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Unprecedented furloughs raise doubts about legality


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POSTED: Wednesday, June 03, 2009

Labor attorneys and public officials are questioning whether Gov. Linda Lingle has the authority to furlough state employees without first negotiating the cuts with their unions.

;[Preview]    Public Braces for Impacts of Work Furloughs
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State officials are still determining how to carry out the furloughs with the least possible effect on service to the public.

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Senate President Colleen Hanabusa, a labor lawyer, called the furlough plan a “;negotiation ploy”; on Lingle's part to extract compromises from the four public employees unions that are deadlocked with Lingle over a new contract.

Hanabusa (D, Nanakuli-Makua) said Lingle “;is not on solid legal ground”; with her plan to furlough state workers for three days a month for two years.

In a televised address Monday, Lingle said the government was in a “;fiscal emergency”; and had to cut $730 million by July 2011 to balance the budget.

To do that, Lingle is calling for workers to take furloughs that will result in a pay cut of 13.8 percent.

When House Speaker Calvin Say (D, St. Louis-Wilhelmina Rise-Palolo Valley) asked earlier this year whether Lingle had the power to furlough state workers without union negotiation, the attorney general's office said on Feb. 17 that the governor would have to negotiate the terms of the furlough.

But then on Friday, Deputy Attorney General James Halvorson amended his opinion, saying, “;We conclude that furlough procedures are not subject to any type of mandatory negotiations.”;

In his Feb. 17 opinion, Halvorson said state law indicated that both consultation, then negotiation with the union must be done before any furloughs.

And the state attorney warned in his first letter that “;if a furlough is implemented, it is probable such action will be challenged by one or more of the unions.”;

;  “;The outcome in litigating the issues is not certain,”; Halvorson said.

Hanabusa said she thinks the state will lose a case if the unions challenge.

Private attorney Michael Nauyokas, a labor lawyer and arbitrator, said there is no case law to fall back on regarding furloughs of state workers in Hawaii, because it has never happened.

“;This is a very problematic area. There are a lot of questions that are not answered. At best it is gray and kind of murky,”; Nauyokas said.

Former state Attorney General Mike Lilly also predicted that Lingle's plan for furloughs will be challenged and “;wind up in court.”;

Asked whether the governor has the power to unilaterally furlough state workers, Lilly said, “;I don't know.”;

Lingle cannot take any action until the labor contracts expire on June 30, Hanabusa and Nauyokas said. After that, the unions will not have a union contract, but it is not clear that they would be protected from furloughs.

“;The AG is providing a reading that says the statute is untested. I think it is not the sure thing he is making it out to be,”; Nauyokas said.

Hanabusa said that while she thinks state workers and the public employee unions are willing to discuss furloughs or wage givebacks, Lingle has not bargained with the unions, and until she can give them a complete offer, the unions have not held negotiations.

Lingle is unable to formally offer the unions a new labor deal because neither the four county mayors nor the Board of Education have agreed to join in bargaining talks as required by state law.

Lingle's office did not respond to a request for comment.

Meanwhile yesterday, University of Hawaii President David McClain estimated Lingle's plan would cost UH $50 million in each of the next two years.