Did The Legislature Have Authority To Defer Pay Raises During the Pandemic?
Two prominent members of the state Salary Commission question whether lawmakers violated the state constitution in 2021 and 2022.
In the depths of the pandemic — with businesses closing and 贬补飞补颈驶颈 gripped by frightening, sky-high unemployment — state lawmakers voted to defer pay raises for state judges, the governor, his cabinet members, and themselves.
While that may have been a wise and politically astute move at the time, two of 贬补飞补颈驶颈’s best known lawyers are now suggesting that action by the Legislature may have violated the state constitution.
Former congresswoman and state Senate President Colleen Hanabusa and former state Attorney General Margery Bronster are questioning the legal basis for lawmakers to defer raises for more than two years for an array of top-level state officials, including the Legislature itself.
“I understand why they did it,” said Hanabusa. “The question becomes, that’s not what the constitution says.”
The issue comes up now because both Hanabusa and Bronster serve on the state Salary Commission, which is tasked with reviewing the salaries of top state officials and proposing raises if they think pay increases are justified.
Hanabusa is chair of the commission, which has been hearing testimony from 贬补飞补颈驶颈 lawmakers, Chief Justice Mark Recktenwald and others who believe various state officials and judges should receive pay raises.
As part of that process, the commission has discussed lawmakers’ decision to defer raises during the pandemic, and wondered if that could happen again.
Hanabusa asked the state Attorney General’s Office on Dec. 19 to provide a legal opinion on the matter, saying the commission wants to know if the Legislature has the authority “to mess with our work.”
“The economy was crashing. It was a significant fiscal crisis; everyone should be part of dealing with it.”
Former Gov. David Ige
But Bryan Yee, a supervising deputy attorney general, told the commission on Monday that it had posed a “hypothetical question,” and his office declined to answer. If the Legislature again defers raises as it did during the pandemic, the attorney general will be prepared to address the issue, he said.
The root of the pay raise debate reaches back to 2006, when Hawaii voters amended the state constitution to create the current Salary Commission. The commission meets every six years to review the pay of lawmakers, state judges and top state administration officials including the governor and lieutenant governor.
If the seven-member commission believes raises are justified, it submits recommendations for new salary schedules to the Legislature. The Legislature then has the option of rejecting the entire package of proposed raises — including lawmakers’ own raises — or doing nothing.
If lawmakers do nothing, the raises automatically take effect during the following years according to a schedule developed by the Salary Commission.
That is what happened in 2019, when the commission proposed a package of pay increases and
But the following year the pandemic hit, shutting down the tourism industry and much of the rest of the state economy, and lawmakers essentially backtracked.
The Legislature voted in 2020 to for themselves and other state leaders until the following year. And a year later after critics again attacked the scheduled pay raises lawmakers voted to further defer the raises until 2023.
Both measures to defer the pay increases passed the Legislature easily, and were quickly signed into law by then-Gov. David Ige as and .
But Hanabusa argues that created the Salary Commission does not give the Legislature authority to defer pay increases.
“Once you implement, it’s implemented,” Hanabusa said of the schedule of raises developed by the Salary Commission. “Once they accept the report, whatever is in the report is done.”
She said lawmakers can personally decide not to accept a pay raise or can donate the extra money from the pay increase to charity, “but I don’t think as an institution the Legislature can do what they did.”
Bronster has raised similar concerns. This week she described lawmakers’ deferral of the raises proposed by the 2019 Salary Commission as “monkeying with the recommendations by taking action on when they actually implemented them.”
“I think one message to the Legislature that we should be all agreeing to is that we would like to see the Legislature actually implement what we’re recommending. Not only do we want them to accept it, but once it’s accepted, to actually authorize it,” Bronster said.
Hanabusa, meanwhile, asked the Attorney General’s Office to specifically opine on the legality of the actions the Legislature took to defer the raises during the pandemic.
Ige, who signed the bills to defer the raises, said in an interview this week the Attorney General’s Office certainly would have reviewed those bills to confirm they passed legal muster before he approved them.
Ige said his understanding was deferring the raises was proper and legal so long as all of the pay increases — judicial, legislative and administrative — were treated the same way.
Ige publicly announced during the pandemic he would not accept a raise, and asked his cabinet to do the same.
“The economy was crashing,” he said. “It was a significant fiscal crisis; everyone should be part of dealing with it.
