This little item left me sputtering and trying to keep my coffee from spewing across the computer keyboard.

It seems the United Public Workers, the union which represents some 13,000 state and county blue collar workers, including about 1,200 prison guards, believes the Department of Public Safety is violating the state constitution and state law by refusing to promote prison guards into supervisory positions if they have been suspended from their jobs within the previous two years.

Of all things, the union says refusing to promote prison guards with recent suspensions violates the “merit principle.”

That’s the idea that people should be hired and promoted in public sector jobs based on merit, on their ability to perform the job, rather than because of their political clout or family connections.

The state doesn’t consider adult correctional officers for promotion if they’ve been suspended in the last two years.

Cory Lum/Civil Beat

The merit principle is the basis of our civil service system, both locally and nationally. And yes, it is enshrined in Article XVI of the state constitution, which provides that public employment “shall be governed by the merit principle.”

It seems like common sense that granting promotions on the basis of merit and upholding standards of employee conduct should  go hand in hand.

But the union cites the merit principle in its appeal on behalf of five adult correctional officers who were denied promotion in 2010 and 2011 because each had been suspended for a rules infraction within two years. The UPW unsuccessfully argued the cases, which have now been consolidated, before the Merit Appeals Board, and then in the Circuit Court and Intermediate Court of Appeals. All three ruled against the union’s position. It is now taking the matter to the Hawaii Supreme Court, which has scheduled oral arguments on Thursday.

The union says a strict policy against promoting anyone who has been suspended within two years actually prevents the best candidates from being considered, and therefore violates the merit principle. That’s possible, I suppose.

But the UPW also has a well-deserved reputation for going all-out to defend its members, even those accused of serious misconduct, and using its mastery of the intricacies of labor law to block or delay internal or external investigations of prison problems, and frustrating reform efforts.

So I sat down to take a closer look at what’s going on in this matter.

State: Supervisors Have To Follow The Rules

The state’s position has been relatively straightforward throughout the six years of administrative and legal proceedings.

The Department of Public Safety, which operates the state’s correctional system, says its policy of turning down promotions of applicants who have been suspended within two years was adopted in 2005, when wardens became concerned that newly promoted supervisors did not have clean records.

The department says its supervisors have to ensure correctional officers don’t violate its standards of conduct, and so must themselves have a record of following those same standards.

In each of these cases, the state says, “the person has fallen short in a manner which was sufficiently serious as to merit a suspension,” which justifies their exclusion from consideration for promotion.

While admitting the policy was not mentioned in its published materials on the promotion process, the state denies it was a secret. The department points out it clearly states each candidate’s suitability for promotion will be evaluated based on their employment history, job performance and a criminal background check. There is nothing in state law requiring more specific disclosures on its treatment of suspensions, the department and its lawyers say.

Suspensions And The Merit Principle

The union’s case has also been consistent and straightforward.

It argues that the evaluation of a candidate’s “suitability” for a promotion should be based on “an applicant’s overall fitness and ability.”

But, according to the union, “treating suspensions as a bright line barrier to promotions” prevents consideration of overall fitness for promotion.

The union argues that the department has no “bright line” when it comes to an applicant being fired from a previous job or having a criminal record. In both those cases, the union points out, the department undertakes a case-by-case review to determine whether the specific circumstances show the applicants would create a risk to inmates, other staff, or the public if promoted to a supervisory position.

The union suggests an on-the-job suspension is less serious than a criminal conviction, but only the former precludes promotion in all cases.

The union cites the case of Bernard Kuamoo, the lead plaintiff in the appeals, who has worked in the prison system for more than three decades. Kuamoo was suspended after he and others responded to a call for backup in a nearby unit. He testified that the situation was controlled by the time he arrived, and that he had not taken any action at the scene. However, he and more than a dozen others were suspended for failing to file reports on the incident, which was required by prison rules.

The union suggests an on-the-job suspension is less serious than a criminal conviction, but only the former precludes promotion in all cases.

Kuamoo testified before the Merit Appeals Board that he did not file a grievance challenging the suspension. However, others did grieve, and had their suspensions reduced to written reprimands. And some of those were promoted, while Kuamoo was turned down, although their actions had been identical.

Further, the union argues that while suspensions are treated as a “bright line” barring promotions, they do not prevent unsuccessful applicants from being temporarily assigned to serve in the same supervisory positions. Guards who have temporary assignments at higher ranks are evaluated on their performances, often train those being promoted to the same ranks, and can use their experience to support future applications for promotion.

In fact, court documents show Kuamoo served a temporary assignment at the higher correctional officer rank 48 times over a two-year period at the same time he was being summarily turned down for promotion to the same rank. One of the other plaintiffs was rejected for promotion due to a suspension despite being asked to take temporary assignments at the higher rank more than 200 times.

“It is illogical to insist that the only person who can be promoted are those who have no suspension for two years, when temporary assigned supervisors are performing the same duties with such suspensions,” the union argues.

The state’s comeback is that the collective bargaining contract with UPW requires temporary assignments to be offered solely on the basis of seniority, so that job performance or disciplinary history cannot be taken into account. But there are no similar contractual or legal restrictions when making decisions on promotions, allowing reliance on the “no suspension” policy.

Technicalities Cloud Underlying Issues

Much of the legal case will hinge on technicalities such as the standard of review to be used by courts when evaluating an agency decision, in this case a decision of the Merit Appeals Board. 

But beyond the legal minutiae, the record in this case provides a fascinating glimpse into the prison system’s underlying problems.

Keep in mind that we’re talking about a prison system that has produced more than its share of instances in which guards are accused of physical and sexual assaults, smuggling of contraband, abuse of overtime and rampant absenteeism on days like Super Bowl Sunday. Does inadequate ACO pay contribute to all these issues?

I wish UPW was challenging the lack of training with the same vigor as it has shown in these proceedings.

Are there really so many guards suspended for violations of the standards of conduct that their union believes many of the best candidates for promotion to the higher ranks will necessarily be passed by? And what does this say about disciplinary and management policies, and about the quality of the average ACO seeking promotion?

Is the problem with merit simply that it’s a limited commodity among candidates for promotion from within the ranks of ACOs?

And what about all those temporary assignments? Is that “normal” across other departments to have so many supervisory positions open and requiring temporary stand-ins?

And what about this? During a 2012 hearing before the Merit Appeals Board, Bob Mielke, a sergeant at the Halawa Correctional Facility for 26 years and a prison employee for 30, was asked how guards learn about the department’s policies and procedures.

“We have no training on policies and procedures; never did,” Mielke testified, according to a transcript. “I’ve been there 30 years, I’ve never — only one I’ve been given — only training I’ve ever been given is CPR, fire prevention, first aid, and qualifications at — what you call that — the shooting range. In my 30 years, that’s all I’ve had.”

It’s a stunning admission. I would hazard a guess that this systemic lack of training impacts our correctional system far more than the policy on suspensions at issue in this case. The suspension policy affects individual ACOs, but the lack of training undermines the whole system.

I wish UPW was challenging the lack of training with the same vigor as it has shown in these proceedings.

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