependent of an active military person who is stationed in Hawaii; or
(F) If the applicant is a minor, the identification of the parent or guardian with whom the minor resides.
We inquired with the DCAB disabled parking specialist as to whether the complainant’s expired disabled parking ID card would be acceptable to meet the requirements of the rules. The DCAB considered the matter but determined that a disabled parking ID card would not meet the requirements of Section 11-219-5(5), HAR, since the rule specified the acceptable forms of proof of Hawaii residency and the disabled parking ID card was not one of the specified items. Thus, the DCAB felt it had no choice but to adhere to the rule, and we so informed the complainant.
The DCAB recognized, however, that many persons with disabled parking permits are elderly and may not possess any of the necessary forms of proof to verify Hawaii residency. In order to facilitate the use of the program by eligible persons, especially the elderly, DCAB was in the process of reviewing its own rules. We monitored the modification of the rules through the assigned DCAB staff member.
Subsequently, DCAB repealed Section 11-219-5(5), HAR, eliminating the requirement that the holder of a disabled parking permit be a resident of Hawaii, because Section 291-51.7, Hawaii Revised Statutes, required the recognition of disabled parking permits issued by other states and countries. Therefore, disabled non-Hawaii residents were already eligible to exercise disabled parking privileges in Hawaii. The rules continued to require an applicant for a permit to present proof of identity, but without listing any specific acceptable forms of proof. Counties now have discretion to accept various forms of proof of identity, in consideration of the individual circumstances. In other words, a county could now determine that under the circumstances like in the complainant’s case, the expired disabled parking ID would be an acceptable proof of identity.
(03-2725) Mandatory tuberculosis testing for school attendance. A man who planned to move to Hawaii from another state complained that before his children could attend a school in Hawaii, they were required by the Department of Health (DOH) to undergo testing for tuberculosis (TB). He objected to the testing on the basis of his religious beliefs and contended that the law authorized the DOH to grant his children an exemption from the tests. Alternatively, he requested that the DOH allow his children to submit to a TB sputum test rather than a Mantoux tuberculin test, commonly referred to as a “skin test,” in which tuberculin units are injected and the size of the resulting induration or hardening of the injected area is measured. In our investigation, we reviewed Chapter 302A, Hawaii Revised Statutes (HRS), titled “Education.” Section 302A-1154, HRS, stated:
Immunization upon entering school; tuberculosis clearance. (a) No child shall attend any school in the State unless the child presents to the appropriate school official documentation satisfactory to the department of health that the child has received immunizations against communicable diseases as required by the department of health.
(b) No child shall be admitted to attend any school for the first time in the State unless the child presents to the appropriate school officialdocumentation satisfactory to the department of health that the child has been examined and tested according to the rules of the department, and is free from tuberculosis in a communicable form. (Emphasis added.)
Section 302A-1162, HRS, required the DOH to adopt rules relating to TB testing. In accordance with the statutory requirement, the DOH adopted Title 11, Chapter 164, titled “Tuberculosis” and Chapter 157, titled “Examination and Immunization,” Hawaii Administrative Rules (HAR). The rules required the TB skin test to which the complainant objected. Section 11‑157-3.2, HAR, stated in part:
Tuberculosis examination requirements. (a) Each student shall be examined for infection with tuberculosis by a practitioner or the department within the twelve months prior to first attending school in Hawaii, . . .
. . . .
(c) A certificate of TB examination shall report the results of a Mantoux tuberculin test, including the dates of administration and reading and the transverse diameter of induration in millimeters, and shall bear the signature or unique stamp of the practitioner, the facility at which the practitioner practices, or the department. If the transverse diameter is equal to or greater than 10 mm., the certificate shall also report the result of a chest x-ray, including the date and location the x-ray was obtained. . . .
. . . .
(g) A certificate of TB examination is required for school attendance. . . . (Emphasis added.)
We discussed the complaint with the physician in charge of the DOH TB Program. The physician, who had already responded to the complainant, informed us that the routine testing procedure for TB is an initial skin test, followed by further testing if the initial test result is positive. In an attempt to accommodate the complainant, the TB Program offered the alternative of a chest X ray, which has been acceptable by other individuals with religious objections to the intradermal nature of the skin test. However, in this instance, the complainant declined the alternative.
