Hawaii Administrative Rules 1
Subchapter 1 (Procedure on Complaints)
PROCEDURE ON COMPLAINTS
§12-46-1 Definitions. As used in this chapter, unless the context otherwise requires:
“Aggrieved person” means any person who shall be adversely affected by an action, decision, order, or rule of the commission or who shall be adversely affected by the action or conduct of any person if the action or conduct is within the commission’s jurisdiction.
“Ancestry” means national origin; an individual’s or ancestor’s place of origin; or the physical, cultural, or linguistic characteristics of an ethnic group.
“Attorney general” means the state attorney general or any deputy of the state attorney general.
“Because of sex” shall be as defined in section 378-1, HRS.
“Bona fide retirement, pension, employee benefit, or insurance plan” means any plan, program, or policy of an employer, including any retirement, pension, or insurance plan, which is in writing and has been communicated to eligible or affected employees and which is not a pretext for age discrimination. The plan shall have the intent and purpose of providing an employee with insurance during employment or with income upon retirement.
“Commission” means the civil rights commission established by sections 368-2 and 368-3, HRS.
“Complaint” means a written statement filed with the commission pursuant to this chapter and section 368-11, HRS, alleging an unlawful discriminatory practice within the meaning of chapter 368 or 489 or 515 or part I of chapter 378, HRS.
“Complainant” means the person who has filed a complaint pursuant to this chapter.
“Declaratory relief” means the commission’s declaration as to the applicability or non-applicability with respect to a factual situation of any rule or order of the commission, or of a statute which the commission is required to administer or enforce.
“Demonstrates” means meets the burdens of production and persuasion.
“EEOC” means the United States Equal Employment Opportunity Commission or any of its designated representatives.
“Employer” shall be as defined in section 378-1, HRS.
“Employment” shall be as defined in section 378-1, HRS.
“Employment agency” shall be as defined in section 378-1, HRS.
“Executive director” means the executive director appointed by the commission pursuant to section 368-3, HRS, or the executive director’s designee.
“Fringe benefits” includes medical, hospital, accident, life insurance and retirement benefits, profit-sharing and bonus plans, leave, and other terms, conditions, and privileges of employment.
“Hearings examiner” means a person, duly appointed by the commission pursuant to section 368-3, HRS, and authorized to hold a hearing for the purpose of taking evidence or oral argument, and making a decision in any case or controversy within the jurisdiction of the commission.
“Hearings relief” means the determination by the commission of the legal rights, duties, or privileges of specific parties which are required by law to be determined after an opportunity for agency hearing.
“HRS” means Hawaii Revised Statutes.
“Investigating examiner” means the person designated by the executive director to conduct an investigation of a complaint.
“Labor organization” shall be as defined in section 378-1, HRS.
“Marital status” shall be as defined in section 378-1, HRS.
“Party” means the commission, if named, permitted, or entitled as of right to participate in a proceeding, each person named in a proceeding, or any interested or aggrieved person permitted or entitled as of right to participate in a proceeding before the commission in the capacity of a petitioner, complainant, respondent, intervenor, or in a capacity other than that of a witness.
“Person” means individuals, partnerships, corporations, associations, or public or private organizations of any character, other than the commission.
“Petition” means an application to the commission by a party which seeks relief pursuant to this chapter.
“Petitioner” means a party who files a petition with the commission pursuant to this chapter.
“Religion” includes all aspects of religious observance, practice, and belief.
“Religious accommodation” means an affirmative duty to reasonably resolve a conflict resulting from an employee’s or prospective employee’s religious observance or practice with the terms or conditions of employment.
“Religious practice” includes moral or ethical beliefs, which are sincerely held with the strength of traditional religious views.
“Remedy” means any remedy in section 368-17, HRS, including any punitive damages award determined pursuant to standards prescribed by the Hawaii Supreme Court.
“Respondent” means the party against whom the complaint or petition is filed, the party against whom relief is sought, or any party who contests or controverts a proceeding or petition.
“Rule” shall have the same meaning as provided in section 91-1(4), HRS.
“Rule relief” means the adoption, modification, or repeal of any regulatory rule by the commission.
“Sex” means the state of being male or female and the conditions associated therewith.
“Single” means the state of being unmarried, divorced, separated, or widowed.
“706 agency” means a state or local agency which the EEOC has determined satisfies the criteria stated in section 706(c) of Title VII (42 U.S.C. §2000e-5(c)).
“Title VII” means Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §2000e-17).
“Unlawful discriminatory practice” includes the term “unfair discriminatory practice,” or like terms, as may be used in chapters 368, 489, 515, and part I of chapter 378, HRS. [Eff 12/31/90; am 5/1/92; am 11/4/93] (Auth: HRS §368-3) (Imp: HRS §368-3)
§12-46-2 Purpose. (a) This subchapter sets forth the procedures for the administration and enforcement of chapters 368, 489, 515 and part I of chapter 378, HRS.
These rules shall be liberally construed to accomplish the purposes of these chapters. [Eff 12/31/90] (Auth: HRS §368-3) (Imp: HRS §368-3)
§12-46-3 Computation of time. The time in which any act provided by this chapter is to be done is computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday, or holiday and then it is also excluded. As used in this chapter, “holiday” includes any day designated as such pursuant to section 8-1, HRS. [Eff 12/31/90] (Auth: HRS §368-3) (Imp: HRS §368-3).
§12-46-4 General inquiry. (a) Whenever it appears to the commission’s executive director that an unlawful discriminatory practice may have been committed, the executive director may make an inquiry without the filing of a complaint.
(b) The commission’s executive director may file a complaint whenever the inquiry has revealed an unlawful discriminatory practice under chapter 368 or 489 or 515 or part I of chapter 378, HRS.
(c) The information gathered in the course of an inquiry which occurred prior to the filing of a complaint may be used in processing the complaint. [Eff 12/31/90; am 5/1/92] (Auth: HRS §368-3) (Imp: HRS §§368-3, 368-11).
§12-46-5 Filing of complaint. (a) Any person claiming to be aggrieved by an alleged unlawful discriminatory practice may file a complaint.
(b) The commission’s executive director may file a complaint whenever there is reason to believe that any person, employer, employment agency, or labor organization has engaged or is engaging in an unlawful discriminatory practice.
(c) The commission’s executive director or the attorney general may file a complaint on behalf of a class where an unlawful discriminatory practice raises questions of law or fact which are common to the class and where a class action complaint is superior to other available methods for the fair and efficient adjudication of the controversy. A complaint so filed may be investigated, conciliated, and litigated on a class basis.
(d) Assistance in drafting and filing complaints is available to complainants at the commission’s offices.
(e) The complaint shall be in writing and, where feasible, upon forms furnished by the commission’s executive director. The complaint shall be signed.
(f) The original and two copies of the complaint shall be filed by personal delivery or by mail, addressed to the commission.
