Bill to limit consumer’s rights makes last-minute stealth move

Thanks to KITV for calling attention to the last minute resurrection of a 2009 bill (HB 1212) that would strip the public of the ability to know the existence of pending complaints against licensed professionals. The bill died in conference committee last year, but was suddenly resurrected on Monday when House conferees were appointed.

The bad news is that the House conferees include Rep. Isaac Choy, who represents the Manoa area, is a CPA, a licensed profession that would get less public scrutiny if the bill passes, and has close ties to one of the bill’s key proponents.

Russel Yamashita, registered lobbyist for the Hawaii Dental Association, one of the primary backers of this bill, is the chair of Choy’s campaign committee, Friends for Isaac W. Choy, according to the campaign’s organizational report filed with the Campaign Spending Commission. The Dental Association has consistently presented testimony and lobbied for this and similar bills over several legislative sessions.

Yamashita’s lobbyist registration and Choy’s campaign committee share the mailing address of several businesses in which Choy reports an interest (see his 2008 and 2009 financial disclosure reports), including Manoa Consulting Group LLC, Isaac W. Choy CPA Inc., Ukumaruku Corp., and K H Choy & Associates.

I should disclosed that I consider Russel Yamashita a friend and have benefited from his advice on various issues, although I strongly disagree with his position on this question of consumer protection and information policy.

HB 1212 had a single referral to the House Judiciary Committee last year. Choy is the only House conferee who does not sit on Judiciary, so I’m worried that his appointment as conferee is a result of House leadership giving him an opportunity to push the bill towards final approval. This is not good.

Under current law, information concerning “an individual’s fitness to be granted or to retain a license” is considered private and confidential, except for records of complaints resulting in disciplinary action, and the “record of complaints including all dispositions.”

This bill, in its current form, would strip the “record of complaints” from the public record.

The problem here is that complaints take months, sometimes years to be investigated, so someone can rack up a long list of complaints before the first disciplinary action is finally taken. And a short list of complaints that result in actual disciplinary action may mask a much longer list of outstanding consumer complaints. Under the terms of this bill, the public would be left to fend for themselves without access to this key bit of consumer background.

And there’s more.

Here’s what I wrote last year at this time when HB1212 was sent to conference committee. Nothing has changed except that, this time around, it’s been a year since anyone has looked at the bill and the negative public reaction and detailed testimony in opposition has faded.

The Legislature is poised to take away the public’s right to know about the record of complaints against licensed professionals, including contractors, realtors, and others. The Senate adopted only minor changes to HB1212, leaving few differences to resolve in conference. Unless there’s a dramatic turnaround in sentiment, the House and Senate are going to take away a consumers ability to assess the records of these professionals and steer away from those with questionable records.

And it may be worse than it looks. The Office of Information Practices testified that the bill could prevent information about complaints from being shared with investigators and expert witnesses who are part of pending investigations, the Office of Administrative Hearings, and even with the licensing boards themselves. OIP described public information about complaint histories as an important resource for consumers.

Unfortunately, its testimony apparently fell on deaf ears.

Senator Les Ihara spoke against the bill last year, and the points he raised remain valid.

Testimony presented in 2009 is available online.

10 responses to “Bill to limit consumer’s rights makes last-minute stealth move

  1. Excellent piece of investigative journalism! I do hope it helps untangle the GOBweb. (aka Good Old Boy network) 😉

    • Problem is any nut can file a complaint and it stays on one’s record. This is why the Realtors are supportive of listing cases or agents who had actually been processed and proven wrong.

      • But that permanent listing also shows the disposition–that is, it indicates complaints that are dismissed, unfounded, etc.

        If the “nut case” is the problem, the statute could provide for an initial “frivolous/not-frivolous” screening, sort of a “probable cause” stage, with those obviously frivolous cases dismissed without being disclosed, the rest listed as pending until a finding is made. The point is that there are lots of ways to proceed without putting that whole blanket of secrecy back on this info.

        The sane “nut case” can file a lawsuit and everything is public from the get-go.

        • How do you determine who is sane?

