Office of the Ombudsman

REPORT of the OMBUDSMAN

For the Period July 1, 2000 – June 30, 2001
Report No. 32

Presented to the Legislature
pursuant to Section 96-16 of
the Hawaii Revised Statutes

 December 2001

TABLE OF CONTENTS

 

LETTER OF TRANSMITTAL

I.  THE YEAR IN BRIEF

The Office Workload

Staff Changes

Outreach Efforts

United States Ombudsman Association

II.  STATISTICAL TABLES

1.  Numbers and Types of Inquiries

2.  Means by Which Inquiries Are Received

3.  Distribution of Population and Inquirers by Residence

4.  Distribution of Types of Inquiries by Residence of Inquirers

5.  Means of Receipt of Inquiries by Residence

6.  Distribution and Disposition of Jurisdictional Complaints by Agency

7.  Distribution and Disposition of Substantiated Jurisdictional Complaints by Agency

8.  Distribution of Information Requests

9.  Distribution of Non-Jurisdictional Complaints

10.  Inquiries Carried Over to Fiscal Year 2000-2001 and Their Dispositions, and Inquiries Carried Over to Fiscal Year 2001-2002

III.  SELECTED CASE SUMMARIES

 

 

LETTER OF TRANSMITTAL

Mr. President, Mr. Speaker, and Members of the
Hawaii State Legislature of 2001:

In accordance with Section 96-16, Hawaii Revised Statutes, I am pleased to submit the report of the Office of the Ombudsman for fiscal year 2000-2001.  This is the thirty-second annual report since the establishment of the office in 1969.

During the past year, we have increased our efforts to improve the public’s awareness of the Office of the Ombudsman and of our role as a link between the people and their government.  We remain steadfast in our commitment to improve the level of public administration in Hawaii through the independent and impartial investigation of citizen complaints.

I would like to thank the Governor, the Mayors of the various counties, and the State and County department heads and employees for their ongoing cooperation and assistance in our efforts to resolve citizen complaints and concerns.

I would also like to convey my personal appreciation to First Assistant Donna Woo and the other professional and support staff members of the Office of the Ombudsman for their continued commitment and dedication to the office and its mission.

Respectfully submitted,

 

ROBIN K. MATSUNAGA
Ombudsman

 

December 2001

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Chapter I

THE YEAR IN BRIEF

 

The Office Workload 

During fiscal year 2000-2001, the office received a total of 5,880 inquiries.  Of these inquiries 4,134, approximately 70 percent, may be classified as complaints within the jurisdiction of the office.  The remaining inquiries consisted of 1,229 requests for information and 517 non-jurisdictional complaints.

The 5,880 inquiries received during fiscal year 2000-2001 represent a slight increase from the 5,796 inquiries received the previous fiscal year.  However, the number of complaints in fiscal year 2000-2001 decreased slightly.

A comparison of inquiries received between the 1999-2000 and 2000-2001 fiscal years is presented in the accompanying table.

TWO-YEAR CASELOAD COMPARISON

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Staff Changes 

In December 2000, two new members joined our staff.  Mark Au, former Deputy Corporation Counsel, Family Support Division, City and County of Honolulu, joined our staff as an analyst.  Mr. Au brings with him vast knowledge of the child support enforcement system which has been of great benefit to the office in our handling of complaints against the Child Support Enforcement Agency.  We also welcomed Sheila Alderman to our office.  Before joining us, Ms. Alderman was the receptionist at Central Union Church where she also coordinated and maintained its busy calendar of events.  We extend our warmest welcome to Mr. Au and Ms. Alderman.

At the close of the fiscal year, our office consisted of Ombudsman Robin Matsunaga, First Assistant Donna Woo, analysts Herbert Almeida, Mark Au, Gillman Chu, Alfred Itamura, Glenn Mirikidani, Lynn Oshiro and David Tomatani, and office staff Sheila Alderman, Edna de la Cruz, Debbie Goya, Sue Oshima and Linda Teruya.

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Outreach Efforts 

In the past, the most common forms of outreach our office engaged in were quarterly or bimonthly advertisements in various statewide and local newspapers and occasional speaking engagements before various schools and community organizations.  This year, we expanded our outreach efforts to several new areas.  With the assistance of the State Senate computer staff, we created a Web site for the office.  This Web site provides information about the office, our annual report, and links to Hawaii government Web sites and the Web sites of other ombudsman offices and ombudsman organizations.  Our Web address is <www.ombudsman.state.hi.us>.

We also developed an educational exhibit booth for display at public venues, including local trade shows and exhibitions.  In June 2001, our exhibit booth made its debut at the Annual Home and Garden Show held at the Neal Blaisdell Center.  Over the four days of the show, we handed out hundreds of informational brochures and fielded countless questions about our functions and duties.  We believe that participation in this type of forum will introduce more of the public to the services we offer.

In addition, in order to increase accessibility to our office, in January 2001 a Text Teletype (TTY) unit was installed to enable communication by telephone with hearing/speech impaired persons.  With this device, we hope to extend our services to those who find difficulty in using conventional means of communication.

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United States Ombudsman Association 

This office continues to play an active role in the United States Ombudsman Association (USOA).  Ombudsman Robin Matsunaga has been elected to a second two-year term on the USOA Board of Directors, and currently serves as president of the organization.  Under his presidency, Mr. Matsunaga has pledged to advance the purposes of the organization, which are to improve the operation of Ombudsman offices throughout the United States and to promote and encourage the establishment of Ombudsman offices at the international, national, state, and local levels.

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 Chapter II

STATISTICAL TABLES

TABLE  1

NUMBERS AND TYPES OF INQUIRIES

Fiscal Year 2000-2001

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TABLE 2

MEANS BY WHICH INQUIRIES ARE RECEIVED

Fiscal Year 2000-2001

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TABLE 3

DISTRIBUTION OF POPULATION AND
INQUIRERS BY RESIDENCE

Fiscal Year 2000-2001

*Source:  The State of Hawaii Data Book 2000, A Statistical
Abstract.  Hawaii State Department of Business,
Economic Development and Tourism, Table 1.06,
“Resident Population, by Counties:  1980 to 2000.”