(g) When the complainant is unable to personally deliver or mail a timely complaint, the commission may receive a facsimile copy, if legible, of a complaint containing the information required by section 12-46-6. Notwithstanding the provisions of section 12-46-6(b), complaints are deemed filed on the date of receipt of the facsimile copy if the complainant complies with section 12-46-5(f) within seven days of the receipt of the facsimile. If the commission does not receive the original and two copies of the complaint within seven days, the filing date will be the date when the commission received them. [Eff 12/31/90; am 5/1/92; am 11/4/93] (Auth: HRS §368-3) (Imp: HRS §368-11)
§12-46-6 Contents of complaint. (a) Each complaint shall contain the following:
(1) The full name, address, and telephone number (if any) of complainant;
(2) The full name, address, and telephone number (if any, and if known) of the respondent or respondents;
(3) A plain and concise statement of the facts constituting the alleged unlawful discriminatory practice;
(4) The date or dates on which the alleged unlawful discriminatory practice occurred; or if the alleged unlawful discriminatory practice is of a continuing nature, the dates between which the continuing acts of discrimination are alleged to have occurred; or the dates and acts commenced;
(5) If known, the approximate number of employees of the employer, or the approximate number of members of the labor organization, as the case may be; and
(6) Other information as required by the commission’s executive director.
(b) Notwithstanding the provisions of subsection (a), a complaint is deemed filed if the commission receives from an individual a written statement sufficiently precise to identify the parties and describing with reasonable accuracy the action or practices alleged to be unlawful. [Eff 12/31/90] (Auth: HRS §368-3) (Imp: HRS §368-11)
§12-46-6.1 Amendments. (a) Prior to the commencement of proceedings before the hearings examiner, the executive director may permit the parties, including the Attorney General and executive director, to amend documents filed with the Commission, including a complaint or responsive statement. After commencement of proceedings, amendments may be granted by the hearings examiner.
(b) An amendment may be made:
(1) To cure technical defects or omissions; or
(2) To clarify or amplify allegations, to add new causes of action or defenses, or add new parties.
(c) Amendments shall relate back to the original filing date of the document.
(d) The amending party shall promptly serve upon the other party a copy of the amende document. [Eff 5/1/92] (Auth: HRS §368-3) (Imp: HRS §368-11)
§12-46-7 Service of complaint. (a) Within ten days after a complaint is filed with the commission, or within ten days after the commission receives a complaint on deferral from the EEOC or the United States Department of Housing and Urban Development, the commission’s executive director shall serve a copy of the complaint on the respondent by certified mail, return receipt requested, or by personal delivery, except when it is determined by the executive director that providing a copy of the complaint would impede the law enforcement functions of the commission.
(b) Where a copy of the complaint is not provided, the respondent shall be served with a notice of the complaint, including the date, place, and general description of the alleged unlawful discriminatory practice, within ten days after filing of the complaint.
(c) Providing the respondent with a copy of the complaint shall be deemed to impede the law enforcement functions of the commission where:
(1) The complaint names more than one respondent, unless the respondents are charged jointly; e.g., an employer and a union are charged with having signed a collective bargaining agreement which is discriminatory; or
(2) The complaint names a person or persons whom the commission believes may suffer retaliation or may be construed as being confidential informers or potential confidential informers;
(d) When a complaint is written and filed in a language other than English the commission shall provide for an English translation of the complaint which shall be served along with any copy of the original complaint filed with the commission. [Eff 12/31/90; am 10/6/13] (Auth: HRS §368-3) (Imp: HRS §368-11).
§12-46-8 Withdrawal of complaint. (a) Upon request of the complainant, a complaint, or any part thereof, may be withdrawn only if the written consent of the commission’s executive director is obtained.
(b) When requesting withdrawal of a complaint, the complainant shall:
(1) Submit the request in writing;
(2) Set forth fully the reasons for the request; and
(3) Sign the request.
(c) The commission’s executive director shall notify the respondent of the withdrawal. [Eff 12/31/90; am 5/1/92] (Auth: HRS §368-3) (Imp: HRS §368-11)
§12-46-9 Deferral of complaints filed with EEOC. (a) In accordance with section 706(c) of Title VII, complaints received by the EEOC alleging unlawful discriminatory practices concurrently regulated by Title VII and chapter 378, HRS, are deferred to the commission for a sixty-day period during which time the commission, as a 706 agency, has the exclusive right to process complaints alleging discrimination filed by a person other than a commissioner of the EEOC.
(b) At the expiration of the sixty-day period, although the commission retains jurisdiction to process the deferred complaint, the EEOC may begin to process the complaint through its own procedures.
(c) The commission shall follow the same procedures in processing deferrals as it uses in processing complaints originally filed with the commission
(d) The commission may waive its right to the period of exclusive processing of complaints provided under section 706(c) of Title VII with respect to any complaint or category of complaints.
(e) A complaint initially filed with the EEOC and deferred to the commission in accordance with section 706(c) of Title VII shall be deemed filed with the commission as of the date the complaint was received by the EEOC for purposes of the statute of limitations set forth in Section 368-11(c), HRS, but shall otherwise but deemed filed with the commission when received by the commission. [Eff 12/31/90] (Auth: HRS §368-3) (Imp: HRS §368-11; 42 U.S.C. §2000e-5(c))
§12-46-10 Jurisdiction over complaints filed with commission. (a) Complaints originally received by the commission shall be governed by the following procedures unless the commission has entered into an agreement with the EEOC that provides otherwise.
(b) When the complaint alleges an unlawful discriminatory practice over which the commission and the EEOC have concurrent jurisdiction, the commission’s executive director shall:
(1) Furnish the appropriate district office of EEOC with a copy of the complaint and state whether the commission will investigate it or terminate proceedings; and
(2) Notify the complainant that the complaint has been filed with EEOC.
(c) Complaints over which the commission has no jurisdiction, but which are within the jurisdiction of the EEOC, shall be immediately referred to the EEOC.
