Report No. 35, Fiscal Year 2003-2004

REPORT of the OMBUDSMAN

 

 

For the Period July 1, 2003 – June 30, 2004

Report No. 35

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

 December 2004


TABLE OF CONTENTS

 

LETTER OF TRANSMITTAL

I.  THE YEAR IN BRIEF

The Office Workload

Staff Activities

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 2003-2004 and Their Dispositions, and Inquiries Carried Over to Fiscal Year 2004-2005

III.  SELECTED CASE SUMMARIES

 

 

LETTER OF TRANSMITTAL

Mr. President, Mr. Speaker, and Members of the
Hawaii State Legislature of 2005:

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 2003-2004.  This is the thirty-fifth annual report since the establishment of the office in 1969.

On behalf of all the members of the office, I would like to thank the State Legislature for its continued support of the office.  I would also 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 to assure fair treatment for the people of Hawaii.

Those who sought assistance from our office would not have been as ably served in a timely, objective, efficient, and professional manner without the dedicated services of Ms. Donna M. Woo, my First Assistant, and the other staff members of the office.  For their continued able and dedicated services, I convey my personal thanks.

Respectfully submitted,

ROBIN K. MATSUNAGA
Ombudsman

 

December 2004

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Chapter I

THE YEAR IN BRIEF

 

The Office Workload

            During fiscal year 2003-2004, the office received a total of 5,295 inquiries. Of these inquiries, 3,886, or approximately 73 percent, may be classified as complaints within the jurisdiction of the office. The remaining inquiries consisted of 477 non-jurisdictional complaints and 932 requests for information.

 

            The 5,295 inquiries received represent a 14 percent decrease from the 6,158 inquiries received the previous fiscal year. We received 664 fewer jurisdictional complaints, a decrease of 14.6 percent from the prior fiscal year.

            The majority of the reduction in jurisdictional complaints is attributable to the decrease in prison-related complaints, which declined by 525, or 19.4 percent. Other agencies that experienced a significant reduction in the number of complaints filed against them included the Department of the Attorney General (40 fewer complaints, 13 percent), Department of Business, Economic Development and Tourism (51 fewer complaints, 89 percent), Department of Education (45 fewer complaints, 28 percent), and Department of Labor and Industrial Relations (38 fewer complaints, 32 percent).

 

            A comparison of inquiries received in fiscal year 2002-2003 and fiscal year 2003-2004 is presented in the following table.

 

TWO-YEAR CASELOAD COMPARISON

Years

Total
Inquiries

Information
Requests

Non-
Jurisdictional
Complaints

Jurisdictional Complaints

Total
Jurisdictional

Prison
Complaints

General
Complaints

2002-2003

6,158

1,075

553

4,550

2,702

1,848

2003-2004

5,295

932

477

3,886

2,177

1,709

Numerical
Change

-863

-143

 -56

-664

-525

-139

Percentage
Change

-14.0%

-13.3%

-10.5%

-14.6%

-19.4%

-7.6%

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Staff Activities 

On July 29 to August 1, 2003, Hawaii hosted the Council of State Governments – WEST 2003 Annual Meeting in Honolulu. Several members of our staff volunteered to assist with the conference by providing pre-conference support in preparing meeting/host state materials. Ombudsman Robin Matsunaga and staff member Sheila Alderman assisted in staffing the Aloha Hospitality Center and fielded questions from conference attendees about the conference and other general information about the State of Hawaii.

            On October 9, 2003, six members of the National Ombudsman Commission of Indonesia visited our office. The National Ombudsman Commission, established in Indonesia by the President of the Republic in 2000, is mandated to submit to the Indonesian Legislature a bill to transform itself into an autonomous and independent Parliamentary Ombudsman of Indonesia. The members were visiting the United States as part of a U.S. Study Tour hosted by the National Conference of State Legislatures. They were very interested in how state legislatures provide constituent services and deal with constituent concerns and were particularly interested in the ombudsman offices throughout the U.S. During their visit to our office, they discussed with Ombudsman Matsunaga the structure and functions of the office, the process the office follows in its investigations, and the types of complaints handled by the office. We enjoyed their visit and wish to thank the National Conference of State Legislatures for the opportunity to exchange ideas with our foreign visitors.

 

            On December 3, 2003, the office welcomed the addition of new employee Jeffrey Keating. Jeff graduated cum laude from Muhlenberg College in Pennsylvania and earned his Juris Doctor from St. John’s University School of Law in New York. He is a member of the New York and Hawaii Bar and was a Deputy Prosecuting Attorney with the Maui Prosecuting Attorney’s Office from July 1996 to August 2003. For two years prior to that, Jeff was an investigator with the Hawaii Civil Rights Commission.

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

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Outreach Efforts 

             We continue to promote the office through advertisements published in all the county newspapers.  Additionally, the office participated in various community events throughout the year to gain further exposure.

             On September 25-28, 2003, we participated in the annual Hawaii Seniors’ Fair, “The Good Life Expo.”  During the three-day fair, our staff explained the function of the office and distributed informational brochures about the office to visitors who stopped by our booth.

             Our outreach efforts this fiscal year placed special focus on the small business community.  On January 28, 2004, Ombudsman Robin Matsunaga and staff member Jeffrey Keating represented the Office of the Ombudsman at the “Keeping Hawaii in Business” event sponsored by the State Department of Business and Economic Development and the City and County of Honolulu. This event gave small business owners an opportunity to meet with government agencies and private business counselors to discuss government regulations impacting their businesses.  Several city, state, and federal agencies participated in this event including the City Permits and Licenses office and Department of Environmental Services; the State Department of Labor and Industrial Relations, which included the Hawaii Civil Rights Commission, and Department of Taxation; and the Federal Small Business Administration and Internal Revenue Service.  Many small business owners in the construction and visitor industries, as well as other businesses, attended this event.

