2008 NAC 102 Hawaii Health Systems and Hawaii Government Employees Association

Title: Hawaii Health Systems and Hawaii Government Employees Association
Date: February 8, 2008
Arbitrator: Michael Anthony Marr
Citation: 2008 NAC 102

DECISION AND AWARD

The above-referenced matter came on for hearing before the arbitrator on September 24, 25 and November 13 and 14, 2007 in Wailuku, Maui. (Please refer to transcript of these proceedings, hereinafter sometimes referred to as “Tr” or by a witness’s last name followed by the transcript page number(s)). The arbitrator was mutually selected by the parties to arbitrate the grievance of Dr. Daniel J. Lane and to render a final and binding award regarding same.

The parties were represented by zealous, professional, and competent counsel at the arbitration hearing. The Hawaii Government Employees Association, AFSCME, Local 152, AFL-CIO, hereinafter sometimes referred to as “Union” and Dr. Daniel Lane, hereinafter sometimes referred to as the “Grievant” or “Dr. Lane” were represented by Peter L. Trask, Esq. The Hawaii Health Care Systems Corporation, dba, Maui Memorial Medical Center, hereinafter sometimes referred to as “Maui Memorial Medical Center,” or “MMMC” or “Employer” was represented by Kristen S. Shigemura, Esq. During the arbitration hearing the Union called 7 witnesses and introduced into evidence 47 Union exhibits. The Employer called 3 witnesses and introduced into evidence 38 Employer exhibits. Two Joint Exhibits were also received into evidence. Joint Exhibit 1 is the collective bargaining agreement (sometimes hereinafter referred to as “CBA”) that governs the relationship between the MMMC, the Union and Dr. Lane. Full opportunity was given to the parties to present evidence, examine and cross-examine witnesses and to present oral argument. The parties agreed that their respective closing briefs would be post-marked no later than the close of the business day of January 14, 2008. The arbitrator informed the parties that his decision and award would be post-marked no later than 30 days from January 14, 2008, or February 12, 2008.

The arbitrator has reviewed the testimony and evidence presented during the arbitration hearing as well as reviewed the well-written and convincing briefs submitted by counsel. The arbitrator does not feel compelled to address all of the numerous arguments and issues raised by these professional advocates. Please note that this is not to be interpreted that the arbitrator has not read and reread the transcripts, briefs and numerous pages of exhibits and carefully considered all arguments of counsel. Rather, the arbitrator elects to address only those elements that have a significant impact on his decision-making process. The arbitrator, as a general rule will not comment on matters that he believes are irrelevant, superfluous, redundant, or rendered moot by the arbitrator’s decision and award.

I. STIPULATED ISSUES.

The parties stipulated at a pre-arbitration hearing conference and again at the arbitration hearing held on this matter that the following were the issues in this grievance:

a. Is the grievance arbitrable?

b. Did the Employer violate Sections 3, 8 and 17 of the Unit 13 Collective Bargaining Agreement when it terminated Dr. Daniel Lane, effective January 10, 2006?

c. If so, what is the appropriate remedy?

The parties also stipulated that burden of proof as to arbitrability was on the Employer while the burden of proof as to whether there was a CBA violation and the appropriateness of a remedy were on the Union.

II. RELEVANT CONTRACT PROVISIONS.

ARTICLE 3 – MAINTENANCE OF RIGHTS AND BENEFITS.

Except as modified herein, Employees shall retain all rights and benefits pertaining to their conditions of employment as contained in the departmental and civil service rules and regulations and statutes at the time of execution of this Agreement, but excluding matters which are not negotiable under Chapter 89, HRS.

ARTICLE 5 – RIGHTS OF THE EMPLOYER.

The Employer reserves and retains, solely and exclusively, all management rights, powers, and authority, including the right of management to manage, control, and direct its work forces and operations except those as may be modified under this Agreement.

ARTICLE 8 – DISCIPLINE

A. Regular Employees shall not be disciplined without proper cause. Grievances regarding these matters shall be handled in accordance with the provisions of Article 11, Grievance Procedures.

B. Exempt Employees who meet all the conditions listed below shall not be disciplined without proper cause. The conditions are:

1. Employee is in an exempt position in an ongoing program and whose appointment does not have a termination date.

2. Employee is in an exempt position which is within the authorized ceiling as provided in the State Appropriations Act.

3. Employee has at least (12) continuous months of service in the Employee’s present position.

Whenever grievances alleging violations of Article 8, Discipline, are filed by any exempt Employee who meets all three (3) conditions sated above, such grievance shall be processed in accordance with the provisions of Article 11, Grievance Procedure.

Exempt Employees in the Hawaii Housing Authority and the Hawaii Public Broadcasting Authority shall not be disciplined without proper cause, notwithstanding that such Employees are appointed for a definite term, provided that they meet conditions 2 and 3 listed above.

Paragraph B does not apply to Employees in programs which provide temporary public service employment, such as SCET and CETA.

C. Disciplinary action taken against any Employee in writing shall be considered confidential.

D. When an Employee is orally reprimanded, it shall be done privately.

ARTICLE 17 – PERSONAL RIGHTS AND REPRESENTATION.

A. The Employer shall not require Employees to transport government equipment in their private vehicles, if such Employees do not receive mileage allowance.

B. Upon the request by the Union, existing dress and personal appearance codes shall be reviewed by the Employer or the Employer’s designee and the Union. The Employer or the Employer’s designee shall consult with the Union before establishing new dress and personal appearance codes.

C. Both parties agree that Employees shall not use their business address (place of employment) to receive personal mail; provided, however, if personal mail is sent to Employee’s business addresses without their knowledge or consent, the Employer shall endeavor to forward such personal mail unopened.

D. The Employer shall provide Employees with supplies and equipment which are required in the performance of the Employee’s official duties. Except in the case of negligence on the part of the Employee, when such equipment is stolen, lost, damaged and/or worn out it shall be repaired or replaced by the Employer.

E. The Employer shall provide legal counsel for an Employee upon request when:

1. the Employee is sued for actions taken by the Employee in the course of the Employee’s employment and within the scope of the Employee’s duties and responsibilities.

2. the Employee must appear as a defendant or is subpoenaed to appear in court when sued for actions taken in the course of employment and within the scope of the Employee’s duties and responsibilities.

3. the Employee must appear as a witness or is subpoenaed to appear in court on a matter arising in the course of employment and within the scope of the Employee’s duties and responsibilities.

4. the Employee is required to give deposition and answer interrogatories on a matter arising in the course of employment and within the scope of the Employee’s duties and responsibilities.

In addition, the Employee’s required presence in any of the foregoing situations shall be considered work time, provided whenever an Employee’s required presence is on the Employee’s scheduled day off or holiday off, the Employee shall be guaranteed a minimum of three (3) hours straight time pay.

F. When grievances are filed against Employees of this unit for actions taken by them in the course of their employment and within the scope of their supervisory and/or managerial duties and responsibilities, the Employer shall provide them with necessary staff support and representation. When such assistance is requested by the Employee and the Employer fails to furnish such assistance, the Employee will not be penalized for any improper action taken.

G. The Employer shall provide Employees with advice and assistance in the interpretation and administration of collective bargaining contracts or agreements covering their subordinates. Whenever Employees perform or carry out their assigned supervisory and/or managerial duties and responsibilities, based on such advice and assistance, the Employer agrees to provide full support to the Employees should conflict or grievances arise.

