Substitutes' suit gets new life
By Ken Kobayashi
Advertiser Courts Writer
Substitute public school teachers will be able to press their claims in court that they've been underpaid, and their lawyers say they will also seek to block a pay cut next month.
Circuit Judge Karen Ahn yesterday refused to throw out the teachers' case, but formally ruled that the statute of limitations precludes their claims two years prior to the filing of their 2002 lawsuit.
"I'm stoked," said David Garner, 54, the Maui substitute teacher who has been a driving force behind the lawsuit. "I want our day in court. The truth will come out that we were cheated."
The suit sought what he and his lawyers estimated was about $25 million that the Department of Education has been shortchanging roughly 9,0000 teachers since 1996. With Ahn's ruling yesterday limiting the period of time, the suit will be seeking roughly $15 million, Garner said.
The ruling essentially allows the suit to proceed on the substitute teachers' claims. The trial had been set for February, but will now likely be postponed as lawyers sort out other procedural pretrial matters.
By keeping the suit alive, the substitutes will also be able to challenge the pay cut scheduled to take effect Jan. 24, said Paul Alston, one of the lawyers for the substitutes.
The pay has been a contentious issue for the state's current pool of about 3,900 subs, about 1,000 of whom work each school day when some of the state's more than 12,000 fulltime teachers call in sick or cannot work.
The substitutes currently earn $119.80 a day, roughly $30 less than what they believe they should earn under a 1996 law that tied their salary to a Class II teacher with a college degree.
At a hearing last month, Ahn indicated that she would impose the statute of limitations to cut off claims prior to 2000 and asked whether the lawsuit could proceed based on a claim that the Department of Education violated the employment contract with the subs by not paying them the amount they deserved.
Yesterday, she ruled the suit could proceed on the contract claim.
The hearing also shed some light on the Department of Education's recent announcement that the substitute teachers will get a pay cut. In October, the department notified the substitutes that starting Nov. 1 their daily pay would drop from $119.80 to $111.41.
Later, the department said the cut would be to $112.53 and would not take effect until Jan. 24.
The announcement is based on a memorandum signed in October by the Department of Education Superintendent Pat Hamamoto and Joan Husted, executive director of the Hawai'i State Teachers Association. The agreement came up with classifications for teachers as well as substitutes.
Eric Ferrer, one of the substitute teachers' lawyers, told Ahn that the agreement was another example of the state violating the 1996 law. He said state lawyers encouraged Husted to sign the document, even though HSTA doesn't represent the substitutes.
He called it a "travesty beyond measure" and "tantamount to manufacturing evidence."
His arguments drew applause from the gallery that included about 15 substitute teachers.
Husted could not be reached for comment yesterday, but Deputy Attorney General Jonathan Swanson denied that the agreement is not appropriate and that it was manufactured evidence. He said the agreement reflected changes in the classifications and the Legislature's intent in 1996 to compensate substitutes at the same level as teachers with bachelor's degrees.
Alston said in challenging the pay cut, lawyers will contend that the department and HSTA cannot get together and come up with a plan that improperly harms the substitutes.
Deputy Attorney General James Halvorson later indicated the state will continue contesting the lawsuit. He said he won't say he's disappointed with Ahn's ruling, but said he doesn't think the lawsuit has any merit.
Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com or 525-8030.