(d) If the complaint is within the commission’s jurisdiction but is not subject to the jurisdiction of the EEOC, the commission shall assume exclusive jurisdiction over the complaint upon receipt. [Eff 12/31/90] (Auth: HRS 368-3) (Imp: HRS §368-11; 42 U.S.C. §2000e-5(c))
§12-46-11 Dismissal of complaint. (a) The executive director shall dismiss the complaint:
(1) If it is determined that the commission does not have jurisdiction over the complaint;
(2) If it is determined after investigation that reasonable cause does not exist to believe that the alleged unlawful discriminatory practice has been committed;
(3) If either the complainant or respondent cannot be located; provided that reasonable efforts have been made to locate the complainant or respondent, or the complainant has not responded within thirty days to a notice sent by the commission to the complainant’s last known address;
(4) If the complainant has failed or is unable to cooperate fully in the investigation or conciliation of a complaint by:
(A) Failing or refusing to provide the investigating examiner with requested information;
(B) Failing or refusing to appear or to be available for interview or conferences as an investigating examiner deems necessary; or
(C) Otherwise refusing or failing to cooperate, or not being able to provide information which a person would reasonably be expected to have;
to the extent that the commission’s executive director or investigating examiner is unable to resolve the complaint; provided that after due notice of the commission’s executive director’s intent to dismiss the complaint, the complainant has had thirty days in which to respond;
(5) If the executive director determines that there are inadequate remedies because:
(A) The respondent to the complaint has filed a petition for relief under Chapter VII of the Bankruptcy Code, Title 11 United States Code, and the executive director determines that there are insufficient assets available to provide relief to the complainant and other remedies are inappropriate; or
(B) There is no significant monetary, employment, accommodation, service, housing, declaratory, or injunctive relief available to the complainant;
(6) If the complaint has been investigated by an appropriate local, state, or federal enforcement agency, such as the EEOC, Department of Housing and Urban Development, Office for Civil Rights, or Office of Federal Contract Compliance Programs, and a final determination regarding the complaint has been made by the agency;
(7) If it is determined at any time that, based upon the executive director’s discretion, dismissal is justified for administrative reasons, such as but not limited to:
(A) A finding of reasonable cause is no longer appropriate because of a material change in the allegations of the complainant or respondent;
(B) A finding of reasonable cause is no longer appropriate because of a material change in the testimony of a key witness for the complainant or respondent; or
(C) A finding of reasonable cause is no longer appropriate because of a change in law or the discovery of new and material evidence;
(D) A civil action alleging similar facts has been filed pursuant to section 515-9(b), HRS; or
(8) If the complaint or relief sought is covered by a court order or consent decree, or the respondent action complained of is required or authorized by a court order or consent decree.
(b) The executive director may dismiss a complaint if the respondent has made a predetermination settlement offer as described in section 12-46-13, which is in writing and specific in its terms, and the complainant refuses to accept the offer; provided that the offer, as determined by the commission’s executive director, would afford a just resolution for the harm alleged by the complainant and the complainant fails to accept the offer within thirty days after actual notice of the offer.
(c) In the event of any dismissal of a complaint:
(1) The complainant shall be notified by certified mail, return receipt requested, of:
(A) The reason or reasons for dismissal;
(B) The right to sue as provided by section 368-12 or 515-9, HRS; and
(C) The right to request the commission to reconsider the dismissal.
(2) The respondent and the commission shall be notified in writing of the dismissal and the reasons therefor.
(d) The dismissal of a complaint may be reconsidered on the executive director’s own initiative at any time or upon the complainant’s written request filed within thirty days after the date of the receipt of the notice of the disposition. Written notice of the reconsideration shall be provided by the executive director to the parties. [Eff 12/31/90; am 5/1/92; am 11/4/93; am 5/3/99; am 10/6/13] (Auth: HRS §368-3) (Imp: HRS §§368-11, 368-12, 368-13, 515-9)
§12-46-12 Investigation, fact-finding conference, and discovery. (a) After the filing of a complaint, the executive director shall investigate the charges contained in the complaint. In complaints alleging violations of chapter 515, HRS, investigations shall be commenced within thirty days after filing.
(b) As part of its investigation, the executive director may require all parties to attend a fact-finding conference.
(c) The fact-finding conference is primarily for the purposes of:
(1) Ascertaining the positions of the parties;
(2) Identifying the issues in dispute;
(3) Resolving those issues that can be resolved;
(4) Obtaining evidence; and
(5) Determining the likelihood of a predetermination settlement.
(d) The commission’s executive director is authorized to issue subpoenas for the production of documents or the examination of witnesses deemed necessary for the investigation of a complaint. The executive director can require parties to provide written responses to a complaint and other requests for information or discovery, including but not limited to, interrogatories and requests for admissions or for the production of documents.
(e) If a party or a witness refuses to honor a subpoena or if a party fails to respond to a complaint or discovery requests within the time allowed for such responses under the Hawaii Rules of Civil Procedure, the commission’s executive director is authorized to file a petition for appropriate temporary relief in the circuit court.
(f) An investigation shall be concluded within one hundred eighty days of the filing of a complaint alleging violations of chapters 368, 378, or 489, HRS, or within one hundred days of the filing of a complaint alleging violations of chapter 515, HRS; provided that the commission may grant an extension. In complaints alleging violations of chapter 515, HRS, complainants and respondents shall be provided written notice if the investigation cannot be completed within one hundred days. [Eff 12/31/90; am 5/1/92; am 11/4/93] (Auth: HRS §368-3) (Imp: HRS §§368-13, 515-9)
§12-46-13 Predetermination settlement. (a) At any time after the filing of a complaint, but prior to the issuance of a determination, the executive director may encourage the parties to resolve the complaint through a predetermination settlement.
(b) If the complainant and the respondent agree to the terms of settlement, the settlement shall be reduced to writing, and be signed by the parties and the executive director. If approved, the case will be closed without a finding on the merits of the complaint and a copy of the final predetermination settlement shall be sent by certified mail, return receipt requested, to the complainant and the respondent.
(c) If a predetermination settlement is achieved, the terms thereof shall not attribute fault to any of the parties involved.
(d) The commission shall not subject either party to prejudice as a result of the party’s either participating or refusing to participate in a predetermination settlement attempt.
(e) Participation by the respondent in a predetermination settlement attempt will not be construed as evidence of a violation of the applicable chapter or part of HRS or a waiver of the right to a commission determination on the issues raised by the complaint if a settlement cannot be achieved.
(f) A predetermination settlement shall not affect the processing of any other complaint, including, but not limited to, a commission initiated complaint or a complaint in which the allegations are like or related to the individual allegations settled. [Eff 12/31/90; am 5/1/92] (Auth: HRS §368-3) (Imp: HRS §368-13)
§12-46-14 Notice of determination, conference, conciliation, and persuasion. (a) When the executive director finds reasonable cause to believe that an unlawful discriminatory practice has occurred or is occurring, the commission’s executive director shall notify the parties of this determination. For complaints alleging violations of chapter 515, HRS, the executive director shall also notify the parties that an election may be made to file a civil action in lieu of an administrative hearing.
(b) The executive director shall immediately endeavor to eliminate the unlawful discriminatory practice by conference, conciliation, and persuasion.
(c) The executive director may require any or all parties to attend a conciliation conference for the purpose of attempting to informally resolve the matter. The parties shall be notified of time and place of the conciliation conference.
