Hoopai v. Civil Service Commission
This text of 103 P.3d 365 (Hoopai v. Civil Service Commission) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
Opinion of the Court by
ACOBA, J.
We hold in this consolidated appeal in Civil No. 99-0-3248 and Special Proceeding No. 00-1-0090 (S.P. No. 00-1-90), (1) that the general prohibition in Hawai'i Revised Statutes (HRS) § 89-9(d) (1993) against a public employer and the exclusive representative of a collective bargaining unit agreeing to a “proposal ... inconsistent with merit principles” is subject to that statute’s provisions allowing for, inter alia, negotiation of promotion and demotion procedures in a collective bargaining agreement and a grievance process for violation thereof, (2) that HRS § 76-1 (Supp.1999), Revised Charter of Honolulu (RCH) §§ 6-302, 6-306, 6-308, and Rules of the Civil Service Commission (RCSC) §§ 13-2 and 13-3 do not conflict with HRS § 89 — 9(d),1 (3) that in the instant case, the grievance process initiated by Party-in-Interest-Appellant United Public Workers, AFSCME, Local 646, AFL-CIO (UPW) pursuant to its collective bargaining agreement with Appellee-Appellant City and County of Honolulu (the City) was proper, (4) that the dispute as to the “demotion” of Appellant-Appellee Jacob E. Hoopai (Hoo-pai) was properly processed under the collective bargaining agreement grievance procedure; and (5) Hoopai has failed to establish a violation of his due process claim.
Because on the foregoing premises the circuit court of the first circuit (the court) was wrong in ruling that Appellee-Appellant Civil Service Commission (the Commission) had jurisdiction of Hoopai’s complaint involving his demotion, we vacate the court’s October 25, 2000 judgment remanding the case to the Commission in Civil No. 99-3248 and the court’s April 11, 2000 order denying without prejudice the UPW’s motion to intervene in S.P. No. 00-1-90, and remand the case to the court with instructions to grant the UPW’s motion and enter judgment for the Commission, the City, Appellees-Appellants Department of Civil Service of the City (the Department) and the Emergency Services Department of the City (ESD) [hereinafter collectively, Employers],2 and UPW.
Employers challenge the May 16, 2000 findings of fact (findings), conclusions of law (conclusions) and order of the court and appeal from the court’s October 25, 2000 judgment in favor of Hoopai.3 UPW challenges the aforesaid May 16, 2000 findings, conclusions and order and appeals from (1) the April 11, 2000 order denying, without prejudice, UPW’s motion to intervene and (2) the said October 25, 2000 judgment.4
I.
A.
The facts in the present appeal ostensibly are not disputed.5 The pertinent facts are set forth in certain of the court’s enumerated findings and the evidence adduced as follows.
[209]*2091. [Hoopai] is an employee of Appellee [City], [ESD],
2. [Commission] is an agency of the [City], duly created under the [RCH] and the applicable Civil Service laws of the State of Hawai'i.
3. [City] is a body politic created under the provision of the RCH, the Constitution of the State of Hawai'i and applicable provisions of the [HRS].
4. [ESD] of the [City] is duly created under the RCH.
5. On or about June 16, 1995, [Hoopai] was promoted from the position of Mobile Emergency Care Specialist (“MECS I”) to EMS Field Operations Supervisor (“FOS”).
6. During the time he served as FOS, [Hoopai] received only “Excellent” evaluations.
7. [Hoopai] successfully completed his probationary period.
8. [Hoopai] was made permanent in his position on December 16,1995.
9. After [Hoopai’s] July [sic] 16, 1995 promotion, [UPW] filed a grievance on behalf of a non-selectee. This was subsequently resolved by way of a Settlement Agreement. [Hoopai] continued to serve n[sie] the position of FOS.
10. In compliance with the Settlement Agreement, a second promotion process was initiated and [Hoopai] was again “selected.” [Hoopai] continued, uninterrupted, to serve as FOS since his selection in June of 1995.
11. [Hoopai’s] selection was again grieved by a non-selectee [Grievant Derrick Young (Grievant) ]....
On December 23, 1996, UPW initiated the grievance process. On that same day, UPW informed Hoopai by letter of the grievance procedure and its potential impact.6 The grievance was processed on behalf of Griev-ant and conducted pursuant to the collective bargaining agreement between UPW and the City, entitled “Institutional, Health, and Correctional Workers Bargaining Unit 10 Agreement.”7 On October 20 and 30, 1997, the arbitration8 was conducted with the UPW, ESD and the City agreeing that the issue presented to the arbitrator was, “Did the [E]mployer violate the contract when it failed to select the Grievant for the position of [FOS], and if so, what is the appropriate remedy?” During the hearings, both Hoopai and Grievant were called as witnesses.
The remainder of the court’s findings, relating to the arbitration and the subsequent appeal by Hoopai to the Commission, states as follows:
12. On February 10, 1998, the Arbitrator ruled that the selection process was still flawed and ordered the promotion set aside [hereinafter “arbitration decision”].
13. In his decision, the Arbitrator explicitly stated that he could not order the promotion of the Grievant because that would substitute his evaluation of supervi[210]*210sory experience for that of the employer and it would be improper.
14. [Hoopai] was subsequently demoted on April 15,1998 effective February 25, 1998, after holding this position for almost 3 years.
15. On March 18, 1998, Hoopai filed a Petition of Appeal with the Commission.
16. Hoopai raised issues, including, but not limited to, the following: the violation of the merit principles, the preemption of the Civil Service Laws, the violation of Civil Service Rules, and improper demotion.
17. Hoopai appealed the demotion alleging improper acts [9] of [ESD] issued on April 15, 1998, effective February 24, 1998. ■
18. On May 25, 1999, [ESD’s] Motion to Dismiss Appeal filed on May 17, 1999 was heard. The Motion alleged that the Commission lacked jurisdiction to hear the appeal.
19. At the hearing on the Motion to Dismiss, [Hoopai] requested that the City negotiator of collective bargaining agreements be allowed to testify on his behalf.
20. The basis of such request was to confirm that [City] does in fact believe that collective bargaining preempts civil service.
21. The Commission denied the request.
22. [Hoopai] challenged the right of Mr.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court by
ACOBA, J.
We hold in this consolidated appeal in Civil No. 99-0-3248 and Special Proceeding No. 00-1-0090 (S.P. No. 00-1-90), (1) that the general prohibition in Hawai'i Revised Statutes (HRS) § 89-9(d) (1993) against a public employer and the exclusive representative of a collective bargaining unit agreeing to a “proposal ... inconsistent with merit principles” is subject to that statute’s provisions allowing for, inter alia, negotiation of promotion and demotion procedures in a collective bargaining agreement and a grievance process for violation thereof, (2) that HRS § 76-1 (Supp.1999), Revised Charter of Honolulu (RCH) §§ 6-302, 6-306, 6-308, and Rules of the Civil Service Commission (RCSC) §§ 13-2 and 13-3 do not conflict with HRS § 89 — 9(d),1 (3) that in the instant case, the grievance process initiated by Party-in-Interest-Appellant United Public Workers, AFSCME, Local 646, AFL-CIO (UPW) pursuant to its collective bargaining agreement with Appellee-Appellant City and County of Honolulu (the City) was proper, (4) that the dispute as to the “demotion” of Appellant-Appellee Jacob E. Hoopai (Hoo-pai) was properly processed under the collective bargaining agreement grievance procedure; and (5) Hoopai has failed to establish a violation of his due process claim.