H. The Employee shall have the right to refuse for good cause as determined by the Employer to work overtime, to accept a temporary assignment, and to perform any work not representative of the Employee’s class.

I. If a judgment or court approved settlement is made against an Employee in a civil suit for actions taken by him in the course of the Employee’s employment and within the scope of the Employee’s duties and responsibilities, the Employer agrees to do no more than submit to the Legislature or the County Council any judgment (or court approved settlement) against the Employee, with the Employer retaining the discretion of recommending or not recommending legislative approval.

J. Bill of Rights.

As used herein, the term “complaint” refers to an allegation against an Employee which is made by an individual who is not employed within the same department. Whenever such a complaint is filed, the following shall be applicable:

1. No Employee shall be required to sign a statement of complaint filed against him.

2. If the Employer pursues an investigation based on such complaint, the Employee shall be advised of the seriousness of the complaint. The Employee will be informed of the complaint, and will be afforded an opportunity to respond to the complaint, and to furnish evidence in support of the Employee’s case. The Employee shall have the right to be represented by the Union in presenting the Employee’s case.

3. Before making a final decision, the Employer shall review and consider all available evidence and data, including factors supporting the Employee’s position, whether or not the Employee offers such factors in the Employee’s own defense.

III. APPLICABLE STATUTORY PROVISIONS.

Chapter 465 governs psychologists, their profession, behavior, and licensure. In particular,

Section 465-7.6 of the Hawaii Revised statutes provides as follows:

(a) A psychologist employed in a civil service clinical psychologist position in this State after January 1, 1988, shall be licensed subject to:

(1) Meeting the requirements of Section 465-7; and

(2) Obtaining licensure within two years from the date of employment.

(b) After the time period in subsection (a) (2) has expired, a psychologist employed

in a civil service clinical psychologist position rendering diagnostic or treatment services, who has not obtained a license, shall immediately cease and desist the practice of psychology until a license is obtained pursuant to this chapter. [L 1988, c 197, § 3; am L 1997, c 37 § 4; am L 2003, c 79, § 2] Chapter 89 of the Hawaii Revised Statutes governs the relationship between Public Employer and Public Employees. In particular, HRS § 89-9(d) (2) which provides as follows:

Excluded from the subjects of negotiations are matters of classification, reclassification, benefits of but not contributions to the Hawaii employer-union health benefits trust fund or a voluntary employees’ beneficiary association trust; recruitment, examination, initial pricing; and retirement benefits except as provided in section 88-8(h). The employer and the exclusive representative shall not agree to any proposal that would be inconsistent with the merit principle or the principle of equal pay for equal work pursuant to section 76-1 or that would interfere with the rights and obligations of a public employer to…

(2) Determine qualifications…

IV. THE GRIEVANT, DR. DANIEL J. LANE

Dr. Daniel Lane presented himself as a very intelligent, articulate, kind and considerate man. The record of four (4) days of testimony indicates that Dr. Lane was a contributing member as well as an asset to the Hawaii Memorial Medical Center. Ms. Knutson, the Director of Human Resources at Maui Memorial Medical Center, characterized Dr. Lane as a good employee and a good psychologist. Knutson at 380:11-13. Dr. McGuffey viewed Dr. Lane as a contributing member of the hospital and an integral part of the treatment team. Dr. McGuffey at 195:2-9. Union Exhibit 28 is a letter from 52 employees to Chief Executive Officer Wesley Ho, dated March 16, 2006, asking that Dr. Lane be reinstated to his previous position as a psychologist at Maui Memorial Medical Center since he is now licensed to practice psychology in the State of Hawaii.

Union Exhibits 30 through 33 are performance appraisals for Dr. Lane. Knutson at 362:15. The performance appraisal forms provide for an employee to be rated in one of three categories, the worst being “Fails to Meet Expectations,” the average being “Meets Expectations” and the best rating being “Exceeds Expectations.” For the period of November 17, 2003 through February 16, 2004, Dr. Lane received an “Exceeds Expectations” rating. (Union Exhibit 30). For the period of February 17, 2004 through May 16, 2004, Dr. Lane received a “Meets Expectations” rating. (Union Exhibit 31). For the Partial Annual performance evaluation from May 17, 2004 through June 30, 2004, Dr. Lane received a “Meets Expectations” rating. (Union Exhibit 32). For the period of July 1, 2004 through June 30, 2005, Dr. Lane received an “Exceeds Expectations” rating. (Union Exhibit 33). Dr. Lane’s overall performance evaluations indicate that he was a responsible employee and contributing member of the Maui Memorial Medical Center medical team. The arbitrator agrees with assessments of Ms. Knutson and Dr. McGuffey concerning Dr. Lane.

Dr. Lane is currently a self-employed clinical psychologist in Makawao, Maui. Dr. Lane at 407:24-25. At the time of his testimony (November 13, 2007) he had been so employed for approximately 21 months. Dr. Lane at 408:3. Dr. Lane started his private practice on February 15, 2006. Dr. Lane at 408:5.

Dr. Lane was licensed by the State of Hawaii as a psychologist on February 15, 2006. Dr. Lane at 488:8-12. Dr. Lane was advised by nurse supervisor Susan Carroll that a psychologist position was posted and asked Dr. Lane to apply. Dr. Lane at 488:18. Dr. Lane looked at the vacancy announcement and informed her that he would not apply because the position was for a lower level, psychologist VI position with a lower rate of pay. Dr. Lane at 488:18-24; 555:18. After being shown Employer Exhibit 37, which is a job vacancy announcement for a Clinical Psychologist VII position, posted on January 30, 2006, which indicates that the salary is negotiable, Dr. Lane testified that that is not what was posted online. Dr. Lane at 557:14-25; 558:17-18.

Irrespective of Employer Exhibit 37, Dr. Lane testified that he still would not have applied for the job position because he was pretty bitter about how unbalanced his relationship was with Maui Memorial Medical Center in terms of commitment. Dr. Lane at 489:1-4. Dr. Lane also feels that he was subjected to a very, very serious injustice and wants this corrected prior to returning to Maui Memorial Medical Center. Dr. Lane at 489:7; 558:21-25. Although Dr. Lane wants his job back, he believes that he does not want to place himself in a position to be further subjected to unprofessional treatment. Dr. Lane at 489:7-11. The grievance process is Dr. Lane’s attempt to get his job back. Dr. Lane at 489:12-15. Dr. Lane wants to right what he perceives as a very serious wrong. Dr. Lane at 490:1-3.

Dr. Lane was earning approximately $5,626 per month at Maui Memorial Medical Center. Dr. Lane at 498:19-23. In private practice he averages about $10,000 to $11,000 to $12,000 per month and at times about 2 ½ his earnings at Maui Memorial Medical Center. Dr. Lane at 498:22-25-499:1-6. This income is not his net income, but his gross income. Dr. Lane at 568:3-5. Costs included malpractice insurance, lease rent, deposit, telephone installation and monthly service, and internet service. Dr. Lane at 573:21-25 through 574:1-4. Rent is $1,200 per month, telephone $60 per month, office machines and furnishing about $10,000 to $12,000. Dr. Lane at 574:13-25. Malpractice insurance is approximately $400 per month, internet $35, and liability insurance about $500 a year. Dr. Lane spends about $2,500 to $3,000 per month in operating costs. Dr. Lane at 575:4-25.

