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Long-sought check in substitute teacher’s hands

The Kula man who led the more than decadelong fight by substitute teachers to obtain back pay received his partial settlement check in the mail Tuesday.

“It’s a nice feeling,” said David Garner on Tuesday during his lunch break from his job at Ali’i Kula Lavender. “It’s a partial of what we were owed, cheated out of.”

The more than $14 million won in a settlement by substitute teachers in the fall covers back pay for 2000 to 2005. It does not cover interest accrued, which is currently still in litigation. And the settlement does not cover the period from 1996 to 2000 because the statue of limitations for that period ran out for the lawsuit filed in 2002.

There also is a separate class-action lawsuit that involves part-time teachers paid hourly that does not involve Garner.

Still, the check, which Garner said was in the thousands but less than $10,000, is “still better than nothing.” The 25 percent contingency legal fee, taxes and Social Security assessment were taken out of the check, which was cut by a private independent payroll company hired by their attorneys, Alston Hunt Floyd & Ing, in an arrangement with the state Department of Education.

Most of Garner’s money will go to a college fund for his sons, but some of the money will be used for a wedding anniversary trip to Alaska.

“I have been to 49 states out of 50, and Alaska is the only one (left) to see,” he said.

Other substitute teachers in the class-action lawsuit began receiving their checks this week. The 8,830 checks range from $20,000 to a few dollars, attorney Paul Alston said late last month.

Attorney Eric Ferrer on Maui said Tuesday that he really wanted to be there when his client opened the envelope with the check.

“It has been an amazing odyssey,” Ferrer said.

“I don’t think I have ever had a client who has been more dogged in pursing justice for a claim,” he said. “He was so adamant about pursing it unrelentingly.”

Garner, 63, said that he “felt very strongly that an injustice was being done to thousands and thousands of people.”

“I did it for everyone, not just for me,” he said, wanting to share the spotlight with Ferrer as well. “I never felt like giving up.”

No lawyer wanted to take the case due to the time and cost. Ferrer admitted that those lawyers were probably right, considering the thousands of hours put into the case over the 12 years.

“If you really believe in it, you have to put in your money, your time,” said Ferrer. “We feel strongly about it.”

Calling the case “an amazing pleasure and a labor of love,” Ferrer said the case has a deeper meaning to him.

“This is a reason why I became a lawyer . . . to make sure the powers that be follow the rule of law,” he said.

The genesis of the case lies in a pay raise negotiated between the teachers union and the DOE, Garner explained. Union teachers got pay raises, but substitute teachers did not. Garner and other substitute teachers filed a lawsuit in 2002, claiming that by state law their pay was tied to the level paid to class II teachers, who received a pay raise in the contract.

Instead, the state set up a new classification for substitute teachers, he said. Regular teachers were getting 4 and 5 percent annual pay hikes, while substitute teachers were getting 1 and 2 percent, Garner said.

The case went up to the state Intermediate Court of Appeals, where the court ruled in favor of Garner and substitute teachers in November 2009. An appeal by the state to the Hawaii Supreme Court was rejected the next year and the case was sent back to Circuit Court on Oahu to determine damages.

The state Legislature approved $15 million for the settlement of the Garner class-action lawsuit. That appropriation led to the partial settlement, court documents said.

It’s been a long fight for Garner. He raised the issue in 1996 but no state official would listen to him or return his calls.

“Once Eric took the case, things started to change,” Garner said.

“I was amazed no attorney wanted to help him,” said Ferrer, who remembers their first meeting at Casanova restaurant in Makawao. “I couldn’t understand why.”

Ferrer thought he would write a few letters, and the DOE “would see the error of their ways.” That did not happen.

After the lawsuit was filed, Garner said he was effectively “blackballed.” His teaching days went from 170 days, nearly a full school year, to 140 days a year. That amounted to a $4,000 a year pay cut, he said.

“It hurt my feelings. . . . I was highly requested,” Garner said, adding that after the lawsuit many teachers who had asked for him in the past would not call.

Struggling to make ends meet, Garner and his family left for Florida in January 2010. His mother, a Maui resident, wanted to spend her last days there and paid for the move. He found work in a museum.

After she passed in February 2012, the Garners moved back to Maui in July of that year. He talked to the DOE about substitute teaching again, but his only opportunities were in outlying areas, like Molokai, due to a policy change. Ironically, if he had not moved, he likely would have been grandfathered in.

Still, things worked out for the best. He got a job at the lavender farm in Kula, which provides health benefits, something substitute teachers don’t get. He also collects Social Security to supplement the family income and his wife works part time.

“I have enough money,” he said.

When asked what he has learned from this odyssey, he replied that he has learned that politicians “don’t always follow the law” and that “when people in politics do things wrong to others that it’s extremely hard (for them) to do the right thing.

“I was right. The courts proved I was right. I couldn’t get politicians empowered at the time to admit that they were not following the law.”

Substitute teachers in the class-action lawsuit with questions may email Garner at ripsafl@yahoo.com. He added that families of substitute teachers who died during the 12 years of litigation and substituted between November 2000 and July 2005 may be eligible for settlement money. Families may mail Garner at P.O. Box 901360, Kula 96790.

* Lee Imada can be reached at leeimada@mauinews.com.