Story last updated at 3:54 p.m. Thursday, May 23, 2002

Union head linked to e-mail probe
by Carey James
Staff Writer

photo: news
Hans Bilben  
Hans Bilben, president of the Kenai Peninsula Education Association has acknowledged he was one of the three people investigated in the Kenai Peninsula School District e-mail security breach.

District officials claim the alleged inception of e-mail theft in early April has created an unfair labor practice which may derail contract negotiations. On May 10, the district filed a complaint with the Alaska Labor Relations Board, followed by an amended complaint on May 15.

The incident involves e-mail sent from the district superintendent to several members of the education board that was allegedly infiltrated by two people. Two yet unnamed employees, one of whom is now being investigated by Soldotna police, allegedly accessed the district's e-mail system, logging on as board members Al Poindexter and Joe Arness, who is also the district's negotiating team member.

The district's complaint states that the improperly obtained e-mail was given to union leadership who "knew or should have known that these confidential electronic mail messages had been improperly obtained without authorization."

Bilben, however, said the information in those e-mails never compromised the contract negotiations between the unions and the district.

According to Bilben, a person visited him and handed him a stack of papers that may have included district e-mail. He said he briefly looked at some of the papers, decided he didn't have any interest in looking at them all, and threw them away.

In an interview Wednesday, Bilben said that none of the confidential e-mail messages, which allegedly included details on the district's negotiation strategy, went any further, including to the bargaining team or to other union members.

"I can't control what comes through my door as union president. The district alleges that this affected bargaining, and to me, that is just another stall tactic," said Bilben. "To me, this has not affected bargaining in any way."

District Superintendent Donna Peterson would not say specifically what information was in the e-mails, but said the readers became privy to "very detailed" information about the district's stance on issues such as upper-level educator salaries and other contract specifics.

"The e-mails talked about what's our strategy here," she said. "What was in the e-mails were things that showed the district's bargaining position and willingness to move or alter those bargaining positions. It could have affected negotiations."

Peterson admits the district was bargaining to get the best deal possible, and said the infiltrated e-mail put the district negotiators at a disadvantage.

"It showed our willingness to move," she said. "If somebody knows you have three jacks, you are going to be at a disadvantage."

She said she was surprised when, after the district presented its second offer on April 13, the union negotiators dismissed the offer in minutes.

"What we proposed, we believe, was a fair and reasonable contract," she said.

The unions, however, say the reason they did not accept the district's offer wasn't because of any inside information about the district's bargaining position, but rather because the offer did not meet the expectations of the union.

"We have done extensive surveys of our membership and we know where our membership sits," said KPEA negotiator and Homer Middle School teacher Maggie Corbisier. "We are trying to work toward those expectations and we did not feel (the district's offer) met those expectations, so it did not take us long to decide."

Corbisier said the district's offer fell short on financial issues such as health care and salary increases.

Despite the e-mail investigation and the complaint of unfair labor practice, contract talks resumed Thursday and negotiators reported progress on several nonfinancial issues. Topics covered with KPEA included staff notification of job openings, instructional freedom, employee evaluation and discipline procedures and the rights of teachers hired late in the year. For the Kenai Peninsula Education Support Association, issues included in-service training days, unpaid leave and use of sick time.

Corbisier said from her perspective, the negotiations went better last week than in negotiations prior to the e-mail investigation.

"I think we felt we were working together," she said. "We accomplished more on the 16th than we had accomplished up to that point."

Still, she said, the unions were surprised to hear the district had filed a complaint with the labor relations agency, especially after being told the unions' credibility was not at issue.

"We were a little concerned when they filed the unfair labor practice because we were told they did not question us," she said.

Bilben said in the first week of May, meetings between the union and the district resulted in what he perceived as a verbal agreement to settle the e-mail investigation and return to the bargaining table.

"At that point, we thought we had an agreement," he said.

Then the Unfair Labor Practice charges arrived.

But district Superintendent for Instruction Gary Whitely said Wednesday that no such verbal agreement ever occurred.

He said the district returned to the bargaining table because it doesn't want the actions of a few employees to harm others by derailing the contract talks. Still, Whitely said the district wants those employees involved in the e-mail infiltration to be held accountable for their actions.

In the complaint, the district has asked for restitution for costs of investigation, attorney's fees and the salaries of the KPEA members placed on administrative leave as a result of the alleged e-mail theft.

In addition, the legal documents filed with the labor agency ask for an order extending the current collective bargaining agreement for a year if the agency determines that the "good will and trust between the KPEA and the district has been irreparably harmed."

Peterson said at this point, the district is not asking for a one-year contract extension, but if, "for some reason, the agency finds more as they go through this, and they determine the good will and trust is irreparably harmed," then the district would request the extension.

As for the fee reimbursement, she said "I hate the idea that the students of this district are paying for this through the funds being used to investigate this matter.

As soon as the e-mail infiltration was detected, the district hired Jermain, Dunnagan and Owens, an Anchorage law office.

She said because other lawyers are involved on behalf of the unions, the investigation has been delayed for several weeks, costing more.

"Our normal process for investigation and action has been extended. What we would normally complete in two weeks has taken seven weeks," she said.

Peterson refused to comment on how much the law firm hired by the district charges, but the district's Chief Financial Officer, Melody Douglas, said the district pays between $135- and $150-per hour for the firm's services.

Peterson said the district has used the firm for four years because it is an expert in labor laws. She said each year, the district budgets around $80,000 for legal fees for grievances and other legal issues, and she hopes that amount will not be exceeded.

"Those legal bills are part of the cost of doing business," she said.

Though the legal fees may be substantial, the district is not guaranteed reimbursement for its expenses during the investigation, nor is it likely to see the contract negotiations postponed for a year.

"A party can ask for anything to be granted," said agency Hearing Officer Jean Ward, who is investigating the case. "That doesn't mean they will get it."

Ward said though she can't speculate on the outcome of the case, which hasn't even been determined to have merit as yet, she does contend that the incident, as stated by the district, is unusual.

"I can tell you that we don't have a precedent," she said, adding that it will likely be more than a month before the case goes to a full hearing, if it is found to have merit.

Though the Alaska Labor Relations Agency is independent of the National Labor Relations Board, Ward said they give "great weight" to the decisions made by the national board.

Ray Willms, assistant to the regional director of the Seattle National Labor Relations Board office, said while he has no connection to the case, he also doesn't recall any precedent to the district's allegations. Generally, in unfair bargaining practices cases, monetary reimbursements are rarely ordered, according to Willms.

In contrast, a typical remedy might be to order the offending party to post notice that they won't do whatever bad conduct they had done in the past again.

"So there is generally no monetary remedy in a case like this," Willms said.

In addition, Willms said it is only in specific cases with recently formed unions that an extension of a contract has been imposed.

"That is not a remedy we would seek," he said.

Bilben, who has lost his e-mail privileges with the district for a year as a result of the dispute, said KPEA is submitting a response to the district's charges to the labor agency next week, and hopes the response will settle the issue.

"Our feeling is that when the labor relations board sees the response, we would hope they would make the right decision that this issue should go no further," he said.

Contract negotiations continue on May 30 when contentious subjects like pay scales and health benefits are likely to be discussed. Depending on how those negotiations go, another day of bargaining may be scheduled for the following day.

According to Corbisier, union negotiators are hopeful that a contract can still be agreed on.

"I feel that this is something we will be able to work through," she said. "As a team, I think we can continue to negotiate in good faith."