            On May 22, 2004, First Assistant Donna Woo and staff members Jeffrey Keating and Gillman Chu participated in the 4th Annual Hawaii Small Business Fair, which took place at Kapiolani Community College.  The Fair featured panel discussions, workshops, and exhibitors consisting of government and nonprofit agencies offering programs and services for small businesses.

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United States Ombudsman Association 

              During the week of September 16, 2003, the office hosted the United States Ombudsman Association’s 24th Annual Conference at the Waikiki Beach Marriott Resort here in Honolulu. One hundred attendees participated in the conference, coming from places as far away as China, Denmark, Gibraltar, Antigua, Mexico, and various parts of the United States and Canada. The conference included all-day pre-conference workshops on Tuesday, September 16; a Welcome Reception on Tuesday evening; followed by two-and-a-half days of thought-provoking and educational meetings. On the evening of Thursday, September 18, 2003, conferees attended a Luau held at the Hale Koa Hotel grounds. The office received very positive feedback of the conference and of the Aloha State from all the conference attendees. Overall, the conference provided a perfect venue for the exchange of ideas and camaraderie among members of the Ombudsman community.

            A few ombudsmen took the opportunity while in Hawaii for the conference to visit the office. They included Barry Tuckett, Ombudsman, and Donna Drever, Deputy Ombudsman, from Manitoba, Canada; Ronald Adcock, Ombudsman for the New Hampshire Department of Health and Human Services; and Dr. Gerald Papica, Ombudsman for the Office of the Ombudsman for Children and Families in Tennessee.

            Ombudsman Robin Matsunaga is serving the final year of his second two-year term as President of the USOA. Under his leadership, the USOA continues its work in providing education, assistance, and support to ombudsmen and ombudsman organizations to improve the operations of ombudsman offices throughout the United States. The organization, through its Outreach and Development Committee, actively promotes and encourages the establishment of Ombudsman offices in the public sector.

https://www.ombudsman.hawaii.gov/annual-reports/report-no-35-fiscal-year-2003-2004/

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 Chapter II

STATISTICAL TABLES

For all tables, the percentages may not add up to
a total of 100% due to rounding.

 

TABLE  1

NUMBERS AND TYPES OF INQUIRIES

Fiscal Year 2003-2004

 Month

Total
Inquiries

Jurisdictional
Complaints

Non
Jurisdictional
Complaints

Information
Requests

 July

577

450

43

84

 August

464

339

34

91

 September

514

395

30

89

 October

503

357

54

92

 November

387

277

43

67

 December

426

326

41

59

 January

403

289

37

77

 February

435

328

42

65

 March

447

322

43

82

 April

411

291

38

82

 May

332

226

33

73

 June

396

286

39

71

 TOTAL

5,295

3,886

477

932

 % of Total
Inquiries

100.0%

73.4%

9.0%

17.6%

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TABLE 2

MEANS BY WHICH INQUIRIES ARE RECEIVED

Fiscal Year 2003-2004

 Month

Telephone

Mail

E-mail

Fax

Visit

Other

 July

527

25

8

9

8

0

 August

418

36

3

5

0

2

 September

485

24

3

0

2

0

 October

473

14

9

3

4

0

 November

356

15

9

4

3

0

 December

397

16

6

3

4

0

 January

378

13

2

9

1

0

 February

400

11

9

11

3

1

 March

400

21

15

8

3

0

 April

363

34

9

3

2

0

 May

306

16

6

1

2

1

 June

361

19

11

2

3

0

 TOTAL

4,864

244

90

58

35

4

 % of Total
Inquiries (5,295)

91.9%

4.6%

1.7%

1.1%

0.7%

0.1%

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TABLE 3

DISTRIBUTION OF POPULATION AND
INQUIRERS BY RESIDENCE

Fiscal Year 2003-2004

 Residence

Population*

Percent of
Total
Population

Total
Inquiries

Percent of
Total
Inquiries

 City & County of Honolulu

902,704

71.8%

3,989

75.3%

 County of Hawaii

158,423

12.6%

620

11.7%

 County of Maui

135,734

10.8%

367

6.9%

 County of Kauai

 60,747

  4.8%

109

  2.1%

 Out-of-State

210

  4.0%

 TOTAL

1,257,608

100.0%

5,295

100.0%

*Source:  The State of Hawaii Data Book 2003, A Statistical
Abstract.  Hawaii State Department of Business,
Economic Development and Tourism, Table 1.06,
Resident Population, by Counties:  1990 to 2003.

