HomeMy WebLinkAboutCOM 0761.000 1998-2000
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Stephen K. Yamashiro Richard Wurdeman
Mayor _ 7CC Corporation Counsel
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OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720-4262 • (808) 961-8251 • Fax (808) 961-8612
April 24, 2000
The Honorable James Y. Arakaki
Chairperson
Hawaii County Council
25 Aupuni Street
Hilo, Hawaii 96720
RE: Approval or Disapproval of the Cost Items for HGEA and HFFA.
Dear Chairperson Arakaki and Council Members:
In the next few days, the Mayor will transmit the "cost items" concerning the HGEA to the
County Council for review and approval. The question has been raised whether Section 89-
11(d), Hawaii Revised Statutes, limits the discretion of the Hawaii County Council or other
legislative body? In other words, does the County Council have the authority and discretion to
"disapprove" the "cost items?"
In summary, the answer is "yes." The Hawaii County Council has the statutory authority and
discretion to review the "cost items" and decide whether to approve them or disapprove them. In
relevant part, Section 89-11(d), HRS states:
§ 89-11. Resolution of disputes; grievances; impasses
(d)...
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Within thirty calendar days after the conclusion of the hearing, a majority
of the arbitration panel shall issue a final and binding decision.
In reaching a decision, the arbitration panel shall give weight to the factors
listed below and shall include in a written opinion an explanation of how the
Comm. No. 76'
File No. PCs
Ref. To:_
Ref. Date APR 2 7 2000
Letter to Chairperson Arakaki
April 24, 2000
Page 2.
factors were taken into account in reaching the decision:
(1) The lawful authority of the employer.
(2) Stipulations of the parties.
(3) The interests and welfare of the public.
(4) The financial ability of the employer to meet these costs.
(5) The present and future general economic condition of the counties and the
State.
(6) Comparison of wages, hours, and conditions of employment of the employees
involved in the arbitration proceeding with the wages, hours, and conditions of
employment of other persons performing similar services, and of other State and
county employees in Hawaii.
(7) The average consumer prices for goods or services, commonly known as the
cost of living.
(8) The overall compensation presently received by the employees, including
direct wage compensation, vacation, holidays and excused time, insurance and
pensions, medical and hospitalization benefits, the continuity and stability of
employment, and all other benefits received.
(9) Changes in any of the foregoing circumstances during the pendency of the
arbitration proceedings.
(10) Such other factors, not confined to the foregoing, which are normally or
traditionally taken into consideration in the determination of wages, hours, and
conditions of employment through voluntary collective bargaining, mediation,
fact-finding, arbitration, or otherwise between the parties, in the public service or
in private employment.
The decision of the arbitration panel shall be final and binding upon the
parties on all provisions submitted to the arbitration panel....
a*r
Agreements reached pursuant to the decision of an arbitration panel and
the amounts of contributions by the State and counties to the Hawaii public
employees health fund, as provided herein, shall not be subject to ratification by
the employees concerned. All items requiring any moneys for implementation
shall be subject to appropriations by the appropriate legislative bodies and
the employer shall submit all such items within ten days after the date on
which the agreement is entered into as provided herein, to the appropriate
Letter to Chairperson Arakaki
April 24, 2000
Page 3.
legislative bodies. (Emphasis added)
The Unions agree that the legislative body, the Hawaii County Council and/or the Hawaii State
Legislature, have the authority and discretion to reject or disapprove the "cost items" resulting
from wage arbitration. In UPW, et al., v. Yogi, et al., Civil No. 99-3793-VLC, the union "TRO"
case in Honolulu, the Union's attorney specifically argued to the Court:
Now, this is what happened, Your honor. An arbitrator - and even under
Section 89-11 contains the same phrase, a requirement that the cost items be
subject to appropriation by the legislative bodies. And historically as we have
presented to you case after case by the Hawaii Labor Relations Board in at least
two incidents, an opinion from the Attorney General, that you can negotiate cost
items, but unless every legislative body in the counties and the Legislature of the
State approves those cost items, nothing is valid. And indeed, Your Honor, if a
single legislative body rejects that cost item, the whole agreement is invalid.
You must return back to the table - that is, for cost items - you must return
back to the negotiation process. (Emphasis added)
See. Transcript of Proceedings, October 19, 1999, at 32-33, attached hereto.
Later in the same proceeding, the Union's attorney argued:
In this context, Your Honor, the Legislature has enacted a statutory scheme
which undoubtedly vests with the Executive Branch of government the power,
responsibility, and duty to negotiate contracts. The function of the Legislature is
simply to approve contracts which have been negotiated after they have been
negotiated, not before. And the function of the Legislature is, in a sense,
ultimate in that they can accept or reject it. And unless it's accepted, it is not
binding. It goes back, however, to the bargaining table where the Executive
Branch assumes the responsibility to negotiate again. The remedy for the
legislative body's decision not to accept cost items is simply to give the power
back to the Executive Branch to negotiate with the exclusive bargaining
representatives. (Emphasis added)
See. Transcript of Proceedings, October 19, 1999, at 42-43, attached hereto.