However, Dr. Lane testified that he would like to be reinstated because there are benefits in working for the State such as time off and vacation time. Dr. Lane at 499:12-15. The reason why he has not reapplied is because he does not want to be treated unprofessionally. Dr. Lane at 499:16-20. He does not believe that he would be treated unprofessionally if the arbitration is approved in his favor and believes that it would make a difference in how administration treats him. Dr. Lane at 500:1-2. If the arbitration award is held in his favor with reinstatement, Dr. Lane testified that he would reassume his old position although it would take time to close down his private practice. Dr. Lane at 500:3-8.

V. BACKGROUND

Prior to 2001, Dr. Lane resided in Sacramento, California. Dr. Lane at 409:19. Dr. Lane was operating two nonprofit corporations, both of which he started in February of 1996, one called Crossroads Treatment Center and the other Lane Educational and Resource Center. Dr. Lane at 410:1-5. The Crossroads Treatment Center is a 24-bed subacute psychiatric level treatment facility for adolescent girls and Lane Educational Resource Center is a nonpublic school program that provides educational services to girls in the Crossroads Treatment Center. Lane at 410:5-9. Dr. Lane was the president and executive director of both corporations. Lane at 410:18-20.

A friend of Dr. Lane brought Dr. Lane’s attention to an internet ad for a clinical psychologist VI position at the Maui Memorial Medical Center. Dr. Lane at 409:10-13. Dr. Lane became interested because he and his wife had been to Maui several times and enjoyed the lifestyle and pace of living in Hawaii. Dr. Lane at 411:1, 6-7. They enjoyed the quality of life and cultural diversity. Dr. Lane at 425:3-4. Dr. Lane was also concerned about crime, traffic, gang activity, and drug activity in Sacramento. Dr. Lane at 411:3-4; 425:4-7. Dr. Lane was also concerned about his ten-year-old daughter’s environment, safety and education. Dr. Lane at 411:4-6; 425:7-10. Dr. Lane’s family would also be closer to his wife’s family living in Japan. Dr. Lane at 411:7-8; 425:3.

Dr. Lane sent a letter of introduction to the Maui Memorial Medical Center (Mark Figgie) inquiring about the position, dated April 19, 2001. Dr. Lane at 409:15-16; Union Exhibit 1. This was Dr. Lane’s first communication with Maui Memorial Medical Center. Dr. Lane at 412:9. In response to Dr. Lane’s letter of inquiry, Mark Figgie of Maui Memorial Medical Center, by letter dated June 22, 2001, informed Dr. Lane that he met the requirements for Clinical Psychologist VI, that he would be placed on a list of eligibles, and that if he had any questions he should contact Ms. Wendy C. Ono, Recruitment Officer, at (808) 986-0930. Dr. Lane at 1-13; Union Exhibit 2.

After Dr. Lane received Union Exhibit 2, Mr. Figgie’s letter of June 22, 2001, Dr. Lane expressed his interest regarding the position by contacting and speaking to Wendy Ono and Kathy Bauer. Dr. Lane at 413:1-6. As a result of this conversation, Dr. Lane was interviewed via telephone by an interview panel that consisted, among possibly other persons, Dr. Moser, Dr. Balog, and Kathy Bauer. Lane at 413:9-15. Dr. Lane was contacted as a result of this interview and offered the job position at Maui Memorial Medical Center. Dr. Lane at 413:17-18. Dr. Lane recommended that he travel at his own expense to Maui Memorial Medical Center to get an “idea of the commitment that I [Dr. Lane] was making,” to meet the staff in the psychiatric unit, and to determine if he was a “good fit.” Dr. Lane at 413:17-24.

Dr. Lane made his trip to Maui in August or September of 2001. Dr. Lane at 415:1. Dr. Lane recommended that he work for a period of six months as he had lived in Sacramento for 14-15 years, had two nonprofit corporations, 115 employees, and wanted to “thoroughly research this before I [Dr. Lane] made this type of a commitment.” Dr. Lane at 415:10-15.

Dr. Lane’s responsibilities and duties included everything that was identified in the job description for a clinical psychologist VI. Dr. Lane at 415:24-15. He was not required by the hospital to be licensed at this time. Dr. Lane at 416:3. Although Dr. Lane believes that he had no supervision and was functioning independently (Dr. Lane at 416:4-9), he was evidently supervised by the medical director of the adolescent psychiatric unit. Dr. McGuffey at 579:2-25; 580:1-11. Dr. Lane was unable to stay for a full six months. Although the Maui Memorial Medical Center allowed him to live in an apartment behind the hospital, Dr. Lane flew back to Sacramento each month for two weeks to attend to his businesses in Sacramento. Dr. Lane at 416:13-22. While Dr. Lane was on Maui, he paid for a rental car, food and gasoline. Dr. Lane at 416:17-18. Dr. Lane also paid for his airfare between Maui and Sacramento. Dr. Lane at 416:17. Dr. Lane asked Maui Memorial Medical Center if they would pay for his expenses but was informed that if that was what he wanted to do it would be at his expense. Dr. Lane at 417:3-4.

After the six-month contract expired, Dr. Lane and Maui Memorial Medical Center entered into a two-month contract because Dr. Lane wanted to make certain that there was going to be a good relationship between himself and Maui Memorial Medical Center. Dr. Lane at 417:12-14. Although the parties were considering a full-time contract after the six-month period, Dr. Lane had also informed Maui Memorial Medical Center that because of his businesses, it could take several months before he would be able to make the transition from Sacramento to Maui. Dr. Lane at 417:19-22.

After the two-month contract expired, the parties went into negotiations for the clinical psychologist VII position. Dr. Lane at 418:5-7. The position that was negotiated was set forth in Union Exhibit 3. Dr. Lane at 418:10. Although the salary limit is $57,000 in Union Exhibit 3, Dr. Lane negotiated his salary to approximately $68,000. Dr. Lane at 419:3-6. Since Dr. Lane had negotiated the level of the position from VI to VII, he was informed that Union Exhibit 3, to be fair and equitable to everyone, had to be posted to see if anyone else wanted to apply. Dr. Lane at 419:20-25 through 420:1-3.

Wendy Cheryl Ono, who has been employed at Maui Memorial Medical Center for the past 9 ½ years, the past 8 years as a Regional Recruitment Officer. Ono at 27:2-8; Ono at 26:22-25; Ono at 27:11-17. Ms. Ono testified that she was involved with a portion of the negotiations concerning the employment for Dr. Lane. Ono at 28:1-2. It is part of her job to recruit individuals such as the clinical psychologist position that was held by Dr. Lane. Ono at 28:5-7; 32:1. Her section was also responsible for posting the position. Ono at 28:12. She was involved in the request to “hire above the vacancy notice announcement” because of the difficulty Maui Memorial Medical Center had in filling the vacancy. Ono at 36:17-19; 39:20-25. To hire above the vacancy announcement, it was necessary to show recruitment difficulties, dates of recruitment, number of eligibles, and a study of comparable salaries. Ono at 40:8-11. The position had been open for at least a couple of years prior to the request to hire above the minimum. Ono at 36:22-24.