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TABLE 4

DISTRIBUTION OF TYPES OF INQUIRIES
BY RESIDENCE OF INQUIRERS

Fiscal Year 2003-2004

 Residence

TYPES OF INQUIRIES

Jurisdictional Complaints

Non-Jurisdictional
Complaints

Information Requests

Number

Percent
of Total

Number

Percent
of Total

Number

Percent
of Total

 C&C of
Honolulu

2,963

 76.2%

332

 69.6%

694

  74.5%

 County of
Hawaii

439

 11.3%

62

 13.0%

119

  12.8%

 County of
Maui

273

  7.0%

32

  6.7%

62

  6.7%

 County of
Kauai

73

  1.9%

14

  2.9%

22

  2.4%

 Out-of-State

   138

  3.6%

37

  7.8%

35

  3.8%

 TOTAL

3,886

100.0%

477

100.0%

932

100.0%

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TABLE 5

MEANS OF RECEIPT AND TYPES OF INQUIRIES
BY RESIDENCE

Fiscal Year 2003-2004

 Residence

Total
Inquiries

Means of Receipt

Telephone

Mail

E-mail

Fax

Visit

Other

 C&C of
Honolulu

3,989

3,758

126

51

15

35

4

 % of C&C
of Honolulu

100.0%

94.2%

3.2%

1.3%

0.4%

0.9%

0.1%

 County of
Hawaii

620

558

15

9

38

0

0

 % of County
of Hawaii

100.0%

90.0%

2.4%

1.5%

6.1%

0.0%

0.0%

 County of
Maui

367

336

15

13

3

0

0

 % of County
of Maui

100.0%

91.6%

4.1%

 3.5%

0.8%

0.0%

0.0%

 County of
Kauai

109

95

10

4

0

0

0

 % of County
of Kauai

100.0%

87.2%

 9.2%

 3.7%

0.0%

0.0%

0.0%

 Out-of-State

210

117

78

13

2

0

0

 % of Out-
of-State

100.0%

55.7%

37.1%

6.2%

1.0%

0.0%

0.0%

 TOTAL

5,295

4,864

244

90

58

35

4

 % of TOTAL

100.0%

91.9%

4.6%

1.7%

1.1%

0.7%

0.1%

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TABLE 6

DISTRIBUTION AND DISPOSITION OF
JURISDICTIONAL COMPLAINTS BY AGENCY

Fiscal Year 2003-2004

 Agency

Juris-
dictional
Complaints

Percent
of Total

Completed
Investigations

Discon-
tinued

Declined

Assisted

Pending

Substan-
tiated

Not
Substan-
tiated

 State Departments
 Accounting &
General Services

43

1.1%

 6

16

6

11

0

4

 Agriculture

15

 0.4%

1

7

2

3

0

2

 Attorney General

268

6.9%

14

35

11

27

177

4

 Budget & Finance

86

2.2%

17

36

7

18

7

1

 Business, Economic
Devel. & Tourism

6

0.2%

1

2

1

2

0

0

 Commerce &
Consumer Affairs

43

1.1%

1

14

10

12

2

4

 Defense

   3

0.1%

  0

2

0

0

0

1

 Education

114

2.9%

9

37

24

40

1

3

 Hawaiian Home Lands

8

 0.2%

1

5

1

0

0

1

 Health

90

 2.3%

6

39

15

22

4

4

 Human Resources
Development

9

0.2%

3

3

0

2

1

0

 Human Services

276

7.1%

36

101

39

87

3

10

 Labor & Industrial
Relations

79

2.0%

4

31

8

27

5

4

 Land & Natural
Resources

45

1.2%

2

20

6

8

3

6

 Office of
Hawaiian Affairs

4

   0.1%

 1

0

1

2

0

0

 Public Safety

2,402

  61.8%

346

810

93

1,009

93

51

 Taxation

41

   1.1%

12

9

2

6

11

1

 Transportation

78

   2.0%

17

30

5

13

6

7

 University of Hawaii

30

   0.8%

2

9

6

8

2

3

 Other Executive
Agencies

18

   0.5%

1

3

5

2

0

7

 Counties
City & County
of Honolulu

155

   4.0%

11

51

11

63

6

13

 County of Hawaii

44

   1.1%

1

12

5

19

0

7

 County of Maui

19

   0.5%

  4

4

2

7

  0

2

 County of Kauai

10

   0.3%

  1

1

1

1

  0

6

 TOTAL

3,886

100.0%

497

1,277

261

1,389

321

141

 % of Total
Jurisdictional
Complaints

100.0%

12.8%

32.9%

6.7%

35.7%

8.3%

3.6%

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TABLE 7

DISTRIBUTION AND DISPOSITION OF SUBSTANTIATED
JURISDICTIONAL COMPLAINTS BY AGENCY

Fiscal Year 2003-2004

 Agency

Substantiated
Complaints

Complaints
Rectified

Not Rectified/
No Action Necessary

 State Departments
Accounting &
General Services

6

5

1

 Agriculture

1

1

0

 Attorney General

14

13

1

 Budget & Finance

17

15

2

 Business, Economic
Development & Tourism

1

0

1

 Commerce &
Consumer Affairs

1

1

0

 Defense

0

0

0

 Education

9

9

0

 Hawaiian Home Lands

1

1

0

 Health

6

6

0

 Human Resources
Development

3

3

0

 Human Services

36

34

2

 Labor & Industrial Relations

4

4

0

 Land & Natural Resources

2

2

0

 Office of Hawaiian Affairs

1

1

0

 Public Safety

346

317

29

 Taxation

12

12

0

 Transportation

17

16

1

 University of Hawaii

2

2

0

 Other Executive Agencies

1

1

0

 Counties
City & County of Honolulu

11

11

0

 County of Hawaii

1

1

0

 County of Maui

4

3

1

 County of Kauai

1

1

0

 TOTAL

497

459

38

 % of Total Substantiated
Jurisdictional Complaints

100.0%

  92.4%

7.6%

 % of Total Jurisdictional
Complaints (3,886)

  12.8%

  11.8%

  1.0%

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TABLE 8

DISTRIBUTION OF INFORMATION REQUESTS

Fiscal Year 2003-2004

 Agency

Information Requests

Percent of Total

 State Departments
Accounting & General Services

16

 1.7%

 Agriculture

8

 0.9%

 Attorney General

30

 3.2%

 Budget & Finance

27

 2.9%

 Business, Economic Devel. & Tourism

10

 1.1%

 Commerce & Consumer Affairs

108

11.6%

 Defense

1

 0.1%

 Education

15

 1.6%

 Hawaiian Home Lands

1

 0.1%

 Health

61

  6.5%

 Human Resources Development

10

  1.1%

 Human Services

23

  2.5%

 Labor & Industrial Relations

31

  3.3%

 Land & Natural Resources

33

  3.5%

 Office of Hawaiian Affairs

0

  0.0%

 Public Safety

64

  6.9%

 Taxation

16

  1.7%

 Transportation

20

  2.1%

 University of Hawaii

7

  0.8%

 Other Executive Agencies

22

  2.4%

 Counties
City & County of Honolulu

93

  10.0%

 County of Hawaii

14

  1.5%

 County of Maui

12

  1.3%

 County of Kauai

4

  0.4%

 Miscellaneous

306

  32.8%

 TOTAL

932

100.0%

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TABLE 9

DISTRIBUTION OF NON-JURISDICTIONAL COMPLAINTS

Fiscal Year 2003-2004

 Jurisdictional Exclusions

Number of Complaints

Percent of Total

 Collective Bargaining

49

10.3%

 County Councils

7

1.5%

 Federal Government

38

8.0%

 Governor

8

1.7%

 Judiciary

75

15.7%

 Legislature

9

1.9%

 Lieutenant Governor

0

0.0%

 Mayors

2

 0.4%

 Multi-State Governmental Entity

 0

 0.0%

 Private Transactions

286

60.0%

 Miscellaneous

  3

0.6%

 TOTAL

477

100.0%

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TABLE 10

INQUIRIES CARRIED OVER TO FISCAL YEAR 2003-2004 AND
THEIR DISPOSITIONS, AND INQUIRIES CARRIED OVER
TO FISCAL YEAR 2004-2005