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TABLE 4

DISTRIBUTION OF TYPES OF INQUIRIES
BY RESIDENCE OF INQUIRERS

Fiscal Year 2000-2001

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TABLE 5

MEANS OF RECEIPT AND TYPES OF INQUIRIES
BY RESIDENCE

Fiscal Year 2000-2001

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TABLE 6

DISTRIBUTION AND DISPOSITION OF
JURISDICTIONAL COMPLAINTS BY AGENCY

Fiscal Year 2000-2001

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TABLE 7

DISTRIBUTION AND DISPOSITION OF SUBSTANTIATED
JURISDICTIONAL COMPLAINTS BY AGENCY

Fiscal Year 2000-2001

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TABLE 8

DISTRIBUTION OF INFORMATION REQUESTS

Fiscal Year 2000-2001

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TABLE 9

DISTRIBUTION OF NON-JURISDICTIONAL COMPLAINTS

Fiscal Year 2000-2001

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TABLE 10

INQUIRIES CARRIED OVER TO FISCAL YEAR 2000-2001 AND
THEIR DISPOSITIONS, AND INQUIRIES CARRIED OVER
TO FISCAL YEAR 2001-2002

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Chapter III

 SELECTED CASE SUMMARIES

 

The following are summaries of selected cases investigated by the office.  Each case summary is listed under the State government department or the county government involved in the complaint or inquiry.  Although some cases involved more than one department or involved both the State and the county, each summary is placed under what we believe to be the most appropriate organization.

 

LIST OF SUMMARIES

 

DEPARTMENT OF ACCOUNTING AND GENERAL SERVICES

Underage driver denied  reimbursement of rental car surcharge

 

DEPARTMENT OF THE ATTORNEY GENERAL

Issuance of identification certificate to an imposter

 

DEPARTMENT OF EDUCATION

School allowed only one free meal per day

 

DEPARTMENT OF HUMAN SERVICES

Medical evaluation for continued public assistance

Refusal to accept a personal check written in Hawaiian

 

DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS

Unemployment appeals officer’s ruling

 

DEPARTMENT OF LAND AND NATURAL RESOURCES

User fee at Diamond Head State Monument

 

DEPARTMENT OF PUBLIC SAFETY

Erroneous charges for confirmatory urinalysis test

Miscalculation of release date

Inmate payment for medical treatment

Excessive suspension of reading and correspondence privileges

Noncompliance with law regulating substance abuse testing of inmates

Violation of prosthesis  purchase agreement

Mistreatment by security officers at State Capitol

Transfer of funds to mainland prison

 

DEPARTMENT OF TRANSPORTATION

Required to present original Internal Revenue Service Form 2290 in order to obtain heavy vehicle tax clearance

 

UNIVERSITY OF HAWAII

Business hours of parking office

 

CITY AND COUNTY OF HONOLULU

Only one driver’s license at a time

Failure to replace computer chip

Medical clearance for firearms permit

Penalty for delinquent payment of real property taxes

 

 

DEPARTMENT OF ACCOUNTING AND GENERAL SERVICES 

(01-0452) Underage driver denied reimbursement of rental car surcharge.  An employee driving a State vehicle struck a vehicle owned by a young man, who subsequently filed a tort claim against the State.  As the employee was at fault, the Risk Management Office (RMO), Department of Accounting and General Services, reimbursed the owner for the cost of repairs to his vehicle and for the cost of renting a vehicle for the three days while his own vehicle was being repaired.  The owner complained, however, that the RMO refused to reimburse him for a surcharge of $15 per day that the car rental company assessed because he was considered “underaged,” as he was less than 25 years old.

The Regulated Industries Complaints Office, which regulates car rental companies, informed us that not all car rental companies rent to “underaged” drivers.  Those that do incur additional liability and insurance costs, so they may pass on these costs to the  “underaged” renter in the form of a surcharge.

We contacted the RMO which informed us that in denying reimbursement of the surcharge, it was following what it understood to be standard insurance industry practice.  The RMO informed us that if it were standard practice for insurance companies to cover a surcharge assessed by a rental company for an “underaged” driver, the RMO would reconsider its decision.

We then contacted three large insurance companies doing business in Hawaii.  All three companies informed us that they would cover the “underaged” surcharge since it is part of the car rental expense incurred by the insured.  We advised the RMO of our findings, and the RMO agreed to review its decision.

Subsequently, the RMO decided to cover the $15-per-day “underaged” surcharge and sent the complainant an additional reimbursement check of $46.87 ($15 per day, plus tax).

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 DEPARTMENT OF THE ATTORNEY GENERAL

            (01-0505) Issuance of identification certificate to an impostor.   A woman complained that the State Civil Identification Section (ID office) issued an identification certificate (State ID) in her name to an impostor.  When she went to the ID office to renew her expired State ID, she discovered that a few months earlier an acquaintance had applied for and obtained a renewal State ID in the complainant’s name but with the impostor’s photo on it.  She questioned why the State ID was issued, since the impostor did not have access to her personal documents, like her birth certificate.  Furthermore, the ID office referred her to the police to file a complaint against the impostor rather than taking any action of its own.

In our investigation, we learned that when the complainant initially applied for a State ID some years ago, she provided all the required personal documentation, which was entered in the ID office computer records.  Thus, when the impostor applied for a renewal, no additional documentation was required of her.

We also learned that a renewal State ID is usually printed immediately after an applicant’s fingerprints and photograph are taken and computerized.  However, before the renewal State ID is released to the applicant, a fingerprint verification is conducted in which the previously obtained fingerprints are compared with those presently obtained.  In this case, the ID office discovered its error when the complainant applied for a renewal of her State ID and the fingerprint verification revealed that her fingerprints were different from the fingerprints on the State ID that was issued to the impostor a few months earlier.  After reviewing its procedures to determine what might have happened, the ID office surmised that the impostor was probably given the renewal State ID before a fingerprint verification was done.

