Story last updated at 4:08 p.m. Thursday, August 15, 2002

Union files lawsuit against school district

Late September hearing expected

Morris News Service-Alaska
The Kenai Peninsula Education Association filed a lawsuit Monday against the Kenai Peninsula Borough School District in the latest of a series of actions relating to an alleged e-mail security breach last April.

The association, joined by fellow plaintiffs Hans Bilben, union president, and three area teachers, filed the suit in Kenai Superior Court late Monday. A hearing is expected in early September, according to union counsel.

Cathy Carrow, KPEA vice president, called the district's action against Bilben "a ruse to defame our elected president."

"This attempt by the district to threaten Mr. Bilben's position after 19 years (on the job) is a concern for us," she said. "People need to feel that they can be involved in the process without the threat of their livelihood being taken away from them."

The situation began in April, when the school district discovered that confidential e-mails between the school board and senior district administrators had been accessed by an unauthorized third party. The district maintains the content of the e-mails pertained to its bargaining stance in the ongoing contract negotiations for district teachers and support staff.

An internal investigation by the district deemed three teachers were involved in the breach, including Bilben, who was accused of seeing the e-mails and gaining an unfair advantage in the negotiation process.

Ensuing debates on both sides of the table have slowed contract negotiations and led to both the KPEA and the district filing unfair labor practice complaints against one another.

Contract talks, however, still are slated to resume Sept. 12 and 13.

The newest action in the affair -- the lawsuit -- focuses on disciplinary action taken against Bilben by the district.

According to Joe P. Josephson, of Josephson and Associates P.C., the Anchorage-based law firm representing the union, Bilben was reprimanded for his alleged involvement in the e-mail breach. He was forbidden to use the district's e-mail system for a year and placed on probation, Josephson said.

"If allowed to stand, that means he cannot communicate with his constituent members of the union, which is particularly critical because of the upcoming round of collective bargaining," Josephson said. "This serves no helpful purpose. The interception was not done by Hans and was not sought by Hans. When he became aware of it, he reported to the appropriate person."

The lawsuit also claims that school board members and administrators had no right to expect privacy in the e-mail forum, because confidential negotiation information should not have been there.

According to Josephson, who helped craft the state's Open Meetings Act during his 16 years in the Legislature, the school board should have voted during a public meeting to conduct confidential negotiation business by private e-mail.

He said a recent decision by the Alaska Supreme Court over a redistricting issue suggested that e-mail communications by a government body could constitute a constructive meeting, in violation of the Alaska Open Meetings Act.

Under the act, "The sender had no reasonable right to anticipate privacy in the messages, because they were not in accordance with state law," Josephson said.

The lawsuit asks the court to declare Bilben violated no rules and order the district to restore his e-mail privileges, which, Josephson said, are critical to his position as a teacher and association president.

The lawsuit also takes issue with a part of Bilben's reprimand that places him "on probation."

"We do not understand what that means," Josephson said. "He is a tenured teacher, certainly entitled to the same due process rights that any other person of his experience has."

Josephson said the lawsuit was filed on behalf of the KPEA, due to its role in ongoing bargaining sessions, Bilben, who is defending his own position, and three individual association members, "who, as constituents, want to be sure their president is functioning effectively."

The three teachers listed as additional plaintiffs are Thomas Burck, Bill Morisette and Holly Zwink. They have not been identified as individuals otherwise involved with the e-mail security breach.

Josephson said he has written to the district's lawyers asking for a preliminary hearing to occur in early September.

"That should provide time for them to respond, for the parties to try to reach agreement and for the court to address the issue before bargaining gets going again," Josephson said.

"This whole issue is unfortunate, and it has escalated to overdramatic disputes," he added. "We're taking action in part to bring the disputes to a head and to stake out what is important if the union president is to work effectively."

Todd Syverson, the school district's assistant superintendent of administrative services, said, however, that a lawsuit is anything but normal procedure for such a complaint, noting the action was a surprise to him.

"Contractually, our employees have a grievance procedure to follow if they don't agree with a district action," he said, explaining the process goes from informal discussions to meetings with an administrator, the superintendent and the school board, then to arbitration.

"It's clearly defined. That's the way we have done business for years. We have not had a grievance filed, so this is surprising.

"It's disturbing that they are not willing to follow their own contractual policy and that they would waste district and taxpayer money with a lawsuit," he added. "It's disturbing and sad."

Carrow countered that it was the district that first pushed the matter into the courts and that the normal grievance procedure is too time-consuming to be effective in this case.

"It was the district's decision to elevate (this) to the judicial process," she said. "And as we saw the e-mail issue being escalated to include the judicial system, we thought (pursuing a judicial remedy) was in the best interest of resolving the issue as quickly as possible."

For his part, Bilben said the lawsuit is about what is right.

"If (the district is) discussing district matters over e-mail, it is a clear violation of the Open Meetings Act," he said. "We're just trying to reach a fair and equitable solution to this. We need to put an end to this thing."

Carrow, speaking Wednesday during a break from districtwide in-service for schools staff, said she remains hopeful that a resolution can be reached in the ongoing contract dispute.

"Teachers and support staff in the district are ready to get into the schools and do their jobs with the children," she said.

In other contract negotiation news, the district issued its reply to the unions' recent filing of unfair labor practice charges. In a 19-page document prepared by Anchorage-based law firm Jermain, Dunnagan and Owens, the district requested that all charges be dismissed "because there is no legal or factual merit to the unions' complaint." The district further has requested that the Alaska Labor Relations Agency "award the district its fees and costs associated with the defense of the frivolous action."

A decision from the agency is expected soon.

This story was reported by staff from the Homer News and Peninsula Clarion.

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