Because on the foregoing premises the circuit court of the first circuit (the court) was wrong in ruling that Appellee-Appellant Civil Service Commission (the Commission) had jurisdiction of Hoopai’s complaint involving his demotion, we vacate the court’s October 25, 2000 judgment remanding the case to the Commission in Civil No. 99-3248 and the court’s April 11, 2000 order denying without prejudice the UPW’s motion to intervene in S.P. No. 00-1-90, and remand the case to the court with instructions to grant the UPW’s motion and enter judgment for the Commission, the City, Appellees-Appellants Department of Civil Service of the City (the Department) and the Emergency Services Department of the City (ESD) [hereinafter collectively, Employers],2 and UPW.
Employers challenge the May 16, 2000 findings of fact (findings), conclusions of law (conclusions) and order of the court and appeal from the court’s October 25, 2000 judgment in favor of Hoopai.3 UPW challenges the aforesaid May 16, 2000 findings, conclusions and order and appeals from (1) the April 11, 2000 order denying, without prejudice, UPW’s motion to intervene and (2) the said October 25, 2000 judgment.4
I.
A.
The facts in the present appeal ostensibly are not disputed.5 The pertinent facts are set forth in certain of the court’s enumerated findings and the evidence adduced as follows.
[209]*2091. [Hoopai] is an employee of Appellee [City], [ESD],
2. [Commission] is an agency of the [City], duly created under the [RCH] and the applicable Civil Service laws of the State of Hawai'i.
3. [City] is a body politic created under the provision of the RCH, the Constitution of the State of Hawai'i and applicable provisions of the [HRS].
4. [ESD] of the [City] is duly created under the RCH.
5. On or about June 16, 1995, [Hoopai] was promoted from the position of Mobile Emergency Care Specialist (“MECS I”) to EMS Field Operations Supervisor (“FOS”).
6. During the time he served as FOS, [Hoopai] received only “Excellent” evaluations.
7. [Hoopai] successfully completed his probationary period.
8. [Hoopai] was made permanent in his position on December 16,1995.
9. After [Hoopai’s] July [sic] 16, 1995 promotion, [UPW] filed a grievance on behalf of a non-selectee. This was subsequently resolved by way of a Settlement Agreement. [Hoopai] continued to serve n[sie] the position of FOS.
10. In compliance with the Settlement Agreement, a second promotion process was initiated and [Hoopai] was again “selected.” [Hoopai] continued, uninterrupted, to serve as FOS since his selection in June of 1995.
11. [Hoopai’s] selection was again grieved by a non-selectee [Grievant Derrick Young (Grievant) ]....
On December 23, 1996, UPW initiated the grievance process. On that same day, UPW informed Hoopai by letter of the grievance procedure and its potential impact.6 The grievance was processed on behalf of Griev-ant and conducted pursuant to the collective bargaining agreement between UPW and the City, entitled “Institutional, Health, and Correctional Workers Bargaining Unit 10 Agreement.”7 On October 20 and 30, 1997, the arbitration8 was conducted with the UPW, ESD and the City agreeing that the issue presented to the arbitrator was, “Did the [E]mployer violate the contract when it failed to select the Grievant for the position of [FOS], and if so, what is the appropriate remedy?” During the hearings, both Hoopai and Grievant were called as witnesses.
The remainder of the court’s findings, relating to the arbitration and the subsequent appeal by Hoopai to the Commission, states as follows:
12. On February 10, 1998, the Arbitrator ruled that the selection process was still flawed and ordered the promotion set aside [hereinafter “arbitration decision”].
13. In his decision, the Arbitrator explicitly stated that he could not order the promotion of the Grievant because that would substitute his evaluation of supervi[210]*210sory experience for that of the employer and it would be improper.
14. [Hoopai] was subsequently demoted on April 15,1998 effective February 25, 1998, after holding this position for almost 3 years.
15. On March 18, 1998, Hoopai filed a Petition of Appeal with the Commission.
16. Hoopai raised issues, including, but not limited to, the following: the violation of the merit principles, the preemption of the Civil Service Laws, the violation of Civil Service Rules, and improper demotion.
17. Hoopai appealed the demotion alleging improper acts [9] of [ESD] issued on April 15, 1998, effective February 24, 1998. ■
18. On May 25, 1999, [ESD’s] Motion to Dismiss Appeal filed on May 17, 1999 was heard. The Motion alleged that the Commission lacked jurisdiction to hear the appeal.
19. At the hearing on the Motion to Dismiss, [Hoopai] requested that the City negotiator of collective bargaining agreements be allowed to testify on his behalf.
20. The basis of such request was to confirm that [City] does in fact believe that collective bargaining preempts civil service.
21. The Commission denied the request.
22. [Hoopai] challenged the right of Mr. Halvorson, attorney for the Commission, to participate in the evidentiary hearing and his assistance in the decision making.
23. The Commission stated on the record that Mr. Halvorson’s questions do affect their decision making on the case.
24. Mr. Halvorson is not authorized to participate as a Commissioner in [Commission] hearings.
■25. The Decision and Order was issued on July 27, 1999.
(Footnote added.)
The Commission’s July 27, 1999 Decision and Order (Commission’s order) dismissed Hoopai’s appeal for lack of jurisdiction. The pertinent conclusions of the Commission state as follows:
1. [HRS § 76-1] ... states that ... the policy and purpose of Chapter 76, HRS, is to establish a system of personnel administration based on merit principles ....
2. [HRS § 76-1] does not confer jurisdiction to hear appeals on any civil service commission of any jurisdiction. This section only prescribes the policy and principles that should be applied by the Commission once it has jurisdiction.
4. [RCH § 6-308] provides as follows: Any person aggrieved by any action of the director ... or who has been ... demoted ... may appeal to the [Commission] for redress, pursuant to its rules and regula-, tions.
5. The Commission has jurisdiction to hear the appeals from disciplinary actions pursuant to ... [RCSC § 2-34(a) ], from any action of the director or appointing authority pursuant to [RCSC] § 2-34(b), and from grievances unsatisfactorily resolved at step 3 pursuant to [RCSC] § 13-3.
6. The demotion of [Hoopai] was not a disciplinary action and is therefore not within the jurisdiction of the Commission pursuant to [RCSC] § 2-84(a).
7. There is no authority to appeal the arbitrator’s decision to the Commission. Only the actions of the director or an appointing authority may be appealed pursuant to [RCSC] § 2-34(b). In this case the director was performing a non-discretionary ministerial act in complying with the order of the arbitrator. The director was not acting on her own authority and there was no appealable action by the director as contemplated under [RCSC] § 2-[211]*21134(b). Moreover, in order for the Commission to find that the director had violated a civil service rule would [sic] entail an examination of the merits of the arbitration decision. The Commission has no authority to do this. Jurisdiction over arbitration decisions and awards clearly falls to the exclusive jurisdiction of the courts 'pursuant to [HRS] Chapter 658.
8. The use of the civil service grievance procedure pursuant to [RCSC] § 13r3 is prohibited by [RCSC] §§ 13-2(b) and 13-3 for complaints over matters under the various collective bargaining agreements.
