937 P.2d 397 (Hawai'i 1997), 18203, Konno v. County of Hawai'i

Docket Nº:18203, 18236.
Citation:937 P.2d 397, 85 Hawai'i 61
Opinion Judge:[16] Ramil
Party Name:Jack T. KONNO; Samuel K. Kalua, III; Gary W. Rodrigues; United Public Workers, AFSCME, Local 646, AFL-CIO, Plaintiffs-Appellants, v. COUNTY OF HAWAI'I; Stephen K. Yamashiro; Donna Fay K. Kiyosaki; Richard Wurdeman; Michael Ben, as Director of Department of Personnel, County of Hawai'i; Spencer Kalani Schutte; Takashi Domingo; Jimmy Arakaki; Keola C
Attorney:[7] On the briefs: [8] Herbert Takahashi, Stanford H. Masui, Danny J. Vasconcellos, and Rebecca L. Covert (of Takahashi, Masui & Vasconcellos) for plaintiffs-appellants. [9] Mark Bennett (of McCorriston, Miho & Miller) for defendants-appellees. [10] John Knorek (of Torkildson, Katz, Jossem, Fonse...
Case Date:February 28, 1997
Court:Supreme Court of Hawai'i
 
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Page 397

937 P.2d 397 (Hawai'i 1997)

85 Hawai'i 61

Jack T. KONNO; Samuel K. Kalua, III; Gary W. Rodrigues;

United Public Workers, AFSCME, Local 646, AFL-CIO,

Plaintiffs-Appellants,

v.

COUNTY OF HAWAI'I; Stephen K. Yamashiro; Donna Fay K.

Kiyosaki; Richard Wurdeman; Michael Ben, as Director of

Department of Personnel, County of Hawai'i; Spencer Kalani

Schutte; Takashi Domingo; Jimmy Arakaki; Keola Childs;

Jim Rath; John Does 1-10; Jane Does 1-10; Doe

Corporations 1-10; Doe Partnerships 1-10; Roe Non-Profit

Organizations 1-10; and Roe Governmental Entities 1-10,

Defendants-Appellees;

and

Waste Management of Hawai'i, Inc., Intervenor/Defendant-Appellee.

UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,

Complainant-Appellee/Cross-Appellant-Appellant/Cross-Appellee/Cross-Appellee,

v.

Stephen K. YAMASHIRO and Donna Fay Kiyosaki,

Respondents-Appellants/Cross-Appellees-Appellees/Cross-Appellees/Cross-Appellees;

and

Richard Wurdeman, Esq.; Spencer Kalani Schutte; Takashi

Domingo; Jimmy Arakaki; Keola Childs; Jim Rath,

Respondents-Cross-Appellees-Appellees/Cross-Appellees/Cross-Appellees;

and

Waste Management of Hawai'i, Inc.,

Intervenor-Cross-Appellee-Appellee/Cross-Appellant/Cross-Appellee;

and

Hawai'I Labor Relations Board; Bert M. Tomasu; Russell T.

Higa; Sandra H. Ebesu,

Appellees/CrossAppellees-Appellees/Cross-Appellees/Cross-Appellants.

Nos. 18203, 18236.

Supreme Court of Hawai'i.

February 28, 1997

Page 398

Order Modifying Decision on Reconsideration May 13, 1997.

Page 399

[85 Hawai'i 63] Herbert Takahashi, Stanford H. Masui, Danny J. Vasconcellos and Rebecca L. Covert of Takahashi, Masui & Vasconcellos, on the briefs, Honolulu, for plaintiffs-appellants in No. 18203.

Mark Bennett of McCorriston, Miho & Miller, on the briefs, Honolulu, for defendants-appellees in No. 18203.

John Knorek of Torkildson, Katz, Jossem, Fonseca, Jaffe, Moore & Hetherington, on the briefs, Honolulu, for intervenor/defendant-appellee in No. 18203.

[85 Hawai'i 63] Herbert Takahashi, Stanford H. Masui, Danny J. Vasconcellos and Rebecca L. Covert of Takahashi, Masui & Vasconcellos, on the briefs, Honolulu, for complainant-appellee/cross-appellant-appellant/cross-appellee/cross-appellee in No. 18236.

William C. McCorriston, Mark J. Bennett and Nadine Ando of McCorriston, Miho & Miller, on the briefs, Honolulu, for respondents-appellants/cross-appellees-appellees/cross-appellees/cross-appellees and respondents-cross-appellees-appellees/cross-appellees/cross-appellees in No. 18236.

Page 400

[85 Hawai'i 64] Robert S. Katz, Richard M. Rand and John L. Knorek of Torkildson, Katz, Jossem, Fonseca, Jaffe, Moore & Hetherington, on the briefs, Honolulu, for intervenor-cross-appellee-appellee/cross-appellant/cross-appellee in No. 18236.

Valri Lei Kunimoto, Hawai'i Labor Relations Board, on the briefs, Honolulu, for appellees/cross-appellees-appellees/cross-appellees/cross-appellants in No. 18236.

Herbert R. Takahashi and Rebecca L. Covert of Takahashi, Masui & Vasconcellos, Honolulu, for plaintiffs-appellants in No. 18203 and for complainant-appellee/cross-appellant-appellant/cross-appellee/cross-appellee in No. 18236 on the answer.