The ID office supervisor informed us that to prevent recurrences, fingerprint verification would henceforth be conducted before a new State ID is printed, making it impossible to issue the renewal State ID before conducting the fingerprint verification.

The supervisor also acknowledged that the staff should not have referred the complainant to the police.  The standing procedure is for the ID office to prepare a report and refer the matter to the Attorney General (AG) for investigation.  The staff was reminded of the procedure and a report was eventually prepared and forwarded to the AG.

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DEPARTMENT OF EDUCATION 

(00-2044) School allowed only one free meal per day.  Recognizing that breakfast is an important source of nutrients that students need to prepare themselves to learn, most public schools offer breakfast as well as lunch to their students.  With the support of Federal funds, students of families who meet certain eligibility criteria are provided breakfasts and lunches at no charge or at a reduced price.  The parent of a middle school student questioned why the school only allowed his child only a free lunch each day, whereas the elementary school the child previously attended offered a free breakfast and a free lunch each day.

A Department of Education (DOE) food services administrator explained that pursuant to administrative rule, schools shall participate in the school lunch and school breakfast programs “to the extent possible”.  Although nearly all schools served breakfast, a few schools did not, including the school the complainant’s child attended.  These schools may serve a mid-morning lunch instead of breakfast, but because a student is entitled to only one free lunch a day, the student must choose either the mid-morning lunch or the regular midday lunch.  The administrator wanted all schools to serve breakfast, but he could not force any school to do so.

Due to our inquiry, the administrator researched DOE files and uncovered a court-sanctioned consent agreement.  It appears that a complaint was filed in Federal court that the DOE had failed to expand the breakfast program to all needy schools.  As a result of the lawsuit, the DOE agreed to conduct an annual survey of parents of all nonparticipating schools wherein at least 25% of the students are eligible for free or reduced-price lunches.  If the parents of either 45 students or 10% of the students enrolled respond that they would like the school to serve breakfast, the breakfast program must be implemented at that school.

The administrator brought this agreement to the attention of the middle school and requested that the school comply with the agreement.  The school conducted a survey and received 120 positive responses.  Within a few months, the school started serving breakfast.

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DEPARTMENT OF HUMAN SERVICES

(01-0325) Medical evaluation for continued public assistance.  A public assistance recipient complained that due to the untimely notification from the Department of Human Services (DHS) that his medical evaluation must be performed by a physician designated by the DHS, his evaluation would not be completed by the deadline and his financial assistance would be terminated.  The complainant had an evaluation performed by his own physician, in accordance with an earlier instruction he received from the DHS, but the evaluation was not acceptable because it was not performed by a DHS-designated physician.

According to DHS rules, public assistance may be provided to a disabled individual certified by a licensed physician or licensed psychologist as being unable to engage in gainful employment of at least 30 hours per week for a period of more than 60 days.  At the end of the period of certified disability, a reevaluation is required in order for the individual to continue to receive assistance.  The initial evaluation and reevaluation must be done by a physician, psychiatrist, or psychologist designated by the DHS.

We contacted the supervisor of the complainant’s DHS unit and learned that although the complainant’s financial assistance might be delayed for a few days, it would not be terminated as long as he kept a scheduled appointment the following week with the DHS-designated physician.  Moreover, the supervisor informed us that more than a month before the complainant was evaluated by his own physician, the complainant was told that all evaluations must be performed by a DHS-designated physician.

The DHS unit supervisor acknowledged, however, that a computer-generated notice that was sent to public assistance recipients does state that the medical reevaluation report must be completed “by your physician/psychiatrist or psychologist.”  Although the procedure was for a DHS worker to subsequently send a reminder notice that informs the recipient that the reevaluation must be conducted by a DHS-designated physician or psychologist, the supervisor agreed that the initial computer-generated notice may mislead a recipient to believe that the evaluation must be completed by his or her own physician or psychologist.  However, since the notice was generated by a Statewide central computer, the unit supervisor was unable to modify it.

We brought the matter to the attention of the DHS Financial Assistance Program administrator and requested a review.  Subsequently, the Statewide computer-generated notice was modified to state that the medical evaluation must be completed “by a physician designated by the department for a physical disability and by a psychiatrist or psychologist designated by the department for a psychiatric disability.”

 

(01-0326) Refusal to accept a personal check written in Hawaiian.  A woman complained that the Department of Human Services (DHS) would not accept her personal check because she wrote the amount of the check in Hawaiian.  The check was for $4.16 and was payable to the DHS.  In addition to writing the amount of the check in numerals, the complainant wrote the amount as follows:  “eha kala a me 16/100.”  She explained that eha means “four,” kala means “dollars,” and a me means “and.”  We verified her translation with a Hawaiian dictionary.

The complainant pointed out that the State Constitution designates Hawaiian as an official language of Hawaii.  We noted that both the State Constitution and State law provide that both English and Hawaiian are the official languages of Hawaii.

We also noted that according to the State’s Uniform Commercial Code, if a check contains contradictory terms, “words prevail over numbers.” For example, a check written for $1000 in numerals but with words that indicate the amount is $1 is negotiable for only $1.

We asked the Department of Budget and Finance (B&F) if the State had a policy on whether to accept checks on which amounts are written in Hawaiian.  The B&F informed us that although its own cashiering staff recalled a few instances in which they accepted such checks, the State had no official policy on the matter.  The B&F inquired with two of the largest banks in the State and both reported that they would accept checks written in Hawaiian.

We suggested that B&F consult the Department of the Attorney General (AG) on the matter.  Subsequently, B&F reported that the AG advised that as Hawaiian and English are the State’s official languages, State agencies are obligated to accept checks written in Hawaiian.

Pursuant to the AG’s advice, B&F instructed all State departments to accept checks that are written in Hawaiian.  Along with its instruction, B&F issued a list of English translations of Hawaiian numerical terms.

We informed the complainant that checks written in Hawaiian would henceforth be accepted by State agencies.