The Conditional Offer of Employment to Dr. Lane, Union Exhibit 5/Employer Exhibit 5, from Wendy C. Ono, on behalf of Maui Memorial Medical Center, dated April 7, 2003 set forth the minimum requirements that Dr. Lane would have to meet to maintain his employment with Maui Memorial Medical Center. There are 9 bullet points (conditions) set forth in the letter, the most important of which reads as follows:

• State of Hawaii Board of Psychology License – Please bring in your original Hawaii State Board of Psychology License within 2 years from the date of your appointment.

Employer Exhibit 5 contained several enclosures, Employer exhibits 6, 7, and 8. Employer Exhibit 6 is the Hawaii Health Systems Corporation Minimum Qualification Specifications for the Classes, Clinical Psychologist V, VI, VII, and VIII. Employer Exhibit 7 is the Vacancy Announcement and Employer Exhibit 8 is the Job Description for the position that Dr. Lane held, Clinical Psychologist VII, Position 50242. Ono at 71:24-25; 72:1-4; 76:11; 79:4. In regard to the license requirement, Employer Exhibit 6, page 1 Level 5, Section E provides for “[a] valid license to practice psychology in the State of Hawaii, as described in Chapter 465, HRS.” Employer’s Exhibit 7, page 2, item D provides for “a license to practice psychology in the State of Hawaii, as described in Chapter 465, HRS,” and Employer Exhibit 8, page 3, Item III.A.5 provides for “[a] valid license to practice psychology in the State of Hawaii, as described in Chapter 465, HRS” while Page 3, item D also provides for “[l]icensure: [w]ithin two (2) years from the date of appointment as a Clinical Psychologist VII, employee must meet the requirements for licensing and obtain a license issued by the State Board of Psychology, as required by Chapter 465, HRS.” Dr. Lane reviewed and signed page 4 of Employer Exhibit 8 which concerned his job description and minimum qualifications for employment on December 12, 2003. Nagamine at 129:20-25.^{^[1]}

Also sent out on April 7, 2003 with Union Exhibit 5/Employer Exhibit 5 was Employer Exhibit 10, a letter of “Letter of Understanding and Appointment.” Dr. Lane signed this document and returned it to Ms. Ono on April 21, 2003.

After April 21, 2003 Dr. Lane continued to negotiate the contract. Ono at 80:22-25. However, Dr. Lane never set forth concerns that he didn’t understand any of the conditions stated in his offer letter. Ono at 79:5-7. Dr. Lane never questioned or informed Ms. Ono that he did not understand any of the conditions stated in the offer of employment. Ono at 79:5-11.

Employer Exhibit 11 is a memorandum from Steven Mosher, MD, to Kathy Bauer and Wendy Ono, dated June 2, 2003. The memo sets forth various items that Dr. Lane wanted added to his employment agreement. Employer Exhibit 10 provides in relevant part as follows:

Dr. Lane had several things he wanted in his employment agreement:

“conducts daily groups on the adult unit, and either Tuesday and Thursday or Monday, Wednesday, and Friday on the adolescent unit.”
Is this OK with the Department?
Weekly supervision. The hospital will provide and pay for weekly supervision by either the clinical psychologists on medical staff (Dr. Sword and/or Dr. Bass) and/or the Psychiatric Director of the adolescent unit. The # or weekly supervised hours required is 10% of the total hours worked in any work week. In a typical 40 hour work week I will require 4 hours per week of supervision. This is in compliance with and required by the Board of Psychology for licensure.
Can we get these two staff psychologists to give him this much time?
Can attend monthly workshops and seminars during work hours in the hospital and local mental health community to enhance my clinical skills and also receive credit for licensure in Hawaii. Should we set some limits?
Face to face consultations: he has been identified as one of the staff identified in the one hour face-to-face consultation requirements for patients in seclusion. Please identify an after- hours compensation rate for on-call work providing this service either as an overtime rate or at a rate comparable to an outside psychologist providing these services to the hospital.
Is this possible and which is the best? What Rate?
Level VIII position: wants an addendum that after one year of employment, he will be eligible to be considered for advancement to Psych VIII position and identify criteria considered for advancement to this position.
Can this be done? Who does it.^{^[2]}

Thanks. Dr. Mosher

In regard to item #1, Dr. Lane was asking for a guarantee in his contract that he would work on certain units on certain days. Ono at 82:4-10. In regard to item #2, Dr. Lane was asking for a guarantee of 4 hours per week supervision.^{^[3]} Ono at 82:1-20. In regard to item #3, Dr. Lane was asking to attend monthly workshops and seminars that would enhance his clinical skills and receive credit for licensure. Ono at 82:21-25. In regard to item #4, Dr. Lane wanted to identify an after-hours compensation rate for on-call services either as overtime or a rate comparable to an outside psychologist. Ono at 83:2-7. Item #5 concerned Dr. Lane’s request for an addendum setting forth criteria that would make him eligible for the psychologist VII position. Ono at 83:12-14. Ms. Ono was advised not to include the items in an addendum. Ono at 83:23-24.

On October 1, 2003, Ms. Ono sent Dr. Lane an “Addendum to Letter of Understanding and Appointment” which incorporated some additional terms that were agreed upon by the parties (Employer Exhibit # 13). Both Ms. Ono and Dr. Lane signed the Agreement, dated October 1, 2003. Ono at 87:11-25. Ms. Ono never informed Dr. Lane that if he failed his licensure he would be kept on or he would be terminated. Ono at 89:13-15. She testified that she did not believe that it was necessary for her to discuss this with Dr. Lane since the burden was on him to bring in all of his documentation to maintain minimum qualifications. Ono at 89:18-24.

Dr. Lane testified that he has seen Union Exhibit 5/Employer Exhibit 5, a letter dated April 7, 2003 from Wendy C. Ono, Recruitment Officer, to Daniel J. Lane. Dr. Lane at 501:24-25. Page 2 of Union Exhibit 5/Employer Exhibit 5 indicates that Dr. Lane was required to bring in proof of his licensure within two years from the date of his appointment. Dr. Lane at 502:2-5. Dr. Lane also testified that he was aware of this requirement before he accepted the position with Maui Memorial Medical Center. Dr Lane at 502:9.

Union Exhibit 5/Employer Exhibit 5 also contained several enclosures, Employer Exhibit 6, the Hawaii Health Systems Corporation, State of Hawaii, Minimum Qualification Specifications Clinical Psychology Assistants III & IV and for Clinical Psychologist V, VI, VII, and VIII, Employer Exhibit 7, Hawaii Health Systems Corporation Vacancy Announcement, posted 03/19/03, for Clinical Psychologist VII, and Employer Exhibit 8, Hawaii Health Systems Corporation, Maui Memorial Medical Center Job Description for Clinical Psychologist VII. Dr. Lane at 503:1-3. Dr. Lane testified that Employer Exhibits 6, 7, and 8 required him to bring in his State of Hawaii Board of Psychology license within 2 years from the date of his employment. Dr. Lane at 503:5-11.

