The Hawaii State Teachers Association launched two legal actions this week to block enforcement of a new policy prohibiting teachers who are candidates for union offices from distributing their individual campaign materials in school mailboxes.

The actions came in response to a ruling earlier this month by staff of the Hawaii State Ethics Commission disallowing campaign use of school resources, including teacher mailboxes.

“We do not think it is appropriate for schools to allow the use of a mailbox to distribute individual teacher campaign information,” executive director Les Kondo told commissioners during their regular monthly meeting on March 18.

The new ethics ruling ended a common practice which has been “ongong for decades,” Kondo told the commission.

School buses at the Hawaii State Capitol

Nathan Eagle/Civil Beat

It’s one in a string of opinions that have tightened ethics restrictions and applied ethics laws more aggressively since Kondo took over his post in early 2011.

On Monday, the union filed an emergency motion in First Circuit Court seeking a temporary restraining order to stop enforcement of the ethics ruling and maintain the status quo, at least through the current union election.

That case was filed by David Alan Nakashima, an attorney with the law firm of Alston Hunt Floyd and Ing. Named as defendants are Gov. David Ige, the State of Hawaii, the Department of Education, Board of Education, and Superintendent Kathryn Matayoshi.

At the same time, former Congresswoman Colleen Hanabusa filed a prohibited practices complaint with the State Labor Relations Board, which has exclusive jurisdiction over collective bargaining matters.

“This is a legal issue that has major ramifications,” Hanabusa said in a telephone interview Tuesday afternoon. “Internal self-governance is what makes the whole union.”

“This is the essence of the right to bargain collectively,” Hanabusa said.

Hanabusa said that the TRO request in state court is designed to maintain the status quo in the short term, while the prohibited practices complaint is aimed at resolving the underlying legal issues.

Maui Question Triggered Review

The ethics commission review of the issue was triggered by a telephone call from Maui, where a teacher sought permission to place his campaign materials in the mailboxes of other teachers.

Kondo did not identify the teacher. However, court records show documents filed in the lawsuit include a declaration by Justin Hughey, a teacher at a Lahaina elementary school and a longtime HSTA activist. Hughey is a candidate for HSTA vice president on a slate being referred to as Hawaii Teachers for Change, and is the only Maui resident among the candidates.

Reached by telephone late Tuesday, Hughey declined to comment.

The new ethics restriction and the resulting lawsuit come as elections for a variety of positions within the HSTA are in full swing. The deadline for nominations for the positions of HSTA president, vice president, and secretary-treasurer, along with National Education Association state director, and 15 state delegates to the National Education Association Representative Assembly, closed on March 12. Voting is scheduled to begin on April 13 and wrap up on April 24.

A Private Affair

The basis for the commission’s  ruling is the “fair treatment” provision of the state ethics code, which prohibits any state employee from using their official position to gain “unwarranted privileges, exemptions, advantages, contracts, or treatment.”

The law specifically prohibits “using state time, equipment or other facilities for private business purposes.”

Although the term “private busines purposes” is not defined, the commission has previously considered political activity by supporters or opponents of candidates in state, local, and national elections, to be “private business activity.”

“We looked at this HSTA election as very similar,” Kondo said.

Kondo acknowledged that the HSTA’s collective bargaining agreement allows the union to distribute certain materials to its members via school channels, and the union’s internal rules specifically allow campaign materials for union elections to be placed in teachers’ mailboxes.

According to Kondo’s explanation to the commission, HSTA believes there are First Amendment issues involved in cutting off union candidates from their most direct way of communicating with fellow teachers.

In addition, Kondo said, Hanabusa stressed the legal protections provided by law for “concerted activity” by union members.

Hawaii law provides: “Employees shall have the right of self-organization and the right to form, join, or assist any employee organization for the purpose of bargaining collectively through representatives of their own choosing on questions of wages, hours, and other terms and conditions of employment, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint, or coercion.”

Teachers running for union office have been able to use school mailboxes for the past 42 years.

The term “concerted activities” has been applied to a broad array of union activity.

“They believe the conduct of union elections is part of that concerted activity,” Kondo said. “A fundamental part of unionizing is to be able to elect their offficers.”

But Kondo also referred to a 2007 Hawaii Supreme Court opinion in a case involving the Hawaii Government Employees Association.

In that opinion, the Supreme Court held that the state could bar HGEA from posting campaign materials supporting political candidates it had endorsed on an employee bulletin board in a state office.

The court held that there were no valid free speech or First Amendment violations created by removing the political materials, and that the protections provided for the union members’ “concerted activities” did not apply because the fair treatment provision of the ethics code made the use of the bulletin board for political purposes illegal, and only legal activities are protected.

However, the court indicated there might be other factual conditions under which First Amendment claims could be legitimately raised by the union. In addition, there appears to be room to argue over whether elections of officers in public employee unions, recognized by collective bargaining agreements, should really be classified as “private business purposes” for purposes of the state ethics code.

For example, the HSTA’s contract with the state provides that the union “shall have the right to use school mailboxes.” In addition, the contract spells out more than a dozen kinds of items that can be posted on union bulletin boards in schools and DOE offices, including meeting notices, “elections and appointments,” news clippings, messages from union officers, and information on the union’s organizational structure.

Teachers running for union office have been able to use school mailboxes for the past 42 years, and have done so without problems, Hanabusa said.

The union provides a list of qualified candidates to the Department of Education, and anyone on the list is able to distribute campaign materials through the schools’ mail system.

“This has always been the way it’s been done,” she said. “So what’s the problem now?”

During the commission meeting, chairman Edward Broglio Kondo asked whether the commission’s legal position would be different if candidate information were collected and distributed by HSTA instead of by individual candidates, since the contract gives the right to access mailboxes to “the Association” rather than to individual union members.

Kondo hedged his answer.

“I don’t know,” Kondo said, adding that that is a separate question that will require additional research. “Historically, it has been allowed. However, we still have questions about whether the union can use mailboxes.”

Kondo argued the HGEA case held that the collective bargaining agreement cannot trump the ethics code, and actions prohibited by state ethics laws cannot be allowed by union contracts.

Hanabusa disagreed, calling the situation in the HGEA case “a very different scenario.” It dealt with election materials supporting a candidate in the Honolulu mayoral race. The HSTA matter, on the other hand, is purely an internal matter within the union that only affects union members.

These are cases to watch, as they have implications both for collective bargaining, the rights of public employee unions, and for the interpretation and enforcement of the state ethics code.