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 DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS

(01-3718) Unemployment appeals officer’s ruling.  A man complained that after conducting a hearing on his appeal of a decision denying unemployment benefits, the appeals officer rejected his appeal on the basis that it was filed late without addressing its merits.  He contended that during the hearing, the appeals officer led him to believe that his appeal would be treated as having been timely filed and that the merits of his appeal would be addressed.

In accordance with unemployment law, a claimant has 10 calendar days from the mailing date of a decision to file an appeal of that decision.  The period may be extended to 30 calendar days if the claimant can show good cause for the delay in filing the appeal.

In the complainant’s case, he initially received unemployment benefits.  Based on new information, however, the Unemployment Insurance Division later determined that he was employed during part of the period in which he claimed and received benefits.  Therefore, a decision was rendered terminating his benefits and requiring him to repay benefits he had already received.  The decision was mailed to the complainant’s Hawaii address, but he contended that he was out of the State at the time and did not receive the decision until he returned to Hawaii.  He therefore was unable to file an appeal prior to the deadline.

We visited the appeals office and reviewed the case file.  We found the documentary evidence to be inconclusive as to when the complainant actually received the decision.  Thereafter, we listened to the audiotape of the appeals hearing and noted that the appeals officer did indicate a few times during the hearing that the appeal would be deemed timely.

We reminded the appeals officer of the statements that the officer made during the hearing.  The appeals officer suggested that the complainant file a request for reopening of the appeals decision if he wanted a reconsideration of the timeliness of the appeal.

At our suggestion, the complainant filed a reopening request.  Upon further consideration, the appeals officer granted the reopening.  A second hearing was held, but the complainant declined to attend.

The appeals officer then issued a new decision that addressed the merits of the complainant’s appeal.  The overpayment that the complainant was required to repay was reduced.  However, the appeals officer also concluded that the complainant was employed during part of the period in which he claimed and received unemployment benefits and that he knowingly withheld this information for the purpose of obtaining benefits.  As provided by law, the appeals officer disqualified the complainant from receiving unemployment benefits for two years.

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 DEPARTMENT OF LAND AND NATURAL RESOURCES

(01-1252) User fee at Diamond Head State Monument.  A trail that runs .8 mile through the interior of Diamond Head Crater to the summit of Diamond Head is a popular hike for visitors.  The trail is located in the Diamond Head State Monument, a State park under the control of the Department of Land and Natural Resources (DLNR).  A user fee of $1 is collected from persons at the entranceway of the park.

A man complained that persons were being charged the $1 fee even if they enter the park only to use its restroom facilities or to take photographs, without hiking the trail.  Additionally, the complainant objected to the practice followed by the park staff of chasing after visitors, who may have unknowingly entered the park without paying because the entrance is open and not fenced off, to collect the fee, thereby causing the visitors much embarrassment.

We found that the $1 user fee was authorized by the Board of Land and Natural Resources and had been assessed for about four months at the time the complainant contacted us.  Fees for private and commercial vehicles entering the area were also approved, but had not yet been implemented.

We contacted the park coordinator who confirmed that $1 is charged to any individual who enters the park, regardless of whether an individual hikes the trail to the summit, only uses the restroom facilities, or only takes photographs near the park entrance.  The coordinator stated that a pay station is located at the park entrance, with signs informing people of the $1 fee.  The revenues cover operating costs such as cleaning and maintenance of the restroom facilities, trail, and surrounding grounds.

The coordinator acknowledged that people sometimes walked past the pay station without paying the fee and that there was no “easy way” to chase these individuals for the money.  The use of a tollbooth along the entry road was considered so that fees could be collected from people in their vehicles as they entered the area.  However, because the road was also used by officials from Civil Defense, the National Guard, and the Federal Aviation Administration, it was felt that a tollbooth would cause traffic congestion and unnecessarily delay these officials from reaching their destinations.  The coordinator informed us that the system was still being reviewed for possible improvements.

We then visited the park to observe its operations.  Along the crater entry road outside the crater, we found the first sign advising people that they were entering an area that charges a $1‑per‑person fee, with a pay station ahead.  Inside the crater, at a gated point on the road, there were two more signs that forewarned of an entry fee of $1 per person and that there was a pay station ahead.  From that point the road led to a parking lot.  The pay station was located between the parking lot and the restroom and trailhead.  People going to the restroom or the hiking trail would have to pass the pay station, and signs in front of the station advised people that the $1 fee was to be paid there.

Based on our observations, we felt there was adequate notice to people that entry to the park required the payment of a $1 fee.  We were also unable to identify any point along the entry road at which a tollbooth could be placed to collect entry fees from vehicles without the possibility of causing a traffic problem for non-park users of the crater.

Thus we informed the complainant that given the staffing and physical limitations of the park, we believed the actions taken by the DLNR were reasonable.

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DEPARTMENT OF PUBLIC SAFETY 

(99-4881) Erroneous charges for confirmatory urinalysis test.  An inmate may be subjected to a urinalysis conducted by correctional facility staff to test for substance abuse.  According to State law, if the result of the urinalysis conducted by staff is positive, the inmate must be afforded the option of a confirmatory test by a licensed certified laboratory.  If the inmate chooses to have a confirmatory test and the result is also positive, the inmate is required to pay the laboratory fees.

An inmate complained that although other inmates with positive urinalysis findings were charged only $31.50 for their confirmatory tests, he was charged $191.50.  His attempt to resolve his complaint through the inmate grievance procedure was unsuccessful.

We reviewed the Department of Public Safety (PSD) drug detection policy and found it notified inmates that if a requested confirmatory test is positive, the inmate must pay approximately $30 for the cost of the test.

We inquired with the facility business office as to the reason the complainant was charged $191.50.  After reviewing its records, the business office informed us that the laboratory conducted separate tests for amphetamines and cocaine and billed the facility $31.50 and $80, respectively, for the two tests.  The business office acknowledged that it erred by charging the complainant the $80 fee twice and reimbursed the complainant $80, resulting in a net charge of $111.50.  Although the business office did not know why the fee for one of the tests was $80, it was not authorized to lower that fee.