 Types of Inquiries

Inquiries
Carried
Over to FY
03-04

Inquiries Carried Over to
FY 03-04 and Closed
During FY 03-04

Balance of
Inquiries
Carried Over
to FY 03-04

Inquiries
Received in
FY 03-04
and Pending

Total
Inquiries
Carried Over
to FY 04-05

 Non-Jurisdictional
Complaints

1

1

0

2

2

 Information
Requests

2

2

0

3

3

 Jurisdictional
Complaints

150

139

11

141

152

 Disposition of
 Closed Complaints:

Substantiated            33
Not  Substan.            76
Discontinued             30
                            139    TOTAL

153

142

11

146

157

 

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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 THE ATTORNEY GENERAL

            Request to contest child support debt deemed untimely

            Service of child support order on evasive parent

 

DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS

            Examination waiver to restore real estate license

DEPARTMENT OF EDUCATION

            Notice for overdue library materials

            Not notified of recoupment of overpayment of wages

DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS

            Employment security appeals hearing

DEPARTMENT OF PUBLIC SAFETY

            Violation of law on substance abuse testing of inmates

            Visitor identification

            Holiday photographs

DEPARTMENT OF TAX

            Nonreceipt of tax return booklets

DEPARTMENT OF TRANSPORTATION

            Security gates at scenic lookout always open

            Increase in parking lot fee

CITY AND COUNTY OF HONOLULU

            Lack of action to remove fire hazard

DEPARTMENT OF THE ATTORNEY GENERAL

            (03-3133) Request to contest child support debt deemed untimely.  A non-custodial parent who was required to pay child support complained that the Child Support Enforcement Agency (CSEA) reported that he was delinquent in his child support payments and denied his written request to contest the alleged child support debt.  He maintained that he was current in all of his payments.

             The CSEA had sent the complainant a “Notice of Hawaii State Tax Refund Setoff Referral” which advised him that he had a child support debt and that State law permitted the retention of his Hawaii income tax refund to satisfy his debt.  The notice further stated that the complainant could write a letter to contest the alleged debt and that he was required to “mail the letter within 15 DAYS of the date of this notice” to the CSEA.  Upon receipt of a timely request, the CSEA would conduct a review and attempt to resolve any discrepancies.

            In the complainant’s case, the CSEA’s notice was dated December 3, 2002, and he sent his letter by certified mail to contest his alleged debt on December 12, 2002.  Because the complainant resided in North Carolina and as it was the holiday season, the CSEA did not receive his letter until December 20, 2002.  Since the receipt date of the complainant’s letter was more than 15 days after the date of the notice, the CSEA deemed his request to be untimely and denied it.

             When we contacted the CSEA, the staff maintained that the complainant’s letter was untimely.  Thus, we wrote to the CSEA administrator who initially responded that the complainant’s letter was untimely.  However, after we further discussed the case with the administrator, he agreed that the complainant’s letter had in fact been timely since it was mailed within 15 days of the date of the notice.  By this time, the CSEA had already determined that the complainant was current in his payments and did not have a child support debt, so further review of his case was not required.

             To avoid the same mistake in the future, the CSEA instructed its staff that a letter requesting review of a proposed tax refund setoff would be considered timely as long as the mailing date of the letter was within 15 days of the date of the CSEA’s notice.  We agreed with the action taken by the CSEA and informed the complainant of the outcome of his case.

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            (04-3632) Service of child support order on evasive parent.  State law authorizes the Department of the Attorney General (AG), through the Child Support Enforcement Agency (CSEA), to establish, modify, suspend, or terminate a child support order by administrative process.  As part of the administrative process to modify a child support order, the CSEA serves a proposed order on both the non-custodial parent (NCP) and the custodial parent (CP).  If neither parent objects to the proposed order, the order will become final upon filing in court.  If either parent disagrees with the proposed order, that parent may request a hearing.  The AG’s Office of Child Support Hearings would then conduct the hearing and issue an order that becomes final upon filing in court.

            A NCP parent who had unsuccessfully sought to modify his order for two years complained that although the CSEA initiated the administrative process, the proposed order could not be served on the CP, who was purposely evading service.  As a result, the administrative process was suspended and his order and child support obligation remained unchanged.

            After we informed the CSEA about the complaint, the agency again attempted service of the proposed order on the CP.  The CSEA subsequently reported to the complainant that after service by certified mail was unsuccessful, the CSEA made three attempts to personally serve the order on the CP where she was employed.  On the third attempt, the CSEA investigator was told that the employer would not allow further attempts at service on the premises.  The CSEA investigator then made two attempts to serve the order at the secured building where the CP resided.  On the first attempt, the CP was not at home; on the second attempt, the building manager refused to allow the investigator entry into the building.  Telephone contact was made with the CP, but she refused to cooperate.  The CSEA did not indicate to the complainant whether any further attempts would be made to serve the proposed order on the CP.