(d) Should a respondent fail or refuse to confer and otherwise cooperate with the commission’s executive director, or fail or refuse to make a good faith effort to resolve any dispute, the commission’s executive director shall terminate efforts to conciliate the dispute. In that event, the commission’s executive director shall send the respondent a demand letter and a proposed conciliation agreement in accordance with section 12-46-17. [Eff 12/31/90; am 5/1/92; am 11/4/93] (Auth: HRS §368-3) (Imp: HRS §§368-13, 515-9)
§12-46-15 Conciliation agreement. (a) In attempting to conciliate a case after a determination of reasonable cause has been made, the executive director shall endeavor to achieve a resolution of all violations found and to obtain agreement that the respondent shall eliminate the unlawful discriminatory practice and provide appropriate relief.
(b) Where conciliation efforts are successful, the terms of the conciliation shall be reduced to a written agreement which shall be signed by the parties and the executive director; provided that, in the judgment of the executive director, the agreement provides full and fair relief to the complainant. A copy of the signed conciliation agreement shall be sent to the parties.
(c) Where the case has been referred to a hearings examiner, the parties shall not enter into a conciliation agreement without the approval of the commission’s executive director.
(d) Where the complainant has refused to accept a proposed conciliation agreement, the commission’s executive director and the respondent may enter into a conciliation agreement to which the complainant is not a party if the agreement does not affect the complainant’s rights and if, in the commission’s executive director’s opinion, the agreement provides for:
(1) A just resolution of all violations found;
(2) The elimination of the unlawful discriminatory practice; and
(3) Appropriate affirmative action.
In that event, the commission’s executive director shall close the case without the complainant’s consent, shall issue a notice of right to sue, and report this action to the commission.
(e) The commission’s executive director may refuse to approve a conciliation agreement, even though the individual parties have agreed on the proposed terms, if the commission’s executive director believes the remedies outlined in the agreement are inadequate to eliminate the unlawful discriminatory practice complained of or fail to provide appropriate affirmative action. In that event, the case may be closed as having been settled on terms not approved by the commission’s executive director and the commission need not take any action to enforce the agreement if its terms are violated.
(f) A proposed conciliation agreement shall be enclosed when a demand letter is sent to the respondent in accordance with section 12-46-17(b).
(g) Any agreement which conciliates alleged violations of chapter 515, HRS, shall be subject to the approval of the commission and shall be made public unless the complainant and respondent otherwise agree and the commission determines that disclosure is not required to further purposes of such chapter. [Eff 12/31/90; am 5/1/92; am 11/4/93] (Auth: HRS §368-3) (Imp: HRS §§368-12, 368-13, 515-18)
§12-46-16 Compliance review and reports. (a) Proof of a respondent’s compliance with the applicable chapter or part of HRS in accordance with the terms of the predetermination settlement, conciliation agreement, or order shall be obtained by the commission’s executive director before the case is closed.
(b) In order to obtain proof of compliance, the commission’s executive director may require any party to submit to it reports that the commission deems necessary to show the manner of compliance with the terms of the predetermination settlement, conciliation agreement, or order. [Eff 12/31/90; am 5/1/92] (Auth: HRS §368-3) (Imp: HRS §§368-15, 368-17)
§12-46-17 Demand letter. (a) If the commission’s executive director has been unable to eliminate the alleged unlawful discriminatory practice through conference, conciliation, and persuasion within one hundred eighty days of the filing of a complaint alleging violations of chapters 368, 378, or 489, HRS, or within one hundred days of the filing of a complaint alleging violations of chapter 515, HRS, or within an extended period of time granted by the commission, the commission’s executive director shall terminate conciliation efforts.
(b) The commission’s executive director, upon termination of conciliation efforts, shall send the respondent:
(1) A letter by certified mail, return receipt requested, or by personal service, demanding that the respondent:
(A) Cease and desist from engaging in the alleged unlawful discriminatory practices; and
(B) Take appropriate remedial action; and
(2) A proposed conciliation agreement, containing a provision requiring the respondent to report on the manner of compliance with the proposed conciliation agreement.
(c) Within fifteen days after receipt of the demand letter and the proposed conciliation agreement, the respondent shall either:
(1) Sign the conciliation agreement as written and return it to the commission; or
(2) Request, in writing, the continuation of conciliation efforts, stating in the request good cause why conciliation should continue. The commission’s executive director may grant or deny the request.
(d) If the respondent does not either sign and return the enclosed conciliation agreement or request the continuation of conciliation efforts within fifteen days after receiving the demand letter, or if the respondent requests the continuation of conciliation efforts, yet no conciliation agreement can subsequently be secured, the commission’s executive director shall find that conciliation efforts will not resolve the complaint and shall give written notice to the complainant, respondent, and commission of such finding. [Eff 12/31/90; am 5/1/92; am 8/18/94] (Auth: HRS §368-3) (Imp: HRS §368-13, §368-14)
§12-46-18 Commencement of proceedings before hearings examiner. A proceeding shall commence by the appointment of a hearings examiner either fifteen days after service of the final conciliation demand or after the expiration of any continuation of conciliation efforts granted pursuant to section 12-46-17. The hearings examiner shall docket the complaint and assign a docket number to the complaint. [Eff 12/31/90; am 11/4/93] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-19 Scheduling conference. (a) Within thirty days after the appointment of the hearings examiner the hearings examiner shall order the holding of a scheduling conference. All parties receiving notice of the scheduling conference shall attend in person or by counsel and shall be prepared to discuss the following subjects:
(1) Anticipated motions, and deadlines as to the filing and hearing of motions;
(2) Anticipated discovery;
(3) Further proceedings, including setting dates for the prehearing conference and hearing;
(4) Prospects for settlement; and
(5) Any other matters which may be conducive to the just, efficient and economical determination of the proceeding, including the definition or limitation of issues. [Eff 12/31/90] (Auth: HRS §368-3) (Imp: HRS §368-3)
§12-46-20 Notice of right to sue. (a) A notice of right to sue shall authorize:
(1) A complainant alleging violations of chapters 368, 378, or 489, HRS, to bring a civil suit pursuant to section 368-12, HRS, within ninety days after receipt of the notice;
(2) A complainant alleging violations of chapter 515, HRS, issued such notice before a finding of reasonable cause pursuant to section 515-9(2), HRS, to bring a civil suit within ninety days of receipt of the notice or one year after the filing of the complaint, whichever is later; or
(3) The executive director to file a civil suit within ninety days of the receipt of the notice of right to sue by a party filing a timely notice of election to file civil action under subsection (b)(3) or one year after the filing of the complaint, whichever is later.
(b) A request, in writing, may be made to the executive director to issue a notice of right to sue:
(1) At any time after the filing of a complaint with the commission, and no later than three days after the conclusion of the scheduling conference provided for in section 12-46-19, by a complainant alleging violations of chapters 368, 378, or 489, HRS;
(2) At any time after the filing of a complaint with the commission but before a finding of reasonable cause under section 515-9(2), HRS, by a complainant alleging violations of chapter 515, HRS; or
(3) Within twenty days after receipt of the notice of election to file a civil action under section 515-9(3), HRS, by any party to a complaint alleging violations of chapter 515, HRS.