As you know, the Unions' attorney was Hebert R. Takahashi. Mr. Takahashi has been
recognized as one of the premier labor attorneys in this State. Mr. Takahashi clearly and readily
Letter to Mr. Arakaki
April 24, 2000
Page 4.
admits that the legislative bodies, including the Hawaii County Council, have the authority and
discretion to consider the "cost items" and reject or disapprove them. The result will be that the
"cost items" will be returned to the negotiation table for further discussions. I have attached an
excerpt of the court transcript to verify the statements made by the Union's attorney.
The argument that the Hawaii County Council does not have or lacks the authority and discretion
to review the "cost items" carefully and reject or disapprove them is contrary to the law, as even
the UPW's, HGEA's and HFFA's attorney admits in open court. That particular argument has
no basis in the law.
Thank you for your kind attention to this important matter. Please feel free to contact me if you
have any questions or concerns.
Respectfully submitted,
/Ted II. S./H/YS
Assistant Corporation Couh el
cc: Michael R. Ben, Director, Department of Civil Service
Enclosure
PERMISSION TO COPY DENIED HRS 606.13 etc. COPY
J
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1 IN THE CIRCUIT COURT OF THE FIRST CIR;--~,T,IT
2 STATE OF HAWAII
4 UNITED PUBLIC WORKERS, ) CIVIL NO. L3-19-3
AFSCME, LOCAL 646, )
5 AFL-CIO, et al., )
6 Plaintiffs, )
7 Vs. )
8 DAVIS YOGI, et al., )
9 Defendants. )
10
11
12 TRANSCRIPT OF PROCEEDINGS
13 had before the HONORABLE VIRGINIA L. CRANDALL, Ninth
14 Judge, presiding on Tuesday, October 19, 1999.
15 PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER.
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23 REPORTED BY:
Lila H. M. Grumling, CSR 159
24 Official Court Reporter
First Circuit Court
25 State of Hawaii
Lila H. M. Grumling
First Circuit Court
State of Hawaii
PERMISSION TO COPY DENIED. HRS 606.13 etc 2
1 APPEARANCES:
2 HERBERT R. TAKAHASHI, ESQ. For the Plaintiffs
3 JAMES E. HALVORSON For Davis Yogi;
ELTON K. SUZUKI Benjamin Cayetano,
4 Deputies Attorney General Governor; and DOE
5 CINDY S. INOUYE For Jeremy Harris,
PAUL T. TSUKIYAMA Mayor, City and County
6 Deputies Corporation Counsel of Honolulu
7 MOANA L. RAMAYA For James Kimo Apana,
Deputy Corporation Counsel Mayor, County of Maui
8
TED H. S. HONG For Stephen Yamashiro,
9 Assistant Corporation Counsel Mayor, County of Hawaii
10 MARGARET HANSON For Maryanne Kusaka,
Deputy County Attorney Mayor, County of Kauai
11 County of Kauai
12 GARY HYNDS For Board of Regents,
Associate General Counsel University of Hawaii
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Lila H. M. Grumling
First Circuit Court
State of Hawaii
PERMISSION TO COPY DENIED. HRS 606.13, etc. 32
1 section appears, there is absolutely no explanation of why
2 this was done. The only explanation we recently got was
3 because of the news media's account of an interview with
4 the Speaker of the House. And even his explanation bears
5 no rational basis even if you should adopt such a
6 provision, a question you don't have to reach because this
7 is a fundamental right.
8 More critically, Your Honor, the enforcement
9 of this statute violates the equal rights of the
10 plaintiffs' represented employees because the defendants
11 have granted and approved pay increases to police officers
12 in Unit 2 in the applicable period and have not held the
13 police officers to those same pay increases. Now, Mr.
14 Hong argues that that arbitration award, Your Honor, was
15 issued before June 30th. But the fact is the effective
16 date of Act 100 was June 30th with respect to Section 2,
17 and it further provides that whatever the terms were in
18 effect on June 30th would remain for the next two years.
19 And he argues that the police officers had those terms on
20 June 30th. Well, how could that possibly be, Your Honor,
21 because if you look at Section 89-10(b), no provision
22 which is negotiated by the employers is valid until all
23 legislative bodies have approved the cost items.
