Today is the deadline for full implementation of random drug testing of public school teachers, but the standoff between Gov. Linda Lingle and the state Board of Education over who should pay for it makes it an unfunded mandate and leaves questions about legal and contractual consequences.

Both the state Department of Education and the Hawaii State Teachers Association were feverishly meeting last week to hash out the final details of the policies and procedures for the random drug-testing program.

Those policies are likely to be in place today, education officials said.

However, the question of funding remains unresolved, with both the BOE and the governor refusing to pay for the testing despite today's deadline. Over the past several months, both sides have insisted that the other pay for it.

"There is no money," said Donna Ikeda, BOE chairwoman. "I have been assured that the policies and procedures will be in place, but there is no funding."

That leaves questions about whether a two-year teachers' contract that specifically calls for implementation of drug testing by June 30 has been violated.

Without being specific, the Lingle administration continues to say that it is prepared to consider legal options if the program is not implemented today.

"They continue to work toward having a drug plan by Monday. So I'm encouraged by that," Marie Laderta, director of the state Department of Human Resources Development, said late last week. "But (Superintendent Patricia Hamamoto) has said that it is subject to funding."

Laderta said that if the board continues to refuse to fund the drug-testing program, state Attorney General Mark Bennett will be consulted.

"We will talk at that time about what course of action is available to us," she said.

Teachers approved a new contract last year that included raises and a stipulation that they submit to random drug testing. Union negotiators and Lingle inserted a nonnegotiable random drug-testing provision into the contract, which angered many teachers.

Since then, the governor and the BOE have disagreed over who should pay for the program.

In January, the governor refused to include $523,723 to set up the drug-testing program in her budget request to the Legislature. The board then voted against taking the money out of the DOE's $2.34 billion budget.

Reacting to the board's insistence that it will not fund drug testing, in late January Lingle suggested pay raises for the 13,500 public school teachers may not go into effect unless education officials pay for the program.

RAISES MAY BE ISSUE

When asked last week whether the administration plans to withhold teacher pay raises if the program is not implemented, Laderta said, "I'm not sure, but it is something we will be thinking about."

DOE Superintendent Patricia Hamamoto, however, insisted that teachers should not fear for their raises or any other consequence.

"(The HSTA and the DOE) are both proceeding in good faith. There is no reason it should affect the teachers' raises," Hamamoto said.

However, she said, she could not say whether there are other legal or contractual consequences that could be levied.

Laderta said that implementation involves more than just putting a plan in place. The contract requires that the state start drug testing for teachers no later than June 30.

"We're talking about implementation, because that's what the contract calls for. Not just having a plan, but taking steps to implement the plan," Laderta said. "It would imply that funding has to come from somewhere."

'A POLITICAL GAME'

Teachers have already received most of the pay raises that were promised in the new contract. The contract granted a 4 percent across-the-board pay increase in July 2007. A salary-scale step increase of 3 percent in January for some teachers was also included in the contract. Both of those increases are already included in teacher pay, education officials said.

Another 4 percent increase is scheduled for January 2009.

Richard S. Miller, former dean of the William S. Richardson School of Law at the University of Hawai'i-Manoa, said the administration would have no legal basis for withholding teacher pay raises.

"I think it is a very political game that is being played. (Lingle) understands that for sad reasons, the majority of people favor teacher drug testing and don't understand the constitutional issues," Miller said.

"She's playing to the majority, and she doesn't have any intention of funding the thing. It's just a game.

The American Civil Liberties Union, which has threatened to launch a lawsuit on behalf of teachers, has also said that teacher pay raises cannot be placed in jeopardy if the drug testing portion of the contract is not implemented.

In a Feb. 1 letter to the governor, the ACLU argued that the contract contains a "severability" clause, which means that one portion of the contract does not hinge on another portion.

"If the Board of Education or any other state entity blocks funding for teacher drug testing, the rest of the contract, including your promise to pay teachers' salaries, remains full force," the letter said.

HSTA President Roger Takabaysahi said the teachers union has been acting in good faith on behalf of its membership to implement drug testing.

"Once the procedures are in place, it's in the purview of the DOE to implement. They can't implement if there is no funding," Takabayashi said.

Since January, education officials have refused to take more than $500,000 from the schools budget to set up the program.

BOARD STANDS FIRM

Ikeda and other board members said they were against taking money from educational programs for that purpose. Their arguments became stronger when the Legislature cut $10 million from the DOE's budget this year.

"The budget is tight. I don't even want to begin to speculate whether there is any money for anything other than the basics," Hamamoto said.

Karen Knudsen, vice chairwoman of the BOE, said if drug testing were a priority, the governor and the state Legislature should have set aside the money to pay for it.

"The money was not allocated. We don't have the money," Knudsen said. "What's more important, drug testing or the way that we're going to have to stretch our budget?"