§76-42 Internal complaint procedures. (a) The director shall promulgate a uniform plan for the creation of internal complaint procedures in the various departments that shall apply to matters within the jurisdiction of the merit appeals board. The internal complaint procedures may also be used for other matters, such as, when a complaint procedure is required by law to be available or when a jurisdiction deems it would be beneficial to avoid the time and expense of litigation; provided that matters subject to collective bargaining grievance procedures shall not be processed under the internal complaint procedures. The rules relating to internal complaint procedures shall conform to the following:

(1) The procedures shall encourage informal discussions and expeditious resolution of all complaints. Informal resolution includes the use of any administrative review process available. A written decision shall be issued to the complainant on the outcome of any efforts to resolve the complaint informally and, if not resolved, the decision shall be accompanied by information on the filing of a formal complaint with the department or the merit appeals board, as applicable.

(2) In presenting a complaint, the complainant shall be assured freedom from coercion, discrimination, or reprisal.

(3) The complainant shall have the right to be represented by a person or persons of the complainant's own choosing at any stage in the presentation of the complaint.

(4) To minimize confusion and possible loss of rights, the time and manner for filing a formal complaint shall be as uniform and easily understandable as possible to the employees or general public. Complaint forms, instructions, and the complaint procedures should be easily accessible to the employees or general public and the procedures should allow for complaints to be filed at central locations convenient to the public. The complaint shall be referred to the appropriate individual at the lowest level of the internal complaint procedures who has the authority to act on the complaint and who shall be responsible for contacting the complainant. If it is discovered after filing of the complaint that the matter complained of is not within the authority of a department to act, the department shall notify the complainant accordingly and refer the complaint to the appropriate agency, if known. The deadline for filing a formal complaint under the internal complaint procedures shall be tolled after receipt of a reply to the informal complaint if efforts were made to resolve the complaint informally.

(5) All proceedings relating to the handling of a complaint by a person who is not an employee shall as far as practicable be conducted during office hours at times convenient to the complainant. All proceedings relating to the handling of employee complaints shall so far as practicable be conducted during the employee's work hours to permit the employee time off from work with pay.

(6) The departmental complaint procedure shall culminate in a written decision by the chief executive or the chief executive's designee, whether the director or other appropriate authority who is assigned responsibility for making the final decision on the action being complained of.

(b) The internal complaint procedures shall be exhausted before an appeal is filed with the merit appeals board. If the appeal is not under the jurisdiction of the merit appeals board, but some other administrative agency or appellate body, the complainant is responsible for the timely filing of an appeal with the appropriate agency regardless of whether the internal complaint procedures under this section are used. [L 1955, c 274, pt of §1; RL 1955, §3-21(v); am L Sp 1959 2d, c 1, §11; HRS §76-42; gen ch 1985; am L 1994, c 56, §21; am L 2000, c 253, §24]

Case Notes

Summary judgment granted to defendants on count of complaint alleging, among other things, that the police chief's threat violated subsection (a)(2), where neither the police chief's letter to plaintiff nor the police chief's explanation as to why the letter was sent appeared wrongful on its face or threatening. 937 F. Supp. 2d 1220 (2013).