Since inmates’ confirmatory tests are conducted pursuant to a contract between the PSD and the laboratory, we contacted the PSD substance abuse program supervisor.  The supervisor informed us that the contract limits the fee to $31.50 per confirmatory test.

After inquiry with the laboratory, the supervisor reported that because PSD was late in past payments, the laboratory tacked on an additional charge under the complainant’s name, resulting in the $80 charge.  The supervisor advised the laboratory to cease its practice.

The supervisor also informed us that the laboratory’s charge of $31.50 is per test.  Since separate tests were necessary for amphetamines and cocaine, and because both tests were positive, the total laboratory charge to the inmate should have been $63.  Accordingly, the inmate received an additional reimbursement of $48.50 from the $111.50 that he had been charged.

We noted that the PSD notification form stated that the cost of a confirmatory test was approximately $30.  As it appeared that inmates may be led to believe that they would be charged about $30 no matter how many different drugs for which a urine specimen was tested, we recommended that PSD clarify the notification form.  The PSD agreed with our recommendation, and the notification form was revised to inform inmates that the confirmatory test charge would be approximately $31.50 for each drug for which the test result was positive.

 

(00-5096) Miscalculation of release date.  An inmate complained that she did not receive full presentence credit for the time she was detained. For determining her release date, the amount of presentence credit to which she was entitled would be deducted from her sentence.  This would shorten the length of her incarceration.

The complainant’s case was complicated because she was serving concurrent sentences for six offenses and she was detained prior to being sentenced for varying periods of time for some of the offenses.  State law entitled her to presentence credit only for the offenses for which she was detained.  Section 706-671, Hawaii Revised Statutes, contained the following provision:

Credit for time of detention prior to sentence; . . . (1) When a defendant who is sentenced to imprisonment has previously been detained in any State or local correctional or other institution following the defendant’s arrest for the crime for which sentence is imposed, such period of detention following the defendant’s arrest shall be deducted from the minimum and maximum terms of such sentence.  (Emphasis added.)

            According to the law, the amount of presentence credit to which the complainant was entitled for each offense depended on the length of her presentence detention, which varied for some of the offenses.  She was sentenced on the same date for all six offenses, was sentenced to 5 years imprisonment for each offense, and the Hawaii Paroling Authority (HPA) established a minimum sentence of 2 years and 4 months for each offense.  However, because the amount of presentence credit to be deducted from her sentences varied, the minimum and maximum expiration dates of her sentences also varied.

The correctional facility computed the complainant’s presentence credits and the HPA relied upon that computation to establish the complainant’s tentative parole eligibility dates for each of the six offenses.

We obtained the complainant’s sentencing and incarceration records from the correctional facility.  Based on our review of the records, it appeared that the complainant was entitled to additional presentence credits of 469 days, 431 days, and 33 days, respectively, for three of her offenses.

We asked the facility to review its presentence calculations in the complainant’s case.  After completing its review, the facility agreed that the complainant was entitled to the additional presentence credits.  The facility prepared a report to amend its previous calculations and forwarded the report to the HPA.  Using the amended report, the HPA established new parole eligibility dates for the complainant.

As a result, the complainant’s latest parole eligibility date was corrected and moved up 15 months.

 

(01-0116) Inmate payment for medical treatment.  An inmate complained that he was charged a fee for each of several visits to the facility medical unit for treatment of his asthmatic condition.  He contended that the Department of Public Safety (PSD) policy provided that inmates were not to be charged for treatment and care of chronic illnesses.  The inmate filed a complaint through the PSD inmate grievance procedure, but did not receive a response.

Section 353-13.1, Hawaii Revised Statutes, authorized the PSD to develop policies and procedures to assess fees upon inmates who receive certain medical, dental, or mental health services or treatment.  The PSD subsequently adopted a policy to implement an inmate medical co-payment plan.  According to the policy, the diagnosis, treatment, and care of chronic illnesses were exempt from the inmate medical co-payment fee.

We contacted the facility’s medical unit which confirmed that the inmate was charged a $3 fee for each of several respiratory treatments he received for asthma, a chronic illness.  Upon its receipt and investigation of the inmate’s grievance, the medical unit discovered its error and submitted a request to the facility’s business office to reimburse the inmate.  Thereafter, the business office verified that the reimbursement was made.

We informed the inmate of the reimbursement to his account and he informed us that although it was late, he received the response to his grievance informing him that he would be reimbursed.

 

(01-1253) Excessive suspension of reading and correspondence privileges.  An inmate serving a 60-day disciplinary segregation for rule violations complained that his reading and correspondence privileges were not restored.  He was in his 17^th day of segregation and he argued that according to the policy of the Department of Public Safety (PSD), reading materials and correspondence could be withheld for only 15 days.

PSD Policy No. 493.11.01, titled “Inmate/Ward Segregation,” described conditions for inmates held in segregation.  The policy provided that reading material, with the exception of legal or religious material, may be denied for not longer than 15 days and that correspondence privileges would remain the same as that afforded to inmates in the general population.

We brought the complainant’s situation and the policy provisions to the attention of the warden and requested his reconsideration of the continued suspension of the complainant’s reading and correspondence privileges.  After reviewing the matter, the warden informed us that those privileges would be restored.

Thereafter, we confirmed with the complainant the restoration of his reading and correspondence privileges.

 

(01-2625) Noncompliance with law regulating substance abuse testing of inmates.  An inmate who was found guilty of a rule violation on the basis of a positive result of a substance abuse test conducted by correctional facility staff complained that he was not afforded the opportunity to have a confirmatory test performed by an independent laboratory.  The inmate pointed out that Department of Public Safety (PSD) policy entitled him to a confirmatory test.  Since he was not afforded a confirmatory test, he sought to have the reports on the rule violation expunged from his case file.

