Board asked to void subpoenas of legislators, governor

A deputy attorney general asked the Hawaii Labor Relations Board on Wednesday to quash subpoenas issued to Gov. Neil Abercrombie and six prominent state lawmakers in the teachers union’s challenge against the state over a new contract.

Deputy Attorney General James Halvorson argued that the Hawaii State Teachers Association has not shown that it is unable to obtain from other sources the information it seeks from Abercrombie. He contended that lawmakers have absolute immunity under the state Constitution for any statement or action taken in the exercise of their legislative functions.

The teachers union has alleged that Abercrombie, with the tacit support of lawmakers, implemented a statewide governmental policy that called for 5 percent labor savings — about $88 million a year — to help balance the state budget.

At the time the budget was approved and signed into law, the Hawaii Government Employees Association had reached agreement with the state on a new two-year contract with 5 percent in labor savings, but the teachers union and the United Public Workers were still in negotiations.

The teachers union says the budget provision directing 5 percent in labor savings from public-sector unions was an unconstitutional violation of collective bargaining rights.

"No person has a privilege to refuse to be a witness in the case," Herbert Takahashi, an attorney for the teachers union, told the labor board, adding that the lawmakers are not the targets of the complaint.

The teachers union filed a prohibited practices complaint with the labor board after the state declared an impasse in contract talks and imposed its "last, best and final" offer. The imposed two-year contract contains 5 percent in labor savings through a pay cut and furloughs and an equal split on medical insurance premiums.

While the teachers union’s complaint focuses on whether the state has the right to impose its "last, best and final" offer — like private-sector companies can under federal labor law — the challenge to the budget provision could have implications for the budget process.

Abercrombie and state House and Senate leaders have said they do not believe they interfered with collective bargaining by including the labor savings in the budget. But directing labor savings for all bargaining units, when two of the unions were still in negotiations, has left room for doubt.

"That is the policy which we believe is unconstitutional," Takahashi said.

The state has acknowledged that Abercrombie — a primary target of the teachers union’s complaint — does not have absolute immunity from appearing before the labor board. Other governors and county mayors have testified before the board in previous complaints.

But the state says the six lawmakers — Senate President Shan Tsutsui, Sen. David Ige, Sen. Jill Tokuda, House Speaker Calvin Say, Rep. Marcus Oshiro and Rep. Roy Takumi — do have absolute immunity.

Article III, Section 7 of the state Constitution says that no member of the Legislature shall be held to answer before any other tribunal for any statement made or action taken in the exercise of their legislative functions.

Halvorson told the labor board that drafting the budget is a fundamental legislative undertaking.

"You can’t get much more explicit in terms of legislative function," he said. "It’s probably the most important legislative function there is."

Takahashi acknowledged that the subpoenas issued to lawmakers pose a difficult question for the labor board, but he described the state budget as both an executive branch and legislative branch function. He said he wants lawmakers to detail how they arrived at the labor savings, not explain or answer for the adoption of the budget.

James Nicholson, the labor board’s chairman, said the board would take the matter under advisement and issue a ruling later in the proceedings.