The Hawaii State Teachers Association is challenging the Ethics Commission’s stance that public school teachers should not get a free ride as chaperones on student field trips that they organize with tour companies.

The union has filed a "petition for a declaratory order" with the commission, asking it to repeal an Aug. 4 memorandum that advised teachers they could face sanctions if they accepted free travel on trips taking place after July 31.

The commission posted an advisory opinion on its website Wednesday explaining its reasoning on the chaperone issue, the same day the petition was filed.

In that opinion, commissioners emphasized that the ethics code does not prohibit educational field trips or teachers serving as chaperones. But they said the way the trips are currently organized is problematic because teachers engage in "official action" vis-a-vis the tour companies and then accept a benefit or compensation.

Some schools have canceled field trips since Ethics Commission attorneys first issued advice on the subject in the spring. The guidance covers trips that are not a mandatory part of the curriculum, but enrichment activities for students usually scheduled during school breaks.

Teachers union attorney Colleen Hanabusa said the petition is an attempt to get the commission to give the public an opportunity to weigh in on the subject rather than just issuing advice. She noted that the Board of Education encourages field trips and travel, and is constitutionally mandated to make policy decisions regarding the education of public school students.

"This clearly is something that impacts more than teachers or the DOE; it impacts parents and impacts students," she said. "The commissioners really, truly haven’t heard from the general public, which they will have to do if they engage in rule making. It really is an issue of due process instead of the commission just unilaterally deciding."

Commissioners see the free travel benefit as a violation of the gift law, which prohibits state employees from accepting gifts, including travel, if it appears to influence or reward the employee in performing official duties. The long-standing practice of teachers organizing and promoting such field trips also runs afoul of the conflict of interest law, commissioners said, because they appear to be acting on behalf of the tour company.

"The commission believes it is reasonable to infer that the free travel and other benefits offered to teachers by a tour company are intended as both an incentive for the teachers to promote the trip to as many students/parents as possible and a reward for the teachers’ efforts in generating revenue for the tour company," they wrote. "Therefore, the free travel and other benefits are prohibited gifts."

Union President Corey Rosenlee said he believed the commission’s conclusion is wrong since teachers give their free time to ensure children get valuable learning experiences.

"Teachers dedicate personal time and resources to coordinate, chaperone and plan curriculum, oftentimes supervising students in other cities and countries for 24 hours, for as long as the trip lasts," he said Thursday. "The HSTA believes that the decision by the EC is detrimental to our students, and we are exploring all legal options including the filing of today’s petition."

Hanabusa said it appears to be a general practice in the travel industry to award a free trip for an adult accompanying groups of 10 students or more, and therefore is not an unwarranted privilege for the teacher.

"If this is a benefit available to or distributed to the public generally without regard to the official status of the recipient, then it is not a reportable gift" under the law, she wrote in the petition.

Meanwhile, teachers and administrators at public schools remain confused about what they should do, and many are playing it safe by canceling or not planning future trips.

Kaimuki Middle School, whose students have performed at Carnegie Hall, had hoped to take them to hear the San Francisco Symphony and have an exchange with a Bay Area middle school next spring. But they decided against it, for fear that parents and students might risk losing money if the trip were canceled.

"We received conflicting information from the ethics board and the DOE and HSTA, and it was really kind of vague to us," said Derek Fujio, chairman of the school’s music department. "So we decided pre-emptively for this year that we would cancel it. It’s unfortunate that our students will miss out on that opportunity."

Principal Frank Fernandes said they didn’t want to get the kids’ hopes up and not be able to deliver. He said there appeared to be no flexibility in the commission’s interpretation. "We didn’t see a way out of the conundrum that we’re all in," he said.

In its advisory opinion, the commission suggested that it could help the Department of Education try to hammer out a way forward that complies with the ethics code, "including possible ways to fund the teachers’ travel for upcoming student educational trips."

The opinion was signed by Commission Chairwoman Susan DeGuzman and the four other commissioners, who serve as volunteers. It was dated Aug. 19 but posted publicly Wednesday at the commission’s website, ethics.hawaii.gov.

AO2015-1 by Honolulu Star-Advertiser