Forced by University of Hawaii to Take Leave Without Pay for Running For Political Office
by Andria Tupola, Candidate for HD43, August 6, 2014
On June 3rd, I received notice that my summer class would be cancelled and I would be placed on leave without pay (LWOP) because I was a political candidate. Luckily, I found a qualified replacement instructor so that the student's wouldn't be affected by this administrative action as mandated by the Vice Chancellor for Academic Affairs at Leeward Community College.
According to my Collective Bargaining Agreement (CBA) it says the following in regards to political activity:
Faculty Members may request leave of absence without pay or use vacation leave while campaigning for elective political office. Faculty Members may continue working while campaigning for elective political office as long as the campaigning does not interfere with the duties and responsibilities of the Faculty Member, as determined by the Chancellor or Vice-President, and the Faculty Member complies with Board of Regents‘ Policy, Section 9-5 (see R-05 of Reference Section), Political Activity (and subsequent amendments) and other applicable rules of the University.
After speaking with lawyers, it is clear that the CBA supersedes any other references. In Section 9-5 it states what actions could potentially create "conflict" for the University and what a faculty member should avoid:
Section 9-5 Political Activity. The Regents believe that it is the right of employees as citizens to engage in politics so long as these activities do not interfere with their University duties or violate established rules of the University. Furthermore, the Regents have expressed the belief that political activities by employees, in accordance with the following statement, should result in no embarrassment to the University nor detrimentally affect these policies.
It is expected that University employees will use appropriate discretion in the exercise of the political rights which they share in common with other citizens; that they will be careful always to emphasize that their utterances and actions in political matters are theirs as individuals and in no manner represent the University; that they will always recognize that their first obligation is to the University; that they will accord the University administration the courtesy of prior notice of any political commitment which is likely to bring them into prominence.
The last clause of section 9-5 states what should happen in case of "conflict" or an appearance of impropriety. "Impropriety" would be a failure to observe standards or show due honesty or modesty; improper language, behavior, or character.
Because of a conflict in interest and/or an appearance of impropriety in campaigning for and holding a partisan public elective office and being employed at the University, the Board of Regents has established the following policy in regard to campaigning for and holding such an office.
All employees under the jurisdiction of the Board of Regents seeking a partisan public elective office shall, without exception:
1.Request, or in absence of such request be placed on a leave of absence without pay in accordance with University policy upon actively seeking political office, but in no event later than the filing of nomination papers or the announcement of candidacy for such office;
2.Be subject to the general University policies governing appearances and activities of political candidates on campus;
3.Insure that they do not give the appearance that their views, utterances and/or actions are representative of the University; and
4.Be separated from University service through either resignation, or termination upon assumption of the elective office. (Aug. 30, 1966; Feb. 19, 1982)
I understood that my activities should not "embarrass" the University, my comments should represent my person and not the University. and that my first obligation is to the university. If any of these things were not upheld, then I would be creating a "conflict" with my work. On the morning of June 6th, I spoke with J N Musto, Executive Director of UHPA concerning my situation. He indicated that they had been fighting the contract language for 30 years and did reach an agreement that UH professors could maintain their position while campaigning but upon being elected needed to resign. He indicated that the agreement language should be interpreted to allow professors to maintain their employment while campaigning. He told me to contact my union representative to file a grievance.
My union representative requested the remedy of back pay for summer and reinstatement for fall with the following statement:
Alleged 2009-2015 CBA violations: Article III H that states in part, “…Faculty Members may continue working while campaigning for elective political office as long as the campaigning does not interfere with the duties and responsibilities of the Faculty Member ….” This language supersedes BORP 9-5 section c(1). The Employer must provide evidence that the Grievant’s campaigning is interfering with her work. Article XXVIII, Conflict, states “If there is any conflict between the provisions of this Agreement and any rules, regulations, and policies of the Employer, the terms of this Agreement shall prevail.
The date of the grievance was June 3rd with the receipt of the grievance being June 7th. The chancellor responded on June 19th and the meeting was scheduled for June 27th which is out of the (15) day requirement in the CBA. During the meeting the Chancellor was being "advised" by the Director of HR to keep everything "black and white" and not create "waves" in the system. The union representative asked them to provide specific evidence that my campaigning was "interfering" with my work. They said they had no such evidence. In fact they stated that it was quite the contrary in my case. They offered me a tenure position effective Fall 2014 because they were so impressed with my work in the music program. They told me it was nothing "personal" and if I didn't get elected they would give me my tenure position in Spring 2015. In the case that I won, they told me not to forget to help them in higher education. On June 30th, we received the official letter from the chancellor stating that they would be upholding the ruling to put me on LWOP.
