Category Archives: Labor

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

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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.

State Ethics ruling triggers two-pronged HSTA legal action

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I recommend my column at Civil Beat today (“Hawaii Monitor: Ethics Commission Ruling Draws Teachers’ Union Lawsuit“).

There’s a story behind the story.

It started with the regular monthly meeting of the State Ethics Commission a week ago. I’ve been trying to attend the commission’s meetings when possible, because the agency has been reshaping the ethics map for public officials and there’s a lot of tension as a result. That adds up, more often than not, in potential stories.

There were quite a few things on the agenda, from a report on pending legislation to a discussion of the financial disclosures of those boards and commissions members among those newly subject to public disclosure. That seemed to have the most potential.

But tucked away as an item included in the executive director’s report was this: “Hawaii State Teachers Association Campaign Flyers.”

That was it. No explanation or background.

When the commission executive director, Les Kondo, reached this item on the agenda, he explained that a phone call from a Department of Education administrator on Maui had triggered a review of the longstanding practice of allowing teachers who are candidates in the HSTA election to distribute their campaign materials through school mailboxes.

And after this review, Kondo and the commission staff informed the DOE, the union, and the teacher involved, that it they now consider use of mailboxes by individual teacher-candidates to be “inappropriate.”

Kondo said the staff believe the practice violates the “fair treatment” provision of the state ethics law, which specifically prohibits “using state time, equipment or other facilities for private business purposes.”

Not surprisingly, the HSTA had asked Kondo to hold off on his ruling until after the current election ends next month. He declined.

And because it was too late to add the matter to the agenda for a thorough commission discussion and independent review, the commission had little choice but to let the staff interpretation stand.

Here’s where it got interesting.

Kondo told the commission that he had been contacted just the day before by former Congresswoman Colleen Hanabusa on behalf of HSTA. It was Hanabusa who suggested deferring the new ruling prohibiting use of school mailboxes for campaigning by teachers. And, according to Kondo, Hanabusa said the union had also retained the law firm of Alston Hunt Floyd and Ing to litigate, if necessary.

Over the next few days I watched for any news about this issue. Nothing appeared. So yesterday I decided to write about the new commission ruling, which overturns 42 years of past practice. That alone seems to make it of public interest.

When I got up in the morning, I reviewed my notes of the commission meeting, listened to my recording of that portion of the commission meeting, and looked at a 2007 Hawaii Supreme Court case which Kondo had referred to.

Then I started making calls. No one was available. I called HSTA. I left messages for the union’s communications person and for the acting executive director. I also followed with an email. I called the ethics commission, discovered that Kondo is out of the office for the week, and left a message for associate director. I called the Alston law firm, explained why I was calling, and was told I would be contacted later. I left a telephone message and sent an email to Hanabusa. The hours passed, none of the calls were returned, and I used the time to read more about the “fair treatment” provision, look up info on the HSTA election, and to think through how I would explain the commission’s new hard line on union campaigning.

Then I thought I would try to figure out who had raised the issue. Kondo said the phone call to the commission came from Maui, and involved a teacher, referred to as “he”. So I was looking for a male teacher at a Maui school.

Then after some searching, I found a list of candidates for the top HSTA offices. The only Maui person on the list was Justin Hughey, a candidate for vice-president.

I spent too many minutes looking for a telephone number. Finally I turned to social media, found Hughey on Facebook, and sent him a message. Sometime later my computer chimed to let me know he had responded.

Unfortunately, from my perspective, Hughey declined to comment on the situation. However, in the process of doing so, I was left with the impression that he was declining to comment on the lawsuit. And at that point I didn’t know there was a lawsuit! Aha. The process was leading to some real news.

With that information, I got visited the state Judiciary’s website, checked the court records, and found that the union had gone to court on Monday with an emergency motion for a TRO to block enforcement of the new ethics ruling.

Unfortunately, I was not in town and so could not go over to the court and retrieve a copy of the HSTA motion. That was frustrating.

About that time, I got an email message from a public relations firm on behalf of HSTA. They said Hanabusa had been tasked with following-up with me. Excellent. I started writing, using the information already available, relying on the discussion that had taken place during the commission meeting for the substance. The column started taking shape.

Then Hanabusa called and the story developed further. She explained that while the Alston law firm is pursing a TRO, she has filed a prohibited practice complaint with the Hawaii Labor Relations Board, arguing that the DOE refusal to allow teachers access to school mailboxes is a violation of their collective bargaining agreement as well as state law.

That bit of info turned my column into a breaking news story, which doesn’t happen all that often.

It took a bit of rewriting to incorporate the new information and Hanabusa’s perspective. But I was done in time for wine o’clock.

It just goes to show how a bit of digging can sometimes turn up unexpected news.

If you have access to CB, directly or through a friend, check it out.