We considered the complainant’s contention that the law authorized the DOH to grant his children an exemption from the TB tests. However, the law to which he referred provided for the exemption of a child from required immunizations if the immunizations conflicted with the person’s bona fide religious tenets and practices. The law contained no provision for exemption from TB testing and did not authorize the DOH to grant an exemption.
Section 302A-1156, HRS, stated in part:
Exemptions. A child may be exempted from the required immunizations:
. . . .
(2) If any parent, custodian, guardian, or any other person in loco parentis to a child objects to immunization in writing on the grounds that the immunization conflicts with that person’s bona fide religious tenets and practices. Upon showing the appropriate school official satisfactory evidence of the exemption, no certificate or other evidence of immunization shall be required for entry into school.
Informational material published by the U.S. Centers for Disease Control and Prevention supported the information we received from the DOH, and as the DOH was also in compliance with applicable statutes and rules, we advised the complainant that we found the DOH actions to be reasonable.
DEPARTMENT OF HUMAN SERVICES
(03-3484) Investigation by Child Welfare Services. A woman complained that Child Welfare Services (CWS), Department of Human Services (DHS), would not investigate an allegation of child abuse by a teenager against his teenage girlfriend. She reported the incident to the police and also contacted CWS. A CWS worker and his supervisor informed the woman that CWS did not have jurisdiction in the matter because no family relationship existed between the alleged perpetrator and the alleged victim. Nevertheless, the supervisor still required her to file a written report of the incident since the complainant was a health care professional.
We contacted the CWS supervisor and inquired about the matter reported by the complainant. The supervisor informed us that CWS had no jurisdiction since no family relationship existed between the alleged perpetrator and the alleged victim. Additionally, the alleged perpetrator was not responsible for the alleged victim’s care, nor did the alleged perpetrator and alleged victim reside together. Consequently, the police department was the proper agency to contact to report the alleged assault. The supervisor also informed us that since the matter was not considered a case of child abuse or neglect, the complainant was not required to file a written report with CWS.
In our investigation, we reviewed Chapter 350, Hawaii Revised Statutes (HRS), titled “Child Abuse,” and Chapter 587, HRS, titled “Child Protective Act.” Section 350-2, HRS, established the responsibility of the DHS to act upon receipt of a report of child abuse or neglect. Section 350-2, HRS, stated in part:
Action on reporting. (a) Upon receiving a report concerning child abuse or neglect, the department shall proceed pursuant to chapter 587 and the department’s rules.
Section 350-1, HRS, defined “child abuse or neglect” as follows:
“Child abuse or neglect” means the acts or omissions of any person who, or legal entity which, is in any manner or degree related to the child, is residing with the child, or is otherwise responsible for the child’s care, that have resulted in the physical or psychological health or welfare of the child, who is under the age of eighteen, to be harmed, or to be subject to any reasonably foreseeable, substantial risk of being harmed. . . . (Emphasis added.)
Section 587-21, HRS, provided that upon receipt of a report that a child has been harmed or is subject to imminent harm or threatened harm, the DHS shall conduct an investigation as it deems appropriate and may enlist the cooperation of law enforcement authorities. This section also authorized the DHS to take other actions, such as assuming temporary foster custody, preparing a service plan for the child and his or her family, and petitioning the Family Court for other action in the interest of the child.
Section 587-11, HRS, in granting jurisdiction in a child protective proceeding to the Family Court, clarified that harm to a child must be committed by the child’s family. Section 587-11 stated in part:
[T]he court shall have exclusive original jurisdiction in a child protective proceeding concerning any child who was or is found within the State at the time the facts and circumstances occurred, are discovered, or are reported to the department, which facts and circumstances constitute the basis for the finding that the child is a child whose physical or psychological health or welfare is subject to imminent harm, has been harmed, or is subject to threatened harm by the acts or omissions of the child’s family. (Emphasis added.)
Section 587-2, HRS, defined “family,” as follows:
“Family” means each legal parent, the natural mother, the natural father, the adjudicated, presumed, or concerned natural father as defined under section 578-2, each parent’s spouse, or former spouses, each sibling or person related by consanguinity or marriage, each person residing in the same dwelling unit, and any other person who or legal entity which is a child’s legal or physical custodian or guardian, or who is otherwise responsible for the child’s care, other than an authorized agency which assumes such a legal status or relationship with the child under this chapter.
