The State Ethics Commission’s relatively new executive director, Les Kondo, has been leading the commission towards a more aggressive enforcement posture. I generally welcome the move as overdue and very much needed, and he’s doing a good job.
But, at the same time, I have concerns about at least one of Kondo’s recent moves. During a conversation this past week, I asked about his controversial advice that members of state boards or commissions are prohibited from being paid legislative lobbyists on any matters that were considered by their boards.
I told Kondo that I have doubts about his position, which has provoked serious concerns among lawmakers, lobbyists, and some other political observes.
Kondo spelled out his position in a May 26 letter to members of a legislatively-created Mortgage Foreclosure Task Force.
The State Ethics Code prohibits a member of the Task Force from being compensated to represent non-governmental organizations, such as businesses, both for-profit and not for-profit, trade organizations, or other groups, on matters in which the Task Force participated or will participate. For example, a member of the Task Force who is an employee of a company may not receive a salary to lobby on behalf of the company on legislation that was recommended by the Task Force. Similarly, a member of the Task Force may not otherwise be paid to privately lobby on behalf of a company, trade organization, or other group on legislation that was recommended by the Task Force.
Kondo vociferously defends his interpretation of the law (Section 84-14 HRS).
“When I hear people say they don’t understand what we’re saying, I go back and read all that we’ve written,” Kondo said. “It makes sense to me. Perhaps I’m biased, because I wrote part of it, but I feel like the guidance we’ve given is clear.”
Kondo acknowledged reading the statute “as literally as we can.”
He said the intent of the provision is to prevent anything akin to “influence peddling.”
“I’ve been telling folks that you’re not able to profit from the privilege of serving.”
I should be happy that Kondo and the commission are becoming more aggressive in enforcing the ethics laws and have not been afraid to ruffle feathers of those in powerful positions. But in this case I’m not. And I’ve been puzzling through why I haven’t been persuaded of Kondo’s position.
First, there’s a matter of style. I first began reading opinions issued by the ethics commission in 1983, when I was hired as state director of Common Cause, the public interest lobbying group. I’ve gone back to those prior opinions from time to time when researching stories as a reporter, and more recently as a blogger.
Traditionally, ethics opinions have been very long on precedent and nuance, and spend considerable time examining the specific factual situations they are being asked to consider. Opinions often reflect the commission’s efforts to be sure application of the law makes sense in those specific circumstances. At times, the commission has turned away from literal interpretations when it determined that they did not make sense.
For example, in Advisory Opinion 91 (1971), the commission looked at the application of the conflict of interest law to a state licensing board. At that time, the law had no provision for boards, like licensing boards, where specific industry knowledge and experience is required and where conflicts of interest are inevitable.
The commission pointed back to one of its earliest opinions, in which it had applied the conflict provisions to limit actions of board members, and quoted from an undeleted version:
… Boards, such as that of Engineers, Architects and Surveyors … are formed by legislation specifically providing that a certain number of the members of the Board be of the profession regulated. This is a clear policy decision by the legislature that the members of these professions are best informed as to the standards of proficiency in the profession to which its members should be held.
As a result, the commission declined to impose a literal interpretation of the statute. Instead of requiring licensing board members to disqualify themselves from issues involving their industry, they only required that they avoid matters directly and specifically impacting their own businesses.
The conflict of interest law was later amended to include this common sense approach as an exception to the general rule.
A person whose position on a board, commission, or committee is mandated by statute, resolution, or executive order to have particular qualifications shall only be prohibited from taking official action that directly and specifically affects a business or undertaking in which he has a substantial financial interest; provided that the substantial financial interest is related to the member’s particular qualifications.
Kondo does not finesse his advice in the letter to the foreclosure task force. He offers a simple, black & white view of the law’s meaning that has no room for subtlety.
That’s a significant difference from past practice and, as I look at it now, it’s a potential red flag that the matter really hasn’t been thought through sufficiently.
Kondo says his advice impacts only a limited number of people, but falls most heavily on professional lobbyists and “the one-man shop.”
But it would also fall heavily on public interest groups as well, since many advocacy groups rely on a key representative or employee knowledgeable about their key issues.