9. [HRS] § 89-10(d) specifies that if there is a conflict bettveen a collective bargaining agreement and a civil service of [sic] other personnel rule or regulation, the terms of the agreement shall prevail. In addition, [HRS] § 89-19 specifies that if there is a. conflict between another statute and [HRS] Chapter 89 concerning the same subject matter, [HRS] Chapter 89 shall take precedence.
10. Despite these jurisdictional restrictions, [Hoopai] maintains that this preemption feature of [HRS] § 89 — 10(d) is modified by the proviso that the terms of the collective bargaining agreement may not be inconsistent with [HRS] § 89-9(d) which in turn references the merit principles of [HRS] § 76-1. Additionally, [Hoo-pai] points out that pursuant to the Hawaii Supreme Court decision in SHOPO v. Soc’y of [Profl] Journalists, [83 Hawaii 378, 927 P.2d 386 (1996) ], the collective bargaining agreement cannot preempt a statute which imposes a duty upon a public employer to perform when the subject matter of the other statute is not in conflict with [HRS] Chapter 89. While this may be true, this still does not convey jurisdiction over collective bargaining matters upon the Commission. The Commission has no authority to review the scope of collective bargaining pursuant to [HRS] Chapter 89 regardless of whether there is a conflict between the collective bargaining agreement and [HRS] § 89-9(d) or whether the collective bargaining agreement conflicts with another statute. This falls within the purview of the Hawaii Labor Relations Board or the courts.
11. Finally, even if [Hoopai] was correct in his claim that the Commission has some overarching duty to preserve merit principles, even when in conflict with a collective bargaining agreement, this Commission would still dismiss this appeal.
12. Contrary to the brief submitted by [Hoopai] wherein he avers that he “was demoted from a position he was properly promoted to ...,” (emphasis added) the arbitrator’s decision clearly rests on the conclusion, that [Hoopai’s] promotion was improper under the collective bargaining agreement. Whether the arbitrator was correct or not, and whether the promotion of [Hoopai] was proper or not, necessarily requires a relitigation of the promotion decision. More importantly, it requires a determination of whether the decision by the arbitrator[] that there has been a violation of the collective bargaining agreement,] is in conflict with merit principles under [HRS] § 76-1. This Commission has no jurisdiction to resolve conflicts between [HRS] Chapters 76 and 89. This too, must be left to the courts.
13. The Employer and [Hoopai’s] exclusive bargaining representative agreed to settle this dispute through final and binding arbitration. [Hoopai] was represented in this agreement by his exclusive bargaining representative and through such representation is a beneficiary of both the rights and responsibilities of that agreement. If he has a quarrel with the terms of that agreement, including the dispute resolution mechanism, his complaint is with his representative and not the employer. Moreover, the forum for any quarrel between [Hoopai] and his union is clearly not this Commission.
(Emphases added.) (Boldfaced emphases -in original.)
On August 26, 1999, in Civil No. 99-0-3248, Hoopai appealed to the court from the Commission’s order, arguing that (1) the Commission violated HRS chapter 91 by improperly denying Hoopai’s request for witnesses and denying him due process, (2) the Commission’s decision was flawéd due to the participation of its attorney in the decision [212]*212making process, and (3) the decision to dismiss Hoopai’s agency appeal violated constitutional or statutory provisions, exceeded the agency’s authority, was made upon unlawful procedures, was in error of law, was clearly erroneous, and was arbitrary and capricious.
On December 13, 1999, the court10 heard oral argument and subsequently issued a minute order, which stated that the case was “reversed and remanded [with Hoopai’s attorney] to submit proposed findings of fact and conclusions of law.”
B.
On February 23, 2000, in a separate and second proceeding, S.P. No. 00-1-90, the UPW filed a motion to confirm the arbitration decision (motion to confirm)11 against the City and ESD, and attached a 1999 arbitration agreement between UPW and the City and the arbitrator’s decision. The hearing on this motion to confirm was originally scheduled for March 14, 2000. On March 3, 2000, the City and ESD filed a statement of no opposition and a notice of non-appearance.
Prior to the hearing on the motion to confirm in S.P. No. 00-1-90, on March 13, 2000, the UPW, in Civil No. 99-0-3248, filed (1) a motion to consolidate Hoopai’s appeal from the Commission’s order and the special proceeding’s motion to confirm (motion to consolidate) because of common questions of law or fact in Hoopai’s appeal and UPW’s motion to confirm the arbitration award, and (2) a motion to intervene in Civil No. 99-0-3248. In the motion to intervene, the UPW maintained that the Commission lacked “subject matter jurisdiction over the dispute.” Attached to the motion to intervene was a 1999 collective bargaining agreement between the UPW and the City, the arbitration decision, and the grievances filed. The court12 heard both motions on April 3, 2000.
On April 10, 2000, the motion to consolidate the cases was granted. The court reasoned that consolidation under Civil No. 99-0-3248 was appropriate because both cases “involve[d] a common question of law and fact warranting consolidation under Rule 42(a) of the Hawai'i Rules of Civil Procedure [ (HRCP) ].” On April 11, 2000, however, the court denied without prejudice UPW’s motion to intervene on the ground that “the UPW will be able to request intervention at the [Commission].”
On April 11, 2000, the court13 filed an order granting UPW’s motion to confirm (confirmation order). The confirmation order provided as follows;
[UPW’s motion to confirm], having been filed on February 23, 2000, and having come on for hearing ... on April, 11, 2000, ... and Deputy Corporation Counsel ... having filed a statement of no opposition and notice of non appearance ..., and good cause appearing,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the [arbitration decision] was issued in accordance with [HRS] §§ 658-8, 658-11, and 658-12. Accordingly, the employer is hereby ordered to comply vnth the provisions set forth in the [arbitration decision].
(Emphasis added.)
On May 16, 2000, the court14 entered its order for the December 19, 1999 hearing [213]*213conducted in Civil No. 99-0-3248. In addition to its aforementioned findings filed May 16, 2000, the court stated, in finding 27, that it had jurisdiction over Hoopai’s appeal. The court also issued the following conclusions of law and order:
1. In order for an appeal from an agency’s decision to be sustained, the appellant must meet his burden [pursuant to].... HRS § 91-14(g).[15] [Hoopai] has met his burden.
2. [Hoopai] was denied his due process right by [the Commission] when it summarily dismissed [Hoopai’s] appeal due to [the] Arbitrator’s decision of February 10, 1998.
3. [Hoopai] was promoted, successfully completed his probationary period with excellent ratings and was made permanent in his FOS position as of December 16, 1995.
4. [Hoopai’s] permanent status created a 'proprietary right in his promotion.
5. [Hoopai] was demoted by the City’s act of April 15,1998.
6. [Hoopai] is entitled to have the [Commission/ hear his appeal as to whether he was improperly demoted, whether Civil Service Laws and Rides ivere violated[] and whether the merit principles were ignored.
THE COURT having entered the above [findings] and [conclusions] HEREBY ORDERS, ADJUDGES AND DECREES that
The Decision and Order of the [Commission], [City], entered on July 27, 1999 is reversed and remanded to the Commission and that a neiv hearing on [Hoopai’s] Petition of Appeal be conducted in compliance with the applicable constitutional and statutory provisions.
(Emphases added.) On June 15, 2000, Employers filed a notice of appeal to this comí. On September 25, 2000, this comí issued an order dismissing the appeal for lack of appellate jurisdiction.
