A subtle change of wording included in a measure passed this year to ease restrictions on lobbying by appointed members of temporary committees or task forces also exempted legislators themselves from provisions of the state ethics code that otherwise prohibit state officials from misusing their positions for the benefit of themselves or others, state ethics commissioners were told this week.
Les Kondo, executive director of the State Ethics Commission, told commissioners the broad exemption, while likely unintentional, results in removing their authority to rein in abuses of legislative power and authority.
“I can’t emphasize this enough,” Kondo said.
HB 2175, passed into law as Act 208, amended the “fair treatment” provisions of the ethics law by expanding a legislative exemption. It effectively now gives legislators carte blanche to use their positions to give unwarranted benefits to themselves, friends, or supporters, Kondo said.
The commission agreed to seek further amendments during the next legislative session to correct the problem. Kondo warned that if they are not successful, the commission could be powerless to stop self-serving abuses of power by members of the House and Senate.
Kondo then explained how seemingly small changes made by Act 208 resulted in such a major impact.
One section of the State Constitution requires a code of ethics to be adopted and apply to “appointed and elected officers and employees of the State or the political subdivision, respectively, including members of the boards, commissions and other bodies.”
However, the constitution also protects legislators from interference with their official duties, establishing a legislative privilege similar to, but broader than, the “speech and debate” clause of the U.S. Constitution.
No member of the legislature shall be held to answer before any other tribunal for any statement made or action taken in the exercise of the member’s legislative functions; and members of the legislature shall, in all cases except felony or breach of the peace, be privileged from arrest during their attendance at the sessions of their respective houses, and in going to and returning from the same.
Prior to Act 208, the “fair treatment” provision of the ethics law, chapter 84-13 HRS, prohibited legislators and other state employees from using their official positions “to secure or grant unwarranted privileges, exemptions, advantages, contracts, or treatment, for oneself or others.”
Specific prohibited acts included using their official position to land jobs or contracts for themselves or others, soliciting or accepting money “or other consideration” for performing their official duties, using state time or facilities for private business purposes, or getting into business deals with “a subordinate or a person or business whom the legislator or employee inspects or supervises….”
But the constitution’s “legislative privilege” required an exemption covering things said and done in performing legislative functions.
Prior to Act 208, this exemption was narrowly drawn and applied only to legislators.
Nothing herein shall be construed to prohibit a legislator from introducing bills and resolutions, serving on committees, or from making statements or taking action in the exercise of the legislator’s legislative functions. [emphasis added]
Kondo said the underlined clause limited the exemption to “legislative functions,” a phrase which in legal terms excludes political functions, such as constituent service, that are also part of what elected officials routinely do.
But Act 208 amended the law to expand the exemption to include task force members as well as legislators. In the process, it also dropped the specific reference to “legislative functions.”
Here’s how that same provision now reads:
Nothing herein shall be construed to prohibit a legislator from introducing bills and resolutions, or to prevent a person from serving on a task force or from serving on a task force committee, or from making statements or taking official action as a legislator, or a task force member or a task force member’s designee or representative.
“What the legislature has done is to remove the limitation on the exception to the fair treatment provisions,” Kondo said. “Now it exempts any and all actions they take in their legislative capacity.”
The change also appears to run counter to the part of the constitution requiring the ethics code apply to legislators, employees, and members of boards, commissions, and “other bodies,” and could therefore be subject to a constitutional challenge, Kondo said.
There’s a whole lot of legal minutia behind Kondo’s assessment of the impact of Act 208 on legislators.
I found a long, 21-page informal advisory opinion issued by the Ethics Commission back in 1997 (IAO 97-03) which examines the history of the legislative privilege and how it has been interpreted by the Hawaii Supreme Court. It’s a bit mind-numbing, but informative if you can push through it.
Given that Act 208 grew out of a somewhat acrimonious dispute between lobbyists, legislators, and the commission over application of the ethics law to task force members, I imagine the attempt to immediately amend the law again could draw some legislative push-back.
We’ll see. It likely depends on whether the ethics commission’s assessment proves to be persuasive.