(c) The commission’s executive director shall issue a notice of right to sue provided that the commission has not:
(1) Previously issued a notice;
(2) Entered into a conciliation agreement to which the complainant is a party; or
(3) Filed a civil action.
(d) The commission’s executive director shall issue a notice of right to sue:
(1) Upon dismissal of the complaint pursuant to section 12-46-11; or
(2) Where the commission has entered into a conciliation agreement to which the complainant is not a party pursuant to section 12-46-15(d);
(3) Upon timely receipt of a notice of election to file a civil action under subsection (b)(3); or
(4) If a civil action alleging similar facts has been filed pursuant to section 515-9(b), HRS. [Eff 12/31/90; am 11/4/93; am 10/6/13] (Auth: HRS §368-3) (Imp: HRS §§368-12, 515-9)
§12-46-21 Record keeping requirements. (a) Any personnel or employment record made or kept by an employer, employment agency, or labor organization shall be preserved by the employer for one year from the date of the making of the record or the personnel action involved, whichever occurs later. The records shall include but not be limited to forms, applications, and records having to do with:
(1) Hiring;
(2) Promotion;
(3) Demotion;
(4) Layoff or termination;
(5) Rates of pay or other terms of compensation;
(6) Labor organization membership;
(7) Selection for training or apprenticeship; and
(8) Employment referrals.
(b) In the case of involuntary termination of an employee, the personnel records of the individual terminated shall be kept for one year from the date of termination.
(c) Where a complaint has been filed or civil action has been brought against a respondent under chapters 489 or 515 or part I of chapter 378, HRS, the respondent shall preserve all records, including any personnel records, relevant to the complaint or action until final disposition of the complaint or action.
(1) “Personnel records relevant to the complaint” include:
(A) Personnel or employment records relating to the complainant and to all other employees holding positions similar to that held or sought by the complainant; and
(B) Application forms or test papers completed by the complainant and by all other candidates for the same position as that for which the complainant applied and was rejected.
(2) “Final disposition of the complaint or action” means:
(A) A conciliation agreement is approved by the commission;
(B) The date of expiration of the statutory period within which the complainant may bring an action in circuit court; or
(C) Where civil action is brought against the respondent by the complainant, the date on which the litigation is terminated by entry of a final order and time for filing a notice of appeal has expired. [Eff 12/31/90] (Auth: HRS §368-3) (Imp: HRS §§368-3, 378-6)
§12-46-22 Representation by counsel. A party, at the party’s own expense, may be represented by counsel, who may be an attorney, at any stage of the proceeding before the hearings examiner or commission. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-9, 368-3)
§12-46-23 Individual representing party. When an individual, acting in a representative capacity on behalf of a party, appears in a proceeding or signs a document submitted to the commission or hearings examiner, that personal appearance or signature shall constitute a representation that the individual is lawfully authorized and qualified to so act. The individual at any time, however, may be required by the commission or hearings examiner to furnish proof of authorization and qualification to act in that capacity. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-24 Substitution of parties. Upon motion and for good cause shown, substitution of parties may be ordered provided that the substitution shall:
(1) Be conducive to effectuating the ends of justice;
(2) Not unduly delay the proceeding; and
(3) Not otherwise unduly harass, hinder, or prejudice the rights of any party.
Except that in the case of the death or legal incapacity of any party, substitution may be ordered without the necessity of filing a motion therefor. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-25 Intervention. Upon timely motion and at the discretion of the hearings examiner, the commission’s executive director or any person may be permitted to intervene and be admitted as a party in a proceeding before the hearings examiner if the commission or that person has a substantial interest in the outcome of the proceeding and which interest is not protected by the interests of any of the parties, or the intervention shall be conducive to effectuating the ends of justice and to achieving the goals and purposes of the commission; provided that no intervention shall be permitted if the intervention shall unduly delay the proceeding or harass, hinder, or prejudice the rights of any party to the proceeding. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-26 Consolidation. The hearings examiner, with the approval of the commission, or upon any party’s motion timely made and for good cause shown, may consolidate two or more proceedings which involve substantially the same issues, arise out of the same general transaction, or involve the same person or persons, provided the consolidation shall be conducive to the ends of justice and shall not unduly delay the proceedings or hinder, harass, or prejudice any party. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-27 Format and certification of pleadings. (a) Petitions, motions, and other pleadings shall be typed in twelve point pica or equivalent type size upon good quality paper, 8-1\2 x 11 inches in size and of at least sixteen weight, except that documentary exhibits may be larger, if filed to the size of the pleadings to which they are attached.
(b) All copies shall be legible on paper 8-1\2 x 11 inches in size and of at least sixteen weight. No “wet” type copies shall be accepted.
(c) The first page of every pleading shall set forth the name, address, and phone number of the party, the party’s attorney, if any, the title of the particular pleading, the docket number, and the name of the proceeding.
(d) All pleadings shall be signed in black ink by the party filing the pleadings or by the party’s authorized agent. The signature shall constitute certification that the person so signing has read the pleading and that to the best of the person’s knowledge, information, and belief, the pleading is true or has good grounds to support it and is not submitted for the purpose of hindering, harassing, or delaying any party or proceeding.
(e) Unless otherwise provided, all pleadings, motions, memoranda, and other documents shall be filed with the commission hearings examiner. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-28 Service, generally. Unless otherwise provided by this chapter or by other applicable law, whenever service is required to be made on any party to a proceeding before the commission, the service shall be made personally or by first class mail, the document to be served at the party’s last known address or to the party’s attorney of record or to any other individual representing the party in the proceeding. If personal service or service by mail is unsuccessful the commission or hearings examiner may authorize service by publication if permitted by statute. The commission or hearings examiner may require that personal service be attempted prior to permitting service by publication. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-29 Service by whom. (a) Unless otherwise provided by this chapter, a party filing a pleading, motion, memorandum, document, or other paper shall cause a copy of the pleading, motion, memorandum, document, or other paper to be served upon each of the other parties to the proceeding, or upon any agent or attorney representing the other party. The party shall file a certificate of service.
(b) Unless otherwise provided by this chapter, the commission shall cause to be served all notices, documents, orders, and other papers issued by it or its hearings examiner. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-30 Extensions of time. Unless otherwise provided, the hearings examiner may extend, by not more than ninety days, or as may be extended by the commission for good cause, the time within which any action shall be taken at the request of any party. The hearings examiner may require that the extension be stipulated to by all parties to the proceeding or that the request be by motion for good cause shown as to why the extension should be granted. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-31 Motions. (a) An application for an order shall be by motion which, unless made during a hearing, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.
(b) Motions referring to facts not of record shall be supported by affidavits and, if involving a question of law, shall be accompanied by a memorandum in support.
