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Teachers running for union offices in an internal election now underway will be allowed to distribute their campaign materials in school mailboxes, according to the terms of a temporary restraining order issued last week by the Hawaii Labor Relations Board.
The TRO effectively overrides a recent ruling by staff of the Hawaii State Ethics Commission, at least for the next several weeks.
The labor board’s action came in response to a prohibited practice complaint filed on behalf of the Hawaii State Teachers Association by former Congresswoman Colleen Hanabusa. HSTA is the exclusive bargaining agent for Hawaii’s 13,500 public school teachers.
The March 27 order prohibits the Department of Education from enforcing the ethics ruling, which advised that use of teacher mailboxes for campaign materials was “inappropriate,” contrary to the state ethics code, and should not be allowed.
The TRO was based on an agreement between the Hawaii State Teachers Association and the DOE that it “is in the interest of justice and fair play” to allow the current elections to proceed under the rules that have been in place for decades.
The TRO will remain in effect until April 24, the day after HSTA voting ends.
A parallel lawsuit seeking a similar TRO through the courts was initially denied, and later withdrawn following the labor board’s action.
The union and the DOE also agreed to ask the labor board to defer further action on the HSTA complaint until the union can challenge the advice contained in what it termed an “informal advisory letter” from ethics director Les Kondo.
The union will be asking the ethics commission to reconsider and retract the staff guidance regarding distribution of election materials.
Kondo and the commission staff relied on 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.”
He further pointed to a 2007 Hawaii Supreme Court case upholding the ethics commission’s application of that same provision to the Hawaii Government Employees Association use of an employee bulletin board to post materials about a mayoral candidate endorsed by the union.
And in a footnote that is part of his opinion letter, Kondo suggested he is prepared to push even further, perhaps to seek a ban on distribution of any union materials through teachers’ mailboxes at school, not just on campaign materials.
“We have concerns about the authority that allows HSTA to use the school mailboxes and other resources,” Kondo wrote, “however, the advice herein is limited to the individual HSTA member’s use of the school resources.”
However, the Supreme Court noted that in the 2007 case, the union never challenged the ethics commission’s ruling, in essence waiving its right to do so when it reached the Supreme Court. Instead, it argued that the state’s collective bargaining law preempted the ethics code.
HSTA’s decision to challenge the ethics ruling directly would appear to potentially undercut the precedent value of the earlier case.
The union has already signaled that it will argue there is a public purpose, spelled out in statute and in the constitution, favoring this type of union-related communication.
“To prohibit the dissemination of information as to a candidate is to interfere, restrain or coerce an employee in the exercise of the rights guaranteed” by the Hawaii State Constitution and the law establishing collective bargaining for public employees, HSTA’s complaint states.
Running for union office, and selecting the union’s leaders who will bargain on behalf of employees, is at the core of what organized labor is about, the union argues.
The union also argues that there is no favoritism or “unwarranted” advantage created because “each candidate is identified and given equal rights of access to the mailboxes of their colleagues who can choose to vote,” HSTA argued in its complaint to the labor board.
Events leading up to the ethics ruling and the union’s prohibited practice complaint are described in documents filed in court and with the labor board.
On March 3, 2015, Justin Hughey, a candidate for HSTA vice-president, visited Maui High School to distribute a one-page campaign flyer.
Hughey is part of a slate of candidates running for the union’s top posts.
Hughey first checked in with the school administrative service assistant, known in the school system as the “SASA,” who in turn checked with the school’s principal, who gave his approval.
But Hughey was then told the flyers had to be placed in mailboxes by an HSTA faculty representative. Later that same night, Hughey gave his flyers to the HSTA representative at the school for distribution the following day, according to his declaration filed in court.
However, the next morning, Hughey was informed that distribution had been halted based on oral advice from staff of the ethics commission.
It isn’t clear what triggered the commission’s involvement, although the SASA was reportedly advised to contact the commission and first brought the issue to their attention.
A week later, on the evening of March 10, HSTA president Will Okabe sent an email to school superintendent Kathryn Matayoshi, seeking her assistance in resolving the access issue.
Okabe cited contract provisions allowing union use of school mailboxes for election materials, and providing a list of authorized candidates as of that date. His email stressed the importance of the union’s internal elections, and the need to “ensure that our members are fairly informed voters.”
Matayoshi responded several hours later, at 10:41 p.m.
“Thank you, Wil,” Matayoshi wrote. “We will circulate this with our CAS (Complex Area Superintendents) and let them know that this is an approved distribution.”
But on March 12, Kondo intervened with his letter advising Matayoshi that distribution of campaign materials should not be allowed.
HSTA elects officers every three years.
And in every election since 1972, candidates have used school mailboxes in their campaigns.
“To my knowledge, the state has never once objected to or attempt (sic) to prohibit or even raised an issue relating to the practice of HSTA utilizing teachers’ mailboxes until the instant prohibition,” retired teacher and former HSTA chief negotiator, Joan Husted, wrote in a sworn statement filed in court.
“The practice is a union-related activity and not considered the ‘personal business’ of any particular candidate,” Husted said.
The agreement with the Department of Education and the labor board’s issuance of a TRO mark an early victory for the union, and a relatively unusual public setback for the ethics commission. But the dispute is at a very early stage, and has the potential to escalate into a protracted legal battle if the commission decides to back up the new and more restrictive interpretation of the law adopted by its staff.
There’s a lot at stake in this for HSTA, and other public worker unions, as well as for the State Ethics Commission, as this moves forward.