June 3, 2009

AG reverses its opinion of furloughs, with curious timing

Filed under: Hawaii State Politics — Doug @ 7:39 pm

Thanks to the Hawaii House Majority for this blog post that provides two opinions sent from the Attorney General’s office to Speaker Say in response to a series of questions about furloughs. The first opinion, dated February 17, told the Speaker that furloughs would need to be part of the collective bargaining process. On May 29, however, a second opinion now claims that the Governor may unilaterally impose furloughs.

The first opinion took pains to note areas of the HRS where furloughs are conspicuously absent, but at that time the Deputy AG inferred that furloughs would need to be negotiated with the employee unions. The second opinion does a rather thorough job of dismantling the arguments presented in the first. So, why the change? The cynical no-brainer answer is that opinion number two serves the Governor’s interests at this time. However, I think the same answer applied to the February opinion, which also served the Governor’s interests at that time. Here’s why: In February, had the AG noted the HRS’ lack of clarity yet somehow concluded that the Governor could go ahead with furloughs, there would have been ample time for the Lege to amend HRS 89 to make it clear if furloughs were to be a part of collective bargaining, or, less likely, to make it clear that the Governor is indeed free to impose furloughs unilaterally. On May 29, however, with the collective bargaining contracts expiring in a few weeks and the Lege no longer in regular session, it is too late for HRS 89 to be clarified before any legal challenge to her furloughs (which she intends to begin in July).

Pretty devious, yeah? Lull them into complacency, then spring the trap.

Of course, the Lege could take up the matter of amending HRS 89 in the now almost-inevitable veto override special session this July. Everyone remembers that legislators were too-wiling to haphazardly bail out the Hawaii Super Ferry for very little obvious political benefit, so perhaps legislators would be just as quick to, at a minimum, require the Governor to negotiate furloughs with the public employee unions, i.e. a constituency that wields much more political influence than the pro-ferry folks.


  1. Me thinks you are giving the AG too much credit. DAG Halvorson was probably just giving whatever answer suited the Governor at the time the question was posed (even if posed by the Lege). You know, something simplistic like “that which is not specifically authorized must be prohibited” (opinion #1) and then switching it to “that which is not specifically prohibited must be authorized” (opinion #2). If either opinion is of the same quality as the legal advice that led her to conclude that the Superferry did not require an EIS, then we should not be surprised to see a protracted legal battle over furloughs, ending similarly in complete disaster.

    DOUG: You may be right, but Lingle gains something (or, perhaps more accurately, solidifies her status among her supporters) merely by fighting those kinds of legal battles. Even if she ultimately loses.

    Comment by Thatchman — June 4, 2009 @ 9:59 am

  2. “solidifies her status among her supporters”

    What supporters? Last time I checked there were 2 GOP Senators and 6 Reps left in the Lege. The GOP as I knew it, growing up in Kailua, is dead. The moderates have fled to greener pastures and there’s naught left but the wackos from the extreme right and remnants of the unholy pre-statehood Hawaiian-Haole alliance (ironic that the Kanaka Maoli spent scads of time oppressing their fellow minorities with the missionaries, but I digress). There’s definitely a place for conservatives in this State, just not among the Republicans. So who exactly is she pandering to?

    Go AG Mark Bennett, way to do exactly what everyone expected you to do.

    DOUG: Slow your roll, my friend. Who said anything about the GOP? Clearly more than a handful of Kailua conservatives voted for Lingle—twice.

    Comment by ketchupandfries — June 5, 2009 @ 1:25 am

  3. “The cynical no-brainer answer is that opinion number two serves the Governor’s interests at this time. However, I think the same answer applied to the February opinion, which also served the Governor’s interests at that time.”

    Isn’t self-interest of varying capacities always the final determining factor for political decisions?

    DOUG: Political decisions, of course, but a legal opinion? You’re forgiven for overlooking the fact that the AG is officially tasked to uphold the Constitution and serve as the peoples’ lawyer, not as a politician. That mission is usually not as nakedly ignored as it in the instant case, though.

    Comment by Micah — June 8, 2009 @ 3:38 pm

  4. I think Lingle does feel this furlough fight “solidifies her status,” but not necessarily with her local supporters as with members of the Republican National Committee. The lack of careful thought in this across-the-board, three day furlough decision betrays a lack of communal concern for anything in Hawaii. Since her political future is probably not in Hawaii, she plays to the larger gallery where she perhaps holds IOU’s for her ’08 campaign participation.

    Comment by Hal — June 25, 2009 @ 6:17 pm

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