Judge repeals Ethics Commission opinion on teacher chaperone travel
ASSOCIATED PRESS / MAY 2015
Les Kondo, former executive director of the Hawaii Ethics Commission, talked about his accomplishments during the public portion of a commission meeting on May 27, 2015.
A 2015 ban on free travel for public school teachers who organize out-of-state field trips was essentially lifted Friday, after a Circuit Court judge invalidated advice given by the Hawaii State Ethics Commission.
The Hawaii State Teachers Association, which represents 13,500 teachers, challenged the Ethics Commission opinion, arguing that the agency violated state law and the union’s constitutional rights when it said that under the state ethics code, teachers cannot accept free travel from tour companies in exchange for organizing trips.
It had been a decades-long practice for teachers to travel free while chaperoning students on field trips to the mainland and abroad. Typically, a free chaperone spot was provided for every six to 10 students booked.
The Ethics Commission’s guidance was prompted by an inquiry just before the 2015-16 school year about a middle school’s planned educational trip to Washington, D.C., and New York.
The commission issued a memorandum and advisory opinion, saying “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.”
The advice, HSTA’s attorney said, had a “chilling effect” and led to a de facto ban on trips because teachers were afraid of running afoul of the Ethics Code. At least 31 trips were canceled during last school year, with many more halted before planning could start.
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Judge Rhonda Nishimura repealed the Ethics Commission’s Aug. 4, 2015, memo and Aug. 19, 2015, advisory opinion today after hearing oral arguments. She said because the advice applies to a broader group, the process is subject to official rulemaking under law, which involves the public.
“So for the state Ethics Commission to issue such an advisory opinion and guidance memo that has a broader application than just a particular teacher or particular trip, does require that the entities involved engage in rulemaking,” Nishimura said.
“By her ruling that way, it has in essence repealed it, which puts us back to where we were before,” Colleen Hanabusa, attorney for the teachers union, said outside the courtroom. “In other words, the way that they handled it was not proper.”
The commission, which was represented by Deputy Attorney General Robyn Chun, can appeal the ruling. Nishimura encouraged the parties “to engage in meaningful discourse” moving forward.
The HSTA, meanwhile, called the ruling a victory.
“Thousands of students were denied the great opportunity to learn beyond the classroom,” HSTA President Corey Rosenlee said after the ruling. “This was a victory today for the public school children of Hawaii. … For decades Hawaii has recognized that trips outside the classroom are invaluable, and this brings back sanity to the process and allows these kids … to experience the world.”
49 responses to “Judge repeals Ethics Commission opinion on teacher chaperone travel”
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Les Kondo, who issued the ridiculous opinion that resulted in this huge waste of resources, was recently appointed as the new State Auditor. Yet another example of incompetence being rewarded in Hawaii.
Sometimes reasonable people disagree. This is why you have courts. Think of all of the hundreds of opinions the ethics commission has issued. Very view are actually litigated much less overturned. i would think that there isn’t a jurist in Hawaii or the nation that has not had one or more of their rulings overturned on appeal. Its just the way it is, and its certainly not necessarily a sign of “incompetence”.
You’re right, of course. The Constitution and the law are imprecise, and there is room for interpretation.
The ruling however really had no chance of standing. This issue definitely requires rule making, and that should have been the initial opinion of the Commission.
What is “rule making?”
agree..It was a bad ruling but not necessarily a sign of incompetence. Just a mistake.
lava — “rulemaking” refers to a law-making process by the executive branch. state administrative agencies are allowed to issue “rules” (based on laws passed by the legislature). but before the rules can take effect, it must go through a process of proposal, amendment, and an opportunity for the public to submit comments on the proposed rule. (this is a really simplified explanation, but this is the gist of it…)
lava – The Ethics Commission can rule against a specific person in a specific case, based on the evidence. It cannot make new law by issuing a blanket ruling against a concept – like teacher chaperone trips – since so many different sets of fact would be present. Because what the EC did applies to many people in many different circumstances, rules must be developed that describe specific circumstances that trip over rules and are therefore prohibited.