The PSD policy was based on a State law that required the PSD to afford an inmate the option of a confirmatory test.  Moreover, if the requirements of the law were not followed, a positive test result could not be reported or recorded.  Section 353-13.4, Hawaii Revised Statutes, stated in part:

Substance abuse testing of inmates.  (a)  When an inmate under the custody of the department of public safety is subjected to substance abuse testing, the inmate shall be afforded the option of a confirmatory test by a licensed, certified laboratory as provided in chapter 329B.

. . . .

(c)  Positive test results of substance abuse testing and the availability of a confirmatory test shall be provided to the inmate in writing.

(d)  A positive test result from a substance abuse test that fails to meet the requirements of this section shall not be reported or recorded.

The inmate was found guilty by the facility adjustment committee which stated in its findings and disposition that the evidence relied upon was the positive result of the substance abuse test administered by the facility staff.  The inmate complained to the warden who responded in part as follows:

If the findings of guilt in your case were based upon the urinalysis result alone, I would be inclined to agree with you.  However, in actuality the adjustment committee hearing your case determined you guilty because you admitted guilt at a parole hearing . . . .

We contacted the chairperson of the adjustment committee who confirmed that the complainant was not given the option of a confirmatory test.  Furthermore, the chairperson reported that the adjustment committee was unaware of any statement that the complainant may have made at a parole hearing and that the sole basis for the finding of guilt was the positive result of the inmate’s substance abuse test.

We wrote to the PSD administrator who supervised the correctional facility warden and asked whether all reports pertaining to the rule violation should be expunged from the complainant’s file.  The administrator informed us that he had already decided to expunge the reports and had notified the complainant of his decision.

We confirmed with the complainant that he had been apprised of the administrator’s decision.  We also verified with the facility’s records staff that the reports were expunged from the complainant’s file.

 

(01-2902) Violation of prosthesis purchase agreement.  An inmate complained that a correctional facility deducted money from his restricted account without his authorization to pay for his dental prosthesis.

Inmates are required to maintain separate spendable and restricted accounts.  The spendable account may be used to purchase items such as snacks, cigarettes, and personal hygiene products.  The restricted account is a savings account so that the inmate will have money upon release.

Inmates are allowed to purchase a prosthesis if medically indicated.  If the inmate has insufficient funds in his spendable account to pay the entire cost of a prosthesis, the inmate can enter into an agreement whereby the facility will purchase the prosthesis and the inmate will reimburse the facility on a gradual basis.

Public Safety Department Policy No. COR. 10D.34, “Prostheses,” stated in part:

.6        The cost of the prosthetic device shall be charged to the inmate’s spendable funds account.  If the inmate has insufficient funds in his/her spendable account to cover the cost of the prosthesis, a minimum of $5.00 shall be withdrawn toward the cost of the prosthesis on, at most, a monthly basis whenever the inmate has funds in the account. . . . The inmate shall sign form DOC 0477, Spendable Funds Withdrawal Prosthesis Purchase (Attachment A) to authorize withdrawal of funds to pay for the prosthesis.

The prosthesis purchase agreement provided for monthly payments to be withdrawn from the inmate’s account until payment for the prosthesis is completed.  If the inmate had more than $25 in his account, the amount over $25 would be withdrawn; if the inmate had less than $25 in his account, $5 would be withdrawn.  The agreement specified that payment would be made from the inmate’s spendable account.

In this case, the inmate signed a prosthesis purchase agreement to pay off the $400 cost of his prosthesis from his spendable account.  However, without prior notice and agreement of the inmate, the facility deducted the entire $400 from the inmate’s restricted account.

The facility believed that it had the authority to make the deduction because it was a “department obligation.”  PSD Policy No. COR 02.12, “Inmate Trust Accounts,” stated that deductions from an inmate’s restricted account may be made for department obligations if sufficient funds are not available in the inmate’s spendable account.  The policy defined “department obligations” as:

Articles or services purchased by an inmate from the Department such as copy machine services, drug screen testing, telephone calls, and so forth.  For the purpose of this policy, this category does not include purchases from the inmate store.

We learned that for several years, the facility had been deducting the full cost of prostheses from inmates’ restricted accounts if there were sufficient funds in these accounts, even though the prosthesis purchase agreement called for payment from the spendable accounts.  The facility was concerned that inmates may be released before paying off their debts to the department.

In addition to filing a complaint with our office, the inmate had filed a grievance.  At the third step of the grievance procedure, the responding administrator agreed with us that the facility erred and ordered the reimbursement of the inmate’s restricted account.  Thereafter, we confirmed that the practice of the facility to charge the full cost of a prosthesis to an inmate’s restricted account would cease.

 

(01-4227) Mistreatment by security officers at State Capitol.  A man complained that when he visited the Governor’s office, State security officers were called and he was ordered to leave the building.  He alleged that as he was leaving, he was shoved three times by an officer and when he returned to the State Capitol later that same day, another officer swore at him.  As the complainant had already gone to the Department of Public Safety Internal Affairs Office (IAO) to file a complaint against the security officers before contacting us, we advised him to await the completion of the IAO investigation.

Upon completion of its investigation, the IAO informed the complainant that there was insufficient evidence to support his allegations.  Dissatisfied with the IAO’s investigation, the complainant contacted our office again.  He questioned the thoroughness of the IAO investigation and maintained that it was a “white wash.”  In particular, he reported that a group of inmates performing maintenance work outside the Governor’s office witnessed the incident and he questioned whether they were interviewed.

We contacted the IAO and obtained a copy of the confidential IAO investigation report.  Most of the witnesses who were interviewed were members of the Governor’s staff or security officers.  Even though these witnesses refuted the complainant’s allegations, we agreed with the complainant’s contention that all potential witnesses should be interviewed.

We confirmed that there was an inmate work crew in the area where the incident occurred and contacted the inmates’ correctional facility to obtain a list of the 12 men who were on the work crew and the name of the Adult Corrections Officer (ACO) who supervised the crew.  We interviewed the ACO, who had also been interviewed by the IAO, and the inmates who were willing to speak with us about their observations.  Of the 12 inmates, 10 agreed to speak with us.  Neither the ACO nor any of the inmates we interviewed supported the complainant’s allegations.  Some of the inmates indicated that the security officers conducted themselves properly, that the complainant was loud and swore at the security officers, or that they were surprised that the officers did not respond more forcefully or arrest the complainant.