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Give them an inch, they will take a mile? I’ve never understood why, if they are our representatives, the laws and rules that apply to us don’t likewise apply to them. Seems this is just greasing the skids towards bad conduct. Fortunately for us, most don’t take that route, but those few who do not only seem to gravitate toward the city council, but they do it memorably.
While I look forward to Dan Mollway weighing in on this issue (nothing as of when I wrote this), I think some discussion about the scope of “legislative function” v. “legislative capacity” may be in order.
It appears that what Kondo is saying is that “legislative function” is limited to things said or done in committee hearings and on the floor of the body. I think you, Ian, are saying that “constituent service” is not a legislative function but rather a political one. I’m not sure I agree with either premise.
The constitution guarantees the right of citizens to petition their government for redress of wrongs, real, perceived or otherwise, and is not limited, to my knowledge, to formal activity such as introduction of and action upon legislative measures. It also includes listening to problems constituents are having with their government (let’s say a tax problem or one involving Social Security) and seeking a resolution, although not any particular resolution. The legislator absolutely may not (IMNSHO) intervene to seek a specified outcome in a dispute, a la Josh Green (telling the City to pay ridiculous bills for doctor-dispensed meds) or Brian Kanno (telling NCL top resolve an employment dispute with a former legislative staffer). However, a legislator just as certainly may inquire of such an agency or entity whether they have acted on the constituent’s issue in a timely fashion, followed its rules and the law in doing so, etc.
Hopefully, we’ll hear from Dan about whether this is quite as bad as Les Kondo believes and you suspect.
Ohiaforrest3400, thank you for wanting to hear my views on this. I have been dealing with Oceanic, my computer, and other chores, and just read Ian’s blog on this. I am not up to speed with all that happened regarding Act 208, and will try to do some homework and respond again regarding this issue.
That said, I am curious why this is the first time we are hearing about this issue, if this is the first time. When I was the executive director of the Commission, in 1994 the Legislature amended the Commission’s enforcement law (apparently inadvertently) on the last day of conference committees in such a way to make enforcement of the ethics laws henceforth impossible. The bill came out late on a Friday night, and, as I recall, sine die, or the last day of the legislative session was the following Monday. I went into the office that Friday night and wrote a memo to all legislators telling them of the problems with the bill. I then faxed the memo to all 76 legislators one at a time (slower technology then!). On the following Monday, I then went to the last day of the legislative session (sine die), when this bill was to be passed by the legislature. I spoke to many legislators. Many had read my memo. Representative Gene Ward also created a sign for the media stating that “This ethics bill is an ethical dildo”. (I am not making this up.) Then-Representative Duke Bainum was also very concerned Reporters from the two newspapers were of course there for sine die, as were all the television stations. I tried to talk to many reporters and legislators. Legislators got nervous, and caucused a number of times about the bill. The bill was finally killed by, I believe, then-Speaker Souki after one of the last caucuses that day–it was “re-committed” to a legislative committee, thus killing the bill.
I don’t know, but my first question would be, if this bill was indeed so bad, why was nothing (apparently) done to make a big issue of it during the legislative session? Maybe something was done, but I have not seen or heard anything. Secondly, there would have been a chance to have the bill vetoed. Was anything done in this regard? I read Civil Beat daily and the SA, as well as Ian’s blog, but have not seen this issue raised before.
That being said, my quick assessment (which requires some further research) is that the immunity legislators have regarding their functions is set forth in our State Constitution. The State Constitution trumps any state statute, so legislators cannot give themselves more latitude than the Constitution provides without reason for reasons I mention below regarding constitutional issues. Thus, it seems to me the Commission still can somehow enforce the fair treatment section of the law in regard to legislators. Of course, it will be harder with a statute in the way giving legislators (supposedly) now more latitude than other state employees and officials as to misuse of position.
Legislators do have an obligation to perform constituent service and I believe this is a legislative duty, but providing constituent service I do not think is covered by constitutional legislative immunity (my opinion)–this would not be in keeping with how such immunity is understood at the federal or I believe, understood by other states. These are matters that eventually the State Supreme Court will have to address.
It is difficult for me to believe that legislators can misuse their official positions with impunity (beyond what would be considered proper constitutional immunity for doing their work as legislators). However, I will have to read the bill and see how this should be approached, and if it is a problem.
