Does the state ethics law prohibit use of the University of Hawaii’s email system to criticize or attempt to roll back decisions of the faculty union without obtaining its prior permission?

That’s the rather startling claim made by the University of Hawaii Professional Assembly as it defends against critics of its recent decision to cut decades-long ties to the National Education Association as of Sept. 1, 2013.

The move, described as “disaffiliation,” means UH faculty will no longer be part of and enjoy the backing of NEA, by far the largest labor union in the United States. UHPA members will now be ineligible to tap the personal and political benefits stemming from that affiliation, ranging from group rates on life insurance and other products and services, to strike support, training, and a substantial political presence in Washington and in states across the country.

War Of Words

The ethics claim was contained in a lawyerly sounding email sent to faculty last week, part of a flurry of last-minute communications in advance of the union’s annual membership meeting, scheduled for Friday afternoon at the Richardson School of Law on the Manoa campus.

NEA is urging UH faculty to attend the meeting with “questions or concerns about this decision and the way in which it will impact UHPA’s ability to support your economic and professional interests.” NEA and its backers are pressing the UHPA board to rescind its vote, and have been contacting individual faculty in person, through emails, and by phone, including through several phone banks staffed by NEA volunteers on the mainland.

Faculty supporting NEA have also been circulating a petition asking the board to reverse course, and have backed candidates in a board election who are pledged to restoring the NEA ties.

“In a democratic union such as ours it is your right to petition, to contact your board and to discuss a momentous decision like this disaffiliation,” NEA said in an email on Monday.

UHPA responded that these actions have “continued to harm UHPA leaders and their right to be the exclusive representative of faculty members.” Further, according to an April 19 email, raising the issues “in the workplace” — meaning on any of the UH campuses, I suppose — is “a clear misuse of UH facilities.”

UHPA has sidestepped further discussion of the reasons behind its disaffiliation vote and instead focused on allegations NEA and HSTA are violating state law, “circumventing proper protocols,” and attempting to “undermine the UHPA elected leadership and the By-laws of our union.”

In an email to members last week, UHPA warned: “It is a Hawaii ethics violation to use the employer’s email for communications that are unrelated to employee work. As the exclusive collective bargaining representative of the UH faculty, UHPA has the right to use the hawaii.edu address in the course of business … UHPA has not authorized any other persons, faculty members or organizations to use the UH system email for communications with faculty regarding UHPA or its role as bargaining agent.”

I was unable to reach Kris Hanselman, UHPA’s associate executive director, for comment Tuesday.

But a UHPA board member, commenting on a related blog post, asserted that “…UH email cannot be used to discuss union issues by anyone, not even UHPA, because it belongs to the employer. UHPA can use it to announce meetings, and that’s about it.”

Not So Fast

But is it really a violation of state law to criticize UHPA policies via the university’s email system? The answer has implications far beyond the university.

The State Ethics Code doesn’t address email directly. It does prohibit any state official or employee from using their official position “to secure or grant unwarranted privileges, exemptions, advantages, contracts, or treatment, for oneself or others; including but not limited to … using state time, equipment or other facilities for private business purposes.”

The Hawaii State Ethics Commission has interpreted this to prohibit use of state facilities, including the email system, for political campaigning, according to Susan Yoza, the commission’s associate director. The commission has also taken a strong stand against operating a private business from a state office, even a nonprofit business.

But Yoza said she could not recall any opinion that would apply to the debate over UHPA’s NEA decision, or to limit access of viewpoints not approved by or expressing the position of the union.

The UH policy technology management policy stresses “free inquiry and free expression,” while providing that university resources “may not be used for private gain.” Examples of prohibited activities include using a UH website to promote a home business or hosting a commercial web page on a UH server, quite different from exchanging views or reactions to a union policy decision.

The union collective bargaining agreement provides UHPA special access to the UH system because union staff are not university employees and would not otherwise be eligible to utilize the UH system.

So the union’s claim to have exclusive access to the UH email system for purposes of discussing these union-related issues appears untested at best, and highly dubious and misleading at worst.

I find the choice of tactics puzzling because there’s little evidence so far of a groundswell of NEA support. As of March 16, UHPA reported receiving only 95 emails from faculty concerning the vote to disaffiliate. And as of Tuesday afternoon, only 144 signatures had been collected for an online petition calling for UHPA to rescind its vote to disaffiliate from NEA.

In many ways UHPA has been and continues to be a model of a democratic labor organization, and its members, in their professional lives, rely on open communication and sharing of knowledge. It’s unfortunate that its choice of tactics in this instance, as illustrated by the resort to claims of legal violations and misuse of UH facilities, appear aimed more at intimidating critics and quashing criticism than illuminating issues.

Read Ian Lind’s blog at iLind.net.