For example, what if the legislature appointed a task force to consider revamping the sunshine law, or campaign spending laws. Under Kondo’s interpretation, any public interest advocates named to the task force would be unable to play any role in lobbying or advising their organizations on the issue if they were paid by the organizations. Meanwhile, other special interests could afford to hire professional lobbyists in addition to any representatives they might have serving as members. I don’t think that would contribute to a higher standard of ethics.
So here was my first question to Kondo about the foreclosure task force. Since its members were selected to reflect specific interests, the exemption cited above means they are not bound by the general principle that a public employee is prohibited from taking official action that directly affects “a business or other undertaking” in which the employee, spouse, or a dependent child have a “substantial financial interest.”
Task force members, because of the need for their special backgrounds, are given a pass and allowed to ignore the most important and direct type of conflict of interest restriction by taking official action affecting their own business interests that would otherwise have been prohibited, in this case approving recommendations to the legislature.
So, I asked, isn’t it illogical to allow official actions to be taken by task force members despite their conflicts, but then prohibit them from subsequent lobbying at the legislature, where they have could not take any official action and where their influence would be diluted by the many other competing interests?
Alternatively, shouldn’t the lobbying restriction only apply to the matters not subject to the exemption, that is, any matters dealing directly and specifically with the company that the member/lobbyist has a financial interest in, as opposed to matters that apply to a number of companies in an industry or a class of companies?
In addition, Kondo’s opinion fails to acknowledge that lobbying entails a First Amendment right “to petition the Government for a redress of grievances.”
While lobbyist rights can be limited for compelling reasons, such as deterring corruption by requiring full disclosure, these limits have to be a carefully drawn as possible and only for good reason.
So far, at least, the Kondo and the commission haven’t made a compelling case, in my personal view at least.
It seems to me that the commission feels that a literal reading of the statute requires the hard-line stance. But perhaps that literal reading isn’t appropriate.
With this in mind, I think there a way to look at the relevant part of the statute that doesn’t necessarily reach the same conclusion.
My suggested alternative reading takes into account the facts of the situation, including the nature of the task force. There are different types of boards and commissions. Some can take final binding action, approving or withholding licenses, authorizing contracts, hiring and firing personnel, buying and selling public property, adopting rules and regulations that have the force of law, etc. Others can take only nonbonding actions or make recommendations. The mortgage foreclosure task force, for example, was charged with making recommendations for legislation, resulting in a bill which would then be subject to the regular legislative process, a.k.a. “sausage mill”.
In addition, it recognizes that the legislature could have directed that lobbyists would not be eligible to serve on the task force, if that were their intent.
The conflict of interest provision in question is the first part of Section 84-14(d), shown here in italics.
(d) No legislator or employee shall assist any person or business or act in a representative capacity for a fee or other compensation to secure passage of a bill or to obtain a contract, claim, or other transaction or proposal in which he has participated or will participate as a legislator or employee, nor shall he assist any person or business or act in a representative capacity for a fee or other compensation on such bill, contract, claim, or other transaction or proposal before the legislature or agency of which he is an employee or legislator.
The confusing thing here is that it is an extremely broad provision, stated in just a few words, and intended to be applied to the very different circumstances of legislators and state employees, including board and commission members.
It seems to me the first part can be unpacked into two parallel provisions.
First, for legislators:
No legislator…shall assist any person or business or act in a representative capacity for a fee or other compensation to secure passage of a bill…in which he has participated or will participate as a legislator….
And, for employees:
No…employee shall assist any person or business or act in a representative capacity for a fee or other compensation…to obtain a contract, claim, or other transaction or proposal in which he has participated or will participated as a…employee…
I think this might sidestep the application of language intended for the circumstances of legislators to the different circumstances of task force members, and avoid a blanket prohibition on legislative lobbying by task force members.
Again, the big caveat. I’m not an attorney, and certainly not an ethics attorney. And this idea isn’t fully developed here.
But I think it suggests that a careful, step-by-step analysis of the kind done for many previous ethics commission opinions might lead to a different result than a blanket prohibition on lobbying by task force members.