Final judgment in Civil No. 99-0-3248 was entered on behalf of Hoopai on October 25, 2000. On October 31, 2001, the court in S.P. No. 00-1-90 entered a final judgment in favor of UPW pursuant to the confirmation order.16 The final judgment confirming the arbitrator’s award stated as follows:
Pursuant to the [confirmation order], Judgment is hereby entered in favor of UPW, AFSCME, Local 646, AFL-CIO and against the [City], the Department of Health, [and ESD] in the above entitled matter.
This final judgment resolves all claims raised by all parties in this case.
On November 13, 2000, UPW filed a notice of appeal to this court from (1) the court's October 25, 2000 judgment reversing and remanding the Commission’s order, and (2) the court’s April 11, 2000 order denying, without prejudice, UPW’s motion to intervene. On November 22, 2000, Employers also filed a notice of appeal from the October 25, 2000 judgment reversing and remanding the Commission’s order.
II.
On appeal, Employers argue that the court erred in (1) impliedly ruling that the Commission had authority to hear Hoopai’s appeal, (2) not considering the arbitrator’s decision final and binding, (3) ruling that Hoopai was denied due process of law, and (4) finding that the counsel for the Commission affected the Commission’s decision making on the ease.
UPW argues that the court erred in (1) determining that the Commission had subject matter jurisdiction over a promotional dispute that was subject to arbitration under HRS chapter 89, (2) permitting a collateral attack upon a final and binding arbitration [214]*214decision that was confirmed in accordance with HRS chapter 658, and (3) denying UPW’s motion to intervene inasmuch as UPW was the exclusive representative that sought to uphold the arbitration decision in accordance with HRS chapter 89.
Hoopai argues that the court was correct in concluding that (1) Hoopai was denied his due process rights when his appeal was summarily dismissed by the Commission, (2) the RCH permits any person who is aggrieved by an action of the director of personnel or who has been demoted to appeal to the Commission, (3) promotional disputes are properly before the Commission because HRS chapter 89 does not take precedence over civil service laws, (4) the courts’ preference for arbitration is irrelevant to the issue of Hoopai’s Commission appeal, (5) Hoopai’s due process rights were violated by the Commission’s refusal to compel the testimony of witnesses to address the preemption argument, (6) the Commission’s attorney should not participate in the Commission proceedings in the role of a hearings officer, and (7) the court correctly denied UPW’s untimely motion to intervene.
III.
“ ‘Review of a decision made by a court upon its review of an administrative decision is a secondary appeal. The standard of review is one in which this court must determine whether the court under review was right or wrong in its decision.’” Soderlund, v. Admin. Dir. of the Courts, 96 Hawai'i 114, 118, 26 P.3d 1214, 1218 (2001) (quoting Farmer v. Admin. Dir. of the Court, 94 Hawai'i 232, 236, 11 P.3d 457, 461 (2000)) (brackets omitted). It is well settled that “ ‘[i]n an appeal from a circuit court’s review of an administrative decision, the appellate court will utilize identical standards applied by the circuit court.’ ” Price v. Zoning Bd. of Appeals, 77 Hawai'i 168, 171, 883 P.2d 629, 632 (1994) (quoting Mauna Kea Power Co. v. Bd. of Land & Natural Res., 76 Hawai'i 259, 264, 874 P.2d 1084, 1089 (1994)).
When a court reviews the decision of an administrative agency, HRS § 91-14(g) (1993)17 governs. “[Ajppeals taken from findings set forth in decisions of the [agency] are reviewed under the clearly erroneous standard. Thus, [the] court considers whether such a finding is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” Bocalbos v. Kapiolani Med. Ctr. for Women & Children, 93 Hawai'i 116, 124, 997 P.2d 42, 50 (App.2000) (citations, internal quotation marks, brackets, ellipses, and emphasis omitted).
On the other hand, “conclusions of law ... are freely reviewable to determine if the agency’s decision was in violation of constitutional or statutory provisions, in excess of statutory authority or jurisdiction of agency, or affected by other error of law.” Poe v. Hawai'i Labor Rels. Bd., 87 Hawai'i 191, 195, 953 P.2d 569, 573 (1998). “Hence, an agen cy’s statutory interpretation is reviewed de novo.” Keanini v. Akiba, 93 Hawai'i 75, 79, 996 P.2d 280, 284 (App.2000).
IV.
As an initial matter, we consider whether this court has jurisdiction to hear UPW’s appeal. The appeal was timely filed, and the appeal of the judgment is authorized by HRS § 641 — 1(a) (1993), which allows an appeal from the final judgment of the circuit court in a civil case. UPW appealed from the court’s October 25, 2000 judgment, but it also [215]*215seeks review of the April 11, 2000 order denying its motion for intervention.
Hoopai argues that the court correctly denied UPW’s motion to intervene in his appeal of the Commission’s order. Hoo-pai asserts that the motion to intervene was properly denied because it was “untimely” as it was filed three months after the minute order18 of the court was issued. Inasmuch as the present appeal involves the underlying appeal of the Commission’s order, Hoopai posits that he has not yet been “afforded the opportunity for his challenge to his demotion after he was unconditionally promoted.” In this regard, Hoopai maintains that because the court denied UPW’s motion to intervene without prejudice, UPW can raise its issues at the Commission proceedings upon remand, but “not here” before this court.
An order denying an application for intervention under HRCP Rule 24 is a final appealable order under HRS § 641-l(a). Baehr v. Miike, 80 Hawai'i 341, 343-45, 910 P.2d 112, 114-16 (1996). The appealability of such an order is based upon the collateral order doctrine. Moore’s Federal Practice, § 24.24[1] (3d ed.1999). The failure to take an immediate appeal from a collateral order does not preclude review of the order on appeal from a final judgment. Kukui Nuts of Hawaii, Inc. v. Baird & Co., Inc., 7 Haw. App. 598, 617, 789 P.2d 501, 514 (1990) (“[W]here relief can be afforded from the terms of a collateral order upon appeal from the final judgment, the collateral order may be reviewed at that time, and the right to appeal the collateral order is not forfeited because it was not appealed from when it was entered.”) Accordingly, UPW’s failure to take an immediate appeal does not preclude this court’s review of the order on appeal from the October 25, 2000 judgment, for UPW’s appeal from the judgment can afford UPW relief19 from the denial of intervention.
V.
In its opening brief, UPW argues that the court erred in denying its motion to intervene because its motion was timely under HRCP Rule 24, inasmuch as UPW “sought intervention promptly upon learning of Hoopai’s challenge to the ... [Commission] decision on jurisdiction” and that no prejudice would have resulted from the “lapse of time.” It relies upon two Hawai'i cases, Ing v. Acceptance Ins. Co., 76 Hawai'i 266, 874 P.2d 1091 (1994), and Blackfield Hawaii Corp. v. Travelodge Int’l, Inc., 3 Haw.App. 61, 641 P.2d 981 (1982).
Hoopai responds that the court correctly denied UPW’s motion to intervene and therefore “UPW is only before this Court as to the order denying its Motion to Intervene.” Hoopai argues that (1) UPW failed to intervene before the Commission, (2) its motion was untimely inasmuch as it filed its motion “3 months after the Minute Order of the ... court was entered,” and (3) UPW “can properly raise its issues at [Commission] proceedings” as the court stated in its order denying the motion to intervene.
