HLRB Member Sesnita Moepono Remarks Upon Recusing Herself from the Hawaii Labor Relations Board


I have been concerned with the accusations, innuendos and scurrilous remarks made about my integrity and inability to be impartial because I was appointed by the Governor and confirmed by the Senate.  I have asked myself what difference should it make when HRS Section 26-34 mandates that all members of a Board and Commission be nominated and appointed by the Governor and confirmed by the Senate.  Are all members of any state board and commission and judges impartial because of the very nature of the appointment process? 

During my confirmation process and since then, at the beginning of every case involving HSTA, I have disclosed the fact that my husband is a member of HSTA and a Student Services Coordinator and my sister is also a retiree member of HSTA. 

I have consistently stated that I can be impartial in any case involving HSTA.  All employer legal representatives have stated they have no problems with my disclosure and HSTA has consistently stated they reserve the right to object at a later date.  In fact, I am so relieved that HSTA has treated me no differently than the other members of this Board in their attacks on our integrity and impartiality. 

I have always strived to be independent so much so that I intentionally kept my maiden name when I married.  My husband and I have supported each other through our careers where we could as he is doing today.  My husband up to now has been just a name.  Let’s put a face to this name, at this time I would like to introduce my husband, Charles A Fern, a member of HSTA and a Student Services Coordinator with Hickam Elementary School who took half a day leave to be here today and our lovely daughter, Alise Fern. 

However, our careers have strictly been our own achievements and separate from our marriage.  So much so, that I have not even discussed with him the attacks that have been hurled against me by his own union, his colleagues up to now.   But I am certain he would be somewhat disappointed and perhaps furious. 

I and my fellow board members have been the subject of attacks by innuendos, false statements, hearsay, and scurrilous remarks contained in legal documents regarding our inability to remain impartial to decide this case.  More recently a complaint was filed with our State Ethics Commission on Monday of this week by HSTA, although I have not read the complaint, I was told by our State Ethics Commission the complaint included a transcript in which I disclosed my husband’s membership in HSTA. 
This disclosure prompted an inquiry by the Ethics Commission on whether my husband’s membership with HSTA was covered under HRS § 84-14(a)(1) in this case.  Yesterday, the Ethics Commission concluded and ruled that under HRS § 84-14(a)(1) my husband’s membership with HSTA and his position as a Student Services Coordinator is an undertaking in which he has a SUBSTANTIAL FINANCIAL INTEREST, and the outcome of this case may affect his SUBSTANTIAL FINANCIAL INTEREST AND THEREFORE I must disqualify myself in this case. 

Therefore, I am recusing myself from this case based on the Ethics Commission oral ruling limited to this case only. 
Before, I leave this case today, I would like to impart the following. 

Sometimes we need to be reminded by those in our past who fought and sacrificed to make Hawaii a great place to live.  I accepted this appointment because I believe that I can contribute to making the collective bargaining process an even better process, that my late parents fought hard to create and preserve as public employees.  A process that enabled my mother to be the first secretary of HGEA at a time where woman’s rights didn’t exist and public collective bargaining was a new frontier.  I am sure that my parents would be proud of me and my appointment to this Board and perhaps view it as a reward to their efforts as union members and public employees.  

And although I was raised by parents who were staunch union members and supporters, I have never thought of myself as a union person because I have never been a union member.  However, my past is part of who I am and I am reminded every day of the concepts and knowledge that I inherited from parents.  Above all, they taught me to do things with the utmost integrity because it defines who I am.  They taught me that to earn respect you have to give respect.  If they were alive today, they would remind me that this case isn’t about any one individual, this case is about all of us and how we as members of this society are obligated to uphold the public policy as dictated in Chapter 89.   Intervenor-UHPA was correct in re-stating the intent of Chapter 89 where “The Legislature declares that it is the public policy of the State to promote HARMONIOUS AND COOPERATIVE RELATIONS between government and its employees and to protect the public by assuring effective and orderly operations of government.” The key words are “PROTECT THE PUBLIC.” 

I am reminded every day by the words of a close friend, Pono Shim and his father a famous labor attorney the late Alvin Shim, who drafted a Statute called “Aloha Spirit”, HRS Section 5-7.5 in which Uncle Alvin left his legacy to remind us what “Aloha” means when at times it seems we may have forgotten.

[§5-7.5]  “Aloha Spirit”.  (a)  “Aloha Spirit” is the coordination of mind and heart within each person.  It brings each person to the self.  Each person must think and emote good feelings to others.  In the contemplation and presence of the life force, “Aloha”, the following unuhi laula loa may be used:

“Akahai”, meaning kindness to be expressed with tenderness;            “Lokahi”, meaning unity, to be expressed with harmony;
“Oluolu”, meaning agreeable, to be expressed with pleasantness;
“Haahaa”, meaning humility, to be expressed with modesty;
“Ahonui”, meaning patience, to be expressed with perseverance.

These are traits of character that express the charm, warmth and sincerity of Hawaii’s people.  It was the working philosophy of native Hawaiians and was presented as a gift to the people of Hawaii.  “Aloha” is more than a word of greeting or farewell or a salutation.  “Aloha” means mutual regard and affection and extends warmth in caring with no obligation in return.  “Aloha” is the essence of relationships in which each person is important to every other person for collective existence.  “Aloha” means to hear what is not said, to see what cannot be seen and to know the unknowable.