(c) If a hearing is held on the motion, the hearings examiner shall provide notice to be served upon all parties not later than seven days before the hearing and the opposing party shall file and serve any counter affidavits and memorandum in opposition not less than two days before the hearing.
(d) All motions shall be filed with and decided by the hearings examiner.
(e) Failure to comply with the requirements of this section may be the basis for denial of any motion.
(f) The decision on the motion may be made orally at the time of the hearing on the motion, or in writing, or as part of the hearings examiner’s decision. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-32 Powers of the hearings examiner in conducting hearing. The hearings examiner shall have in addition to powers as are conferred by law, the powers, in conducting a hearing, without limitation:
(1) To hold hearings and issue notices;
(2) To administer oaths and affirmations;
(3) To consolidate hearings or sever proceedings, provided that those actions shall be conducive to the ends of justice and shall not unduly delay the proceedings or hinder, harass, or prejudice any party;
(4) To allow and supervise discovery as deemed reasonable and necessary;
(5) To subpoena and examine witnesses;
(6) To issue subpoenas;
(7) To rule upon offers of proof, to receive relevant evidence, and to exclude evidence which is irrelevant, immaterial, repetitious, cumulative, or merely scandalous, and accordingly may restrict lines of questioning or testimony;
(8) To regulate the course and conduct of the hearing;
(9) To regulate the manner of any examination so as to prevent the needless and unreasonable harassment, intimidation, or embarrassment of any witness or party at the hearing;
(10) To remove disruptive individuals, including any party, legal counsel, witness, or observer;
(11) To hold conferences, including prehearing conferences, before or during the hearing for the settlement or simplification of issues;
(12) To rule on motions and to dispose of procedural matters;
(13) To certify any question to the commission for its consideration and disposition;
(14) To submit in writing any decision together with the findings of fact and conclusions of law and a proposed order to the commission for its consideration and final disposition;
(15) To dispose of any other matter that normally and properly arises in the course of the proceedings and to take any action authorized by this chapter, chapter 91, HRS, or any other related laws. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-16, 368-3)
§12-46-33 Subpoenas. (a) The hearings examiner, at the request of a party, shall have the power to issue subpoenas requiring the attendance of witnesses or the production of documents prior to or at the hearing. The hearings examiner may require that any request for the issuance of a subpoena identify with particularity, the person to be subpoenaed or the documents desired. Witnesses summoned shall be paid the same fees and mileage as are paid witnesses in courts in the State and the fees and mileage shall be paid by the party or commission at whose instance the subpoena issues.
(b) Upon motion timely made, or without suggestion, the hearings examiner may:
(1) Quash or modify the subpoena if it is unreasonable and oppressive; or
(2) Condition denial of the motion upon advancement by the requesting party of the costs of producing the documents. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-16, 368-3)
§12-46-34 Absence of hearings examiner. When a complaint has been assigned to a hearings examiner for hearing, the powers and duties to be performed by the hearings examiner in connection with the proceeding, without abatement of the proceeding, may be assigned to another hearings examiner, provided no hearings examiner shall render a written decision to the commission unless that hearings examiner was present at all arguments and the presentations of evidence concerning those matters. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-35 Disqualification of hearings examiner orcommissioner. (a) No matter shall be heard by a hearings examiner or commissioner who:
(1) Has any pecuniary interest in the matter being heard;
(2) Is related within the third degree by blood or marriage to any party to the proceeding;
(3) Has initiated the complaint of the proceeding, has participated in the investigation preceding the institution of the proceeding or has participated in the development of the evidence to be introduced in the proceeding;
(4) Has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; or
(5) Has served as a lawyer in the matter in controversy, or a lawyer with whom the hearing’s examiner or commissioner previously practiced law, served during such association as a lawyer concerning the matter, or such lawyer, hearings examiner, or commissioner has been a material witness concerning it.
(b) A hearings examiner or commissioner may be disqualified from hearing a matter sua sponte, or upon motion of any party. Any motion to disqualify a hearings examiner or commissioner shall be filed and decided prior to the evidentiary portion of the hearing. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-36 Evidence at hearing. (a) The admissibility of evidence at the hearing shall not be governed by the laws of evidence, and all relevant oral or documentary evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. Irrelevant, immaterial, or unduly repetitious material shall not be admitted into evidence. The hearings examiner shall give effect to the privileges recognized at law. Documentary evidence may be received in the form of copies, provided that, upon request, all other parties to the proceeding shall be given an opportunity to compare the copy with the original. If the original is not available, a copy may still be admissible, but the nonavailability of the original and the reasons therefor shall be considered by the hearings examiner when considering the weight of the documentary evidence. The hearings examiner may take notice of judicially recognizable facts and of generally recognized technical or scientific facts. The parties, whenever possible, shall be notified before the hearing of the material to be so noticed and shall be afforded an opportunity at the hearing to contest the facts so noticed.
(b) Except as otherwise provided by law, the burden of proof, including the burden of producing the evidence and the burden of persuasion, shall be upon the party initiating the proceeding. Proof of a matter shall be by a preponderance of the evidence. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-10, 368-3)
§12-46-37 Decision, generally. (a) Unless otherwise provided, every decision and order issued by the commission or hearings examiner shall be in writing or stated in the record. A hearings examiner’s decision shall be accompanied by separate findings of fact and conclusions of law.
(b) The commission shall cause a certified copy of the decision and order together with the findings of fact and conclusions of law to be transmitted by hand or by certified or registered mail, return receipt requested, to each party within a reasonable time.
(c) Where notice of the hearing has been served by publication and the party so served has failed to appear at the hearing, service of the commission’s decision is complete upon transmission by registered or certified mail, return receipt requested, to the party at the party’s last known address. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-12, 368-3)
§12-46-38 Motion for reconsideration. Any party within ten days after receipt of any final order may move the commission to reconsider its final order or decision. The motion shall be filed with the commission and shall state specifically what points of law or fact the hearings examiner or commission has overlooked or misunderstood , or any newly discovered evidence, together with brief arguments on the points raised. No answer or reply to the motion shall be considered unless requested by the commission. Oral argument on the motion shall be with the discretion of the commission. Only one motion for reconsideration may be filed by each party and the filing of the motion shall not operate as a stay of the commission’s final order or decision. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-39 Judicial review. (a) Any party aggrieved by a final decision or order of the commission or by a preliminary ruling or order of the commission of such a nature that deferral of review pending the entry of a subsequent final order would deprive that party of adequate relief is entitled to judicial review in conformance with sections 91-14 and 368-16, HRS.