In my CBA, it states that there is a Step 2 option to take it to the office of the University of Hawaii President. We filed the Step 2 grievance on July 9th with the following statement:
A. The decision at Step 1 does not satisfactorily address the grievance filed on June 7, 2014. According to CBA it states "Faculty Members may continue working while campaigning for elective political office as long as the campaigning does not interfere with the duties and responsibilities of the Faculty member, as determined by the Chancellor or Vice-President." During our Step 1 meeting with Chancellor Cabral and Mike Wong it was determined that my campaigning HAS NOT interfered with my work and they are pleased with my service to the College which is why they extended me a job promotion. The CBA states "AND the Faculty Member complies with the Board of Regents Policy, Section 9-5, Political Activity and other applicable rules of the University." In BOR Policy 9-5 it reiterates that it is the BOR belief that it is the right of employees to engage in politics as long as it does not interfere. It further stipulates that activities and statements of a Faculty Member campaigning for office should cause no "embarrassment" to the University, nor "represent" the University, nor take precedence over University obligations. These items specifically define the word "interfere" as it relates to the opening statement of the CBA and Section 9-5. If the Faculty Member were to engage in any of the three listed items there would be a CONFLICT and reason to place the Faculty Member of Leave without pay. I disagree with the decision from our Step 1 meeting. The contract is very clear that I am allowed to be a Political Candidate without being required to take leave without pay whereas my conduct shows no CONFLICT with the specified items.
We received notice that we would be able to meet with "representatives" from the office of the president on July 29th. As you can see they have again neglected to follow the CBA which states:
The President or the President's designee shall schedule a grievance meeting with the grievant and/or the grievant's designated representative within fifteen (15) calendar days after receipt of the appeal or grievance is filed.
Upon arriving at the office of the President there was no representative. This was not a surprise with Chancellor Tom Apple's termination letter from the UH President was dated July 29th. After waiting for a month to resolve this grievance, we only had the director of collective bargaining in the room. He told us that we could reschedule for August 28th with a representative from the Office of the President. I informed him that classes commenced for the fall on August 25th. Because Leeward gave me till August 1st to "sign the papers," we opted to meet with the director of collective bargaining to see if we could reach a decision.
We brought up the case of Jeremy Harris who was a Professor at Kauai Community College and campaigned while being "employed" by the University. I actually spoke directly to Jeremy Harris and asked what happened. He told me that he was an employee of UH and they had no problem with him campaigning but upon being elected they asked him to resign and he didn't believe that it was necessary for a "part-time" legislative job. He told me that after his case they allowed people to campaign but they were not allowed to retain their position upon being elected. He also informed me that Brian Schatz had the same position has he did at UH upon being elected.
We also brought up the case of Panos Prevedouros who was running for a non-partisan office and was forced on leave without pay when the contract only covers "partisan" office. I spoke with Panos who said that fighting the policy was too much for him and so he just took the LWOP twice when he ran for Mayor. This shows an incorrect application of the CBA again.
I also brought up a candidate in District 48 that works at the law school. He stated that he tried to fight the LWOP but was told that he would be unsuccessful and should just take it. I spoke to him over the phone and he said that he actually requested it because he believed he needed the extra time in his schedule.
We requested information on ALL CANDIDATES who worked for the UH system to further our case that the contract is not being applied evenly across the board. They have 7 days to retrieve the information. They responded on August 4th saying they needed more time but were able to find the following information:
The University of Hawaii has no employment record for Jeremy Harris as being an employee of the University, including but not limited to, Kauai Community College. I have also cross checked his possible employment with University of Hawaii Research Corporation (RCUH) and have determined that Mr. Harris has never been an employee of RCUH...the only reason why he would not be listed on the University's employee data base was possibly because he was hired on a casual or temporary basis in which the University does not keep records of.
Sources here, here, here, and here say he did work for UH. in our personal phone conversation, he said that Brian Schatz held the same research position at UH Manoa as he did at Kauai Community College in Marine Biology. This is what they said about Brian Schatz:
Mr. Schatz worked for RCUH as was assigned to SOEST/Sea Grant as an Education Specialist from September 26, 1994 and terminated employment on May 30, 1998. According to Director Sakamoto, RCUH employees are not subject to Board of Regents (BOR) policies and that the RCUH has no specific policies addressing taking leave while running for political office. RCUH takes the position that their employee are considered employees of the State of Hawaii and are subject to Chapter 84 of the Hawaii Revised Statutes and follow the Campaign Restrictions for State Officials and State Employees.
The Hawaii Revised Statutes do not prohibit State Employees from running for office. This is why school teachers, state workers, and RCUH employees can run without having to resign from their employment.
Step 1 and Step 2 were indefinitely going to be stacked against me because the employer will always uphold its policy. My last chance is Step 3 arbitration. This would have been the only step that would have really brought clarity if the arbitrator is in fact "neutral."
Here are my questions:
1) Is it constitutional for your employer to "force" you to lose your property, in this case salary, for engaging in political activity?
2) Does the CBA language take precedence over the "conflicting" policy?
3) Can the University set a policy that is not reasonably related to its operations? (i.e. how does the University loose "value" by having an employee run for office who's actions do not precede his/her responsibilities?) If there is no direct conflict, how can an employer force an employee to limit his/her actions in regards to his/her own personal interests and community pursuits?
4) Although the BOR policy states "All employees" we see here that portions of UH employees are exempt. This then becomes a policy that singles out only instructors/professors. Is it lawful to create a policy that discriminates against certain UH employees and not others.
5) Who really is in charge of UH?
I have a Step 3 - arbitration option through my union. My only hope is that the union will hire a lawyer to pursue arbitration. Outside of my rights as a union member, it is unlikely that a lawyer will take my case knowing that the payout may not be worth it. My employer told me the choice is simple: Take my tenure position and drop out of the race. I think not.