            We reviewed Chapter 576E, Hawaii Revised Statutes (HRS), titled “Administrative Process for Child Support Enforcement.”  Section 576E-4(c) stated:

In any child support enforcement proceeding subsequent to an order already being enforced by the agency, upon a showing that diligent effort has been made to ascertain the location of a party, notice and service of process shall be presumed to be satisfied upon delivery of written notice to the most recent residential or employer address on file with the state case registry pursuant to section 571-52.6.

            We again contacted the CSEA and inquired whether the attempts that were made in this case to serve the proposed order on the CP constituted “diligent effort” under Section 576E‑4(c), such that the required service of the order would be satisfied by its delivery to the CP’s residence or employment address.  The CSEA determined that diligent effort had been made, so the service requirement could be met by sending the proposed order to either address by regular mail.

             After the CSEA notified us that the proposed order was mailed to the CP, we advised the complainant that the administrative process to modify his child support order was proceeding.  We later verified that service of the proposed order on the CP was accomplished by regular mail.

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DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS

             (04-2334) Examination waiver to restore real estate license.  A man who wanted to restore his forfeited real estate salesperson license questioned the requirement to pass a written examination.  It was his understanding that the written examination was waived when a person opted to restore a license by paying the delinquent and penalty fees.  However, when he paid the fees of nearly $900, he was informed that he would still need to pass a written examination.

             We reviewed Chapter 467, Hawaii Revised Statutes (HRS), titled “Real Estate Brokers and Salespersons.”  Section 467-11(b), HRS, stated in part:

Failure, neglect, or refusal of any duly licensed real estate broker or real estate salesperson to pay the biennial renewal fee and to submit a completed renewal application shall constitute a forfeiture of the license as of January 1 of the subsequent odd-numbered year.  The forfeited license may be restored upon approval of a completed application; payment of the delinquent fees and the penalty fees as provided in the rules adopted by the director of commerce and consumer affairs pursuant to chapter 91; satisfaction of the applicable requirements [in other sections of Chapter 467, HRS]; . . . and satisfaction of the following as applicable:

(1)       For a license forfeited for more than one year but less than four years, the successful completion of the commission-approved course or courses or passage of the commission-approved examination; or

(2)       For a license forfeited for more than four years, the successful passage of the commission-approved examination.  (Emphasis added.)

             We contacted the Real Estate Commission (REC) and were informed that the complainant’s license had been inactive for over 10 years due to failure to pay fees.  Therefore, he would have to pass a written examination as required by law in order to restore his license.  In his case, the option of applying for a new license would be less costly because fulfilling the requirements for a new license, such as completing course work, would cost about $200, in comparison to $900 to restore his license.  The REC offered to refund the delinquent and penalty fees that he paid should he choose to apply for a new license.

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DEPARTMENT OF EDUCATION

            (02-5424) Notice for overdue library materials.  In the course of investigating a complaint, we learned that the practice of the Hawaii State Public Library System (HSPLS), Department of Education, was to issue a notice to a library customer seven days after the due date of an overdue library material.  In certain instances, but not in every case, the HSPLS issued a notice 30 days after the due date of an overdue material.

            The HSPLS practice was not in compliance with Section 8-200.1-7, Hawaii Administrative Rules, which stated in part:

Overdue notice.  (a) A notice may be transmitted to the library customer seven days after the due date of an overdue library material.

(b)  A notice shall be transmitted to the library customer thirty days after the due date and may include all applicable charges and fines.  (Emphasis added.)

            According to the rule, the HSPLS was not required to issue a notice seven days after the due date of an overdue library material.  However, it was required to issue a notice 30 days after the due date of an overdue library material.

            We informed the HSPLS of its noncompliance with the rule and asked that it inform us the corrective action, if any, that would be taken to bring its practice into compliance with the administrative rules.

            We also found that at the time of application for a library card, a library customer was given written information regarding fees for basic and enhanced services, including a warning that a library card account with overdue fines or fees may be referred to a collection agency.  As a customer may forget this initial warning, we suggested that the overdue notice repeat the warning to the customer.

            The HSPLS responded that the transmitting of overdue notices was an automated procedure performed by a commercially licensed software product that ran much of the HSPLS computer system.  The software company would charge the HSPLS a fee to make any changes.  Since the HSPLS was in the process of changing the software in its computer system, it was decided that it would not be cost-effective to make any changes to the existing software system as it would soon not be in use.

            Subsequently, after it obtained the new software system, the HSPLS was able to issue the required notice 30 days after the due date of all overdue library materials.  The notice also warned the customer that an outstanding balance left unpaid may be turned over to a collection agency.

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            (03-2169) Not notified of recoupment of overpayment of wages.  A school employee complained that she only learned that she had been overpaid when her paycheck was reduced by $281 to recoup the overpayment.  She had not realized that she was overpaid because she had received a raise and thought that the increase in her paycheck was due to that raise.

            In our investigation, we reviewed Section 78-12, Hawaii Revised Statutes, which stated in part: 

Salary withheld for indebtedness to the government.

            . . . .

(e)       If the indebtedness has occurred as a result of salary or wage overpayment, the disbursing officer shall determine the amount of indebtedness and notify the employee in writing of the indebtedness.  If the employee contests the disbursing officer’s determination of indebtedness, the employee may request a hearing pursuant to chapter 91.

Upon inquiry, Department of Education (DOE) Payroll informed us that its practice was to orally notify the school when an employee has been overpaid.  It was left to the school to notify the employee, but there was no requirement that such notification be provided in writing, as required by the law.  In the complainant’s case, it appeared that the Payroll office failed to inform the school of the overpayment, so the complainant was never informed.

            We informed the DOE of the statutory requirement of written notification of salary or wage overpayment.  Thereafter, the DOE took corrective action so that employees would receive written notification in the future.

            We informed our complainant that action had been taken to comply with the law.

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DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS

            (04-2521) Employment security appeals hearing.  A man complained about the actions taken by an employment security appeals hearings officer (referee) when he administratively appealed his disqualification for unemployment benefits.  By the time he contacted our office, the 30-day deadline set by law to seek judicial review of the referee’s decision had lapsed, so the referee’s decision was final and not subject to change.  However, the complainant claimed that he wished to file a complaint not for his individual gain but for improvement of the process for future appellants.

