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.