        • No filings on a government website should be allowed until a complaint has been adjudicated.
          If found by the government to be an actual violation of law, then by all means, post it so that all of us can stay clear of such a licensee.
          In America, I believe in the core values of our founding fathers that we are innocent until proven guilty.
          People that believe such as Mr. Lind does may very well want to move to Russia or Venezuela.

  2. As a professional with a license, the opposition to this bill concerns me. Put yourself in the position of person running a legitimate, well-run business and a disgruntled client files a frivolous complaint. It may take a year for hearings to determine the complaint is frivolous but the professional has already been perceived in a less than favorable light for the past year. By posting these undetermined comlaints, the professional is deemed guilty before it’s even heard. Further more, after the comlaint has been thrown out it stay on their record for years after. THAT’S the problem with the current system. Guilty before proven, AND guilty after unproven – just by being on the list.

    • It would be very useful to have specific instances where the listing of complaints and their status/outcomes has been this unfair, in order to evaluate these assertions.

      If you’ve been through the process as a consumer, the system is really stacked in favor of the professional licensee. If a consumer fails to have all their paperwork, doesn’t comply with time limits, fails to respond at key times, or just can’t afford the time to keep pushing the process, the complaint will not go anywhere. Even getting to the point of actually filing a complaint with the state, rather than simply being angry and going away, is a high hurdle for lots of consumers.

      In addition, I don’t think it is true that reputations are ruined by isolated and frivolous complaints.

      It isn’t difficult to look at a record and see those with patterns of past complaints that signal problems, and to distinguish them from companies with isolated, occasional complaints that don’t go anywhere.

      In addition, there are other ways to tweek the system apart from imposing more consumer secrecy.

      For example, since “privacy” is the issue, that privacy can be waived, at least in a limited manner, to allow a licensee’s response to a complaint be made part of the public record and available with the simple listing of the complaint, which contains little information. This would allow someone who felt a complaint were frivolous to have their explanation available while the official investigation proceeds.

      Secrecy, with the heavy burden it places on consumers, should be the very last resort and only after a clear and convincing public showing of the damages of the limited disclosure that currently exists.

  3. ohiaforest3400

    Maybe there’s a midde ground here?

    How ’bout “the record of all complaints for which there is a disposition”? Complaints resolved in favor of the licensee would show the favorable disposition and, hopefully, why. This could be useful to a consumer when, for example, the favorable dispostion is not on the merits but on procedural grounds (say, statute of limitations or conduct complained of was not grounds for discipline but might be a reason for someone else not to want to do business with the licensee (rudeness, etc.)). Also, dispositions against a licensee that do not result in discipline (which would otherwise be covered in paragraph (7)(A)) might still be useful; e.g., stipulated settlements in which no fault is admitted but the licensee agrees to do or not do X, Y, and Z things.

    What would the licensees get in return? The fact of pending, as yet unresolved (pro or con) complaints would not be available. And, perhpas, separately, the law could require regulating agencies to seal records of cases resolved by dismissals (whatever the grounds), findings of no violation, and stipulated/no fault admitted dispositions after, say, 5 years?

    Food for thought. Probably not palatable to either “side.”

  4. This issue was more than thoroughly vetted in 1988 by the Governors Committee on Public Records and Privacy. They took reems of testimony on all islands and recommended that as part of our public records law that the record of complaints should be public. A person engaging in a regulated profession must surrender a degree of “privacy” for the privilege of engaging in that business.

    Having said that, I have not objection to the disclosure of truthful information as in complaint filed and dismissed without a cause finding, etc. etc.

  5. consider this as a response to the problem of “baseless frivilous” complaints. The Chamber of Commerce or whatever could create a service that allows merchants to list the consumers/customers who have filed baseless complaints. The complainers too give up some privacy rights by using public resources to complain. An alternative possibility might be a filing fee imposed upon the consumer/customer that is returned if the complaint is righteous and not returned if the consumer/customer “fudged” the truth. These steps along with mandatory mediation might address the reasonable and defensible concerns of all.

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