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Ian Lind • Online daily from Kaaawa, Hawaii

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

March 26th, 2015 · 3 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.

→ 3 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

State Ethics ruling triggers two-pronged HSTA legal action

March 25th, 2015 · 3 Comments

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.


→ 3 CommentsTags: Court · Education · Ethics · Labor · Media

Sunshine Law bills still moving in the legislature

March 24th, 2015 · 4 Comments

Here’s a list of bills relating to Hawaii’s Sunshine Law that are still alive in this session. These bills are drawn from a longer list of sunshine bills, both those that have died and those that successfully crossed over, which were identified by the Office of Information Practices. I’ve marked those which OIP reports supporting.

The links take you to status page for each bill, where you will find links to testimony (if any), as well as committee reports, which are important in recording the intent behind each version of the bill.

HB 461 / SB 472, SD 1 (Support) – Relating to the Office of Information Practices. Transfers OIP to the Department of Accounting and General Services for administrative purposes only.  OIP supports the bill.

HB 287, HD 1 (Support) – Relating to the Uniform Information Practices Act.  Amends HRS § 92F-14 to add, as an example of a significant privacy interest that may be protected, information whose disclosure would create a substantial and demonstrable risk of physical harm to an individual.  OIP opposed the original bill, which had applied a subjective standard based on “harm, embarrassment, inconvenience, or unfairness” to an individual, and now supports the amendments made in the HD 1.

SB 475, SD 1 (Support) – Relating to Open Government.  Allows the electronic posting of meeting notices under the Sunshine Law, as well as e-mail notice to persons on a board’s mailing list.  As OIP’s amendment was included in the SD 1, we support the bill, except for its intentionally defective date.

SB 465, SD 1 – Relating to Government Records.  Like HB 150, this bill allows board members to transmit public records to other board members.  The SD 1 included OIP’s suggestion to limit the content of transmittal messages in order to prevent serial communications among board members, but it did not narrow the bill to apply only to those specified in HRS Sec. 92F-12(a).

SB 652, SD 1 – Relating to Public Agency Meetings.  Requires boards to report any final action taken during an executive session, providing that the disclosure is not inconsistent with the purpose of convening the closed meeting.  OIP supported the original bill, but the SD 1 has amended it to also require disclosure of the “discussions” during an executive session.

→ 4 CommentsTags: Legislature · Politics · Sunshine

Reducing a lifetime’s stash of stuff

March 23rd, 2015 · 9 Comments

The Seattle Times’ Pacific NW Magazine captured the problem of what George Carlin referred to as our “stuff” in a story a few days ago (“Too much stuff: We collect it all our lives, and then what?“).

These paragraphs seemed to be describing my own situation exactly, as I’m still not finished sorting the stuff my parents collected over their long lives.

For many of us — especially baby boomers — stuff has become a burden too heavy to carry alone. Parents die or become ill, and suddenly there’s a whole other household of stuff to deal with. China, books, shoes, papers, old television consoles, mink coats and dusty felt hats from the Disneyland trip 40 years ago.

So we hire junk removal companies to clear out basements and attics. We hold garage sales and engage liquidators to sell off what they can. We rent dumpsters and haul our stuff to charities to sell for a good cause, creating an endless churn of stuff looking for new homes until we run out of options and simply throw it away.

I’ve thrown mountains of stuff away, disposed of some via Freecycle, dropped boxes of oddities with our friends at Antique Alley, sent carloads off to Goodwill, contributed to the well-stocked shelves at Savers, sent several boxes of papers to be archived at the University of Hawaii’s Hamilton Library, and I’m dreading having to return to the boxes of things that survived the first cut in order to further whittle down what’s being saved.

The “things” aren’t the hard part. It’s the information, correspondence, old clipping files, research notes, court records, land deeds, photos, household records, and other memorabilia that tell the story of other times and places. I have real trouble consigning these to the land fill.

As the article says, somethings our stuff isn’t just “stuff.”

Turns out that guilt and sentimentality — powerful feelings attached to the things we own — are reasons we hang onto stuff.

How do you get rid of Grandpa’s lucky football hat or the cranberry-colored glass dish your great-grandmother used to rest her powder-puff? How do you dispose of a library your mother spent a lifetime building, or discard the hulking kitchen table from your childhood home, even though it doesn’t fit in your apartment? The vintage toy collection inspires happy memories of childhood. The carved coconut reminds us of our honeymoon in Hawaii.

And that’s why the process of sorting and deciding is mentally exhausting. I do it for a few hours and I feel wrung out.

In any case, it’s a good, thought-provoking article. Worth a read on this Monday morning.

→ 9 CommentsTags: Consumer issues · General · History