In its reply brief, UPW contends that Hoo-pai “misconstrues the purpose ... of UPW’s intervention in these proceedings.” It asserts that it filed its motion to intervene “solely for the purpose of challenging on appeal [the court’s] jurisdictional determination[,]” and therefore, pursuant to United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977), its motion, filed months before final judgment was entered, was timely.
HRCP Rule 24 (2000) in relevant part states as to intervention as of right:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action [216]*216and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
(Emphases added.) An order denying a motion to intervene pursuant to HRCP Rule 24(a)(2) is reviewed under the right/wrong standard. Ing, 76 Hawaii at 271, 874 P.2d at 1096. This court considers four factors in determining intervention as of right pursuant to HRCP Rule 24(a)(2): (1) “whether the application was timely”; (2) “whether the intervenor claimed an interest relating to the property or transaction which was the subject of the action”; (3) “whether the disposition of the action would, as a practical matter, impair or impede the intervenor’s ability to protect that interest”; and (4) “whether the intervenor’s interest was inadequately represented by the existing defendants.” Id. (brackets omitted). In the instant matter, the court denied UPW’s motion for intervention as of right for failure to satisfy the first and fourth factors.
At the hearing on the motion, the court stated that the motion “just is not timely” and that “with respect to the [mjotion to [ijntervene as a matter of right, it appears ... that the issues ... sought to be raised by the UPW were already adequately raised by the ... Commission and were denied by Judge Suemori.” We conclude that the court erred in both determinations. First, with respect to timeliness, this court considers “the totality of the circumstances,” paying particular attention to “the lapse of time” between the time when UPW “should have sought intervention and when it actually did[,]” and the “prejudice caused to” Hoopai “by the lapse of time.” Id.
UPW states, and Hoopai does not deny, that Hoopai did not notify UPW of his appeal to the Commission. UPW identifies February 16, 2000 as the time when it was informed of the court’s ruling on Hoopai’s appeal from the Commission’s ruling and that it “took immediate action to protect the integrity of the arbitral determination” by filing its motion to confirm on February 23, 2000 and by filing its motion to intervene in Hoopai’s ease on March 13, 2000. Inasmuch as Hoo-pai does not contest the February 16, 2000 date as the date UPW had knowledge of Hoopai’s appeal, and without more, we accept this date as the date UPW “should have sought intervention.”
UPW filed its motion less than one month later. In its motion, it sought only reconsideration of the ruling remanding to the Commission. UPW’s intervention would not have caused prejudicial delay in the disposition of the case because UPW would be addressing the court’s ruling as to the Commission’s jurisdiction. See Blackfield, 3 Haw.App. at 63, 641 P.2d at 983 (finding it “obvious on the record” that granting intervention would have prejudiced the parties because the would-be intervenor sought “to interject numerous other issues into the litigation,” which would have led to “considerable delay” in the disposition of the case).
Final judgment in Civil No. 99-0-3248 had not been entered and was not entered until October 25, 2000. See McDonald, 432 U.S. at 395-96 (holding that the “critical inquiry” in “post-judgment intervention for the purpose of appeal” is “whether in view of all the circumstances the intervenor acted promptly after the entry of final judgment”).20 This, [217]*217and the fact that UPW also filed a motion to confirm the arbitration award, exhibits its diligence in protecting its interests in a timely manner.
The court also erred in concluding that the Commission had adequately represented UPW’s interests in the Hoopai appeal. The Ninth Circuit has adopted the same four-part test for assessing applications for intervention as of right under the federal rules. See Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527 (9th Cir.1983). In Sagebrush Rebellion, the court held “that the requirement of inadequacy of representation is satisfied if the applicant shows that representation of its interests ‘may be’ inadequate and that the burden of making this showing is minimal.” Id. at 528 (emphasis added). Thus, UPW need only show that the Commission’s representation of UPW’s interests may have been inadequate. UPW was the exclusive representative of the bargaining unit in which Grievant and Hoopai were members. It had negotiated the subject collective bargaining agreement adopting the grievance procedure which had resulted in Hoopai’s demotion. It initiated the grievance procedure resulting in the arbitration decision. It filed the special proceeding for confirmation of the arbitration award. As it states, its interest was to maintain the “integrity” of the grievance process.
The interest of the Commission was substantially different in that it was not a participant in the collective bargaining agreement, was not a party to the grievance process, and had no interest in the arbitration outcome. Plainly, the interests of the UPW would not be “[ jadequately represented by the existing defendants” in Civil No. 99-0-3248. The UPW had challenged Hoopai’s promotion by the City-related employer defendants. The City-related employer defendants had ruled against UPW in steps one and two of the grievance procedure. The Commission was solely concerned with determining the scope of its jurisdiction. The court accordingly was wrong in deciding that the Commission in Civil No. 99-0-3248 would adequately represent the interests of the UPW.
Most significantly, the disposition of the action would, as a practical matter, “impair or impede the intervenor’s ability to protect [its] interest,” Ing, 76 Hawai'i at 271, 874 P.2d at 1096 (brackets omitted), in the viability of the grievance proceeding. The court’s announced decision in Civil No. 99-0-3248 which remanded the dispute to the Commission was in irreconcilable conflict with the arbitrator’s decision that had already decided the same dispute. At the same time, the court had before it in S.P. No. 00-1-90, the UPW’s motion to confirm the arbitration award, uncontested by the City defendants. In its motion to intervene, UPW disputed the court’s remand to the Commission in Civil No. 99-0-3248. Contrary to the court’s statement, the fact that UPW could have intervened at the Commission would not have resolved the grounds for UPW’s reason to intervene. The resulting orders indicate the inconsistent legal commands visited upon the parties, the order in Civil No. 99-0-3248 requiring that the dispute be “remanded to the Commission ... [for] a new hearing” on Hoopai’s complaint, while the confirmation order in S.P. No. 00-1-90 mandated that “the employer is ... ordered to comply with the provisions set forth in the” arbitration decision. The court should have granted UPW’s motion for intervention as of right under HRCP Rule 24(a)(2). Thus, we vacate the [218]*218court’s order denying UPW’s motion to intervene.
VI.
We believe the Employers and the UPW are correct in them first point, i.e., that the Commission lacked jurisdiction to hear Hoopai’s appeal. HRS chapter 89 governs “[collective [bargaining in [pjublie [employment.” Under HRS chapter 89, public employees 21 “have the right of self-organization and the right to form, join, or assist any employee organization for the purpose of bargaining collectively through representatives ... on questions of wages, hours, and other terms and conditions of employment, and to engage in lawful, concerted activities for the purpose of collective bargaining.” HRS § 89-3 (1993) (emphasis added). The UPW states that Employers and the UPW have “negotiated in accordance with [HRS] §§ 89-10(a)[22] and 89-ll(a)[23] provisions to submit all disputes arising over the interpretation and application of the unit 10 agreement to a grievance procedure culminating in final and binding arbitration.” Employers and Hoopai do not dispute this assertion.
In that regard, HRS § 89-10(a) provides in part that collective bargaining agreements “may contain a grievance procedure and an impasse procedure culminating in final and binding arbitration[J” Further, HRS § 89-11(a) stated that employers and exclusive representatives “shall have the power to enter into written agreement ... setting forth a grievance procedure culminating in a final and binding decision, to be invoked in the event of any dispute concerning the interpretation or application of a written agreement.”