            Pursuant to Section 96-5, Hawaii Revised Statutes, the Ombudsman may investigate an administrative act without regard to the finality of such act.  The purpose of such investigation, even though a remedy for the complainant is not possible, is the possibility of a systemic improvement to the administrative process.  Thus, we investigated the complaint.

            Specifically, the complainant alleged that the referee had lied when he denied issuing an order that the employer provide the complainant with certain documents.  The complainant alleged that the referee issued the order during the appeals hearing.  Additionally, he complained that the referee released his decision without waiting to receive written closing arguments which the referee asked the complainant and the employer to provide.

            In our investigation, we reviewed the file on the complainant’s unemployment benefits claim.  In correspondence regarding whether the employer had provided the complainant with certain documents, we found that in separate letters to the complainant and the referee, the employer seemed to corroborate the complainant’s position as the employer stated that he had sent to the complainant the documents that the referee had “ordered” the employer to send.  However, in a letter to the complainant, the referee noted that the employer “was willing to provide” the complainant with the documents and had verbally agreed to do so.

             In order to resolve the discrepancy as to whether an order was issued, we listened to the tape recording of the hearing.  We found that the referee asked the complainant for clarification of the documents he was requesting of the employer.  After the complainant identified the documents, the referee asked the employer whether he had any objections to providing the complainant with the requested documents.  The employer responded that he had no objections, but added that the complainant’s request “sounded like a fishing expedition.”

            It was our opinion that the referee’s statements were not mandatory in nature.  Since the employer expressed a willingness to provide the complainant with the documents, it was not necessary for the referee to issue an order.  Thus, we concluded that the complaint that the referee had lied when he denied issuing an order for the employer to produce certain documents was not substantiated.

           In regard to the complaint that the referee issued his decision without having received written closing arguments from the complainant and the employer, the tape recording revealed that near the end of the hearing the employer asked the referee whether he could submit a written closing argument.  The referee consented and, with the employer’s agreement, set a deadline of October 1 for the submittal.  As the complainant indicated that he would like to submit rebuttal to the employer’s written closing argument but would need a week to submit his rebuttal, the referee gave the complainant a deadline of October 8.

           However, neither the employer nor the complainant submitted anything in writing and neither contacted the referee.  The referee then issued his decision on November 3.

           When we inquired with the referee, he explained it was commonly understood that if the parties failed to submit anything in writing, he would issue his decision on the information presented at the hearing.  The submittal of written arguments after a hearing was not required and was rarely done.  If a party wanted to submit a written closing argument but was unable to meet the established deadline, that party should take the initiative to contact him.

           To avoid any misunderstanding, we suggested that it would be clearer to all parties if the referee announced at the hearing that he plans to proceed to issue a decision if written arguments are not submitted by established deadlines.  The referee agreed to make such announcements in the future.

           We advised the complainant that we agreed with the referee that the parties had a responsibility to notify the referee if they intended to submit written arguments but were unable to meet their respective deadlines.  Thus, we concluded that when the parties failed to meet their deadlines and did not contact the referee, it was reasonable for the referee to issue his decision based on the information presented in the hearing.  We also informed the complainant that the referee agreed to make such announcements in future hearings.  We further noted that the absence of such an announcement at the complainant’s hearing did not invalidate the referee’s decision in his case.

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DEPARTMENT OF PUBLIC SAFETY

            (03-5174) Violation of law on substance abuse testing of inmates.  An inmate complained that he was not afforded the option of a confirmatory substance abuse test by an outside laboratory after tests conducted by the facility staff were positive for alcohol.

            The substance abuse testing of inmates is regulated by Section 353-13.4, Hawaii Revised Statutes, which states 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 . . . .

(b) All specimens shall be sealed and coded in the presence of the inmate and the inmate shall sign an approved form acknowledging that the specimen has been sealed and coded in the inmate’s presence.  The  director of the department of public safety shall establish a chain-of-custody procedure that includes a tracking form documenting the handling and storage of the specimen from collection to final disposition of the specimen.

(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  shall not be reported or recorded.  (Emphasis added.)

            In our investigation, we obtained copies of the staff reports and contacted the staff members who conducted two separate tests on the complainant’s urine sample.  We learned that after an initial screening test was positive for alcohol, a second more accurate test was administered and also resulted in a positive finding for alcohol.  Based on the results of the two tests, the facility disciplinary committee found the complainant guilty of misconduct.

            We confirmed, however, that the facility failed to afford the complainant the option of a confirmatory test by a licensed, certified laboratory.  Moreover, other requirements of the substance abuse testing law were not met.  There was no form bearing the complainant’s signature to acknowledge that his urine sample was sealed and coded in his presence, no tracking form to record the chain of custody of the urine sample, and no written notice to the complainant of the facility’s positive test results and the availability of a confirmatory test.

            We discussed with the warden the facility’s failure to comply with the substance abuse testing law.  The warden claimed that the option of a confirmatory test for alcohol is not offered to inmates because alcohol dissipates too rapidly from the urine sample, invariably resulting in a negative result for any confirmatory test.  However, a Department of Public Safety (PSD) official informed us that a confirmatory test can detect alcohol if the urine sample is handled properly.

            As the State law applied to all substance abuse testing and made no exception for testing for alcohol, we wrote to the PSD to seek its review.  We brought to the PSD’s attention the requirements of the law and the facility’s noncompliance with those requirements.

            After completing its review, the PSD informed us that it agreed with our analysis and the misconduct was expunged from the complainant’s file.  We confirmed with the complainant that he was informed of the corrective action taken.