Thus, based on the provisions of the law, we found that CWS lacked jurisdiction to investigate the complaint reported by our complainant.
On the matter of the required filing of a written report, Section 350‑1.1, HRS, contained the requirement that a health care professional who, in his or her official capacity, has reason to believe that child abuse or neglect has occurred shall immediately report the matter orally to the DHS or to the police department. The initial oral report shall be followed by a written report to the DHS as soon as possible. Since the alleged abuse in this case did not meet the definition of “child abuse or neglect,” we concurred that there was no requirement for our complainant to file a written report with the DHS.
We reported our findings to the complainant.
DEPARTMENT OF PUBLIC SAFETY
(01-5352) Failure to transfer property. An inmate who was transferred from a community-based facility to a medium security facility complained that his personal property was not transferred with him.
In our investigation, we learned that the inmate formerly resided in a work furlough center (WFC) that allowed inmates to hold regular jobs in the community. When it was determined that a community-based setting was inappropriate for the inmate, he was transferred to a medium security facility, but his property was kept at the WFC.
A WFC administrator informed us that the inmate should submit a request for permission for someone to pick up his property. We questioned these instructions, however, as correctional policies and procedures at the division and facility levels stated that when inmates are transferred to another correctional facility, the personal property they were allowed to retain is to be transferred with them. In response, the administrator referred us to the property officer.
The property officer in turn referred us to a memo that governed the WFC’s procedures. The memo stated:
As a reminder, when an inmate is removed from [WFC], his property needs to be inventoried and the inmate sign for same. Furthermore, his property is to be locked in [WFC’s] property room and NOT sent with the body. He will be required to dispose of the property from [WFC]. Your continued attention to this matter has greatly reduced inmate tort claims. Mahalo.
We noted that the memo was not in compliance with correctional policies and procedures, so we brought the matter to the attention of the warden. Eventually, the inmate’s property was transferred, the instructions in the memo were rescinded, and WFC staff were reminded that property is to be transferred with the inmate.
(02-4384) Availability of “pic” combs at a correctional facility. An African American inmate at a minimum security facility complained that he was not allowed to have a pic comb and that the combs available for purchase through the commissary were suitable only for inmates with soft hair. The facility warden considered pic combs to be a security risk as he believed the combs could be used as a weapon. However, the inmate contended that when he was incarcerated at a high security facility, pic combs were allowed.
We reviewed the policies of both facilities and confirmed that while the high security facility allowed its inmates to purchase pic combs through the commissary, the minimum security facility did not and only allowed its inmates to purchase hairbrushes. A staff member at the high security facility commissary also informed us that he could not recall whether pic combs ever caused any security problems.
We contacted the warden of the minimum security facility and pointed out the discrepancy in the practices of the two facilities. As the warden remained firm in his opposition to allowing inmates to purchase pic combs, we brought the matter to the attention of the division administrator who was the warden’s immediate superior. When the administrator failed to make a decision for three months and stopped returning our calls, we wrote to the Department of Public Safety (PSD) director and asked that he review the inconsistency between the practices of the two facilities. We also asked him to inform us of any security concerns and specific incidents attributable to pic combs. Subsequently, the PSD security coordinator, who was assigned by the director to address this matter, informed us that PSD would allow inmates at the minimum security facility to purchase pic combs, although the combs would be smaller and softer than those allowed in the past.
When we inquired with the warden of the minimum security facility, we were informed that the smaller and softer pic combs described by the PSD security coordinator were not available, but the commissary’s supplier was looking for a suitable substitute. After a few weeks, the warden notified us that the supplier had found an acceptable pic comb which would be made available for inmates to purchase in a week.
We thereupon informed the complainant that he would soon be able to purchase a pic comb from the commissary.
(02-5196) Insufficient credit for detention prior to sentencing. When a defendant who is sentenced to imprisonment had been previously detained in a correctional facility following the defendant’s arrest for the same crime, State law allows the defendant to receive credit for the period of detention prior to sentencing.
