Months of angst over how Hawaii can achieve all its federal Race to the Top reforms might have been avoided had policymakers looked more closely at the state’s labor law.

Although Gov. Neil Abercrombie‘s administration has made much of its need for the Hawaii State Teachers Association‘s cooperation in reaching the federal grant targets, a veteran labor attorney says the grant is not dependent on the teachers union, thanks to a loophole in state labor law.

Tony Gill, an attorney for the University of Hawaii Professional Assembly, submitted his analysis of state law to the Hawaii Labor Relations Board, which is hearing a protest by the teachers union over the governor’s decision to impose a contract last year.

Deputy Attorney General Jim Halvorson credited Gill’s analysis as complete, but said that just because the loophole exists doesn’t mean it should be used, especially when doing so might jeopardize that same grant.

The new contract included a pay cut and increase in health costs for teachers, but it did not include teacher evaluations and performance-based pay — two key and controversial promises in the state’s Race to the Top plan. That was because, state attorneys told Civil Beat, the law limits an employer to unilaterally imposing only changes in work conditions that had been presented at the bargaining table before an impasse was reached.

The U.S. Department of Education rebuked Hawaii in December for failing to meet Race to the Top promises and placed its $75 million grant on “high-risk” status, citing as one of the roadblocks the state’s inability to successfully negotiate a collective bargaining agreement. Abercrombie blamed the union, but the reprimand galvanized the state to action and bargaining resumed.

A tentative agreement was rejected by teachers earlier this month. Abercrombie then said he would go ahead with every Race to the Top reform that didn’t depend on bargaining, but indicated that performance pay might still depend on a new agreement with teachers.

Meanwhile, some union members touted the needed Race to the Top reforms as leverage to use in further negotiations, and their attorney tried to use the possibility of losing the grant as leverage to expedite his case before the labor board.

Loophole in the Law

But the entire conflict between Race the Top and collective bargaining might be based on a misinterpretation of state labor law, Gill said.

“It is not true that the State’s compliance with points in the RTTT plan depends on HSTA and the State reaching a negotiated collective bargaining agreement covering those points,” he wrote in a case document submitted to the labor board on Jan. 6.

He cited Hawaii Revised Statutes, Section 89-20, which negates state collective bargaining law when a federal grant is on the line:

Chapter inoperative, when. (a) If any provision of this chapter jeopardizes the receipt by the State or any county of any federal grant-in-aid or other federal allotment of money, the provision shall, insofar as the fund is jeopardized, be deemed to be inoperative.

“The logical consequence of this language is that the State can impose compliance with RTTT plan points, unilaterally, provided it does so narrowly, and solely to avoid jeopardizing the receipt by the State of the federal money,” Gill writes, then reiterates:

“Perhaps this needs to be said again. Under Chapter 89 itself, Chapter 89’s requirements fall away, to the extent they jeopardize receipt of federal money.”

He says the “loophole” has existed since the state’s labor law was enacted in 1970, and that even though he “is not pleased” to draw attention to a statute with so much potential for abuse, “this is the plainest 89-20 case in a decade.”

He warns, though, that the law is not license for the state to short-circuit good-faith bargaining while there is the potential for bargaining a solution. And he warns the union against using Race to the Top — or any other federal compliance issue — as leverage to gain concessions in bargaining.

Halvorson, who represents the state in the teachers’ labor case, says it’s unclear what “narrowly construed” means, or exactly how Section 89-20 can be used.

And, he added, it’s unclear whether using the statute would violate Race to the Top goals of cooperation and teamwork.

“We’re not exactly sure how useful a tool that is, and I’m not sure that that’s an appropriate tool to be used in terms of what we’re trying to accomplish in Race to the Top,” Halvorson told Civil Beat. “We’re saying that Race to the Top is supposed to be a collaborative effort, and I’m not sure that invoking 89-20 would foster that.”

He didn’t rule it out as a possible option in the future, but that it’s not the state’s first choice for fulfilling all of its education reform promises.

Read Gill’s full brief on Hawaii Revised Statutes Section 89-20 below:

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