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            (04-1630) Visitor identification.  A mother complained that she was not allowed to visit her adopted son, who was an inmate, because she did not have a Hawaii driver’s license or a Hawaii State identification card (ID).  Although she had a current Florida driver’s license, her social security card, a store’s membership card, a copy of her birth certificate issued by the hospital where she was born, and a Hawaii Department of Education teacher’s ID, she was told a Hawaii driver’s license or Hawaii State ID was absolutely required.  Since her Florida driver’s license was valid in Hawaii, she saw no need to obtain a Hawaii license, and she was unable to obtain a State ID as she did not have an official certified birth certificate, which was one of two basic documents required by the State ID office.

            We reviewed the Department of Public Safety rules on this matter.  Section 23-100-3, Hawaii Administrative Rules, stated in part:

Visitation requirements.

 . . . .

(f)  No entry for visits shall be permitted unless the visitor’s identity can be determined by personal photograph or signature identification cards such as drivers license, social security card, membership cards of various kinds bearing a signature of the visitor, other personal papers, or any other information made available which may help clear up doubtful identification.  Inability to establish identity may deny the visitor from entry into the facility.

            We noted that the rule did not require that a visitor present a Hawaii driver’s license or State ID to gain entry into a facility.  Instead, the rule provided for the use of various documents and it appeared that all the documents that a visitor presented were to be considered to determine the visitor’s identity.

            After discussing the complaint with the facility grievance officer and security chief, we found it necessary to bring the matter to the attention of the warden.  The warden was not aware of the PSD rule and agreed to review the situation.

            Subsequently, the warden informed us that a directive previously issued by the security chief required a visitor to present a Hawaii driver’s license or State ID.  However, after reviewing the PSD rule, the warden issued a new directive to the facility staff that stated, in part:

Acceptable forms of identification include driver’s license, State of Hawaii identification card, passport, military identification card, or judicial identification card.  Social security cards, membership cards of various kinds bearing a signature of the visitor, other personal papers, or other information may be used to help clear up doubtful identification.

  The warden was unable to assure us that the complainant would be allowed to visit her son, as that would depend on the documents she presented upon her arrival.  However, he indicated that she would not be required to present a Hawaii driver’s license or State ID.

            We advised the complainant of the new directive issued by the warden.  The complainant was pleased and agreed to take any and all documents that she had to prove her identity on her next attempted visit.  Subsequently, the complainant called to inform us that she was allowed to visit her son.

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             (04-2716) Holiday photographs.  During the holiday season, a correctional facility arranged for the photographing of inmates who wanted to send current pictures of themselves to their families.  A maximum of two photographs were allowed, provided an inmate had sufficient funds to cover the cost.  The facility issued a memorandum to notify inmates of the program and the deadline for submitting requests.

            An inmate complained that the inmates in his living unit did not see the memorandum and thus did not learn of the deadline until after it had passed.  He submitted a request to have his photograph taken with an explanation as to why his request was late, but his request was denied.

            The staff member who had denied the complainant’s request explained that it was her understanding that the holiday photograph memorandum was posted in the complainant’s living unit.  However, when we spoke with the sergeant in charge of the living unit, he informed us that the memorandum was never posted in the unit and that he himself did not see the memorandum until after the deadline.

            We contacted the supervisor in charge of the holiday photographs and informed him of the complaint.  He initially claimed that the holiday photograph memorandum was posted in all living units.  When we informed him that the sergeant of the complainant’s living unit had verified that the memorandum was never posted in that unit, the supervisor nevertheless stated that he would not consider any late requests because it would be too much of a burden on the staff.  The supervisor complained that an order to purchase the required amount of film had already been processed and photographing had begun.  We noted that it was unfair to disregard the requests of inmates who were not informed of the deadline, but the supervisor maintained his position.

            We therefore contacted the deputy warden of the facility and informed him of the situation.  In the interest of fairness, we asked that he consider giving all inmates in the complainant’s living unit the opportunity to submit requests for holiday photographs, despite the expiration of the established deadline.  After taking the matter under advisement, the deputy warden informed us that inmates in the complainant’s living unit would be allowed to submit their requests.

            We subsequently verified that the unit received a memorandum from the deputy warden allowing the inmates to submit requests for holiday photographs, and learned that photographs were taken of seven inmates, including the complainant.

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DEPARTMENT OF TAXATION  

           (03-5974) Nonreceipt of tax return booklets.  Taxpayers who regularly pay general excise (GE) and other business-related taxes receive annually from the Department of Taxation (TAX) booklets with tax return forms that are used to report payment of taxes on a monthly, quarterly, or semiannual basis.  About a month before the deadline for filing a semiannual GE tax return, several taxpayers complained that they had not yet received their GE tax return booklets.

            We contacted TAX and learned that it used a computer program to prepare an electronic tape with the names of the taxpayers who file returns on a semiannual basis.  The tape is then sent to a company contracted to print and mail the tax booklets.  In this instance, while the tape was being prepared, the program was aborted.  When TAX restarted the program, the computer started where it had stopped rather than going back to the beginning of the list of names.  Thus, unbeknownst to TAX, the first 66,000 names on the list, up to the point where the program was aborted, were omitted from the tape that was sent to the contractor.  As a result, only 110,000 instead of 176,000 taxpayers received their booklets.  When TAX discovered the error, another tape with the missing names was made, but a delay in the receipt of the booklet by these taxpayers was unavoidable.

            Because of the delay in printing and mailing these booklets, TAX issued a news release advising affected parties of the situation and that the penalty and interest charges for failing to timely file semiannual tax returns would be waived, provided the taxpayer was one of the 66,000 filers, filed by a newly established deadline, made full payment of taxes due on the return by the newly established deadline, and complied with all other tax laws.

            After we confirmed that the complainants were among the 66,000 filers, we advised them of our findings.

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DEPARTMENT OF TRANSPORTATION

            (04-3607) Security gates at scenic lookout always open.  To control late night loitering at a State highway scenic lookout near a residential subdivision, the Department of Transportation (DOT) installed security gates and signs listing times of closure.  However, a subdivision resident complained the gates had not been closed for some time so disturbances by late night revelers were recurring.