This was the first letter of understanding and appointment or a conditional offer of employment that Ms. Ono had written that would “permit an individual to possess a licensure after employment.” Ono at 38:5-7. However, part of the minimum qualifications for Dr. Lane was that he obtain his licensure within two years of employment, otherwise, “he would no longer qualify for that particular classification or that clinical psychologist position.” Ono at 38:14-20. However, Ms. Ono also testified that her letter of understanding and conditional offer of employer did not include what the Employer would do if Dr. Lane did not comply with the 2 year obligation to present a license. Ono at 38:1.

Dr. Lane did not dispute that he must be licensed within 2 years from the date he started to work at Maui Memorial Medical Center. Dr. Lane at 421:3; 501:5-10. However, Dr. Lane testified that he interpreted the cease and desist requirement as meaning that if he did not get licensed, he would stop practicing until he got his license and he never thought it would mean termination. Dr. Lane at 464:1-25 through 465:1-2^{^[4]} Dr. Lane did not take the leaves that he was entitled to because he was saving it as a buffer if for some reason he did not pass the exam the first time. Dr. Lane at 464:22. His plan was to have about four months of comp, vacation, and sick time that he could fall back on and would not be practicing psychology and still have income. Dr. Lane at 464:21-25.

No one made representations to Dr. Lane as to what would happen if he failed to obtain his licensure by November 17, 2005 (the two year anniversary date from his date of appointment), i.e., if he would be terminated or be placed on leave and be permitted to take another exam. Ono at 89:3-24; Nagamine at151:24-152:7; Dr. McGuffey at 216; Dr. Lane at 516:25-518-1.

Dr. Lane took it upon himself to determine how to get licensed as a psychologist for the State of Hawaii. Dr. Lane at 427:4-6. In the summer of 2003, Dr. Lane went online and downloaded a copy of Chapter 465 which governs Psychologists as he wanted to make certain what his licensure requirements were before he moved to Maui. Dr. Lane at 427:9-14. Dr. Lane had absolutely no doubt at that time that he would be able to meet the licensure requirements within the two-year requirement. Dr. Lane at 427:24.

Dr. Lane testified that he met all of the requirements of licensure with the exception of completing 1,900 post doctorate supervisory hours at an approved site and passing the EPPP exam. Dr. Lane at 428:1-25 through 429:18. Prior to being eligible to take the EPPP exam, Dr. Lane had to complete the 1,900 post doctorate hours and submit a full application to the Board of Psychology. The application includes school transcripts and information regarding education and experience. Dr. Lane at 430:1-6. Eligibility for the exam is determined by the Hawaii Board of Psychology. Dr. Lane at 430:12. If the applicant is eligible, the applicant is sent an “authorization to test” letter from the Hawaii Board of Psychology. Dr. Lane at 430:15, 25. The applicant uses the authorization to test letter to contact a testing site headquarters which is on the East Coast to schedule the EPPP exam. Dr. Lane at 430:15-18. Once the authorization to test letter is sent to a test site, the applicant has 60 days from the date the test site receives the letter to take the exam, otherwise the application becomes invalid. Dr. Lane at 430:19-21; 431:1-10. The EPPP exam is a national exam. Dr. Lane at 431:13.

Dr. Lane testified that the 1900 post doctorate hours must be completed at a site that is approved by the State of Hawaii licensing agency. Dr. Lane at 432:9-17. In late 2003, but prior to November 17, 2003, Dr. Lane contacted the Board of Psychology and learned that Maui Memorial Medical Center was not an approved site. Dr. Lane at 433:3-4. Dr. Lane does not believe that Maui Memorial Medical Center knew that they were required to be an approved site. Dr. Lane at 433:9-10. However, before Dr. Lane moved to Maui, he contacted the Board of Psychology, explained his situation and asked them to consider approving Maui Memorial Medical Center as an approved site for him to do his post doctorate internship. Dr. Lane at 433:16-24. The Board of Psychology approved Maui Memorial Medical Center upon Dr. Lane’s request. Dr. Lane at 434:4-5. Dr. Lane wrote Dr. Mosher on May 30, 2003 and informed him that he was going to contact the Hawaii Board of Psychology to have Maui Memorial Medical Center approved as a site for him to acquire his 1900 post doctorate hours. Dr. Lane at 435:1-8. Dr. Moser was the chief medical officer at that time at Maui Memorial Medical Center. Dr. Lane at 435:18. Maui Memorial Medical Center never advised Dr. Lane that it was not an approved site. Dr. Lane at 434:8-9.

Maui Memorial Medical Center agreed to cover the cost of Dr. Lane’s supervision by a psychologist so that he could meet his 1,900 hour post-doctorate requirement. Dr. Lane at 436:8-16. The supervision was to be done by one of Maui Memorial Medical Center’s staff psychologists, either Dr. Rick Sword or Dr. Kelly Bass. Dr. Lane at 436:2-4. Dr. Lane did not contribute to this cost, only his time by meeting with his supervisor. Dr. Lane at 436:18. Dr. Lane met with Dr. Bass once a week for every 20 hours of work or twice a week for every 40 hours of work for face-to-face supervision to meet this 1900 hours requirement. Dr. Lane at 437:1-4.

Dr. Lane’s job description is based on a 40 hour work week. Dr. Lane at 438:5-6. Union Exhibit 46, which is a chronology of events and the hours worked, complied by Dr. Lane indicates that he worked substantially beyond the 40 hours per week required. There were only two pay period where Dr. Lane averaged 40 hours per week. This was for August 1 through August 15, 2004 and February 16, 2005 through February 31, 2005. Dr. Lane at 440:1-5; Union Exhibit 46. During one pay period, March 16 through March 31, 2004, Dr. Lane averaged 58.5 hours per week. Union Exhibit 46-1. This was the pay period where he worked the most hours during his employment at Maui Memorial Medical Center. Union Exhibit 46-1. It is significant to note that although Dr. Lane generally worked more than 40 hours per week, he believes that only 40 hours per week can count towards his licensure. Dr. Lane at 460:15-18.

From April through September, 2003, Dr. Lane made several significant changes in his life. Dr. Lane at 422:24-25. Dr. Lane organized his two corporations where they could function in his absence, flew his wife and daughter out to Maui to look at schools and determine where they wanted to live. Dr. Lane at 422:9-13. Dr. Lane’s wife and daughter subsequently moved to Maui and they rented a home for about three (3) months in Makawao and he sold a portion of his businesses to cover the moving expenses and cost of living. Dr. Lane at 422:14-22. Dr. Lane expended between $25,000 to $30,000 in moving expenses to transport his home belongings and three vehicles. Dr. Lane at 423-10-11. Dr. Lane also put his personal residence on the market and sold it prior to leaving. Dr. Lane at 423:15-18. In late November or early December they found a home in Kula and put a $300,000 down payment on a home as he was here to stay with the intention of having a long-term relationship with Maui Memorial Medical Center. Dr. Lane at 424:1-5.

Dr. Lane testified that he signed Union Exhibit 6/Employer Exhibit 13 that was sent to him from Wendy C. Ono on behalf of the Maui Memorial Medical Center, dated October 1, 2003, regarding an “Addendum To Letter of Understanding and Appointment” which provided him with a start date of November 17, 2003. Dr. Lane at 421:8-12. Dr. Lane testified that he accepted the contract knowing that he had not been given guaranteed educational leave. Dr. Lane at 509:17-20. Dr. Lane also acknowledged that he could have elected not to have taken the job. Dr. Lane at 509:21-22. Dr. Lane took the job because he believed that he could meet all of the requirements. Dr. Lane at 509:25-510:1-2. Dr. Lane further testified that he realized that he would have to study for his licensure while working. Dr. Lane at 529:2-5.