An inmate complained that he was not given sufficient presentence credit. He was arrested and detained since May 1999, but was only given credit from October 1999 to May 2000, when he was sentenced. He contended that he should also be given credit from May 1999 to October 1999.
In our investigation, we found that the inmate was arrested by the police on May 13, 1999 while on parole for suspicion of committing a crime, but was released for this crime on May 14, 1999. However, he remained in prison due to a warrant from the Hawaii Paroling Authority for the violation of his parole conditions. He was later indicted for the crime on October 7, 1999; was officially arrested on October 21, 1999; and was found guilty and subsequently sentenced on May 18, 2000. He was given credit from October 7, 1999, when he was indicted, to May 18, 2000, when he was sentenced.
Section 706-671(1), Hawaii Revised Statutes, stated in part the following:
When a defendant who is sentenced to imprisonment has previously been detained in any State or local correctional or other institution following the defendant’s arrest for the crime for which sentence is imposed, such period of detention following the defendant’s arrest shall be deducted from the minimum and maximum terms of such sentence. . . .
Based on the law, we determined that the Department of Public Safety was correct in not giving the complainant credit for the period from May 15, 1999 to October 7, 1999 because although he remained in prison, the imprisonment was the result of violating his parole, and not for the subject crime. The department, however, erred in not giving the complainant credit for the two days he was detained on May 13-14, 1999, when he was first arrested.
Unfortunately for the inmate, in our review of his records we found that the department also erred by giving him too much credit for his detention in October 1999. The law provides that credit shall be given for the “period of detention following the defendant’s arrest.” Although indicted on October 7, the complainant was not arrested until October 21. Thus, the complainant should have been given credit only from October 21, not October 7. After we apprised departmental staff of our findings, the inmate’s presentence credit was recalculated and he ended up with 12 less days of presentence credit than he had originally received.
We contacted the complainant and explained to him the unfortunate outcome of our investigation.
(03-0630) Not allowed to receive book ordered by mail. An inmate complained that he was not allowed to receive a book that he ordered from a book club because he had not paid for the book prior to its delivery to the correctional facility where he was incarcerated.
According to the facility’s policy and procedure, an inmate, his family, or his friends are required to pay for a book at the time the order is placed. The complainant explained, however, that he was not able to pay for the book at the time he placed the order because the exact price was not known. Thus, he obtained approval from a staff member to order the book and to make payment after the book was received. In fact, after the book was received, the business office prepared a check that was charged to the complainant’s account to cover the cost of the book and shipping, and the complainant had already sent the check to the book club by the time he was denied permission to receive the book.
We contacted the business office supervisor and informed her of the complainant’s case. As it appeared that the complainant had acted in good faith on a staff member’s approval to order the book and the business office had already enabled the complainant to pay for the book, the supervisor decided to consult the deputy warden to see if an exception could be made to the facility’s policy and procedure.
Subsequently, the deputy warden notified the complainant that he would be allowed a one-time-only exception to the policy and procedure. The complainant was allowed to receive the book but was informed that in the future, the pay-in-advance requirement would be strictly applied.
(03-1565, 03-4534, and 03-5163) Failure to transfer approved visitation list from one facility to another. Three inmates who were transferred to a correctional facility from three other correctional facilities separately complained that their requests for approval of visitation lists had not been acted upon. As a result, not only were they unable to receive visits, they also could not receive monetary donations from family members and friends because only persons on an inmate’s approved visitation list were allowed to donate money to the inmate.
We noted that Department of Public Safety Policy No. 493.15.04, titled “Visitation,” contained the following provision:
Transfer of Visitation Privileges
When an inmate is transferred to another facility, the inmate’s approved visitation list at the former facility shall be accepted by the receiving facility without further verification by the receiving facility. An inmate transferred to another facility shall experience no disruption in their visitation privileges.
When we inquired with the facility where the three complainants were presently incarcerated, we learned that it had not received the transferred inmates’ approved visitation lists from any of the inmates’ former facilities. When we inquired with the three facilities, we learned that it was not their practice to forward approved visitation lists of transferred inmates to another facility.
