Dr2ord.txt

HAWAII CIVIL RIGHTS COMMISSION

STATE OF HAWAII

In the Matter of ) Docket No. 91-001 E-SH
) Fep No. WH 3962
DOLORES R. SANTOS, )
)
Complainant, )
)
)
MASAMI "SPARKY" NIIMI and )
HAWAIIAN FLOWER EXPORTS, INC. )
)
Respondents. )
)
)


ORDER DENYING MOTION FOR ORDER GRANTING DECLARATORY RELIEF

I. INTRODUCTION
On April 8, 1992, Masami "Sparky" Niimi and Hawaiian
Flower Exports, Inc., (hereinafter referred to as "Niimi") filed a
Motion for Order Granting Declaratory Relief, Or In the Alternative
for Reconsideration of Hearings Examiner's Order Filed on March 30,
1992. On April 9, 1992, Niimi filed an Amended Motion for Order
Granting Declaratory Relief, Or In the Alternative for
Reconsideration of Hearings Examiner's Order Filed on March 30,
1992.[1] The Executive Director filed a Memorandum in Opposition on
April 23, 1992.
Niimi's Motion will be treated as a Petition for
Declaratory Relief under Hawaii Administrative Rules ("H.A.R.") 
12-46-61. The Commissioners met on April 21, 23, and 28, 1992, to
consider disposition of the petition. Pursuant to H.A.R.  12-46-
63(b)(1), the Commission is authorized and chooses to summarily deny
the Petition.
II. ISSUE
Niimi seeks a declaration that H.A.R.  12-46-18[2]
requires that an additional fifteen (15) days must elapse before a
proceeding[3] can commence after the end of an extension of the
initial fifteen day conciliation period. It is Niimi's contention
that the rule must be read to provide for two separate fifteen day
periods before a proceeding can commence. The first fifteen day
period begins after the receipt of the final conciliation demand
letter and is provided to all parties. The second fifteen day
period begins at the expiration of any extension granted by the
Executive Director under H.A.R.  12-46-17(c)(2) and only arises if
an extension is granted. Niimi contends that the grammatical
structure of the rule requires two fifteen day periods.
The Executive Director takes the position that H.A.R. 
12-46-18 should be read to allow only one fifteen day period, i.e.
after the receipt of the final conciliation demand letter. If an
extension of conciliation is granted after the initial fifteen day
period, then a proceeding must commence when it expires. The
Executive Director contends that the word "thereof" in the rule
refers to the fifteen day period after the conciliation letter is
served and the rule must be interpreted as authorizing the
proceeding to commence at the end of "any extension thereof", or
when conciliation efforts are unsuccessful.
III. DISCUSSION
In Williams v. Hawaii Medical Service Ass'n., 71 Haw.
545, 549-550 (1990) the Hawaii Supreme Court reiterated the
standards for construction of administrative rules:
In construing an administrative rule, general rules of
statutory construction are applicable. Mahiai v. Suwa, 69 Haw.
350, 358, 742 P.2d 359, 366 (1987). When a rule does not
conflict with statutory and constitutional requirements, courts
will ascertain and effectuate the intent of the agency which
promulgated the rule. Life of the Land, Inc. v. West Beach
Dev. Corp., 63 Haw. 529, 531, 631 P.2d. 588, 590 (1981);
Mahiai, 69 Haw. at 358, 742 P. 2d at 366. "Courts strive to
give meaning to all parts of an administrative rule and to
avoid construing any part as superfluous." International Bhd.
of Elec. Workers v. Hawaiian Tel. Co., 68 Haw. 316, 325, 713
P.2d 943, 951 (1986). Courts will not construe rules in a
manner which produces an absurd result. Mahiai, 69 Haw. at
358, 742 P.2d at 367.
In light of these standards, the Commission will decide the
Petition.
The Commission will first examine the statutory basis for
the rule. H.R.S.  368-14(a) provides, in pertinent part:
If fifteen days after service of the final conciliation
demand, the commission finds that conciliation will not
resolve the complaint, the commission shall appoint a
hearings examiner and schedule a contested case hearing
that shall be held in accordance with chapter 91.
There is no mention in the statute of allowing an additional fifteen
day period after an extension of time.[4] Thus, there would be no
direct conflict with the statute if the Commission interpreted the
rule to not provide a second fifteen day period.
The Commission finds that H.A.R.  12-46-18 can be read
in the manner argued by Niimi or in the manner argued by the
Executive Director. The rule is ambiguous in that both appear to be
reasonable constructions, thus resort must be made to the
Commission's intent in order to interpret the rule.
The Commission's intent when promulgating H.A.R.  12-46-
18 was to allow sufficient time for conciliation efforts after the
final demand letter was served while at the same time ensuring that
a proceeding would be promptly initiated when conciliation was no
longer feasible. The initial fifteen day period is the minimum time
required by statute.[5] The extension provision was added by rule
to allow time for further conciliation efforts if the Executive
Director determined that conciliation was possible. The length of
the extension may vary depending upon the circumstances. Thus, the
fifteen day period and the extension period serve the same purpose;
and it would be illogical to read the rule as providing an
additional fifteen days after the extension expires.[6]
The Commission finds support for this intent in the
legislative purpose of the statute authorizing the Commission to
commence hearings. The Commission determines that the legislative
purpose of the first sentence of H.R.S.  368-14(a) is two-fold:
First, to allow a respondent sufficient time to respond to a final
conciliation demand, a minimum of fifteen days after service.
Second, to require the prompt commencement of a contested case
proceeding if conciliation efforts are unsuccessful. This second
purpose is evident because the statute provides that a hearings
examiner "shall" be appointed when the Commission finds that
conciliation will not resolve the complaint. There appears to be no
need to provide for an additional fifteen day "waiting" period if
the extension does not result in a conciliation agreement.
Given this determination of the legislative purpose, the
Commission concludes that H.A.R.  12-46-18 must be read as
authorizing the commencement of a proceeding at the end of the
extension. In making this conclusion, the Commission is mindful
that it was established to create "a uniform procedure for the
enforcement of the State's discrimination laws." H.R.S.  368-1.
The Commission was granted the power to "receive, investigate, and
conciliate complaints" and "conduct proceedings. . .where
conciliatory efforts are inappropriate or unsuccessful." H.R.S. 
368-3(1). (Emphasis added). The Commission is further required to
liberally construe its rules in order to accomplish the purpose of
ending employment discrimination. H.A.R.  12-46-2. Given these
mandates the Commission believes that the second fifteen day period
would serve no purpose and therefore cannot interpret its rules to
permit unnecessary delays in the enforcement of the State's
discrimination laws.
IV. ORDER
IT IS HEREBY ORDERED THAT the Motion for Order Granting
Declaratory Relief is summarily denied under the authority of H.A.R.
 12-46-63(b)(1).
Niimi may seek reconsideration under H.A.R.  12-46-38 by
filing a motion with ten days of receipt of this order. Niimi may
seek judicial review in the circuit court under H.R.S.  91-8 and
14 within thirty days after service of the final decision and order.
Dated: Honolulu, Hawaii, April 28, 1992.