(b) Any party requesting judicial review in writing, including any cross appeal, shall notify the hearings examiner or commission and all other parties to the proceeding of the request within the time permitted for requesting judicial review. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3, 368-16) (Imp: HRS §§91-14, 368-3, 368-16)
§12-46-40 Ex parte communications. (a) Because of the commission’s role as final arbiter and because the commission will not be involved in pre-hearing stages, in any proceedings before a hearings examiner or the commission:
(1) Neither the commission’s staff nor any person, either in private or public life, shall communicate privately on the merits of the case with any member of the commission or with the hearings examiner designated to hear and decide the matter unless specifically provided for by law; and
(2) No member of the commission’s staff or any other government agency who participates in the hearing as a witness or counsel shall privately communicate on the merits of the case with any member of the commission or with the hearings examiner designated to hear and decide the matter, unless specifically provided for by law.
(b) It shall be improper for the commission’s staff or any person interested in a proceeding to seek to influence the judgment of the commission or hearings examiner.
(c) It shall be improper for the commission’s staff:
(1) To disclose or reveal to any member of the commission or hearings examiner designated to hear and decide the matter the contents of any investigatory report, prepared by the commission, concerning the matter before the commission or hearings examiner; or
(2) To furnish the report or a copy thereof to any member of the commission or hearings examiner designated to hear and decide the matter.
(d) Nothing in this section, which is intended to prohibit the ex parte disclosure of the investigatory report, shall prohibit the introduction of the report at the hearing pursuant to and in conformance with sections 12-46-41 and 12-46-44.
(e) Nothing in this section shall prohibit commission from retaining legal counsel not involved in the prosecution of complaints or representation of complainants before the commission. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-9, 91-2, 368-3)
§12-46-41 Disclosure. (a) A copy of the investigation report, in order to be admitted at hearing, shall be provided to respondent not later than seven days prior to the hearing. If a copy of the investigation report is not provided to respondent, the report shall not be permitted to be introduced at the hearing.
(b) Any party, by timely written demand filed with the hearings examiner, and served upon any other party, may request of another party to the proceeding, the full disclosure of:
(1) The identity of all witnesses to be called by the party, including their addresses and phone numbers, if known;
(2) The identity of all persons, including their addresses and phone numbers, known by the party to have material knowledge relevant to the proceeding; and
(3) All documents to be introduced at the hearing. The requesting party shall have the right to examine the documents and make copies thereof.
(c) All demands for disclosure are standing demands and the party to whom the demand is directed shall be under a duty to disclose the information requested as and when it becomes available.
(d) The information requested shall be disclosed to the requesting party at least seven days prior to the hearing. The failure to comply with disclosure requirements may result in the evidence subject to the disclosure request not being permitted to be introduced at the hearing. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-42 Prehearing conference. Before the hearing the hearings examiner shall order that a prehearing conference be conducted and attended by all parties to the proceeding, the purpose of which shall be to explore the possibilities of informal satisfaction of the complaint and the simplification of issues. At the prehearing conference the hearings examiner may require all parties to disclose to the other parties the identity of all witnesses to be called, together with their addresses and phone numbers if known, and the documents to be introduced. The hearings examiner may set the time, date, and place of the hearing at the prehearing conference. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-43 Testimony at hearing. (a) Testimony adduced at the hearing may be electronically recorded and need not be transcribed. Unless otherwise provided, the cost of the transcription of the electronic recording of the testimony shall be paid by the requesting party.
(b) Any party may request that all of the testimony adduced at the hearing be taken by a court reporter. The request shall be made prior to the date of the hearing and shall be within the sole discretion of the hearings examiner to grant or deny. The transcript of the proceeding shall constitute the official record of the testimony adduced at the hearing, and shall remain in the possession of the hearings examiner or commission. The cost of the transcript shall be paid for by the requesting party. If a party desires a copy of the transcript for the party’s personal use, the requesting party shall pay the cost of a copy of that transcript.
(c) The hearings examiner shall make the electronic recording of the testimony available to the parties for use in preparing exceptions to a proposed decision or recommended decision.
(d) If judicial review is requested, the commission shall cause a transcript of the hearing to be prepared if requested as part of the record on appeal. If a party desires a copy of the transcript for their personal use, the requesting party shall pay the cost of a copy of that transcript.
(e) Unless the commission has been notified in writing of a party’s request for judicial review within the time permitted for requesting the review, the commission, after the time for requesting judicial review has passed, may destroy the electronically recorded testimony. A transcript need not be prepared unless expressly requested and paid for by the requesting party. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-44 Record of hearing. (a) The record shall consist of the following:
(1) All pleadings, motions, memoranda and intermediate rulings;
(2) All evidence received or considered, including without limitation, oral testimony, exhibits, and matters officially noted by the commission or hearings examiner;
(3) All offers of proof and rulings thereon;
(4) All proposed findings and exceptions;
(5) The proposed decision of the hearings examiner who presided at the hearing; and
(6) The investigatory report shall not be made part of the record or disclosed to the hearings examiner unless the report has been provided to the respondent and introduced at the hearing pursuant to section 12-46-41.
(b) Unless the commission has been notified in writing of a party’s request for judicial review within the time permitted for requesting judicial review, the commission, after the time for requesting judicial review has passed, may cause exhibits to be returned to the party introducing the exhibits or if the party does not wish their return, order the disposal or destruction of the exhibits. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 91-9, 368-3)
§12-46-45 Notice of hearing. Unless otherwise provided by statute or the parties, all parties shall be given written notice of the hearing at least fifteen days before the hearing. The notice shall include:
(1) The date, time, place, and nature of hearing;
(2) The legal authority under which the hearing is to be held;
(3) The particular sections of HRS and rules involved; and
(4) A short and concise statement of the issues involved and the facts giving rise to the petition. Attachment of a copy of the complaint to the hearing notice satisfies this requirement.