We directed the wardens of two of the facilities to the policy and were assured that henceforth, the facilities would comply with the policy. Additionally, both facilities faxed the approved visitation lists to the facility to which the complainants had been transferred, and the receiving facility confirmed that the lists would be honored. The warden of the third facility, via a staff member, also assured us that the facility would transfer visitation lists in the future. A resolution for the inmate from that facility was not necessary, however, as he had been transferred to a mainland facility.
(03-4007) Adjustment Committee decision overruled by warden. An inmate who was charged with unauthorized contact with another inmate and with violating a furlough condition complained that after he was unofficially informed by the Adjustment Committee (AC) chairperson that he was found not guilty of the charges, the warden overruled the AC decision and found him guilty of both charges and also of conspiring to introduce contraband into the facility.
The inmate questioned the warden’s authority to take such action and maintained his innocence. He contended that he was not the inmate on the receiving end of a telephone call who agreed to another inmate’s request to smuggle contraband drugs into the facility upon his return from furlough.
An adult corrections officer (ACO) who monitored the telephone call was positive that he recognized the voice of the complainant as the inmate who agreed to smuggle the contraband. However, the AC chairperson informed us that the AC was not so certain of the inmate’s identity and felt there was insufficient evidence to find the inmate guilty.
We reviewed Department of Public Safety Policy No. COR.13.03, which pertained in part to adjustment procedures governing serious misconduct violations. Section 5.9.b stated:
The Warden/designee may also initiate review of any adjustment committee decision and it shall be within the Warden’s discretion to modify any committee findings or decisions. The Warden may remand any matter to the adjustment committee for further hearing or rehearing, if the Warden believes it to be in the interest of justice. (Emphasis added.)
Thus, we concluded that the warden has the authority to overrule the AC decision in the complainant’s case.
When we asked the warden about his reasons for overruling the AC decision, he informed us that additional information had come to light after the AC hearing was concluded. The ACO who monitored the telephone call had heard the caller refer to the inmate who received the call by an unusual nickname. Subsequently, the staff learned that the complainant was known by that nickname. This supported the ACO’s identification of the complainant as the inmate who agreed to smuggle the contraband, so the warden determined there was sufficient evidence to find the complainant guilty.
We noted that the inmate had not been charged with the contraband violation at the time of the hearing and did not have an opportunity to rebut the additional evidence. Thus, the warden agreed that a rehearing was appropriate.
After a hearing on the contraband charge was conducted by a new AC, the inmate was found guilty of the charge. We determined that the finding was reasonable and informed the inmate that we were unable to assist him further.
(03-4603) Unable to serve lawsuit on the State. When a lawsuit is filed, the plaintiff must serve the complaint and summons on the defendant, which may be accomplished through private process servers referred to as civil deputies. Civil deputies are commissioned by the Sheriff Division (SD) after they provide proof of surety bond and meet other requirements. The SD formerly provided administrative assistance to the civil deputies, such as keeping records of the documents to be served and collecting and disbursing fees for such services. However, the SD no longer provided such administrative services to the civil deputies.
An inmate complained that the SD had not served the State Attorney General with the lawsuit he filed against the State. He had submitted the documents to the SD for service, together with a check in the amount of $15 for the service fees. It had been over two weeks and the documents still had not been served.
When we inquired with the SD, we found that because the agency no longer kept any records of the documents it received for service, it was unable to account for the complainant’s documents.
We contacted the SD’s First Deputy and advised him of the lack of a tracking system for documents received by the SD for service. He agreed that even though the SD no longer provided administrative assistance to the civil deputies, it should have a record of the documents it received and the names of the civil deputies to whom the documents were referred for service. The First Deputy thereupon issued instructions to the SD staff to maintain a log of documents received and names of civil deputies assigned to serve the documents.
As for the complainant, although the original documents sent to the SD were never found, we learned that he was able to accomplish service on the State Attorney General via certified mail.
(03-5139) No refund for newspaper subscriptions. The mother of an inmate complained that a correctional facility disallowed refunds for newspaper subscriptions. Her son subscribed to a local newspaper, but received only two issues before he was transferred to a mainland correctional facility. When she inquired about the possibility of a refund for the balance of the subscription, she was told refunds were not provided.