Article XIV of our state constitution provides that legislators, like other state officials and employees, must be subject to an ethics law regarding, in the words of the Constitution, “use of position”–which resulted in the ethics law entitled “Fair treatment”. There is no rationale that would allow legislators (beyond their limited immunity) to misuse their positions, but bar other elected officials, as well as other state officials and state employee and board members from misusing their positions. This would create an absolute “absurdity” in the law, which the law does not accept as proper statutory interpretation–it also creates problems with constitutional rights to equal protection, and probably due process.
Anyway, I would like someone to let us know why we are finding out that this is an issue now–seems like a big fuss should have been made during the legislative session–was this apparent anomaly not seen then? And another big fuss to get the bill vetoed if fair treatment was changed.
Anyway, these are my thoughts at the moment. I would have to review this further. Ohiaforrest3400, it appears that you have the right take on constituent service and abuse of position, in my view. That is why it was possible for the Commission to take enforcement action against former Senator Kanno, who resigned when the Commission issued in 2006 a public notice that it was going to hold a public hearing in his case to determine whether he had violated the fair treatment section of the State Ethics Code. I will look into this some more, and will comment if necessary.
Ian, Dan Mollway makes an interesting point. Maybe you and others will answer him, to wit: Why do we find out about these problems from Kondo and Commission so late in the game. Do he and his minions leave the office and walk up to the legislature to advocate for the law they are paid so much to enforce? Certainly anyone in his shoes would want the opportunity to talk about that, so we know what they are doing.
And, might I take this opportunity to say – again – why do you take such extraordinary measures not to ask the obvious question? Just like the obvious two-year delay with the investigation of the Catholic lobbying organization.
Something is really wrong here and it is starting to smell. Is anyone asking what they are doing? Is it illegal to ask? Was it written into the law that we can’t ask Kondo anything or that he doesn’t have to answer these questions?
I think that, down the road, a lot of reporters are going to be trying to explain why they are not asking some things in the public interest. OK, rant over.
Ohiaforest3400, since you asked, aside from my initial statement above, I have done since then a little homework on Act 208, which originally was HB 2175. The original purpose of this bill was to exempt task forces created by law by the legislature from certain provisions of the State Ethics Code that might have unintended consequences for members of such task forces. The original purpose of the bill was NOT to amend the “Fair treatment” section of the State Ethics Code (HRS section 84-13) to exclude from the Fair treatment section “statements” made by legislators, and “official action” taken by legislators. There is no reason for the bill to have dealt with these legislators’ actions at all–it was a bill to deal with task forces. Legislators already have limited immunity from the State Ethics Code provided by the State Constitution when performing “legislative functions”. Such functions are normally construed by the courts to be quite limited to such things as actions on the floor, actions on bills, actions in committee, votes etc. This constitutional immunity was restated in the last paragraph of the former version of HRS 84-13 for clarity. This legislative immunity does not extend beyond a legislator’s “core” legislative functions, as described above-floor actions, votes, etc.
Thus, before Act 208, the “Fair treatment” section of the law could apply to statements made by legislators or official action they take (outside of their limited grant of immunity), for example, misusing their positions when performing constituent service, etc.
In the late eighties, I heard that a legislator or legislators asked the Attorney General about whether their legislative immunity extended to statements made while campaigning as candidates for re-election. Basically, it seems one or more legislators wanted “cover” from their opponents from defamation lawsuits when campaigning for re-election. I assume if the Attorney General did deal with this, the view would be legislative immunity cannot be interpreted so broadly. I mention this, as there may be some history to what happened with HB 2175.
The “Fair treatment” section of the State Ethics code bars legislators and state employees from misusing their positions to give themselves or others unwarranted (i.e., unfair) privileges or treatment. This provision specifies four areas where this occurs, but is not limited to those. For example, legislators or state employees cannot use state resources for their personal outside businesses or campaign purposes when campaigning for office.
According to my research, the bill was amended in the Senate Judiciary Committee to include the extra latitude for legislators. An SD 1 and its committee report showing these changes came out on April 5, 2012.
The bill is not hard at all to understand. This extra grant of latitude was thus known, or could be known, from April 5, 2012.