This does not suggest that anyone was not reasonable or incompetent. Judges are experts in matters of law, so that’s why this type of dispute is adjudicated this way.
Was a popular process and incentive for teachers to act as chaperones on these mainland trips. Easier to nit-pick victims in a power vacuum instead entrenched politicians who often are friends of your superiors.
Kondo isn’t reasonable, so there aren’t two sides.
Very true. He is the least reasonable person I have ever met in government. And many other cases then would follow from this ruling because he had a habit and a near obsession with making up rules that were not in statute and thereby exceeding his powers. Incompetence is one thing, but to combine that with the zeal of a bully is inexcusable. And this is the guy who is going to expected to have the basic competence of auditing and giving reasonable, objective views on things for the state government. Worst job assignment for a person like this that I can possibly imagine.
Many felt Kondo was a modern Joe McCarthy.
The ban was dumb, however, the free ticket is a form of compensation. A free ticket in exchange of being a chaperone, and therefore may be taxable to the teacher under federal and State of Hawaii tax laws. The travel agent may have to issue IRS Form 1099’s to all the recipients of the free tickets based on the price of the free airfare. Maybe they were doing this already.
I don’t think any teacher who has to chaperone 6 to 10 kids will consider a free trip as any kind of compensation. It’s all work and very little time for yourself.
agree
Agree.
I do not think you understand these are mandatory or school sponsored trips but instead are trips organized by teachers on their own. They know what they are getting into when they organize them.
Absolutely. It’s work-related travel expense.
As a university professor, I never volunteered to lead trips abroad, though I had the opportunity to do so with travel and expenses covered as well as an additional stipend. They involved a lot of preparation, logistics, and stress and very little professional recognition.
Working in cultural diplomacy, I did lead trips abroad for adult professionals, and as rewarding as the results may have been, it was definitely all work and no play–planning and logistics for months in advance and then dealing with local agencies, institutions, and authorities as problems arose on the ground in a foreign country. I could only imagine doing it with a bus full of 5th graders.
It’s a favor to the kids.
(or the Administrator who has to chaperone 110 kids and the teachers and the tag-along parents. However, if they’re Music kids, it’s all good. No problems, No disciplinary issues.)
It’s not. The IRS decided this long ago.
When chaperoning, this teachers are still on the job and teaching while monitoring these students, so I do not see any problem with them getting paid too while on these trips. If they don’t do it, then who is going to chaperone these students? Will we have to pay professional chaperones to watch these students and also have expertise in teaching these students too on what the purpose of the trip was for in the first place?
You know parents often go on these trips as chaperones too however something tells me they’re not going for free, or receiving gifts such as Ipads like teachers do.
The travel agencies do this to encourage teachers to use their agency. It’s a huge conflict of interest but that’s nothing new for the HSTA or Corrupt Hanabusa.
Uh Oh, you’re saying what you think again. That’s dangerous. To my knowledge, neither HSTA nor Colleen Hanabusu has ever had anything to do with a school trip. (e.g. when we took our Symphony Orchestra to play at the Sydney Opera House.)
There is no such thing as a “free” ticket. The children’s tickets are inflated in price to compensate the travel agency for the “free” teacher tickets. That’s why the ethics commission ruled the way they did. Any reasonable person with basic common sense would already know this.
Had the DOE had rules in place to prevent any inappropriate benefit to teachers, the ethics commission ruling would not have been necessary. The DOE should be paying for their teachers tickets instead of passing on the costs to parents if it deems the trip necessary and beneficial to students. The DOE has in essence been ripping off students and parents for “decades”.
Your blanket statement simply isnt true for most travels. Ever heard of fundraising or sponsors?
Buddy, please, you don’t have a scintilla of an idea what you are talking about. You should probably go to another article and yell about Rail or something.
Every time the Star-Advertiser runs this story, they leave out the fact that teachers were not just receiving free travel (which the public expects them to get, in exchange for chaperoning) — but the teachers were being given gifts like FREE IPADS for choosing one travel agency over another. That means free ipads could be more important that finding a travel agency that was more affordable to poor and working class parents. I think that is a BIG omission.
That should be “free ipads could be more important THAN finding” an affordable travel agency for the parents.
