In an Oct. 8 Department of Education memo to the public schools' 3,900 substitute teachers, they were told they will be paid $111.41 per day — $8.39 less than the current per diem pay of $119.80 for substitutes.

The memo notes that the Board of Education and the Hawai'i State Teachers Association negotiated a new salary schedule on Oct. 4, but offers no explanation for the cut.

Substitute teachers, one of their attorneys and state education officials today pointed to an Oct. 4 memorandum of understanding filed in court that changed the terms used to define salary schedules for teachers — the same schedule used to calculate the daily pay for substitute teachers.

DOE spokesman Greg Knudsen would not comment further on the change, citing "current litigation."

"How we are able to discuss it is limited," he said of the memorandum. "All the facts are there."

Joan Husted, executive director of the Hawai'i State Teachers Association, did not return calls seeking comment today. But yesterday Husted said pay for regular teachers is not affected.

Husted said substitute teachers are not HSTA members and that she was not aware of the Oct. 8 memo.

"I don't follow the substitute teachers, so I don't know what's involved," she said yesterday. "I have not seen the memo. The salary for (unionized) teachers is exactly the same as what we negotiated in April."

Pay for substitute teachers is the same as the entry pay rate for a certified teacher with four years of college education.

But there has been no recent change to regular teacher pay rates, so it was unclear yesterday why substitutes' pay is going down.

Eric Ferrer, an attorney representing substitute teachers who filed a class-action lawsuit in 2002 against the DOE seeking an estimated $25 million in back pay, said the change in definitions is illegal.

The lawsuit claims the DOE has not paid substitutes in accordance with a 1996 law known as Act 89.

Ferrer said the memorandum was signed the day before scheduled mediation and a few days before a court hearing on the lawsuit.

"This was sprung on us," Ferrer said. "This document was calculated to give the DOE some leverage in the negotiation talks."

Substitute teachers were angry at the change.

"It is more than money," said Allan Kliternick, a substitute teacher for 15 years. "It is about how they think of us and treat us. It is disrespectful and dishonest."

David Garner, 54, a Maui resident who has been a DOE substitute teacher for 12 years, said a lot of substitutes will not work after Nov. 1 because of the lower pay.

"There's a lack of respect from the DOE," he said. "These substitutes say they'll work somewhere else."

Garner is among substitute teachers who filed a class-action lawsuit in 2002 against the DOE seeking an estimated $25 million in back pay. The lawsuit claims the DOE has not paid substitutes in accordance with a 1996 law known as Act 89.

One of the lawyers for the teachers, Paul Alston, has said they should be getting $150 a day.

State attorneys say substitutes are being paid the correct amount.

On Oct. 7 Circuit Judge Karen Ahn ruled that the substitutes would not be able to seek back pay for work done before 2000, because of the statute of limitations. That means teachers will not be able to seek about $9 million of the $25 million they originally asked for in back pay.

Deputy Attorney General Jonathan Swanson that day urged Ahn to dismiss the lawsuit based on the doctrine that the state cannot be sued for money damages unless it authorizes such claims.

But Ahn said she wanted further research on whether the lawsuit can proceed on grounds that the state violated a contractual agreement with the substitutes for allegedly not paying them what they deserved.

About 1,000 substitute teachers, from a current pool of 3,900, are called in to work on any given day to fill in for teachers who are sick or can't otherwise work. The public school system has about 12,660 teachers.