24 Now, this is what happened, Your Honor. An
25 arbitrator and even under Section 89-11 contains the
Lila H. M. Grumling
First Circuit Court
State of Hawaii
~i
PERMISSION TO COPY DENIED, HRS 606.13, etc. 33
1 same phrase, a requirement that the cost items be subject
2 to appropriation by the legislative bodies. And
3 historically as we have presented to you case after case
4 by the Hawaii Labor Relations Board in at least two
5 incidents, an opinion from the Attorney General, that you
6 can negotiate cost items, but unless every legislative
7 body in the counties and the Legislature of the State
8 approves those cost items, nothing is valid. And indeed,
9 Your Honor, if a single legislative body rejects that cost
10 item, the whole agreement is invalid. You must return
11 back to the table that is, for cost items you must
12 return back to the negotiating process.
13 Now, this is what happened. In mid June, an
14 arbitrator issues this award. It isn't until after June
15 30th that the first county starts approving the cost
16 items. And they get an opinion from the Corporation
17 Counsel. That's okay, Your Honor. And so what we have
18 here are police officers in the Bargaining Unit 12 who
19 have pay adjustments. And just by the happenstance of
20 when those when the proceedings began, they argue,
21 that's okay. Well, Your Honor, it's not okay, because
22 without legislative approval by the legislative bodies of
23 each county and arguably the State Legislature even,
24 although they don't hire police officers, no pay or cost
25 item is valid. Yet, what the defendants have done, Your
Lila H. M. Grumling
First Circuit Court
State of Hawaii
PERMISSION TO COPY DENIED, HRS 606.13. etc. 42
1 first lead case, of course, was a City and County City
2 Council vs. Fasi. The last case, of course, is the Harris
3 case involving the shared function over the settlement of
4 lawsuits involving the City. And in that, of course, the
5 City Council took the position that they had greater
6 prerogatives with respect to the settlement process than
7 the Executive Branch. The Maui County vs. Thompson case
8 is somewhat different, but it involves the retention of
9 the attorney and the expenditure of money. We believe
10 these cases provide the necessary guidelines for the court
11 to determine whether there is or is not in Hawaii,
12 together with just a few other cases outside of Hawaii, in
13 the employment context, public employment context, will
14 provide sufficient guidance to the court with respect to
15 how and in what way the violation of the separation of
16 powers occurs.
17 In every one of these cases, Your Honor, the
18 court examines carefully the charter provisions or the
19 statutory provisions that are relevant and the nature of
20 the action taken by a legislative body. In this context,
21 Your Honor, the Legislature has enacted a statutory scheme
22 which undoubtedly vests with the Executive Branch of
23 government the power, responsibility, and duty to
24 negotiate contracts. The function of the Legislature is
25 simply to approve contracts which have been negotiated
Lila H. M. Grumling
First Circuit Court
State of Hawaii
PERMISSION TO COPY DENIED HRS 606.13 etc. 43
1 after they have been negotiated, not before. And the
2 function of the Legislature is, in a sense, ultimate in
3 that they can accept or reject it. And unless it's
4 accepted, it is not binding. It goes back, however, to
5 the bargaining table where the Executive Branch assumes
6 the responsibility to negotiate again. The remedy for the
7 legislative body's decision not to accept cost items is
8 simply to give the power back to the Executive Branch to
9 negotiate with the exclusive bargaining representatives.
10 The statutory scheme is very clear that only
11 the Executive Branch is involved in collective bargaining.
12 And so in 89-6(c), the scope of who is the employer is
13 clearly defined, and that includes, of course, in most of
14 the bargaining units, the Governor and the mayors of each
15 of the respective counties; with respect to the Department
16 of Education, the Board of Education, an executive agency
17 of the State; with respect to the University, the Board of
18 Regents. Never, Your Honor, in the statutory scheme is
19 there a provision for a legislator to be involved in the
20 process of negotiating contracts.
21 The statutory scheme further provides that
22 the coordination in multiemployer in the multiemployer
23 bargaining process and, again, there are cases one
24 case we have cited where there's even a lack of authority
25 because one mayor wants to act in a multibargaining
Lila H. M. Grumling
First Circuit Court
State of Hawaii
PERMISSION TO COPY DENIED HRS 606.13 etc. 72
1 C E R T I F I C A T E
2
3 I, LILA H. M. GRUMLING, CSR 159, Official
4 Court Reporter of the First Circuit, State of Hawaii, do
5 hereby certify that the foregoing is a true and correct
6 transcript of the proceedings had in connection with the
7 aforementioned cause.
8 Dated this 25th day of October, 1999.
9
10 no ~yy~ 0 11 aL'ila "f. ~ing
Lila H. M. Grumling, CSR 159
12 Official Court Reporter
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Lila H. M. Grumling
First Circuit Court
State of Hawaii