Thereafter, we informed the complainant of the result of our interviews with the 10 inmates and that we could not substantiate his complaint.

 

(01-5597) Transfer of funds to mainland prison.  An inmate who was sent from a Hawaii correctional facility to a mainland facility complained that some of his funds were not transferred to his account at the mainland facility.  The inmate reported that $56.75 was credited to his account at the mainland facility on May 30, 2001, but contended that he was not paid for work he performed in the Hawaii facility in March, April, and May 2001 and that he was owed a reimbursement of a charge for a store order that he never received because he was sent to the mainland facility before the order was delivered.

The business office staff at the Hawaii facility informed us that the inmate’s pay for the months of March and April was included in the $56.75 that was credited to his account at the mainland facility on May 30, 2001.  The staff was still processing the pay for May for all inmate workers, including the complainant, and informed us that his May pay was $30.78.  Additionally, the staff reported that the inmate would be reimbursed $35.59 for the store order he never received.  We were informed that a total of $66.37 would be sent to the mainland facility to be credited to the inmate’s account.

We obtained from the Hawaii facility a copy of the complainant’s account ledger and verified the transactions and the balance.  We thereupon informed the inmate that the Hawaii facility would be sending $66.37 to the mainland facility to be credited to his account.

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DEPARTMENT OF TRANSPORTATION

(01-2987) Required to present original Internal Revenue Service Form 2290 in order to obtain heavy vehicle tax clearance.  The owner of a small business in Makiki complained that in order to obtain a Federal Heavy Vehicle Use Tax Clearance Certificate from the Motor Vehicle Safety Office (MVSO) for her company’s trucks, she was required to present the original Internal Revenue Service (IRS) Form 2290, Heavy Highway Vehicle Use Tax Return, to the MVSO in Kapolei.  The complainant found this requirement to be unduly burdensome due to the considerable distance to Kapolei and especially since her company’s vehicles came up for registration at different times during the year, thereby necessitating multiple trips to Kapolei.  When she complained to the MVSO, she was given the option of dropping off the original Form 2290 at MVSO’s Sand Island Field Office.  The field office staff could then take the form to the Kapolei office for her.  However, she was not satisfied with this option.

In our investigation, we learned that an owner of a vehicle exceeding a certain weight and which was used on public highways was required to file Form 2290, Heavy Highway Vehicle Use Tax Return, and pay the applicable tax.  The IRS would then send the taxpayer Schedule 1, Schedule of Heavy Highway Vehicles, which is a part of Form 2290, for the taxpayer to use as proof of payment.  Upon receipt of Schedule 1, the MVSO would issue a tax clearance certificate to the vehicle owner.   Each year when registering the vehicle with the Motor Vehicle, Licensing and Permits Division, Department of Customer Services, City and County of Honolulu, the vehicle owner was required to present the tax clearance certificate issued by the MVSO to prove that the tax had been paid.

We learned that at the time the complaint was made, the MVSO’s practice was to require the presentation of the original Schedule 1 (Form 2290).  However, the complainant subsequently informed us that the MVSO had altered its practice and would allow her to submit a copy of Schedule 1 (Form 2290) by facsimile transmittal to its Kapolei office.  The complainant was satisfied with this option.

In our investigation, we reviewed Title 19, Chapter 107, Hawaii Administrative Rules, titled “Enforcement of the Federal Heavy Vehicle Use Tax.”  Section 19-107-7 stated:

Proof of payment.

. . . .

(b)    The proof of payment required in subsection (a) shall consist of:

(1)    Receipted Schedule 1 (Form 2290) that is returned by the Internal Revenue Service (IRS) to a taxpayer who files the tax return, or a photocopy of that receipted Schedule 1; . . .  (Emphasis added.)

We contacted the MVSO, and it confirmed that it would accept facsimile copies of Schedule 1 (Form 2290).

We therefore concluded that the acceptance of copies of Schedule 1 (Form 2290) by the Department of Transportation brought it into compliance with its own rules and resolved the complaint.

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UNIVERSITY OF HAWAII

(01-5156) Business hours of parking office.  A woman went to the parking office on the Manoa campus at 4:15 p.m. on a weekday to obtain a parking permit, but the office was closed.  She learned from employees of adjacent offices that the parking office was open from 8 a.m. until 4 p.m.  The complainant informed us that she worked for the State so she knew that State offices are required to be open to the public from 7:45 a.m. to 4:30 p.m.

Section 80-1, Hawaii Revised Statutes (HRS), established the business hours of State and County government offices:

Office hours.  Offices of the State and counties, and independent boards and commissions thereof, shall be open for the transaction of public business between the hours of 7:45 a.m. and 4:30 p.m., Monday to Friday, inclusive.  By executive order or directive, the chief executive of the State or of any county may modify the hours and days for the transaction of public business in their respective jurisdiction to meet a demonstrated need for public services, provide for the efficient operation of business, encourage energy conservation, and reduce traffic congestion. . . .

The parking office staff informed us that the 8 a.m. to 4 p.m. office hours were in effect for many years.  They surmised that because the office began as a one-person operation, the office was closed before 8 a.m. and after 4 p.m. so that the employees could catch up on the paperwork.  We informed the staff of Section 80-1, HRS.  The staff was not aware of any executive order issued by the Governor to modify the office hours and therefore informed us that a personnel plan would be developed to conform the office hours to the requirements of the law.  Subsequently, the parking office was open to the public from 7:45 a.m. to 4:30 p.m.

We informed the complainant of the change in the office hours.

