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Ian Lind • Online daily from Kaaawa, Hawaii

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HSTA and DOE agree on TRO blocking latest ethics ruling

March 29th, 2015 · 5 Comments

The Hawaii Labor Relations Board has approved an agreement between the Department of Education and the Hawaii State Teachers Association to defer enforcement of a recent ethics ruling barring candidates for union office from distributing their campaign materials through school mailboxes, according to the attorney representing the union.

The labor board approved a stipulated temporary restraining order that permits teacher candidates to use the mailboxes in schools, according to former Congresswoman Colleen Hanabusa, who is representing the union before the labor board. The TRO means that the department will revert to the past practice dating back more than four decades. The procedure has been for the union to submit a list of qualified candidates in its internal elections, who are then allowed to distribute campaign materials.

That abruptly ended in mid-March when ethics commission staff advised the department that it now considers access to school mailboxes “inappropriate.”

The staff opinion was based on a new interpretation of an ethics provision which prohibits any employee from using their official position to grant or obtain an “unwarranted” advantage or privilege. The law specifically says that use of state time, equipment or facilities for “private business purposes” is not allowed.

The new interpretation and advice to the DOE was explained to commission members at their March 18 meeting. However, a union request to defer enforcement until after the current election is over in late April could not be acted on because it was received too late to be included on the meeting agenda.

The commission did not vote on a suggestion that a special meeting be held to review the staff interpretation.

HSTA responded legally on two fronts.

The union went to court on Monday, March 23, seeking a TRO to block the ethics ruling. As of Friday afternoon, the union and the state had been unable to agree on a way to settle the dispute, court records show.

In a separate legal action, HSTA filed a prohibited practice complaint against the Department of Education with the Hawaii Labor Relations Board.

Hanabusa said in an email on Saturday that the labor board had approved a stipulation or agreement between the parties for a TRO, which means union candidates can distribute their campaign materials to other teachers through school mailboxes, at least for now.

The State Ethics Commission was not a named party in either legal, and it is not known how the agency will respond to this bypassing of its authority over ethics issues.


Hawaii Monitor: Ethics Commission Ruling Draws Teachers’ Union Lawsuit,” Civil Beat.

State Ethics ruling triggers two-pronged HSTA legal action,” ilind.net

Is union candidate access to school mailboxes an “unwarranted” privilege?“, ilind.net

→ 5 CommentsTags: Education · Ethics · Labor · Politics

Windward side vulnerable to road closures like the one yesterday

March 28th, 2015 · 10 Comments

We were heading into Honolulu yesterday morning right around 10 a.m. when we ran into a long line of cars backed up before reaching Waiahole Homestead Road and the poi factory.

The traffic was stopped. We waited. Then we waited some more for clarification of what was going on.

Every once in a while, a car would come past in the opposite direction.

It took us a several minutes to figure out that these were cars that had been in front of us and had now turned around and were heading back.

We finally moved enough to be able to see a fire truck and other emergency vehicles up ahead past the bridge.

We turned around and headed back to Kaaawa, but had no idea that the road would remain closed for more than another eight hours.

For those who aren’t familiar with the area, this is a spot where there is no alternative route. With the highway closed, the only way for us to get into town would have been to drive all the way back up around the north shore, up through Wahiawa, and then down to the H-1 freeway and back to downtown. It would take a couple of hours if the traffic was moving. If bad traffic, who knows?

Here’s how Hawaii News Now explained:

It was just a small section of the highway but it caused major problems because there is just one lane in each direction and there is no alternate route. Some drivers chose to wait it out, but those who couldn’t wait, were forced to turn around.

“Nobody can get out of here right now, gotta go around the island,” says Santiago, who says that would add an hour-and-a-half to his commute that would normally just take a few minutes.

And then there were parents who could not pick up their kids at school because they were caught on the wrong side of the accident. Teachers had to keep schools open for remaining students until the road was finally cleared and parents could get through.

There are some places where it’s possible to detour cars off the highway and on small interior roads to bypass this kind of accident scene. That happened in Kahaluu recently when traffic was diverted up Waihee Road and then back down Pulama Road. And a fatal motorcycle accident in Kaaawa detoured traffic on the back roads for several hours.