Dr. Lane testified that he had no problems from the date he began his employment on November 17, 2003 until February, 2005 when he contacted the Board of Psychology and asked for it to send him an application. Dr. Lane at 442:9-11. When Dr. Lane read the application, he discovered that his 1900 hours of pre-doctorate work was supposed to be supervised by a licensed psychologist, not a licensed psychiatrist. Dr. Lane at 442:12-21. Dr. Lane had rounded his pre-doctorate hours off to 2,000. Dr. Lane at 443:17. However, approximately three to four hundred hours of Dr. Lane’s pre-doctorate work had been signed off by a psychiatrist in California. Dr. Lane at 442:22-24. According to his calculations, without the hours signed off by the California psychiatrist, he did not have the 1900 pre doctorate hours necessary for licensure in Hawaii. Dr. Lane at 443:1-6. All States calculate these hours differently. Dr. Lane at 444:9. For example, in California, 400 to 500 hours can be supervised by a licensed psychiatrist. Dr. Lane at 444:1-2. Dr. Lane contacted the Board of Psychology in Hawaii and asked if he could do an additional internship or be supervised by someone else to get the additional hours that he needed. Dr. Lane at 444:19-22. Dr. Lane was informed that this could not be done since he had already graduated. Dr. Lane at 445:1-6. It took Dr. Lane approximately 2 months to have his pre-doctorate hours recalculated and verified on the basis that he was conservative in counting his pre-doctorate hours. Dr. Lane at 445:16-25. Dr. Lane had some people go into storage to get his archived files for his internships. Dr. Lane at 446:2-7. Dr. Lane then submitted his supporting documentation to his pre-doctorate supervisors. His supervisors informed Dr. Lane that they could understand how he was entitled to additional hours and signed off on his request. Dr. Lane at 446:9-11. Dr. Lane resolved this problem by approximately March or April of 2005. Dr. Lane at 446:15-16. However, until this issue was resolved, Dr. Lane could not have submitted his application to the Hawaii Board of Psychology because it would have been rejected. Dr. Lane at 446:16-18.

On May 31, 2005 Dr. Lane received an e-mail from Dr. Bjordahl asking him if he had received his license yet, and if not, when. Dr. Lane at 460:20-23. Dr. Lane replied that he intended to take the examination in September or October of 2005. Dr. Lane at 461:24-25.

Dr. Lane purchased his academic review study guides, which is a study program for persons studying for the EPPP exam on February 9, 2005. Dr. Lane at 461:17-21. From that point on, Dr. Lane was devoting whatever time he had in preparation for the EPPP exam. Dr. Lane at 461:25 through 462:2. The materials are current for six months and Dr. Lane was also planning a weeklong workshop on the mainland. Dr. Lane at 462:7-10. The workshop offered by the Company Dr. Lane wanted assistance from gave it at two locations on the West Coast. Dr. Lane at 462:11-13. One was in Las Vegas in May of 2005, but he did not feel ready for the exam. Dr. Lane at 462:13-14. The other was in August of 2005 in San Jose. Dr. Lane at 462:15-16. Dr. Lane signed up for the August 2005 seminar in San Jose. Dr. Lane at 462:15-16.

On August 9, 2005 Dr. Lane received an e-mail notice from Lisa Dang, (Union Exhibit 7) which provides in relevant part as follows:

Hi Daniel:

This is just a reminder that you will need to bring in your license to practice as a Clinical Psychologist no later than November 16, 2005. This is per your job description stating that you will have two years to obtain your license. Please call me at ext 3036 if you have any questions regarding this matter.

Dr. Lane testified that he was not concerned about this e-mail notice. Dr. Lane at 466:2-4. Dr. Lane further testified that since he thought he had a permanent state job and made “tremendous monetary and time contributions” his exams were not going to be an issue. Dr. Lane at 466:5-11.

Dr. Lane did make an application for leave to prepare for his examination. Dr. Lane at 466:14. The formal request is Employer’s Exhibit 33 entitled “Application for Leave of Absence” and is dated August 22, 2005. Dr. Lane wanted to take leave from September 12^th to October 10, 2005. Dr. Lane at 467:23. Dr. Lane wanted to schedule his EPPP exam on October 6, 7, and 8, 2005. Dr. Lane at 468:5-11. Because of the review by the Joint Commission on Accreditation of Healthcare Organizations (“JCAHO”), Dr. Lane had to change his exam date. Dr. Lane at 467:9-11. Dr. Lane sat for the examination on October 19. Dr. Lane at 468:13. Dr. Lane changed his examination three times to accommodate the JCAHO review. Dr. Lane 468:16-17.

JCAHO certifies the standard of care at hospitals across the nation. Dr. Lane at 467:14-17. Dr. Lane believes that JCAHO reviews hospitals every 7 or 10 years. Dr. Lane at 468:21-22. JCAHO rates hospitals in different areas on the quality of care. Dr. Lane at 469:5-7. Dr. Lane did not discover that JCAHO was reviewing the hospital until mid-2005, but he did not understand at the time the impact of a JCAHO review. Dr. Lane at 469:23-25. During the JCAHO review Dr. Lane was required to give either a one or two day staff- training on suicide prevention because that was one of the standards of care that was required of a psychiatric unit. Dr. Lane at 470:22. Preparing the suicide prevention training took Dr. Lane either 4 hours of one day or 4 hours on each of two days. Dr. Lane at 474:5-9. Nurse Susan Carroll also reminded everyone to read, review and understand from 12 to 18 binders and take a small exam to demonstrate that they had an adequate level of training to be compliant with JCAHO regulations. Dr. Lane at 471:1-9; 12-20, 24-25. The exams were self-administered. Dr. Lane at 472:16-17. The JCAHO review was between October 3 and 6, 2005. Dr. Lane at 473:6.

Dr. Lane was scheduled to take the exam and felt he wanted to take a month off prior to the exam to study. Dr. McGuffey at 197:17-19. Initially Dr. McGuffey had no problems with Dr. Lane’s request. Dr. McGuffey at 197:19.^{^[5]} However, he later learned that there was going to be a JCAHO survey during that time and felt that it was important to have Dr. Lane present during the JCAHO review. Dr. McGuffey at 197:19-22 This would have left Dr. Lane with two weeks prior to his exam. Dr. McGuffey at 197:22-23. JCAHO is an acronym for “Joint Commission of Accreditation of Healthcare Organizations.” Dr. McGuffey at 216:20.

JCAHO is an agency that gives accreditation to hospitals and medical groups, applying a high standard of care and quality; and it is a high achievement to obtain and maintain such accreditation . Dr. McGuffey at 217:1-6. JCAHO reviews occur once every three years. Dr. McGuffey at 217:5-7. JCAHO is continuously present for 3 to 4 days. Dr. McGuffey at 217:8-9. JCAHO accreditation can have an impact on funding as well as Medicare and Medicaid funding sources. Dr. McGuffey at 217:18-21. In fact, an institution has to have JCAHO accreditation in order to become an approved provider under Medicare and Medicaid. Dr. McGuffey at 217:18-21. JCAHO accreditation also affects the MMMC’s ability to receive reimbursements from third-party insurers such as HMSA Quest and Kaiser. Dr. McGuffey at 218:1-6.

