The Hawaii Labor Relations Board abruptly ended Monday’s hearing in the dispute between the teachers union and state, citing “serious concerns” that an ethics complaint against the governor also calls into question the board’s ability to rule with impartiality.

The Hawaii State Teachers Association filed an ethics complaint Monday, accusing Gov. Neil Abercrombie, Superintendent Kathryn Matayoshi and Board of Education Chairman Don Horner of unlawfully interfering with the legal process surrounding the union’s dispute with the state.

The main dispute is over whether Abercrombie had the authority to unilaterally implement a new contract for the state’s public school teachers on July 1. He says he was forced to impose the contract because negotiations had reached an impasse, but the union says the state declared impasse prematurely and stripped teachers of their constitutional right to collective bargaining.

The ethics complaint filed Monday is about a letter that Abercrombie, Matayoshi and Horner sent to the labor board on Wednesday, Aug. 10, indicating they would be open to mediating the labor dispute, something the union had previously requested. The letter was sent just after a board hearing on whether to restore the pay of teachers to their previous levels under the old contract. HSTA leaders were copied on the correspondence.

The union says the direct communication with labor board members, who will be issuing a ruling in the dispute, violated Hawaii Administrative Rules and the state ethics law.

The union requested that the Labor Relations Board order the state to halt its direct communications with the board, and sent a letter to the governor asking him to withdraw his Aug. 10 letter.

“We request that you, Donald Horner, and Kathryn Matayoshi immediately withdraw the Aug. 10, 2011 letter (and the enclosures), and cease and desist from any improper ex-parte communication with members of the Hawaii Labor Relations Board which may be intended to influence the outcome (in the case),” wrote HSTA President Wil Okabe.

The complaint and motion threw Monday’s meeting into confusion and brought it to an abrupt halt. The labor board said it will wait until the state has filed its formal response, due Wednesday at noon, and then hear the matter thoroughly before it moves on to the main case.

“The board does not want members of the public and the parties to have the impression that the board’s ability to hear this case or any other case has been compromised,” labor board Chairman Jim Nicholson said. “We must hear this matter.”

It is worth noting that the board’s very makeup is designed not to be impartial, but to represent a balance of interests. Hawaii Revised Statutes, Chapter 89-5, mandates that one of the three members shall represent the interests of management, one shall represent the interests of labor unions, and the chairman shall represent the interests of the public.

‘Ex Parte’ Communications?

Labor and ethics experts say they’ve never seen a situation like this before. Some aren’t even sure the governor’s letter is a big deal because it wasn’t a secret, or “ex parte,” correspondence. The union was copied on the letter.

Deputy Attorney General Jim Halvorson, who is representing the state in the dispute, told Civil Beat that the letter took the board up on its pre-hearing invitation for the parties to contact the board if they wanted assistance. A joint letter to Okabe from the governor, superintendent and school board chairman on Monday reaffirms that the Aug. 10 letter was a response to the invitation from the labor board. It says that even if the communication had been ex parte, it was authorized by the board. The law prohibits only unauthorized ex parte communications.

“…the communications confirming the Employer’s acceptance of the HLRB’s recommendation of mediation was invited by the HLRB through Chairperson Nicholson at the pre-hearing conference on August 5,2011,” the letter states.

Furthermore, state law indicates that assistance with such disputes is one of the board’s primary reasons for being.

The board “shall assist in the resolution” of impasse, according to Chapter 89 of the Hawaii Revised Statutes, “at times and to the extent requested by the parties in their procedure.”

The board will determine Thursday whether to grant HSTA’s motion to halt direct communication from the parties involved in this case.

Ethics Question

Meanwhile, the Hawaii State Ethics Commission has a different issue to consider. The commission typically handles violations of the state code of ethics, which prohibits politicians from using their office or authority for personal gain.

The following is the portion of the law cited in HSTA’s complaint:

“§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.”

The joint reply from Abercrombie, Matayoshi and Horner on Monday states the attorney general advised them that the statute “specifically addresses conduct where a person seeks employment or compensation for performing his official duty, using State time or equipment for private business purposes, or engaging in a substantial financial transaction with a subordinate or a person who that official deals with.”

“None of these types of conduct are remotely similar to our Aug. 10, 2011 letter,” their reply goes on. The letter then reiterates their desire for mediation.

Read the full response from Abercrombie, Matayoshi and Horner below.

The Case Must Go On

While this side drama unfolds, the parties have begun issuing their subpoenas for the main dispute. People who may end up on the witness stand include lawmakers and state budget director Kalbert Young to explain the inner workings of creating the annual budget that the governor says forced him to cut teachers’ pay. Other possible witnesses include Horner, Matayoshi, Okabe, state chief negotiator Neil Dietz and HGEA Executive Director Randy Perreira. A number of teachers, principals and complex area superintendents are also on the list.

When the board reconvenes at 9 a.m. on Thursday, it’s first scheduled to hold a hearing on the motion to halt direct communications with the board, then is expected proceed to hear the union’s and state’s main labor arguments.

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