But there in Waiahole, there were not alternative routes available.

Twitter turned out to be the best source of updated information, as people tweeted their experiences in real time. We were able to see that the road had not reopened, then that there had been a fatality, which means a longer wait while traffic investigators do their work. Thanks, Twitter.

So we ended up with an unscheduled day at home.

Here’s a photo from earlier on Friday as we walked the beach at dawn. It was cloudy, although it didn’t rain, but there were no cosmic indications of what was ahead here on the windward side.

Dawn in Kaaawa

→ 10 CommentsTags: Kaaawa · Photographs

Feline Friday: Saying goodbye to the month of March

March 27th, 2015 · 1 Comment

Ms. WallyIt hasn’t been a good week for Ms. Wally, by and large. She’s been a picky eater for several days, and vomited once (is that “over sharing”?). I manage to keep her ticking by trying to temp her with a series of goodies. Usually she has a bit of each, and by the end consumes enough to get by. Then there’s usually a day when it’s like a switch is flipped, and suddenly she’s hungry. When that happens, I encourage her to consume as much as she can, which still isn’t a large amount.

She and Ms. Kili are well on the way to their 18th birthdays. I guess I should just be thankful they’re both still with us, for now at least.

–> See all of this week’s Friday Felines!

→ 1 CommentTags: Cats · Photographs

Is union candidate access to school mailboxes an “unwarranted” privilege?

March 26th, 2015 · 4 Comments

I still haven’t gotten my hands on copies of the documents filed in HSTA’s request for a TRO to block a new and far more restrictive interpretation of the state ethics law, or the prohibited practices complaint filed by the union. But it does seem to me that the staff of the State Ethics Commission may have overreached when they advised the Department of Education that allowing teachers running for union office to distribute campaign material through school mailboxes would violate the ethics law.

Executive Director Les Kondo outlined the staff’s position at the commission’s regular monthly meeting last week, but did not present a full analysis of the issue for the commission to consider.

As I understand it, Kondo’s argument went like this.

First, there’s the statute, the “fair treatment” provision of the state’s ethics law, found at Section 84-13 HRS. He specifically pointed to subsection (3), below.

§84-13 Fair treatment. No legislator or employee shall use or attempt to use the legislator’s or employee’s official position to secure or grant unwarranted privileges, exemptions, advantages, contracts, or treatment, for oneself or others; including but not limited to the following:

. (1)  Seeking other employment or contract for services for oneself by the use or attempted use of the legislator’s or employee’s office or position. ?
. (2)  Accepting, receiving, or soliciting compensation or other consideration for the performance of the legislator’s or employee’s official duties or responsibilities except as provided by law. ?
. (3)  Using state time, equipment or other facilities for private business purposes. ?
. (4)  Soliciting, selling, or otherwise engaging in a substantial financial transaction with a ?subordinate or a person or business whom the legislator or employee inspects or supervises in the legislator’s or employee’s official capacity. ?

Kondo then cited a 2007 Hawaii Supreme Court opinion involving the issue of whether a newsletter featuring an article about union-endorsed candidates could be removed from a union bulletin board in a state Department of Transportation office.

The case was an appeal from a decision by the Hawaii Labor Relations Board, where attorneys for the Hawaii Government Employees Association had unsuccessfully argued that state’s collective bargaining law in that case was not inconsistent with the application of the same “fair treatment” provision of the ethics law at issue in the HSTA matter.

Essentially, the Supreme Court rejected the union’s appeal and upheld the Labor Board, which had relied on the Ethics Commission’s position that posting election information in a state office, even if on a union bulletin board, is not allowed.

Here’s the court’s summary of the opinion.

We hold that the court’s February 13, 2006 judgment affirming the June 30, 2005 decision and order rendered by the Board, dismissing HGEA’s prohibited practice complaint is affirmed, because (1) there was no constitutional violation of the free speech rights of public employees under the First and Fourteenth Amendments to the United States Constitution or article I, section 4 of the Hawai‘i State Constitution, (2) the statutory rights of public employees to engage in “mutual aid or protection,” HRS § 89-3 (Supp. 2006), were not violated, (3) the Board did not exceed its jurisdiction by applying the State Ethics Code, HRS § 84-13, in this case, and (4) the Board did not misconstrue the preemption clause of HRS § 89-19 (Supp. 2006).