I think your first post was clear!
yikes!
The ipads appear to be compensation and should be taxable. The travel agent should have been issuing Form 1099’s and if not, they may be penalized for not reporting. The teachers should be paying taxes on the free tickets and ipads.
No. The trip is not taxable income. It’s a reimbursed work expense. This is settled law.
Form 1099 is only issued if the value of the merchandise is greater than $600 in a calendar year.
Gee. Sounds like teachers are travel agents who get a commission for sales.
Exactly. The alarming thing about these trips is that now the State (taxpayers) is responsible for any incidents that may occur. If these trips are essential, then have the State pay for everything. The way it is, the have’s go on trips and the have nots do not.
That’s life.
Lame original Ethics Commission ruling. As a former teacher I took students on ski trips in the 70s. Even though my trip was paid for I still had the responsibility to look after the students and to be there if something happened. Nothing bad happened except for a couple students who were caught for smoking pot on the first trip. I still had to be there in case a student got injured, sick, etc. so it’s a lot different than taking a group of adults to Vegas even though those trips have their own problems. Free trips come with a lot of responsibility that many people don’t consider as work.
Can someone explain to me what “…the union’s constitutional rights…” is all about?
The judge obviously did not rule on the merits of the Ethics Commission’s original assertion that the practice of arranging for trips was unethical. She essentially went back to the process, and required formal rule making, which has lots of hearings and public input built in, and ultimately requires the AG and the Gov to sign off on the new rules. Proposed rules must take into account public input. This is a chronic issue with many government agencies that attempt to create rules or laws without actually going through Chapter 91.
Those who think the original ruling was an honest mistake are honestly mistaken. It was just nonsense, as even a tiny bit of investigation would have shown. Those trips are a huge amount of work for the teachers, not a fun holiday. To prevent whoever was selecting the travel agency from being bribed, all you have to do is forbid the giving of ‘extra’ gifts by the travel agencies. Having their travel paid for is not a bribe.
Interesting observation – As rules are made to regulate unbridled Ethics violations lawyers/judges step in to basically undo what has been done.
Deputy Attorney General Robyn Chun should appeal the ruling rather than being second guessed.
These are not free trips. They may be free for the teacher-chaperones but they are being paid for by someone. Anyone who thinks travel agencies are funding them from their hard-earn profits is greatly mistaken. The cost of chaperone travel is actually included in the cost students or their parents pay. So instead of the travel agency providing free chaperone travel, it actually is being paid by the students being chaperoned.
Or by the airline earning so much business.
You are correct but as an administrator, I love having the teachers as chaperones. They really know what they’re doing and it strengthens the bond with students.
Yay Judge!
The withdraw it.
“Then” instead of “The”.
the ethics commission lawyer issued an opinion of §84-11 Gifts, concluding that the commission believed the gift of free travel to a teacher in a particular incident was a violation of law. a guidance memo was also issued by the commission lawyer. the judge ruled that since that opinion and guidance memo affects a broader group, supposedly all state employees, the commission opinion and guidance memo is invalidated.
yet, the judge did not invalidate the law itself, §84-11 Gifts, and any subsequent gifts of free travel to state employees may still be in violation of that law. prudent principals may still deny the use of school facilities, resources, affiliations and communications systems to teachers for the purposes of organizing quasi-school related cultural or educational off-island trips.
rather than depending on the ethics commission for such a broad ruling, affected entities (state departments) should now use their rule-making procedures to determine how this ubiquitous standard of the travel industry incentive of giving one free ticket for every ten paid tickets to groups traveling together can be accepted in compliance with §84-11 Gifts.
until then, prudent administrators should closely scrutinize any entity-related group travel that includes free travel for their state employees.
for some reason ethics directors at the state and county level believe they are god, but both of them were essentially fired for doing poor work. hope their replacements can think clearly and logically.
Les Kondo should have done one of these trips that the teachers put together to see if it’s all a free vacation. He would certainly see that it involves a lot of hard work that only benefits the kids. I think most teachers don’t do these sorts of things because It’s very time consuming and takes away from their own families. To the teachers that do these trips, I applaud what you do.