Richard M. Rand and John L. Knorek of Torkildson, Katz, Fonseca, Jaffe, Moore & Hetherington, Honolulu, for intervenor/defendant-appellee in No. 18203 and for intervenor-cross-appellee-appellee/cross-appellant/cross-appellee in No. 18236 on the motion.

William C. McCorriston, Mark J. Bennett and Nadine Ando of McCorriston, Miho & Miller, Honolulu, for defendants-appellees in No. 18203 and respondents-appellants/cross-appellees-appellees/cross-appellees/cross-appellees and respondents-cross-appellees-appellees/cross-appellees/cross-appellees in No. 18236 on the motion.

Jonathan Chun, First Deputy County Attorney, Lihue, on the amicus curiae memorandum of County of Kauai.

Michael J. Belles, David W. Proudfoot and Jerilynn Ono Hall of Belles Graham Proudfoot & Wilson, Lihue, on the amicus curiae brief of Sanifill of Hawaii, Inc.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

RAMIL, Justice.

The central issue addressed in these cases 1 is the privatization of public services. The United Public Workers and its officers (collectively the UPW) challenge the validity of a contract entered into by the County of Hawai'i (the County) to privatize the operation of a landfill at Pu'uanahulu on the island of Hawai'i. In No. 18203, the UPW argues that the County violated civil service laws and merit principles by privatizing the landfill worker positions in question. In No. 18236, the UPW argues that the County violated collective bargaining laws by privatizing without participating in mandatory negotiations with the UPW. For the reasons discussed below, we hold that the County violated civil service laws and merit principles but did not violate collective bargaining laws. The contract between the County and Waste Management of Hawai'i, Inc. (WMI) is void as a violation of public policy to the extent that it provides for the private operation of the Pu'uanahulu landfill. We vacate the circuit court's award of summary judgment in favor of the County in No. 18203 and remand for entry of summary judgment in favor of the UPW. We instruct the circuit court to grant the UPW a declaratory judgment. We further instruct the circuit court to fashion injunctive relief requiring the landfill to be transferred from private operation to County operation as rapidly as possible but consistent with practical and public interest concerns. The circuit court shall also monitor the transition and may impose sanctions for non-compliance. Finally, the circuit court is to determine whether the additional relief requested by the UPW is appropriate. We affirm the circuit court's judgment in No. 18236.

  1. FACTS

    1. Common Facts

      Prior to the events at issue in this opinion, the County owned and operated two landfills

      Page 401

      [85 Hawai'i 65] on the island of Hawai'i: one in Kealakehe, Kona, and the other in Hilo. The Department of Public Works employed thirty-eight workers, consisting of equipment operators, landfill attendants, and transfer station attendants, to operate the landfills. These workers were traditionally recruited and employed through the merit system pursuant to civil service laws. The UPW is a labor union and has long been the exclusive representative of landfill workers in the state of Hawai'i.

      In 1991, Mayor Lorraine Inouye began to consider the possibility of having a private contractor construct and operate a new landfill at Pu'uanahulu. The new landfill would be a replacement for the Kealakehe landfill, which had reached capacity and was plagued by subterranean fires. Another concern was that the Environmental Protection Agency (EPA) had issued new federal regulations on solid waste management that contained strict standards for landfill construction. Mayor Inouye met with UPW officials to discuss the privatization proposal. The UPW did not oppose the private construction of the new landfill but did strenuously object to the private operation of the landfill. In the summer of 1992, Mayor Inouye agreed not to privatize the operation of the landfill.

      Subsequent to her decision not to privatize the landfill, Mayor Inouye won the endorsement of the UPW in the 1992 primary election. This was an extremely close race, and Mayor Inouye lost to Stephen Yamashiro by a thin margin. Shortly after assuming office in December 1992, Mayor Yamashiro announced that the County would be privatizing not only the construction of the Pu'uanahulu landfill, but its operation as well. In March 1993, bids were received from WMI and Browning Ferris Industries. On March 25, 1993, County officials informed WMI that the County intended to award WMI the contract.

      County officials did not seek any form of certification from the county personnel director or the civil service commission that the landfill worker positions were unique or that they could not be filled through normal civil service procedures. Furthermore, Mayor Yamashiro did not consider the decision to privatize the landfill to be subject to mandatory bargaining. The County did inform the UPW, in February 1993, that bids were being accepted from private contractors and also sent a letter to the UPW, on April 1, 1993, offering to "consult" with it. However, the UPW responded by demanding full "bargaining in good faith as required by law." Mayor Yamashiro then refused the UPW's demand for full bargaining.

      A contract with WMI, dated April 21, 1993, was executed by Mayor Yamashiro on April 30, 1993. Under the terms of the contract, WMI assumed responsibility for the construction, operation, and closure of the new landfill. The County was to pay WMI based on the amount of waste received. WMI also agreed to assume liability for claims arising from the landfill and to carry environmental and liability insurance.

      Although the County refused to bargain with the UPW over the decision itself, by letter dated September 2, 1993, the County offered to bargain over the effects of privatization. There is no indication in the record that the UPW responded to the County's offer.

      Ten workers at the Kealakehe landfill were directly affected by the County's privatization efforts. Workers at Kealakehe were given the option of relinquishing their civil service status and working for WMI at Pu'uanahulu or being reassigned to other civil service positions. The actual work performed by the workers at the new landfill is virtually identical to the work performed at the old landfill. The only difference is that equipment operators who formerly spent half their time trucking...

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