Dr. McGuffey has seen Dr. Lane’s Application for Leave of Absence (Union’s Exhibit 42) for leave from September 12, 2005 through October 10, 2005. Dr. McGuffey at 199:22-23. Dr. McGuffey does not recall seeing it at the time it was submitted, but does recall discussing a leave request. Dr. McGuffey at 200:23-24. 203-2. Dr. McGuffey only recently saw the form and does not recall handing the form back to Dr. Lane. Dr. McGuffey at 204:13-16. However, Dr. McGuffey emphasized that the fact that he does not recall seeing it does not mean that he did not see it. Dr. McGuffey at 219:12-14. Dr. McGuffey gave Dr. Lane verbal approval. Dr. McGuffey at 201:1. Dr. McGuffey recalls retracting his verbal approval. Dr. McGuffey at 203:3-4; 204:16. Dr. McGuffey requested that Dr. Lane take less time off before the JCAHO evaluation. Dr. McGuffey at 201:4-9. Dr. McGuffey believed that his concerns regarding the JCAHO review were appropriate. Dr. McGuffey at 205:17-18; 219:3. The JCAHO review was going to be for 3 to 4 consecutive days. Dr. McGuffey at 204:7. The JCAHO visit occurred during October 3 through October 6, 2005. Dr. McGuffey at 222:4-8. If Dr. Lane was not present during the JCAHO review and MMMC had difficulty in establishing that it had psychology services available, JCAHO could have marked MMMC’s rating down. Dr. McGuffey at 218:18-23-24.

Dr. McGuffey could have told Susan Carroll or anyone else that he was not going to deny Dr. Lane’s request for leave because of the JCAHO review. Dr. McGuffey at 206:1-6. Dr. McGuffey testified that he balanced the needs of the hospital and the needs of Dr. Lane. Dr. McGuffey at 206:6-8.

Susan Carroll did request that Dr. Lane be present on the floor during the review. Dr. McGuffey at 201:18-19. The concern was decreasing the service line and established precedent. Dr. McGuffey at 201:21-22. Dr. Lane was concerned about having enough study time, however, Dr. McGuffey did not believe that Dr. Lane would have difficulty passing the exam. Dr. McGuffey at 20:2-6. This was because Dr. McGuffey believed that Dr. Lane was a very competent psychologist and he never had any concern about Dr. Lane’s competence. Dr. McGuffey at 202:16-17. Dr. McGuffey did not mind Dr. Lane taking time off to study for the exam but was concerned about having a psychologist present during the JCAHO review as it is part of a service line that Maui Memorial Medical Center had. Dr. McGuffey at 198:4-7; 19-22.

According to Mr. Lo, the Chief Executive Officer for Maui Memorial Medical Center, JCAHO is probably the most important accreditation that a hospital can have because without it MMMC would be ineligible for Medicare and Medicaid payments. Lo at 268:8-12. Currently, Medicare and Medicaid make up just under 50% of their total revenue stream. Lo at 268:13-14. A hospital functioning without JCAHO certification is a signal that it is in demise. Lo at 268:16-17.

Dr. Lane testified that he initially scheduled his exam for October 7, 2005, the day after JCAHO and changed his mind because he believed it would be “insane” for him to go into a 4 ½ hour exam the next day on Oahu after the JCAHO review. Dr. Lane at 475:22-25. Dr. Lane rescheduled the exam from October 7 to October 9 and then rescheduled again to October 19, 2005 and studied 14 hours a day for 10 straight days. Dr. Lane at 476:1-11. Dr. Lane first sat for the exam on October 19, 2005. Dr. Lane at 468:5-13.

Unfortunately, Dr. Lane discovered that he failed his exam a few weeks after October 19, 2005. Dr. Lane at 533:13-23. Other than Dr. McGuffey, Dr. Lane informed nobody that he failed his exam. Dr. Lane at 534:3-13. After Dr. Lane discovered that he failed the exam he scheduled and took another exam on January 13, 2006. Dr. Lane at 487:23. Dr. Lane passed this exam and was licensed to practice psychology in Hawaii on February 15, 2006. Dr. Lane at 488:1-12.

Dr. Lane was of the belief that from November 17^th as far as he understood Chapter 465, he was not engaged in the practice of psychology. Dr. Lane at 484:2-4. Dr. Lane testified as follows:

“Well, if you look at the chronology of events here again, let me see, November 17^th, I worked four hours as a psychologist at the hospital. The 28^th I worked eight hours. And the 29^th of November 2005 I worked eight hours in preparing hospital staff training up at Kula Hospital. December 1^st through the 15^th I worked - - I actually had 88 hours recorded. I did have my second exam rescheduled, so I was using com and vacation time to take my second exam on January 13^th.”

Dr. Lane at 484:11-19.

Dr. Lane was unaware of the numerous e-mails sent between Maui Memorial Medical Center personnel that MMMC was very concerned with Dr. Lane’s licensure requirement until he received, by e-mail, a notification that he was going to be terminated. Union Exhibit 7. Thereafter, Dr. Lane was included in various e-mails regarding his employment and termination.

Ms. Knutson’s first involvement with Dr. Lane was in August of 2005. Knutson at 324:19.^{^[6]} Prior to August of 2005, Ms. Knutson does not recall receiving any notice that Dr. Lane’s status or if he had any problems obtaining his licensure. Knutson at 326:10-18. The facts that led to the termination of Dr. Lane occurred when Ms. Knutson was informed by her staff that the two-year licensure expiration date for Dr. Lane to obtain his license was approaching. Knutson at 310:9-14. She informed her staff to notify Dr. Lane that he needed to obtain is licensure. Knutson at 310:13-14; 324:10-11. This was in August of 2005. Knutson at 324:5-6. Either Lisa Dang or Ann Nagamine brought this to Ms. Knutson’s attention. Knutson at 324:8.

It was Ms. Lisa Knutson’s understanding that the two-year licensure requirement was set forth in the Hawaii Revised Statutes and that this requirement was incorporated into Dr. Lane’s job description. Knutson at 372:15.It was incorporated into the vacancy announcement for Dr. Lane’s position (Knutson at 372:15-17) and the conditional offer of employment that was sent to Dr. Lane on April 7, 2003. Knutson at 372:21; Employer Exhibit 5; Union Exhibit 5.

Ms. Knutson believes that Dr. Lane believes that he was aware that if he failed to meet these requirements, he would be terminated. Knutson at 373:1-3. This is Ms. Knutson’s belief because Dr. Lane signed letter of understanding and also because he signed his job description. Knutson at 373:5-7.

Ms. Knutson is familiar with the grievance of Dr. Lane. Knutson at 308:17. She believes that the grievance was for wrongful termination. Knutson at 309:7-8. She testified that it was her understanding that Dr. Lane was terminated because he did not meet minimum qualifications according to the job description, according to the job announcement, according to the letter of understanding, and according to the Hawaii Revised Statutes. Knutson at 309:13-16.