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CITY AND COUNTY OF HONOLULU 

(01-0167) Only one driver’s license at a time.  A resident of the City and County of Honolulu (C&C) did not realize that her Hawaii driver’s license had expired until she tried to rent a car in Kentucky.  Because she needed a driver’s license during her stay, she obtained a Kentucky driver’s license.  When she returned to Honolulu, she obtained a new Hawaii driver’s license.  Subsequently, a letter from the C&C informed her that according to Section 286-102, Hawaii Revised Statutes (HRS), she was not permitted to simultaneously hold a valid driver’s license from more than one state.  Therefore, the C&C cancelled her Hawaii license because her Kentucky license had been issued first and was still valid.

We reviewed Section 286-102, HRS, which stated in part:

(c)  No person shall receive a driver’s license without surrendering to the examiner of drivers all valid driver’s licenses in the person’s possession. . . . No person shall be permitted to hold more than one valid driver’s license at any time.

We contacted the Motor Vehicle, Licensing and Permits Division, Department of Customer Services, C&C.  We learned that after the complainant had obtained her new Hawaii license, Kentucky informed the C&C that she had a Kentucky license.  Had the complainant informed the C&C that she possessed a valid Kentucky license at the time she applied for her new Hawaii license, the C&C would have informed her of Section 286-102, HRS, that she could not obtain a new Hawaii license without first surrendering her Kentucky license.

Based on our suggestion, the C&C reactivated the complainant’s Hawaii license after she surrendered her Kentucky license.

 

(01-1321) Failure to replace computer chip.  A community college student complained that the college failed to replace a computer memory chip that was stolen from his computer.  He was enrolled in a computer repair course and tuition for the course included the cost of a computer that became the personal property of the student.  In addition to the students’ computers, computer equipment owned by the college was stored in the classroom.  Although the classroom was normally locked, custodians, security staff, and technical staff who work on the college’s equipment also had access to the room.

The theft of the memory chip from two students’ computers was discovered when the computers responded improperly when turned on before class.  The previous day, all computers in the class were running well, including one owned by a student who was absent that day.  The college had offered to replace the missing chip for the absent student’s computer, but not the complainant’s.

The college could not explain to us the basis for its decision to replace only one of the two stolen computer chips.  When we questioned whether the decision was fair, an administrator responded by questioning whether the college was obligated to replace the chips at all, since the computers were owned by the students who were responsible for their own educational material.  We acknowledged that the college may not be obligated to replace the chips, as it would depend on whether the chips were lost due to the college’s negligence and no such determination had been made.  However, we felt that whether the college decided to replace or not replace the chips, the decision should be the same for both students.

The college subsequently decided to replace the chips of both students’ computers.

 

(01-3854) Medical clearance for firearms permit.  An applicant for a firearms permit complained about the need to obtain medical clearance from a psychiatrist.  On his firearms permit application, he indicated that he had been a resident of a substance abuse treatment program about 20 years ago.  The Firearms Unit of the Honolulu Police Department informed him that he must provide medical documentation that he no longer has a substance abuse problem.  He attempted to obtain a statement from the treatment program but the program did not have his records since he was treated so long ago.  He submitted a statement from his physician to the Firearms Unit, but it was unacceptable.  He then submitted a statement from a psychologist. Since a psychologist is not a medical doctor, the applicant was advised to obtain a statement from a psychiatrist, who is a medical doctor.  He balked at the requirement because of the expense.

Section 134-7, Hawaii Revised Statutes, stated in part that:

(c)            No person who:

(1)               Is or has been under treatment or counseling for addiction to, abuse of, or dependence upon any dangerous, harmful, or detrimental drug, intoxicating compound as defined in section 712-1240, or intoxicating liquor;

. . . .

shall own, possess, or control any firearm or ammunition therefor, unless the person has been medically documented to be no longer adversely affected by the addiction, abuse, dependence, mental disease, disorder, or defect.

The supervisor of the Firearms Unit acknowledged that while a person described in the aforementioned law must receive “medical” clearance, in the applicant’s case the “medical” clearance did not need to be provided by a psychiatrist.  The supervisor explained that the physician’s statement that the complainant provided was unacceptable because it did not include an affirmative statement that the complainant was “no longer adversely affected by the addiction, abuse, dependence, mental disease, disorder, or defect.”  Such an affirmation from the applicant’s physician would satisfy the requirements of the law and a permit could then be issued.

We informed the applicant that he would not need to obtain medical clearance from a psychiatrist.  Instead, we suggested that he ask his physician to prepare another statement that would address the assurance the law required.

We later learned that the Firearms Unit accepted the second statement from the applicant’s physician.

 

            (01-3975) Penalty for delinquent payment of real property taxes.  A man complained that he was assessed a 10% penalty on his real property taxes because he was one day late in making the payment.  He complained that the penalty was 10% no matter how many days his payment was late.  Since he was only one day late in his payment, he felt that the penalty should be far less than 10%.

We reviewed the Revised Ordinances of Honolulu (ROH), Chapter 8, titled “Real Property Tax.”  Section 8-3.2, ROH, provided for the payment of the annual real property taxes in two installments.  The first payment is due on August 20 and the second payment on February 20, and taxes that remain unpaid after the due date are delinquent.

Section 8-3.3, ROH, “Penalty for delinquency,” stated that a penalty of up to 10% of the delinquent taxes shall be added to the amount of all delinquent taxes.  The section also provided that beginning with the first month after the month in which the taxes are due, all delinquent taxes and penalties shall bear interest at the rate of 1% per month, or fraction thereof, and the interest shall be collected as part of the taxes due.

We contacted the Real Property Assessment Division, Department of Budget and Fiscal Services, City and County of Honolulu, which confirmed that 10% is the penalty rate assessed for all delinquent taxes, no matter how many days the taxes are delinquent.

We noted that the incentive for a taxpayer to pay the delinquent taxes and penalty as soon as possible was to minimize the interest payment that will be due.  A delinquent taxpayer who continued to neglect payment of the taxes and penalty beyond the month in which the payment was due will be assessed increasing amounts of interest.

We advised the complainant that the assessment of the 10% penalty to his real property tax bill was allowable under the law.