 

Two awarded cash judgement after ban that followed run-in with former mayor’s brother

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The city has been ordered to pay just over $750,000 in damages to two stagehands who were arbitrarily banned for life from working on shows in city facilities after a 2007 run-in with then-honolulu Mayor Mufi Hannemann’s brother.

The incident happened during a rehearsal for a benefit concert at Blaisdell Center in which a performance by the mayor was to be featured.

In a decision issued on October 15, 2014 by Judge Karen Nakasone, Eric Minton was awarded $556,156 on his claim of “tortious interference with prospective business advantage.” Richard Stanley was awarded $194,483 for his similar claim. Minton was crew chief with decades of experience, while Minton is a sound engineer who was working the concert. Both men were union members hired by the show’s organizers.

The city is now appealing the judgement.

The men alleged they had been wrongfully targeted after Mayor Hannemann called a meeting with top Blaisdell managers to discuss the incident.

The case, originally filed in 2007, has been dragging through the courts for years. The case was originally decided in favor of the city, a decision which was affirmed by the Intermediate Court of Appeals. But the Hawaii Supreme Court reversed those initial decisions and, in a scathing decision issued in December 2013, ruled in the plaintiffs’ favor.

The case was sent back to the Circuit Court for consideration of damages, and there was an additional appeal on the question of whether attorneys fees should be awarded to the men’s lawyers.

Here’s how I summarized the case in a December 2013 Civil Beat column.

The court’s decision came in a lawsuit brought by Eric Minton and Richard Stanley, professional stagehands with nearly 75 years of experience between them, not to mention many rave reviews from prior clients. Named as defendants, along with the city, are Sidney Quintal, former director of the Department of Enterprise Services, and John Fuhrmann, who was in charge of daily operations at the city-owned facilities.

The men were barred from working in city facilities, and the city told groups or promoters who wanted to hire them to find other stagehands to do their jobs.

The court ruled the blacklisting violated the men’s constitutional rights, found they had not been provided due process, and ruled that the evidence properly demonstrated the city’s action had resulted in the loss of a significant part of their incomes.

The court called the city’s action “particularly egregious” because it effectively destroyed the men’s livelihoods by banning them for life from the premier entertainment venues, Blaisdell Center and the Waikiki Shell, without any intention of providing due process.

You can read my full Civil Beat column here.

Judge Nakasone was a 2008 Pacific Century Fellow, prior to her appointment to the Circuit Court by then-Gov. Abercrombie in 2011, according to her profile on the Judiciary website. Mufi Hannemann was founder of the Pacific Century Fellows program and serves as its chairman.

More on residency requirements for appointees

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It turns out that the residency requirement goes back a long way, in various forms.

I’m not sure when the residency provision was made part of the State Constitution, but it could have come with Statehood. I was able to find the “Manual on Constitutional Provisions” prepared for the 1950 Constitutional Convention, which lays out the qualifications for serving in various offices in states across the country. At that time, it seems, residency requirements were the norm. The rundown of requirements in the different states at that time begins on page 162.

And both the 1968 and 1978 Constitutional Conventions appear to have left that particular provision in place, although with amendments.

And the residency requirements appears to have spread out broadly from the Hawaii constitution into various laws and rules, some of which have been successfully challenged in court over time.

The constitutional provision that derailed the Labor Department nominee doesn’t only impact department heads, but the heads of other offices as well.

And a reader emailed me to suggest that residency requirements are still imposed on certain board and commission appointments, as well as certain professional and vocational licenses, which certainly deserves a closer look to confirm (which I won’t attempt today).

I did try to check on the challenges to residency requirements, which seem to site either the right to travel between the states, and the right to equal treatment. In either case, to survive the challenges, the restrictions must either stem from a compelling state interest, or be “rationally related” to a legitimate government interest, depending on the level of legal scrutiny required.

The 1977, then Gov. George Ariyoshi backed a new law imposing a 1-year residency requirement for all public employment. Ariyoshi viewed it as a necessary move to slow population growth. It was immediately challenged in federal court and found to be unconstitutional. The case is Nehring v. Ariyoshi. Click on the link to read the decision.

A 1977 article in the Hastings Constitutional Law Quarterly described the legal issues in Hawaii at that time regarding residency (“Selected Constitutional Issues Related to Growth Management in the State of Hawaii“).

But that wasn’t the end of it. In 2005, the Hawaii Chapter of the ACLU had to go to court again “to stop enforcement of Section 78- 1(c) of the Hawaii Revised Statutes, which barred out-of-state residents from applying for government jobs.”

The court again struck down the law as unconstitutional (Walsh v City and County of Honolulu).

So what is the government interest, whether “compelling” or not, that justifies residency requirements for department heads nominated by the governor and confirmed by the Senate? Can someone articulate it?