' There is no dispute, then, that the governing collective bargaining agreement24 provided a grievance procedure for all disputes concerning the interpretation or application of the unit 10 collective bargaining agreement. Section 15 of the collective bargaining agreement sets forth a three-step dispute resolution procedure. Collective Bargaining Agreement (CBA) §§ 15.10-15.16.25 Section [219]*21915.16 provides that the third step is arbitration. That step culminates in the issuance of an arbitrator’s award that is deemed “final and binding.” CBA § 15.20.26
In filing the grievance, the UPW initially alleged violations of CBA §§ 16.06e(3)27 and 55.01c(5).28 Those provisions of the collective bargaining agreement provide that when there are qualified and relatively equal applicants for a promotion, the qualified applicant with the greatest length of departmental seniority shall be promoted.
After the UPW filed a grievance on behalf of Grievant on December 23,1996, the grievance was processed through steps one and two. On December 3, 1997, the chief of Emergency Medical Services rendered the step one decision against Grievant because Grievant “did not score ‘relatively equal’ in qualification for the position relative to the selectees” and, thus, there were no 'violations of CBA §§ 16.06(c)(3) and 55.01(e)(5). On January 7, 1997, the UPW appealed this decision.
On January 28, 1997, the Acting Director of the Department of Health rendered the step two decision against Grievant, agreeing with the response of the chief of emergency medical services that Grievant “did not score ‘relative [sic] equal’ ” and there were no violations of the collective bargaining agreement. The Acting Director concluded his decision by “defer[ring] to [s]tep [three] of the grievance process.” On February 3, 1997, the UPW appealed the decision to the arbitrator.
As mentioned before, the arbitration hearings were conducted on October 20 and 30, 1997. Hoopai was called as a witness on behalf of Employers. The arbitrator stated the UPW’s position that “[CBA § ] 55.01c(5) is applicable in this instance” and that “Employees] violated the terms of the Collective Bargaining Agreement when [Employers] failed to promote the Grievant, a more senior [220]*220employee to the FOS position when he was at least equal or better qualified than [Hoo-pai,] the junior employee who was promoted.” The arbitrator’s award was issued on February 10, 1998. This award ordered that the ESD was to (1) “set aside the promotions of the selectees for the [FOS] positions” and (2) “re-evaluate the applications of all the candidates for the three FOS positions” with the re-evaluation “limited to the candidates’ supervisory experience.” Thus, the dispute between Employers and UPW was properly resolved by arbitration pursuant to HRS §§ 89-10(a), 89-ll(a), and CBA §§ 15.10 to 15.16.
VII.
In conjunction with his second and third arguments, see supra, Hoopai asserts that he has an “independent right under [the] law” to appeal his demotion to the Commission because: (1) promotional disputes are properly with the Commission as HRS chapter 89 does not take precedence over civil service laws (relying on HRS §§ 76-1, 89-9(d), RCH §§ 6-302 and 6-306 (1994 ed.)); (2) RCH § 6-308 permits any person who is aggrieved by an action of the director of personnel or who has been demoted to appeal to the Commission; (3) this court, pursuant to SHOPO v. Society of Professional Journalists, 83 Hawai'i 378, 405, 927 P.2d 386, 413 (1996), has “adopted a basic tenant [sic] of labor law which is ‘a court may not enforce a collective bargaining agreement that is contrary to public policy’ and (4) the courts’ preference for arbitration is irrelevant to the issue of Hoopai’s Commission appeal.
As to Hoopai’s first and second contentions, HRS §§ 76-1, 89-9(d), RCH §§ 6-302 and 6-306 provide for the creation and functioning of a civil service system. HRS § 76-129 declares that the civil service system is based on merit principles. HRS § 89 — 9(d) generally requires that an agreement between an employer and an exclusive representative “shall not ... be inconsistent with merit principles.” RCH § 6-302 states that “the purpose of this chapter of the charter is to establish in the city a system of personnel administration based on merit principles.”30 RCH § 6-306 provides that “Appointments and promotions in the civil service shall be made only after certification by the director under a general system based upon merit, efficiency and fitness[.]”
However, HRS § 89-9(d) provided that
[t]he employer and the exclusive representative shall not agree to any proposal ivhicli would be inconsistent with merit principles ... or which would interfere with the rights of a public employer to ... (2) determine qualification, standards for work, the nature and contents of examinations, hire, promote, transfer, assign, and retain employees in positions and suspend, demote, discharge or take other disciplinary action against employees for proper cause; ... provided that the employer and the exclusive representative may negotiate procedures governing the promotion and transfer of employees to positions within a [221]*221bargaining unit, procedures governing the suspension, demotion, discharge or other disciplinary actions taken against employees ...; provided further that violations of the procedures so negotiated may be the subject of a grievance process agreed to by the employer and the exclusive representative.
(Emphases added.)
Based on the statute's plainlan-guage, HRS § 89-9(d) generally prohibited Employers and the UPW from negotiating a collective bargaining agreement “inconsistent with merit principles” including provisions that interfere with the rights of an employer to promote, transfer or demote employees. As signified by the word “provided” in HRS § 89-9(d), however, this prohibition is subject to two qualifications permitting the employer and the exclusive representative to (1) negotiate, inter alia, promotion and demotion procedures and (2) a grievance process to remedy violations of such procedures.
The term “provided” is defined as “[t]he word used in introducing a proviso. Ordinarily it signifies or expresses a condition; but ... it may import a ... restraint, modification, or exception to something which pre-cedesBlack’s Law Dictionary 1224 (6th ed.1990) (emphasis added). As employed in cHRS § 89-9(d), the first proviso regarding negotiations for promotion and demotion procedures, among other matters, introduced an exception to the general prohibition against interference with the public employers’ enumerated prerogatives under HRS § 89-9(d)(2). The second proviso likewise allowed the employer and the representative to negotiate a grievance process to remedy violations of agreements under the first proviso.
Thus, HRS § 89-9(d) modified the protection as to merit principles with the qualifications “that the employer and the exclusive representative may negotiate procedures governing the promotion ... of employees” and “further that violations of the procedures ... may be the subject of a grievance process.” Accordingly, the statement that a collective bargaining agreement may not be “inconsistent with merit principles” is qualified by the provisions sanctioning collective bargaining agreement provisions for grievance procedures related to the promotion and demotion of employees.
As indicated, HRS §§ 76-1 and 89-9(d) both concern merit principles underlying the civil service system. HRS § 76-1 requires each county to establish “a system of personnel administration based on merit principles.” HRS § 89-9(d) provides that employers and exclusive representatives “shall not agree to any proposal which would be inconsistent with merit principles.” In that regal'd “[l]aws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called in aid to explain what is doubtful in another.” In re Robert’s Tours & Transp., Inc., 104 Hawai’i 98, 103, 85 P.3d 623, 628 (2004); Office of Hawaiian Affairs v. State, 96 Hawai'i 388, 394, 31 P.3d 901, 907 (2001); Kam v. Noh 70 Haw. 321, 325, 770 P.2d 414, 417 (1989).
As related, HRS $ 89-9(d) contained two \qualifications to the merit principle system that approve collective bargaining on procedures governing employee promotions and demotions and for a grievance process in the event these procedures are violated. Hence, read in pari materia, HRS §§ 76-1 and 89-9(d) do not clash, the latter merely setting forth exceptions to the merit principles acknowledged in both statutes. Because HRS § 89-9(d) specifically provides for exceptions to the merit principle system established by HRS § 76-1, HRS chapter 89 does not conflict with HRS chapter 76 in this case.