We contacted the business manager of the correctional facility and learned that subscriptions are ordered through a vendor who delivers the newspapers to the facility. The subscription period is four weeks and the facility places the order with the vendor for the number of subscriptions needed for each subscription period. The vendor then places an order with the publisher and delivers the preordered number of issues to the facility on a daily basis.
About every four weeks, a memo is posted on the inmate bulletin boards advising inmates of the next subscription period. The memo includes the caveat, “ALL SALES ARE FINAL – NO CREDITS OR REFUNDS WILL BE ISSUED FOR ANY REASON.” In this manner, inmates received notice of the no-refund policy. The facility explained that issues that are not deliverable are disposed of after a few days.
When we asked the facility to reconsider the no-refund policy, the warden responded that it still would not be feasible to provide refunds because of the number of inmates in the overcrowded facility, the number and frequency of inmate transfers, and limited staff resources. However, because an inmate has no direct control over when and where he will be transferred, the facility was forwarding newspapers to the inmate’s present facility upon request and at the facility’s expense. We noted that the newspaper subscription memo did not mention this accommodation. As a result, the memo was subsequently amended to inform inmates that newspapers would be forwarded to other State and contracted mainland facilities upon written request.
We contacted the inmate’s mother and explained that there appeared to be a reasonable basis for the no-refund policy and that inmates were notified of the policy via a memo before they placed an order for a subscription. We also informed her that the facility does forward newspapers upon written request and that the facility subsequently amended the memo to inform inmates of this provision.
DEPARTMENT OF TRANSPORTATION
(03-0241) Motorists’ view of oncoming highway traffic obstructed. A man complained that the top railing of a pedestrian bridge across a stream, cars parked along the highway close to the bridge, and a telephone pole combined to obstruct the view of oncoming highway traffic for motorists entering the highway from the driveway of a private residence next to the bridge. He blamed the obstructed view for an accident that his aunt was involved in when she attempted to drive onto the highway. He believed that the problem could be alleviated by lowering the top railing of the pedestrian bridge.
We contacted the Highways Division (Highways) and informed a highway engineer of the complaint. In response, Highways staff members inspected the site and confirmed the obstructed view described by the complainant.
After studying the situation, Highways decided upon three measures to address the problem of the obstructed sight line: (1) the top railing of the pedestrian bridge would be lowered by a foot; (2) a “No Parking” sign would be installed to prohibit parking close to the bridge; and (3) an unnecessary road hazard sign close to the bridge would be removed. Highways determined that the combined effect of these measures would resolve the problem.
We informed the complainant of the corrective measures to be taken. He agreed that these measures would resolve the problem and was particularly glad to learn that the top railing of the pedestrian bridge would be lowered.
(03-0462) Denial of permit to operate taxi at State harbor. A taxi driver complained that the Harbors Division (Harbors) denied his application to renew his permit to operate a taxi at Honolulu Harbor. Without a permit, he could not service passengers of cruise liners berthed at the harbor. He explained that about a year ago, he did not renew his permit because an illness prevented him from working. When he regained his health in 2002, he sought to renew his permit and submitted a report from his physician verifying his illness, but Harbors denied the renewal.
We learned that in 1996 Harbors sent a letter to all Honolulu Harbor taxi permittees notifying them of a new procedure which requires the renewal of a permit every three months. Additionally, no new permits would be approved. Although Harbors reported that it sent the notification letter to the complainant, the complainant claimed that he never received it. Moreover, the complainant stated that he allowed his permit to lapse in 1997 when he moved to California, but when he returned to Hawaii in 2000 he was allowed to renew his permit. So, he was surprised when Harbors would not renew his permit in 2002.
We informed Harbors of the complainant’s contention that his permit was renewed in 2000, subsequent to Harbors’ implementation of the new procedure in 1996. Harbors researched the matter and produced documentation indicating that the 1996 notification letter was sent to the complainant. Harbors also reported, however, that it appeared that the complainant’s contention that his permit was renewed in 2000 after a three‑year lapse was correct.
Based on the foregoing events, it appeared that the complainant could have reasonably concluded that he would be able to renew his permit in 2002 when he was again physically able to operate his taxi business.
After reconsidering the complainant’s case, in light of his verified illness and the renewal of his permit in 2000, Harbors allowed him a one-time opportunity to renew his permit.