Amefil Agbayani
Chairperson
Hawaii Civil Rights Commission





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footnotes

1. The Amended Motion clarified that it was addressed to the
Commissioners, not the Hearings Examiner. The substance of the
original motion was unchanged.

2. H.A.R.  12-46-18 provides:
A proceeding shall commence by the appointment of a hearings
examiner fifteen days after service of the final conciliation
demand or any extension thereof pursuant to section 12-46-17.
The hearings examiner shall docket the complaint and assign a
docket number to the complaint.

3. A proceeding is the term used to describe the process which
begins with the appointment of the hearings examiner and culminates
with the issuance of a final decision by the Commission after a
contested case hearing conducted by the hearings examiner.

4. The authority to extend the final conciliation demand period
stems from the Commission's rule making authority in H.R.S.  368-9
and not from the language of H.R.S.  368-14(a). H.A.R.  12-46-
17(c)(2) authorizes the Executive Director to grant an extension of
time for conciliation if there is a written request stating good
cause why conciliation should continue. The purpose of the
extension is to foster conciliation. If the extension expires
without an agreement, H.A.R.  12-46-17(d) provides that the
Executive Director shall notify the complainant of the failure of
conciliation efforts.

5. The Commission has previously interpreted the word "service" in
the rule as meaning respondent's actual receipt, as opposed to the
mailing, of the final conciliation demand letter in order to allow
the full statutory time for conciliation. In the Matter of Dolores
Santos, Docket No. 92-001 E-SH (Order Denying Motion for Declaratory
Relief, March 20, 1992).

6. Niimi argues the additional fifteen day period was necessary
for the parties to consider new positions. This argument fails to
address the point that the extension period provides the time for
such consideration.