C.
Hoopai also relies on the language of RCH § 6-308, which empowers the Commission to hear appeals. RCH § 6-308 provides that “[a]ny person aggrieved by any action of the director of personnel or who has been suspended, demoted or dismissed may appeal to the civil service commission for redress pursuant to its rules and regulations [,]” hence subjecting appeals to the conditions set forth in such rules and regulations. (Em- phasis added.) In this regard, the rules im- im[222]*222plicated by RCH § 6-308 are RCSC §§ 13-2 and 13-3.
RCSC § 13-2(a) recognizes that a “grievance exists if an employee alleges that there has been a violation, misinterpretation or misapplication of a specific provision of a personnel law, regulation, rule or policy.” RCSC § 13 — 2(b) provides for the resolution of these grievances in the following ways:
Complaints with respect to classification, pricing or repricing and matters under the collective bargaining agreements, shall not be treated as grievances for purpose of this •rule and these complaints shall not be processed through this grievance procedure. These complaints may be appealed to the [CJommission or compensation appeals board or the grievance procedure under the agreements, as appropriate, following their respective appeal procedures.
(Emphases added). Consequently, by its plain language, RCSC § 13-2(b) excludes, among other subjects, complaints related to matters covered under collective bargaining agreements in favor of grievance procedures under the agreement.31 The UPW brought the grievance under the collective bargaining agreement. As discussed previously, the grievance procedure was properly brought under the agreement. Hence, as a “complaint with respect to ... matters under the agreement[ ],” the controversy was “not [to] be processed through this [i.e. the Commission’s] grievance procedure” but “under the agreements ... following their respective appeal procedures.” RCSC § 13-2(b). In the instant case, then, the appropriate venue for UPW’s complaint was by way of the procedure negotiated under the collective bargaining agreement.
Similarly, RCSC § 13-3 permits appeals to the Cpmmission, but carves out an exception for grievance procedures negotiated in collective bargaining agreements. RCSC § 13-3 states that:
As to any matter within the scope of these rules and of any pertinent statute, including statutes on discrimination relating to equal employment opportunities, except those matters which are covered by the grievance procedures contained in each of the collective bargaining agreements or under these rules, any employee suffering legal wrong because of any action by the director or appointing authority, or adversely affected or aggrieved by the action, shall be entitled to appeal through the grievance procedure as provided for in this chapter.
(Emphasis added.) Thus, Hoopai’s reliance on the language of RCH § 6-308, which provides for an appeal to the Commission, is misplaced in light of RCSC §§ 13-2 and 13-3, which mandate that collective bargaining agreement grievance procedures apply instead of the Commission’s grievance and appeals process.
D.
Hoopai’s third contention that SHOPO stands for the proposition that “a court may not enforce a collective bargaining agreement that is contrary to public policy” is not applicable. In SHOPO, the Society for Professional Journalists (SPJ) and the State of Hawaii Office of Information Practices challenged the confidentiality provisions of a collective bargaining agreement between the City and SHOPO. 83 Hawaii at 382, 927 P.2d at 391. This challenge arose from SPJ’s attempts, under HRS chapter 92F, the Uniform Information Practice Act, to obtain records of disciplinary actions taken against employees of the Honolulu Police Department. Id at 382, 385-89, 927 P.2d at 391, 393-97.
This court held that HRS chapter 92F was not pre-empted by HRS chapter 89 on three grounds. First, the court explained that “HRS [e]hapter 92 is not a ‘conflicting statute on the same subject matter’ as HRS [c]hapter 89, within the meaning of HRS § 89-19, and thus is not preempted by HRS [e]hapter 89 or any collective bargaining agreement negotiated thereunder[.]” Id. at 406, 927 P.2d at 414. Second, this court reasoned that “a topic relating to conditions of employment cannot be subject to negotiated agreement if the agreement would require a public employer to fail to perform a duty [223]*223imposed upon it by statute[.]” Id. Third, this court concluded that because “the confidentiality provision in SHOPO’s [collective bargaining agreement] with the City prevents the HPD from performing its duties under [HRS chapter 92F],” such provision “is therefore unenforeeable[.]” Id.
In SHOPO, collective bargaining provisions that favored confidentiality of personnel records were contrary to public policies under HRS chapter 92P that mandate public access to and public disclosure of government records. See id. at 405, 927 P.2d at 413-14 (stating that “the confidentiality provision ... purportedly requires the HPD to fail to perform its duty to disclose disciplinary records as mandated by HRS Chapter 92F, notwithstanding that the duty to provide access to government records is not discretionary under the UIPA”); HRS § 92F-11 (Supp.1992) (imposing “affirmative agency disclosure responsibilities” and establishing general rule that “all government records are open to public inspection unless access is restricted or closed by law”).
Here, the disputed collective bargaining agreement provisions are specifically authorized by (1) HRS §§ 89-10(a) and 89-11(a)(1), empowering public employers and exclusive representatives to negotiate collective bargaining agreements containing grievance procedures, see discussion supra, and (2) HRS § 89 — 9(d), permitting negotiation of promotion and demotion procedures and a grievance process as provisos to general merit principles, see discussion supra. Nothing in HRS §§ 76-1, 89-9(d), RCH §§ 6-302, and 6-306, cited by Hoopai, conflicts with the policy favoring the procedures authorized under HRS §§ 89-9(d), 89-10(a), or 89-ll(a). HRS § 89-9(d), which provides that a collective bargaining agreement may contain grievance procedures related to the promotion and demotion of employees, see discussion supra, does not prohibit the inclusion of arbitration as part of that grievance process.
E.
Hoopai’s argument that the Commission has jurisdiction because HRS chapter 89 does not take precedence over civil service laws is also misconceived. HRS §§ 89-1932 and 89-10(d)33 provide, respectively, that if there are “conflicts” (1) between HRS chapter 89 and statutes and ordinances or rules adopted by the State, a county or commissions and (2) between the collective bargaining agreement and any rules and regulations adopted by the employer, then the collective bargaining agreement will prevail unless “inconsistent with HRS 89 — 9(d).”
As indicated previously, HRS § 89-9(d) contains an exception to the merit system principle that authorizes the employer and exclusive representative to specify grievance procedures related to promotions and demotions. See discussion supra. The Commission’s rules bar a collective bargaining agreement’s grievances from the appeals process before the Commission. RCSC §§ 13-2 and 13-3; see discussion supra. Therefore, there is no conflict between HRS §§ 89-9(d), 89-10(a), 89-ll(a) (authorizing collective bargaining agreements that contain grievance procedures) and HRS §§ 76-1, RCH §§ 6-302 and 6-306 (providing for a civil service system based on merit principles). For the same reasons, Employers’ and UPW’s first arguments are incorrect insofar as they argue that preemption applies in this ease.
vni.
Accordingly, we hold that the Commission lacked jurisdiction over the dispute between [224]*224UPW and Employers and that the dispute was properly decided under the grievance process adopted in the collective bargaining agreement. Because the Commission lacked jurisdiction, Hoopai’s fifth argument with respect to preclusion before the Commission of witness testimony on preemption and his sixth argument with respect to the alleged participation by the Commission’s attorney in its proceedings as violations of due process are moot. See Johnston v. Ing, 50 Haw. 379, 381, 441 P.2d 138, 140 (1968) (noting that “appellate courts will not consider moot questions”).