(b)  In exercising their power on behalf of the people and in fulfillment of their responsibilities, obligations and service to the people, the legislature, governor, lieutenant governor, executive officers of each department, the chief justice, associate justices, and judges of the appellate, circuit, and district courts may contemplate and reside with the life force and give consideration to the “Aloha Spirit”. [L 1986, c 202, §1]

Mahalo for allowing me to make these statements and ALOHA!   

NEWS RELEASE – UPDATE – August 10, 2011

With a vested interest in the outcome of the Hawaii State Teachers Association’s prohibited practice complaint filed with the Hawaii Labor Relations Board, the University of Hawaii Professional Assembly filed a “Petition for Intervention” with the HLRB this afternoon. The petition, filed on behalf of UHPA by Tony Gill, attorney with Gill, Zukeran & Sgan, will allow UHPA to comment on the legal aspects relating to this case.

“It’s important to note that we are not commenting on the facts leading up to the State’s unilateral implementation of its last, best, final contract offer to HSTA, but we felt it was imperative to share our concerns and obtain clarification about the circumstances that determine whether and how an employer may unilaterally implement a last, best, final offer,” said J. N. Musto, Executive Director and Chief Negotiator of UHPA, which represents nearly 4,000 faculty members statewide in the University of Hawaii system.

The outcome of this HLRB case will have implications for UHPA and other unions. Unlike some other labor unions, if there is an impasse in negotiations between UHPA and the State, faculty members would be allowed to strike and would not be subject to interest arbitration. Based on the petition filed today, UHPA will seek to ensure the faculty’s right to strike will be not be affected by the HLRB’s decision.

Although UHPA’s current contract does not expire for another four years, UHPA is taking a precautionary measure to avoid costly and time-consuming litigation in the future. “Any decision reached in this case may form the blueprint for the same tactic when UHPA’s current contract expires in 2015,” the petition noted.

The specter of having a last, best, final offer imposed on faculty members is still fresh in the minds of UH faculty members. In 2010, the University of Hawaii attempted to unilaterally impose its last, best, final offer for the faculty, but both the UH and UHPA reached an agreement before any court or arbitration decisions were necessary.

“We simply want to ensure there is a bargaining table that fosters good-faith negotiations. We recognize the UH and faculty are critical to our state, and the last thing anyone wants is to impact students and the quality research that takes place at our university. We want to ensure the impasse resolution process enhances a spirit of collaboration and mutual respect,” Musto said.

Effective July 1, 2011 Employee Premium Contributions for EUTF Health Plans Increased

1.  The employee’s portion of their health premiums were increased as a result of the negotiated agreement by HGEA for its bargaining units which lowered the employer’s percentage from 60% to 50%.

2.  UHPA’s agreement requires parity with all other bargaining units and specifies that employer’s contribution for faculty members shall be at the highest rate agreed to for any other bargaining unit.

3.  The HGEA agreement also shifted the plan coverage that would be used to determine the employer/employee split of 50/50 in premiums.  In the past, the employer’s percentage was based on the “predominant” plan which normally would have been the higher premium 90/10 fee for service plan, whether HMA or HMSA.  This amount would then be applied to the employee’s choice of health insurance coverage, even if selection cost less.  Consequently,  the change to the employee paying 50% of the premium of the insurance selected led to an astronomical increase in the employee’s contribution to EUTF’s high deductible medical plan (>153%). 

4.  Up until July 1, 2011, the employer paid the entire administration cost of the EUTF, referred to as the administrative fee.  Now public employees pay 50% of the administrative fee which also caused an additional increase in the amount deducted from each person’s paycheck. 

5.  The increase in premium rates, the reduction in the employer contribution to 50%, and the employees paying 50% of the administrative fee all took place on July 1, 2011.  Public employees enrolled in the high deductible or Kaiser Basic plan were given an opportunity to switch medical plans during a special open enrollment period during July, but those selecting other plans were not allowed to change coverage.  The next open enrollment period for all public employees will occur in the fall and changes will be effective January 1, 2012. 

6.  Under the state law that created EUTF, the union’s cannot bargain the premium levels or coverage of specific medical or insurance plans.  Those decisions are the exclusive province of the EUTF Trustees. 

7.  UHPA has vigorously objected to the increases in employees’ cost of health insurance coverage, especially without giving public employees an opportunity to change their plan selection.  UHPA has also objected to the employer shifting a portion of the cost of the administration of the EUTF from the employer to the employee.   

8.  To assist in understanding the change in premium, UHPA has prepared a chart which shows the costs and the increases for each of the medical plans.

9.  For more information, go to the EUTF website by clicking on the following links below:

Employee notice distributed to employees either by email or printed and attached to pay statements.

Frequently Asked Questions with Answers.  If you have any questions that are not addressed on the FAQs, please email the question to the EUTF (eutf@hawaii.gov).

Rates showing old and new employee amounts. The increase will appear on the employees’ mid-July pay statements. 

Email from Karen White, NEA Fund

There is a targeted email to some 450,000 NEA members asking for a PAC contribution to assist in the recall election in Wisconsin. There are two questions which have arisen regarding this solicitation. UHPA is not listed as an affiliate of the NEA and the site does not indicate that it is secured. NEA has been contacted regarding these issues.