The notice shall further apprise each party of the party’s right to retain legal counsel if so desired. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-9, 91-9.5, 368-3)
§12-46-46 Hearings. All hearings shall be conducted pursuant to chapter 91, HRS, and this chapter. A hearing shall take place no later than one hundred eighty days after the appointment of the hearings examiner except as may be extended by the commission for good cause. All hearings shall be heard before a duly designated hearings examiner. All parties shall be afforded full opportunity to present evidence and argument on all issues involved. The hearing shall be at the time and place set forth in the notice of hearing, but at that time and place may be continued from day to day or adjourned to a later day or to a different place without notice other than the announcement thereof at the hearing. The hearings examiner, if there is no dispute as to the facts involved in a particular matter, may permit the parties to proceed by memoranda of law in lieu of a hearing unless the procedure would unduly burden any party or is otherwise not conducive to the ends of justice. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-9, 92-16, 368-3)
§12-46-47 Procedure at hearing. Unless otherwise stipulated by the parties, which stipulation is approved by the hearings examiner, all hearings shall proceed as follows:
(1) The parties shall have the opportunity to make opening statements before any evidence is presented, unless they waive the opportunity. The opening statement shall be heard in the following order:
(A) Complainant’s opening statement; and
(B) Respondent’s opening statement, unless respondent chooses to reserve same until after presentation of petitioner’s evidence;
(2) The complainant’s evidence shall be presented first, and shall be followed by the presentation of evidence in support of respondent’s case;
(3) After presentation of the evidence in support of their respective cases, the parties shall have the opportunity to introduce rebuttal evidence. Rebuttal evidence shall be introduced in the same order as was followed with respect to the introduction of evidence in support of their respective cases;
(4) Each witness shall be examined first by the party calling the witness before cross-examination by the opposing party;
(5) After all evidence, including rebuttal evidence, has been presented, the parties shall have the opportunity to make final argument. Final argument shall proceed as follows:
(A) Complainant’s final argument;
(B) Respondent’s final argument; and
(C) Complainant’s final argument in rebuttal which shall be limited to countering matters raised in respondent’s final argument; and
(6) The hearing shall be deemed closed after completion of all final arguments or upon filing of all permitted memoranda and other post hearing submissions or upon the expiration of the time allowed for filing submissions, unless the time is extended, or upon the completion of taking further evidence pursuant to section 12-46-49, whichever is later. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-48 Motion to dismiss. (a) After all evidence has been presented by complainant in support of complaint, the respondent may move for the hearings examiner for an order denying or dismissing the complaint or for similar affirmative relief.
(b) If the motion is denied or taken under advisement, respondent shall have the right to continue with the proceeding as fully as if the motion had never been made.
[Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)§12-46-49 Taking of further evidence. At any time prior to the filing of the hearings examiner’s proposed decision, the hearings examiner may, without suggestion or upon motion for good cause shown, reopen a hearing for the purpose of taking further evidence. The reopening shall be at the sole discretion of the hearings examiner. Further evidence may be taken either through oral hearing or by certification of questions to the parties. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 368-3)
§12-46-50 Proposed findings of fact and conclusions of law. (a) The parties, upon first obtaining the permission of the hearings examiner, may file and serve upon all other parties to the proceeding written proposed findings of fact and conclusions of law together with the reasons therefor, within fifteen days after the close of the hearing, which, wherever possible, shall contain specific references to the record and shall state the authorities relied upon. Proposed findings of fact and conclusions of law that find an unlawful discriminatory practice shall include a proposed remedy.
(b) The grant of permission shall be at the sole discretion of the hearings examiner. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3) (Imp: HRS §§91-2, 91-12, 368-3)
§12-46-51 Proposed decision. The hearings examiner, within sixty days or as may be extended by the commission after the close of the hearing, shall file with the commission a decision together with separate findings of fact, conclusions of law, and shall include a remedy when there is a finding of an unlawful discriminatory practice. Any order recommended by the hearings examiner shall be based upon the whole record and supported by the reliable probative and substantial evidence, including facts of which the hearings examiner properly took judicial notice. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3, 368-14) (Imp: HRS §§91-11, 91-12, 368-3, 368-14)
§12-46-52 Service of proposed decision. The commission shall cause a copy of the decision, including therein findings of fact, conclusions of law, and any recommended order, to be served upon each party by personal service or by registered or certified mail, return receipt requested. Service of the proposed decision shall be deemed complete upon its mailing to the party’s last known address. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3, 368-14) (Imp: HRS §§91-11, 368-3, 368-14)
§12-46-53 Decision, exceptions. Any party adversely affected by the hearings examiner’s decision within fifteen days after the receipt of a copy of the decision, may file with the hearings examiner written exceptions to the whole or any part of the decision and request review by the commission. Each written exception shall specify the portions of the record and authorities relied upon to sustain each point. A copy of the written exceptions shall be served by the party so excepting upon each party to the proceeding. Unless the time has been extended, no written exceptions shall be filed or accepted for filing after the time specified, except by leave of the commission for good cause shown. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3, 368-14) (Imp: HRS §§91-11, 368-3, 368-14)
§12-46-54 Statement in support of decision. Any party may file with the hearings examiner and serve upon all other parties a statement in support of the decision within fifteen days after receipt of a copy of the written exceptions. [Eff 12/31/90]
(Auth: HRS §§91-2, 368-3, 368-14) (Imp: HRS §§91-11, 368-3, 368-14)
§12-46-55 Transmittal to commission. The hearings examiner shall transmit to the commission the entire record together with the decision, any timely filed exceptions, and any timely filed statement in support. [Eff 12/31/90] (Auth: HRS §§91-2, 368-3, 368-14) (Imp: HRS §§91-11, 368-3, 368-14)
§12-46-56 Argument on written exceptions.Whenever written exceptions have been timely filed and a party has requested the opportunity to present oral argument, all parties to the proceedings shall be afforded the opportunity to present oral argument to the commission concerning the decision. The commission shall personally consider the whole record or portions of the record as may have been cited by the parties either in support of or in opposition to the decision. All parties shall be served with notice of the time and place of argument at least five days prior to the time for argument. The commission shall issue a written final decision and order, either adopting, modifying, or reversing, in whole or in part, the hearings examiner’s decision in complaints alleging violations of chapters 368, 378, or 489, HRS, within a reasonable time after argument has been heard. The commission shall issue a written final decision and order in complaints alleging violations of chapter 515, HRS, within one year of the date of the filing of the complaint, unless the commission finds it impracticable to do so. In complaints alleging violations of chapter 515, HRS, complainants and respondents shall be provided with written notice if the commission cannot issue a written final decision and order within one year of the date of the filing of the complaint. [Eff 12/31/90; am 11/4/93] (Auth: HRS §§91-2, 368-3, 368-14) (Imp: HRS §§91-11, 368-3, 368-14, 515-9)
§12-46-57 No written exceptions. When no written exceptions have been filed, the commission, in complaints alleging violations of chapters 368, 378, or 489, HRS, shall issue a written final decision and order, either adopting or modifying or reversing, in whole or in part, the hearings examiner’s decision, within a reasonable time after the hearings examiner’s decision has been filed. The commission shall issue a written final decision and order in complaints alleging violations of chapter 515, HRS, within one year of the date of the filing of the complaint, unless the commission finds it impracticable to do so. In complaints alleging violations of chapter 515, HRS, complainants and respondents shall be provided written notice if the commission cannot issue a written final decision and order within one year of the date of the filing of the complaint. The commission shall state with specificity in the final decision the reasons for any modification or reversal, in whole or in part, of the hearings examiner’s decision. [Eff 12/31/90; am 11/4/93] (Auth: HRS §§91-2, 368-3, 368-14) (Imp: HRS §§91-11, 368-3, 368-14, 515-9)
§12-46-58 Savings clause. If any provision of these rules, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of these rules which can be given effect without the invalid provision or application, and to this end the provisions of these rules are severable. [Eff 12/31/90] (Auth: HRS §368-3) (Imp: HRS §358-3)