There were no hearings after action by the Senate Judiciary Committee, as this was a single referral bill on the Senate side. But the SD 1 was objected to by the House (it is not clear why–though this is often routine), and the bill was then sent to a conference committee, where a few members of the House and Senate would debate the bill.
Conference committees do not allow testimony on bills before such committees. Thus, if changes are made by the last committee before a conference committee, no one can submit “testimony” to a conference committee to deal with “new” changes to a bill.
However, not being able to testify before conference committees or submit testimony does not bar anyone from making a large commotion about such changes. One can write letters to legislators, visit them, write a memorandum to all legislators, contact the media, go to the conference committees with unhappy expressions, try to talk to legislators (including before and after conference committees), march up and down on the side walk, appear at sine die, etc. Thus, there is really no bar to continually dealing with legislation until the end of the session.
At least, as to the changes with respect to legislators in HB 2175, these were known early, and action should have been taken then. Letters could have been written to legislators, and the matter could have been brought to the attention of the media. Maybe this was done, but I have re-checked the Star-Advertiser and Civil Beat, and I see no stories about what the State Ethics Commission is now describing (in the middle of November after Act 208 became law and after the 2012 session) as an extremely serious problem. Again, even after the session, actions could have been taken to ask the Governor to veto the bill. When I was director of the Commission, I almost always got calls from a representative of the Governor about ethics bills to provide the Governor more information. Maybe this was done–appealing to the Governor to veto the bill–I don’t know.
While I was the executive director of the State Ethics Commission, I testified for and against bills dealing with ethics for 24 straight legislative sessions (1986-2009). Bills that would weaken the ethics laws often required me to be as “vocal” as I could be, and I never hesitated to write legislators or contact the media about bills that would weaken the ethics laws–and as soon as I learned about them–even at the time of introduction of the bill at the beginning of the session, if it weakened the law. That was my job.
As an example, in 2006, the State Ethics Commission had a bill to impose a $500 fine for each violation of the State Ethics Code. On the last day a conference committee could meet on the bill, a union representative asked that the bill be limited to only high-ranking state officials–I assume to exempt state employees who were subject to the State Ethics Code and were also union members. I wrote a letter to the conference committee members, and I believe I cc’d all other legislators. I asked that if all employees, etc., subject to the jurisdiction of the State Ethics Code were not subject to the monetary fine, then I asked the bill to be killed. One legislator called me in a fit and said my letter would give the conference committee members a reason to kill the bill and said they wanted to, thus eliminating a fine for at least a few top officials. I did not think, however, that “giving in” would be fair to all subject to the State Ethics Code. And I could re-introduce the bill later. Anyway, the bill was not killed, and now all those subject to the State Ethics Code are, thankfully, subject to the $500 per violation fine.
I do not understand why this really major and offensive change was made in HB 2175, regarding legislators. The issue should have been publicly raised in early April and again later–maybe there were attempts–I don’t know, and I don’t follow ethics legislation closely since my departure from the State Ethics Commission–I am dealing with enough other matters.
So, Ohiaforest3400, I hope all this provides more insight, as you requested from me. My friend and mentor, the late Professor Allan Saunders (who described himself as the “father” of the State Ethics Code–and I believe this is true), often said certain situations require “merciless publicity”–which I always kept in mind, and to me it seems something like that should have occurred last April. Once a bill becomes law, it is very difficult to change it, which is why it is important to address these matters in a timely and significant way.
Perhaps enough attention can now be drawn to the law to reverse the portion pertaining to legislators. If I were the State Ethics Commission, I think I would be asking the Attorney General as a first step whether these changes that only cover “statements” and “official action” by legislators, and the same latitude not given by that law to other state officials and employees, creates a problem with constitutional rights, such as equal protection. But, again, my initial concern is why this was not brought to light when there was a possibility to have the bill changed before passage. There are going to be further legislative sessions, and almost all of these sessions have bills to weaken the State Ethics code–thus vigilance is required.
Ohiaforest3400, I would like to hear your thoughts on all of this in light of what I have said. Thank you.
Thanx for the time you put into this. Hive been away from the computer for a few days and it will take a few more to determine if I have anything useful to add.
Suffice it to say, if the 2012 Act created an unintended problem/loophole, then the Legislature should have no problem fixing it.
In a perfect world.