I’m trying to figure out the actual meaning of yesterday’s court ruling which struck down a set of ethics guidelines for public school teachers involvement in educational trips.
The ruling came in lawsuit brought by the Hawaii State Teachers Association appealing a decision by the State Ethics Commission.
The educational travel guidelines, adopted last year by the State Ethics Commission, said several provisions of the ethics code conflict with the past practice of teachers accepting free travel and other benefits from private travel companies in exchange for the teachers planning the trips, recruiting participants, and serving as chaperones. As a result, the commission held that trips could not proceed until or unless they were brought into compliance with the ethics laws.
According to the Honolulu Star-Advertiser:
Judge Rhonda Nishimura repealed the Ethics Commission’s Aug. 4, 2015, memo and Aug. 19, 2015, advisory opinion today after hearing oral arguments. She said because the advice applies to a broader group, the process is subject to official rulemaking under law, which involves the public.
“So for the state Ethics Commission to issue such an advisory opinion and guidance memo that has a broader application than just a particular teacher or particular trip, does require that the entities involved engage in rulemaking,” Nishimura said.
The basis for the ruling appears to be that the commission’s “guidance” was actually a rule of general application which should have been adopted pursuant to the Hawaii Administrative Procedures Act, Chapter 91 HRS.
HSTA, represented by attorney Colleen Hanabusa, had previously made this argument directly to the commission, which rejected it. HSTA then appealed the commission’s ruling to the Circuit Court.
HSTA questioned the ethics commission’s application of the gift provisions of the ethics law, which prohibit soliciting or accepting any gifts “under circumstances where it can reasonably be inferred that the gift is given to influence the employees in the performance of the employees’ official duties or is intended as a reward for official action on the employees’ part.”
From HSTA’s “petition for a declaratory order or alternatively for a contested case“:
Clearly the dispositive language the EC has relied upon is “reasonably be inferred that the gift is intended to influence.” HRS §84-11. The question is without rules how does the EC and/or its staff arrive at the conclusion that the provision of the free trip is to influence by inference the teacher to take the trip. It fails to first acknowledge that the teacher does not decide who will take the trip, the parents do. The EC refuses to give weight to, although it does concede, that the teachers conduct lessons and act as chaperones on the trip. However, no matter how “unique and valuable the educational experience” may be, the EC has determined it would violate public confidence.
Where the dispute arises is in the question of whether it can “reasonably inferred” that it [the gift] was intended to influence. Rules are mandated under HAPA to ensure that these terms are not arbitrarily and capriciously defined and acted upon by the agency personnel. This is what HSTA contends has occurred here.
Just when is it reasonable to infer that a specific gift is intended to improperly influence a public employee or official? That’s what HSTA thinks should be addressed via consideration of a rule, with the protections provided for public participation in the process.
So what does yesterday’s court ruling mean in practice?
First, it rescinds the commission’s adoption of the educational travel guidelines.
Second, it establishes that the commission must go through the rule making process if it wants to adopt these guidelines.
Third, it raises questions about other applications of the same gift provisions as applied to legislators and other government officials.
It does not, however, appear that the court ruled that the commission’s interpretation of the gift law is wrong, only that it was not properly adopted as a rule of general applicability. So it doesn’t seem to prevent the commission from enforcing the same interpretation of the gift provisions in specific situations where a violation of the ethics code is alleged. Hopefully this will soon be clarified.
And I would think it is highly likely the commission will appeal the court ruling in an attempt to preserve its own authority to interpret and apply the ethics laws.
Ethics ruling stops student trips, at least for now (ilind.net 2/21/2015)
No More Free Trips for Hawaii Public School Teachers (Civil Beat, 2/20/2015)
Ethics ruling on free trips for teacher-chaperones deserves better media coverage (4/27/2015)
Ian Lind: Untangling the Ethics of Educational Travel (Civil Beat 6/3/2015)