But when you get down to details, it seems to me that the current HSTA matter can be distinguished from the 2007 opinion in several ways.

First of all, in the HGEA case, the union did not challenge or question the Ethics Commission’s position. The court noted that HGEA did not challenge the testimony of then-ethics director Dan Mollway during the labor board hearings, and similarly had not disputed the commission’s “fair treatment” analysis. The Supreme Court, on the other hand, found there was no conflict between the two laws in that case.

The court noted:

It should be noted that Appellant did not contest the Board’s receipt of Mollway’s testimony at the Board, before the court, or to this court. In such a case Appellant waived any objection to the receipt of such testimony.

But I have to presume that such a challenge of the commission’s new interpretation will be part of the current HSTA cases, one of several ways the current matter may be distinguished from the HGEA case.

Then there’s the question of “fair treatment.” The law does not prohibit officials and employees from granting any and all “privileges, exemptions, advantages, contracts, or treatment.” It is only “unwarranted privileges” that are prohibited.

In the current case, then, a key question is the use of school mailboxes by candidates for HSTA office “unwarranted”?

Former Congresswoman Colleen Hanabusa, who is representing HSTA in the prohibited practice complaint, says there is a clear public purpose behind access to school mailboxes by individual union candidates. She points to the introduction to Chapter 89, which describes the public benefits of collective bargaining for public employees.

The legislature finds that joint decision-making is the modern way of administering government.  Where public employees have been granted the right to share in the decision-making process affecting wages and working conditions, they have become more responsive and better able to exchange ideas and information on operations with their administrators.  Accordingly, government is made more effective.  The legislature further finds that the enactment of positive legislation establishing guidelines for public employment relations is the best way to harness and direct the energies of public employees eager to have a voice in determining their conditions of work; to provide a rational method for dealing with disputes and work stoppages; and to maintain a favorable political and social environment.

Hanabusa further argues that electing officers is central to a union’s functioning and, by extension, fostering participation in those elections furthers the public purposes identified in the statute.

As long as all union candidates have equal access, it’s hard for me to see what “unwarranted” privilege would be involved in use of the school mailboxes, assuming that this is, as in the case of HSTA, the exclusive bargaining agent as provided for by statute.

Who is disadvantaged by providing that access? And why would it be considered “unwarranted”?

An online dictionary gave these synonyms for the word “unwarranted”: unjustified, uncalled for, unnecessary, unreasonable, unjust, groundless, excessive, gratuitous, immoderate, disproportionate, undue, unconscionable, unjustifiable, indefensible, inexcusable, unforgivable, unpardonable.

Would any of those terms apply to use of state facilities by the exclusive bargaining agent for the limited purpose of its internal election process? It doesn’t appear that way to me, but its the commission that will likely have to make that determination.

→ 4 CommentsTags: Court · Education · Ethics · Labor

Throwback Thursday: Malaekahana 1959

March 26th, 2015 · 1 Comment

My old friend, Honolulu attorney Roy Yempuku, will be surprised to see this week’s Throwback Thursday.

It’s a photo of the two of us taken during a family vacation at Malaekahana in 1959, probably in the summer. We had invited Roy to come with us. I don’t recall if we were there for a week, or just a long weekend.

It this was taken over the summer, Roy and I would have just finished the 6th grade at Kahala Elementary School, and were entering 7th grade at University High School, now known as the University Laboratory School.

I remember a short essay we had to write at the beginning of our 7th grade year. It was sort of a “what did you do this summer” sort of exercise. I know I have the original in a box somewhere.

Mine began something like this: “I am 12 years old and 6 feet tall.”

with Roy Yempuku

[Oops. My first attempt at posting this failed to include the link to a larger version. That’s been corrected.]

→ 1 CommentTags: History · Photographs