The state Ethics Commission is looking into whether some teachers are violating Hawaii’s Ethics Code by tutoring their own students for a fee.

The commission’s executive director, Les Kondo, told the commission at its monthly meeting on Wednesday that his office had received three or four informal complaints and that staff was dealing with them. The review hasn’t risen to the level of formal charges, he said.

It’s been a longstanding position of the the commission that teachers cannot charge their own students for tutoring because that would violate the state’s law on “fair treatment” and “conflict of interest” for state employees.

Kondo called it a black and white issue, with no gray or fuzzy application of the Ethics Code.

“The commission has opined that school teachers cannot teach their students or their prospective students for pay,” he said, citing two opinions from the 1970s. “My impression is that this is an issue that is not limited to these three or four cases … that there probably is a much more widespread misunderstanding of the commission’s position vis a vis tutoring by school teachers and coaches of their students and athletes for pay outside of school.”

He said teachers can tutor students who are not their students or prospective students.

Fair Treatment

The state’s fair treatment statute says:

“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:

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.

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.

Using state time, equipment or other facilities for private business purposes.

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.”

Conflict of Interest

And the state’s conflict of interest statute says, in part:

“No employee shall take any official action directly affecting … a business or other undertaking in which he has a substantial financial interest;

No employee shall acquire financial interests in any business or other undertaking which he has reason to believe may be directly involved in official action to be taken by him;

No legislator or employee shall assist any person or business or act in a representative capacity for a fee or other compensation;

No employee shall assist any person or business or act in a representative capacity before a state or county agency for a fee or other consideration…”

Commission Chairwoman Maria Sullivan asked commission staff whether it would be a violation for a teacher who works part-time at a tutoring company who just happens to be assigned to his or her students or prospective students.

A staffer said that example would not violate the law because the statute prohibits “engaging in a substantial financial transaction with a subordinate,” and in Sullivan’s example, the transaction would be taking place between the teacher and tutoring company.

Commissioner Les Knudsen gave the example of a high-school football coach who has a degree in mathematics. He asked if it would be a violation for that coach to charge to tutor a student — “who may or may not be on the team” — in mathematics.

A staffer replied that the subject doesn’t matter. The fact that the coach would have a financial interest in the student would violate the statute.

Kondo said the issue came up in 2009 when public school teachers were furloughed twice a month due to budget constraints.

“When the teachers were furloughed, the (Ethics Commission) office, along with (former) Department of Education Superintendant (Pat) Hamamoto issued a memo to furloughed teachers advising them, again, that they cannot tutor their students for pay,” he said.

He plans to ask current DOE Superintendant Kathryn Matayoshi whether she’d be interested in crafting a memo to public schools and charter schools.

“One way or another, we’ll send some message out to the schools,” Kondo said.

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