There’s been a lot of heat generated by the State Ethics Commission ruling that public school teachers should not accept free trips and travel-related benefits from private travel companies for arranging and participating as chaperones in educational travel for groups of students and parents.

The commission has said it simply applied the gift and conflict of interest provisions of the state’s ethics law when it ruled earlier this year that the free travel for teacher-chaperones amounts to “impermissible gifts” that violate the law.

And the commission has clearly signaled that future educational trips aren’t at risk as long as the Department of Education adopts an administrative process that complies with the ethics law.

Before students take educational trips, someone needs to plan the travel.

Flickr.com/Rosa Say

Meanwhile, the DOE and individual teachers say the free trips shouldn’t be seen as “gifts,” since participating teachers have to work long hours to select the most appropriate travel company, plan the itinerary, recruit students, generate detailed instructions, including packing lists and travel instructions, and then be responsible 24/7 for the safety and well-being of participating students while they’re traveling.

It’s the immeasurable educational value for the students that should be the focus, teachers say, rather than the value of teachers’ travel benefits, which don’t come close to compensating for all the time and effort required to make a successful trip.

It seems to me that the commission and the DOE are talking past each other, each digging in their heels rather than working together to bring the system of educational travel in line with the state’s broad ethics guidelines.

The unfortunate result is that the DOE is threatening to cut off all educational trips, and instead of finding a solution, appears to be pushing the commission toward terminating its executive director, Les Kondo.

Both outcomes would be mistakes.

First, the commission is not “off the wall” to conclude that the current way educational trips are organized and planned raises ethics concerns. As I’ve noted previously, there are a number of other jurisdictions where ethics laws have been applied to educational travel in similar ways.

Some Other Scenarios

Consider several other situations that raise similar ethics issues.

• Situation 1: You are the owner of a small business that competes to sell office equipment to state departments. One day you’re visited by the purchasing officer from one agency, who suggests that you should buy a book of tickets to a fundraising event benefiting a legislator who has a key committee position. You’re afraid to say no, fearing that it may hurt your future business prospects.

The “Fair Treatment” section of the law prohibits a legislator or employee from using their official position to give or obtain “unwarranted privileges” for themselves or others, and specifically bars “(s)oliciting, 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.”

I think we would all agree that the purchasing official misused his position and violated the ethics law by pressing a vendor to contribute to a particular legislator’s campaign. That one, I think, is easy.

• Situation 2: One of your children is on a high school athletic team. You and a few other parents start to suspect that members of the team who pay to receive private lessons from the coach seem to to get preferential treatment and more playing time, while those who don’t pay for the private lessons felt they were mistreated and bullied by the coach. But, of course, it’s all very subjective and it’s hard to know what is really going on.

This situation might be tougher to judge. The coach is willing to give private lessons, above and beyond the time the coach already spends as part of his regular job, and it would be reasonable to believe athletes could benefit from the extra practice. And I’m sure the coach would dispute allegations that the money he receives for the private lessons affects his coaching judgment.

Ethics laws are intended to keep public employees out of trouble by steering them away from situations in which they can be accused of ethical lapses.

As the commission has noted, “students have a dependent relationship with teachers and do not share equal bargaining power with teachers,” and the same unequal bargaining power exists between athletes and their coaches.

As long as this disparity in power exists, that same “fair treatment” provision means that an offer to provide private lessons for pay may be seen as an offer that can’t be refused. And that’s not ethical.

• Situation 3: Your agency hosts regular information meetings to inform residents in the community about the benefits that your program can provide. Since you aren’t allowed to spend public funds on food, from time to time you approach companies that your agency does business with and ask them to consider donating refreshments for the meetings, which will encourage people to attend. It’s all for a good cause, right?

The gift provisions of the ethics law are relatively clear. They prohibit legislators or public employees from soliciting or accepting any gift “under circumstances in which it can reasonably be inferred that the gift is intended to influence the legislator or employee in the performance of the legislator’s or employee’s official duties or is intended as a reward for any official action on the legislator’s or employee’s part.”

In this case, soliciting and accepting gifts of refreshments from companies the agency does business with might be seen as a way to influence the award of future contracts to those businesses, whether or not it actually has that effect. Again, it would be a violation of the ethics law.

There’s Room to Compromise

Although these cases look different from the case of educational travel, they have a lot in common.

In the case of educational trips, trips are initiated by teachers, who select the company they want to work with, and then make the arrangements, solicit the student participants, and accept free trips and travel benefits.

The commission sees several issues. Teachers have the discretion to choose the company they want to deal with, and the travel benefits these companies offer can, in the commission’s view, be seen by a reasonable person as influencing their selection.

And because teachers have to solicit students in order to get the necessary number of  participants for their trips to go forward, the recruitment process can be seen as putting undue pressure on students and their parents to comply with the teacher’s requests.

In my view, the Ethics Commission and the DOE aren’t that far apart on the issue of reforming future educational travel to comply with these parts of the ethics law.

They differ, though, on key points.

If educational travel is as important to students as the department and teachers say it is — and I would agree that it is — then it’s time for the Department of Education to take responsibility for it.

First, the DOE says it was initially assured that trips already planned and booked would be allowed to go forward. That’s consistent with the position stated publicly by Kondo and the commission at its regular monthly meeting back in February. Later, though, the commission said it only intended to give the green light to trips ready to depart almost immediately, and did not intend to give a pass to trips scheduled for the end of this year or early in 2016, although in those cases nonrefundable deposits may have already been made.

At the commission’s May 27 meeting, the DOE asked the commission to agree that it would not seek to block trips already planned and booked. That seemed like a reasonable proposal. During the subsequent discussion, commissioners appeared to signal overall agreement, but no motion was offered and the proposal died.

The commission will have another chance when it continues its deliberations next week. This time around, it seems prudent for the commission to adopt a policy that recognizes the need to reform future travel procedures, as well as the need to honor travel commitments already made in good faith by all parties. It’s really the only way forward.

On the other hand, the DOE has tried to put the onus on the Ethics Commission to let the existing approach to travel arrangements continue without much change, and instead reinterpret its application of the “gift” and “fair treatment” provisions of the ethics law in a way that avoids seeing the many red flags.

But if educational travel is as important to students as the department and teachers say it is — and I would agree that it is — then it’s time for the Department of Education to take responsibility for it.

The department, and not individual teachers, should be selecting the travel companies that provide the best balance of cost to students, logistical support to travelers, and compensation to both teachers and the state. Teachers aren’t responsible for other DOE procurement, and shouldn’t be left on their own to select travel contractors.

The department, rather than individual teachers, should also be setting policies for how the trips are conducted, how participants are recruited, and how chaperones are selected. This is the approach taken in other parts of the country where similar ethics issues have been confronted.

By taking direct responsibility, the DOE also makes clear that these trips are state-sponsored projects, a step that makes it much easier to resolve any remaining ethics concerns.

The University of Hawaii has long offered opportunities for its students to travel abroad and earn college credit, but the travel is administered by a university office and not by individual faculty members. The UH approach demonstrates that ethics and educational travel don’t have to conflict, but also suggests that the DOE must take the lead in designing an appropriate administrative structure to support and promote these trips.