IX.
Employers’ and UPW’s second arguments both maintain that the court erred in not treating the arbitrator’s decision as “final and binding.”34 Inasmuch as we hold that the court was incorrect in ruling the Commission had jurisdiction, the October 31, 2001 judgment confirming the arbitration decision is final and binding as Employers and UPW argue. No appeal was taken from that judgment. A judgment is final and binding unless an appeal is taken. Cf. Darcy v. Lolohea, 77 Hawai'i 422, 424, 886 P.2d 759, 761 (App.1994) (holding “that an arbitration award which has become a final judgment pursuant to [Hawaii Arbitration Rule 21], may not be vacated or modified by the circuit court, or appealed to an appellate court”); Kim v. Reilly, 105 Hawai'i 93, 96, 94 P.3d 648, 651 (2004) (citing Darcy and reasoning that “the arbitration awards were entered as unappealable final judgments, which the circuit court was precluded from modifying or vacating”). This also resolves Hoopai’s fourth contention that arbitration was irrelevant to Hoopai’s appeal.
X.
Relevant to Hoopai’s first argument that he was denied due process, the court concluded in pertinent part that (1) “Hoopai was denied his due process right by [the] Commission when it summarily dismissed Hoopai’s appeal” (conclusion no. 2), (2) “Hoo-pai was promoted, successfully completed his probationary period with excellent ratings and was made permanent in his FOS position as of December 16, 1995” (conclusion no. 3), (3) “Hoopai’s permanent status created a proprietary right in his promotion” (conclusion no. 4), (4) “Hoopai was demoted” (conclusion no. 5), and (5) “Hoopai is entitled to have the ... Commission hear his appeal as to whether he was improperly demoted, whether Civil Service Laws and Rules were violated and whether the merit principles were ignored” (conclusion no. 6).
Hoopai in his first argument contends he was entitled to a hearing before the Commission, citing the same statutory and ordinance provisions discussed previously as to the question of the Commission’s jurisdiction. Inasmuch as we have determined that the Commission lacked jurisdiction, that issue has been resolved. Hence, insofar as the court's conclusions no. 2 and 6 required the Commission to hear Hoopai’s appeal, the conclusions were wrong.
In conclusion no. 4, the court states that by virtue of Hoopai’s promotion and completion of probationary period, Hoopai had a “proprietary right in his promotion.” Conclusions no. 3 and 5 state matters of fact that are apparently related to conclusion no. 4. While not clear, these conclusions seem to be related to Hoopai’s argument that he has established “a proprietary right to his position.”
In what appears to be related contentions, Hoopai challenges “the manner in which the City demoted him after promoting him to a permanent position,” pointing to the “series of personnel actions, [including the] retroac[225]*225tive redefinition of his status as a ‘temporary employee’ then a demotion due to the arbitration decision” and the “relevant paperwork” completed by Employers to “undo” Hoopai’s selection, promotion, successful completion of probation, and his “permanent” FOS position.35 In this regard, and as sole authority for this proposition, Hoopai merely argues that Sussel v. Civil Service Commission, 74 Haw. 599, 851 P.2d 311 (1993) is “on point” and that had his appeal to the Commission “been permitted to proceed on its merits and he was found to have been ‘demoted,’ the action would be illegal” because Hoopai did not receive “the appropriate ten-day notice.”36
Hoopai’s reliance on Sussel is inapposite. In that case, Sussel, the administrator of the Oahu Civil Defense Agency, had been appointed by the prior mayor. Id. at 602, 851 P.2d at 314. Following the election of the new mayor, the post of “Deputy Director Designate” was created by the mayor to have actual oversight of the agency, with Sussel reporting to that deputy. Id. at 603, 851 P.2d at 314. Sussel remained in the position as administrator, but was reclassified from Executive Assistant I to Administrative Assistant II. Id. at 603, 611, 851 P.2d at 314, 318. As a result of this reclassification, he continued to receive the same salary, but was not eligible to receive pay raises later given to the position of Executive Assistant I. Id. at 603-04, 851 P.2d at 314.
City officials maintained, and the Commission determined, that Sussel had not been demoted but had been merely “downwardly reallocated.” Sussel, 74 Haw. at 603, 606, 851 P.2d at 314-15. Sussel appealed the Commission’s decision to the state circuit court and filed suit separately in the federal district court, alleging federal, contract, defamation, and state law claims.37 Id. at 604-05, 851 P.2d at 315. In the course of the federal litigation, the district court judge stated that Sussel “lost his title, his authority, and his office” and found “[o]n these undisputed facts ... he was in fact ‘demoted.’ ” Id. at 612, 851 P.2d at 318. Ultimately, the district court dismissed Sussel’s federal and defamation claims, and remanded the contract and state law claims to the state court. Id. at 605, 851 P.2d at 315.
In the state court proceedings, the circuit court “stated that the issue of Sussel’s demotion was res judicata as the result of the [federal district judge’s] prior finding” and “concluded that Sussel had been illegally demoted.” Id. at 606, 851 P.2d at 316. On [226]*226appeal to this court, the parties agreed that “if Sussel was demoted, such demotion was illegal because Sussel did not receive the requisite ten-day written notice setting forth the specific reasons for the demotion” pursuant to Revised Rules of the Commission Rule 1.1-D.10.2C. Id. at 610, 851 P.2d at 317. This court applied the doctrine of collateral estoppel and gave “preclusive effect to the [federal district judge’s] finding that Sussel was demoted rather than downwardly reallocated.” Id. at 612, 851 P.2d at 318. But in the instant ease, Hoopai merely states that had the Commission found that Hoopai was demoted, this “action would be illegal for the same reason as Sussel .... [t]he lack of the appropriate ten-day notice.” Hoopai fails to explain further the significance of the “ten-day written notice” and how Rule 1.1-D.10.2C was violated in his case.
Furthermore, in Sussel, there is no indication that Sussel was covered by a collective bargaining agreement or that a grievance process was initiated pursuant to a collective bargaining agreement. Rather, he (1) “was appointed to the position” under the former mayor, id. at 602, 851 P.2d at 314; (2) his application “had been reviewed pursuant to relevant civil service procedures,” id.;' and (3) when he was demoted, he appealed to the Commission “asserting that he was a civil service employee and that under the applicable civil service rules, he had been illegally demoted because he had not received the requisite ten-day written notice.” Id at 604, 851 P.2d at 314 (emphasis added). There was no discussion in Sussel as to any collective bargaining agreement governing the appeal to the Commission. Here, Hoopai was an employee covered by the collective bargaining agreement, he received notice! and was given the opportunity to be heard in the grievance process and, as discussed previously, the process was authorized by statute, rules and regulations, and the collective bargaining agreement. See discussion supra. Accordingly, based on the foregoing, Hoopai has failed to establish a due process claim and the court was wrong to conclude that Hoopai was denied a due process right.38
XI.
Therefore, the court’s October 25, 2000 judgment and its April 11, 2000 order denying without prejudice UPW’s motion to intervene are vacated and the ease is remanded to the court with instructions to grant the UPW’s motion and enter judgment for the Employers and UPW.
Related
Cite This Page — Counsel Stack
103 P.3d 365, 106 Haw. 205, 2004 Haw. LEXIS 829, 176 L.R.R.M. (BNA) 2336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoopai-v-civil-service-commission-haw-2004.