Ms. Nagamine was involved in Dr. Lane’s attempt to satisfy his two-year obligation to become licensed at Maui Memorial Medical Center. Nagamine at 96:4.^{^[7]} She became involved when her supervisor, Lisa Knutson, asked her to make certain that Dr. Lane got his licensure within the two-year requirement. Nagamine at 96:5-15. She believes her involvement began in September but uncertain which year. Nagamine at 97:13-18. This is the first time that they had done an employment case where licensure was required after employment. Nagamine at 96:22-25. Ms. Knutson had advised Ms. Nagamine to talk to the supervisor of the department, Dr. McGuffey, to ensure that Dr. McGuffey knew about the two-year requirement and to make certain that Dr. Lane completed it within this time frame. Nagamine at 97:1-6. Dr. McGuffey knew about the two-year time requirement. Nagamine at 99:14-15. Ms. Nagamine asked Dr. McGuffey to see if Dr. Lane sat for the exam and if he did not, the estimated date of when he would get his licensure. Nagamine at 99:18-21. Dr. McGuffey replied by e-mail and indicated that Dr. Lane had taken his licensure exam on October 19, 2005. Nagamine at 102:1-2. Ms. Nagamine was of the opinion that of this date, Dr. Lane might not make his two-year commitment date for being licensed. Nagamine at 102:9.

Ms. Nagamine called her corporate office to check with them as she was not sure what to do and was directed by Lynette Hanashiro to contact the DCCA licensing branch. Nagamine at 102:22-23. She called Ms. Hashimoto to determine if they had any options and believed that she was informed that they had three options, they could place Dr. Lane on leave without pay, allow him to use his leave or comp time, or write to the Board to see if a licensed psychologist would be willing to oversee Dr. Lane until he received his license. Nagamine at 103:16-20; 138:5-8. Ms. Nagamine testified that as of December 7, 2005, this was a good thing because she believed that Dr. Lane could continue working as long as he was being supervised by a licensed psychologist. Nakamine at 141:14-17.

Ms. Nagamine memorialized her conversation with Ms. Hashimoto of the DCCA licensing branch by sending her a confirming letter, dated November 7, 2005. Nagamine at 138:21-24; Union Exhibit 8/Employer Exhibit 15. Ms. Nagamine had thought that Dr. Lane’s licensure problems had been solved. Nagamine at 138:12-13. She was relieved to find options for Dr. Lane. Nagamine at 138:14-16. Union Exhibit 8/ Employer Exhibit 15 provides in relevant part as follows:

November 7, 2005

Ms. Kathleen Hashimoto, Executive Officer
Department of Commerce & Consumer Affairs
Division of Professional & Vocational Licensing
P.O Box 3469
Honolulu, Hawaii 96801

Dear Ms. Hashimoto,

Thank you for taking the time out of your busy schedule to interpret the DOH statutes that applies to the clinical psychologist license.

As per our conversation on November 4, 2005, Maui Memorial Medical Center has a sole Clinical Psychologist who started employment with us on 11/17/03. His two-year anniversary date is coming up soon and he recently took the clinical psychologist exam on 10/19/05. Maui Memorial would like to continue his employment so if he does not pass or is not able to receive his license by 11/16/05, we were looking at possible options to consider.

You stated that we could consider the following:

1. We can write to the Board of Psychology to see if a licensed clinical psychologist would be willing to oversee our Clinical Psychologist until he receives his license.

2. We can grant him vacation/comp time until we can verify his license; or

3. We can place him on leave-without-pay, until we can verify his license.

You also suggested that we advise our clinical psychologist to mail his check to your office as soon as he receives notification that he passed, and that he could check your website, ehawaii.gov to verify that his license has been issued.

Thanks again for the above information. If you have any questions, please contact me at

(808) 242-2485.

                                                            Sincerely,
                                                            /S/
                                                            Ann Nagamine
                                                            Classification Officer
                                                            Maui Memorial Medical Center

Ms. Knutson approved and agreed to Union Exhibit 8/Employer Exhibit 15 in principle prior to it being sent to Ms. Hashimoto. Knutson at 338:9; 12. Ms. Nagamine had informed Ms. Knutson of her conversation with Ms. Hashimoto. Knutson at 338:12.

By letter dated December 21, 2005 from Ms. Kathleen Hashimoto to Ms. Ann Nagamine

(Union Exhibit 9/Employer Exhibit 19), Ms. Hashimoto wrote in relevant part as follows:

December 21, 2005

Ms. Ann Nagamine
Classification Officer
Maui Memorial Hospital
221 Mahalani Street
Wailuku, Hawaii 96793

Dear Ms. Nagamine:

During its meeting on November 18, 2005, the Board of Psychology (“Board”) discussed your letter dated November 7, 2005. Specifically, you asked whether a clinical psychologist at Maui Memorial Hospital can retain this position if the individual is not licensed as a psychologist and two years of employment has passed. Subsequent to its discussion, the Board noticed that Hawaii Revised Statutes (“HRS”) §465-7.6(b) states “after the time period in subsection (a) (2) has expired, a psychologist, employed in a civil service clinical psychologist position rendering diagnostic or treatment services, who has not obtained a license, shall immediately cease and desist the practice of psychology until a license is obtained pursuant to this chapter”. The time period in subsection (a) (2) is two years. Therefore, based on the requirements in HRS §465-7.6, it was the Board’s informal opinion that once two years of employment has passed, a person is unable to practice as a psychologist unless licensed as a psychologist in this State. The Board was unable to answer your questions on whether the employee may be placed on vacation leave or leave without pay since HRS §465.7.6 does not include alternatives to the “cease and desist” requirement.

Please advise your employee that the payment of fees should be submitted only after the “Notice of Licensure Fees” form is received.

Pursuant to Hawaii Administrative Rules §16-201-90, an informal opinion is issued for informational and explanatory purpose only and is not an official opinion or decision, and therefore, it is not to be viewed as binding on the Board.

Should you have any questions regarding this matter, please contact me at (808) 586-2693.

                                                Sincerely,
                                                /S/
                                                Kathleen Hashimoto
                                                Executive Officer

As noted above, Ms. Hashimoto responded to Ms. Nagamine by letter (Union Exhibit 9/Employer Exhibit 19) dated December 21, 2005 and disputed the three options by stating “The Board is unable to answer your questions on whether the employee may be placed on vacation leave or leave without pay since HRS §465-7.6 does not include alternatives to the “cease and desist” requirement. Nagamine at 104:16-25; Union Exhibit 9/Employer Exhibit 19. Ms. Nagamine interpreted Ms. Hashimoto’s letter to mean that that Dr. Lane could not be employed as a psychologist because he was not licensed since the law does not provide alternatives to the “cease and desist” requirement. Nagamine at 105:3-12. She believed that her three options to keep Dr. Lane employed had been taken from her. Nagamine at 144:21-25; 145:1-5. Ms. Nagamine sent Union Exhibit 9 to Lisa Knutson, Wendy Ono and to Henry Kanda. Nagamine at 105:17-23. However, she did not express her interpretation of what the Board meant. Nagamine at 105:24-25.

The letter that Ms. Hashimoto sent to Ms. Nagamine on December 21, 2005 was inconsistent with the alternatives that Ms. Nagamine memorialized on November 7, 2005. Nagamine at 106:3-5. She did not get assistance from in-house counsel or outside counsel in her interpretation, but she did get help from Henry Kanda of Corporate. <