            A DOT official informed us that gate closure hours were supposed to be from 9 p.m. to 8 a.m.  Although the DOT had personnel working in the area who could open the gates at 8 a.m. on weekdays, there was no one available to open the gates during weekends and State holidays and to close the gates at 9 p.m. throughout the week.  For a while, the signs that were posted to indicate the hours of closure acted as a deterrent for late night loitering, but their effect was lost when people realized the gates were never closed.

            During the installation of the gates, the DOT was in communication with a nearby police station to provide the needed manpower to open and close the gates.  However, before any arrangement was finalized, the police liaison left and no attempt was made to resume talks with someone else at the police station.

            The complaint we received served as an impetus for the DOT to resume communications with the police station.  Soon thereafter, arrangements were made for the police to close and open the security gates during the times that the DOT employees were unavailable.

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            (04-4129) Increase in parking lot fee.  Although by law our office lacks jurisdiction to investigate complaints about the actions of private entities, we are sometimes able to assist a complainant through a State agency that has contracted a private entity to perform a service.

            A man complained that without prior notice the fee for parking his truck in a State parking lot was doubled from $35 to $70 a month.  The parking lot was used mainly by commercial vehicles, and a private company was contracted by the State to operate the lot.  The private company charged the complainant the increased fee after he had been paying the lower fee for many months.

            We contacted the Airports Division (AD) of the Department of Transportation (DOT), as the parking lot in question was on airport grounds.  The AD confirmed that it was a State parking lot and that a private company was contracted to operate the parking lot.  The monthly fee was $35 for each stall, but the private company was authorized to charge $70 if an oversized vehicle occupied two stalls.  Any other fee increase would require authorization by the DOT and no such authorization had been granted.

            The AD inquired with the private company and verified that the company had not increased the fee for parking in that lot.

            We advised the complainant of the information we obtained from the AD and inquired as to the size of his truck.  He informed us that it was a small pickup truck that would fit easily in a single parking stall.  He also informed us that he had a receipt issued by the private company for the $70 that he paid.  We obtained a copy of the receipt, provided it to the AD, and requested that the AD follow up with the private company.

            The AD inquired further with the private company, which then reported that the complainant was charged $70 due to an error by a company employee.  In reviewing vehicle registration and safety inspection documents that drivers are required to submit before they are allowed to park in the lot, the company employee mistook the complainant’s pickup truck for a larger truck.  The company corrected its employee and the AD instructed the company to issue a $35 refund and a letter of apology to the complainant.

            Subsequently, the AD provided us a copy of the company’s apology letter.

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CITY AND COUNTY OF HONOLULU  

            (04-2210) Lack of action to remove fire hazard.  Sometimes a citizen may contact an agency for assistance with a problem that is not within the agency’s jurisdiction or ability to resolve.  After not receiving the desired assistance, the citizen may file a complaint with our office against the agency.  In such cases, we attempt to direct the citizen to an agency with jurisdiction that might be of assistance.

            A homeowner complained that the Residential Code Enforcement Branch (RCEB), Department of Planning and Permitting (DPP), failed to take enforcement action to have dry vegetative overgrowth cleared from a large parcel of pastureland behind her home.  She reported the overgrowth as a fire hazard to the RCEB, which conducted an inspection in July.  According to the complainant, the RCEB inspector confirmed that the overgrowth was a fire hazard and a supervisor would need to review the photographs taken by the inspector, after which the complainant would be informed of the outcome. However, the RCEB did not report back to the complainant for several months.  In November, the complainant called the RCEB and was told that a staff member would call her back.  After not hearing from the RCEB for a week, the complainant called our office.

            We inquired with the RCEB about its actions on the complainant’s report of a fire hazard.  After reviewing the file, a supervisor confirmed that an inspection was conducted in July, but the complainant was never informed of the outcome.  The supervisor assured us that he would call the complainant and apprise her of the outcome of the RCEB’s inspection.

            The supervisor also explained that the RCEB enforced Chapter 41, Article 10, Revised Ordinances of Honolulu (ROH), titled “Disposal of Weeds, Garbage, Trash and Waste From Property.”  Under the ordinance, the DPP is empowered to order a property owner to remove vegetation that constitutes a fire hazard.  However, the ordinance specified that did not apply to real property that is zoned for agriculture.  In this case, the property behind the complainant’s home was zoned for agriculture.  Thus, the RCEB lacked jurisdiction and could not order the property owner to remove any fire hazard.

            We reviewed Section 41-10.2, ROH, and verified that it contained a provision that “this article shall not apply to real property zoned as agriculture.”

            We reviewed Chapter 132, Hawaii Revised Statutes, titled “Fire Protection.”  The law empowered each county fire chief to conduct inspections and to order a property owner to correct violations or hazardous conditions.  The law required the adoption of a State Fire Code, and with certain modifications, the State adopted the Uniform Fire Code (UFC), 1997 Edition, as amended by the 1998 and 1999 supplements.  Moreover, the City and County of Honolulu then adopted the State Fire Code, including the 1997 UFC and supplements.

            We contacted the Fire Prevention Bureau (FPB) of the Honolulu Fire Department (HFD).  We informed an inspector of the complainant’s concern and the RCEB’s lack of jurisdiction because the property was zoned for agriculture.  The inspector informed us that the UFC contains provisions concerning the establishment of a firebreak between properties, and the HFD conducts inspections regarding the type of concern expressed by the complainant.  If it is determined that a fire hazard exists, the HFD may order the offending property owner to clear a firebreak in the vegetation between the offending property and the neighboring property.  The inspector suggested that the complainant call him at the FPB to initiate an inspection.

            We contacted the complainant, who confirmed that the RCEB inspector had called to explain the RCEB’s lack of jurisdiction.  We advised her of what we learned from the FPB and provided her the name of the inspector to call.  The complainant was appreciative of the information and said she would give the FPB inspector a call.