Click here to read the state’s reply brief to the joint HSTA/UPW motion seeking a temporary restraining order to stop the implementation of furloughs. The case is scheduled to be argued in court tomorrow.
The state argues that relieving employees of their duties temporarily for legitimate reasons is a non-negotiable management right under state law.
Despite the unions’ attempt to avoid even discussing the controlling law, HRS § 89-9(d) serves as the critical backdrop for this case. This statute reserves certain rights to the public employers, rights that are so fundamental and essential to the exercise of governmental powers that they cannot be bargained away. These rights are designated by statute as non-negotiable. HRS § 89-9(d). The Governor’s furlough plan clearly falls within the scope of these rights.
Included within these management rights are the public employer’s right to “relieve an employee from duties because of lack of work or other legitimate reason[,]” “[d]etermine the methods, means, and personnel by which the employer’s operations are to be conducted[,]” and “[t]ake such actions as may be necessary to carry out the missions of the employer in cases of emergencies.”
In addition, the state argues that the governor may invoke emergency powers in the face of today’s fiscal pressures.
Finally, the public employer may “[t]ake such actions as may be necessary to carry out the missions of the employer in cases of emergencies.” HRS § 89-9(d)(8). The missions of the executive branch are many, including: to ensure the public safety, run the prisons, protect Hawaii’s natural resources, maintain major roads, protect vulnerable children, elders, and the mentally ill, promote Hawaii’s agriculture, administer welfare and safety-net programs, protect consumers, run the State harbors, and regulate insurance and other industries.
It is the Governor’s job to “faithfully execute” the laws of this State, and to see that the many missions of the executive branch agencies continue to be pursued as best as possible despite the present economic difficulties. Haw. Const. Art V § 5. The Governor’s authority under HRS § 89-9(d)(8) therefore supports the furlough plan.
HRS § 89-9(d) does not limit “emergencies” to natural disasters. Addressing a budget shortfall of this magnitude can be every bit as exigent as almost any natural disaster, and poses potentially more of a disruption to the State’s ability to “carry out the missions” of the executive branch. An emergency should not be discounted just because it takes the shape of a financial crisis, rather than a naturally-occurring one.