Kauai poised to finally require lobbyist registration and disclosure

Six months ago, in July 2013, my weekly column at Civil Beat pointed to Kauai County’s failure to regulate lobbyists (“Hawaii Monitor: Kauai’s Free Range Lobbyists“).

But on Wednesday, the Kauai County Council’s Committee of the Whole voted unanimously in favor of a bill to regulate lobbyists. It is now scheduled for a final vote at the council’s January 16 meeting.

I wasn’t able to navigate the council’s document system yesterday to find the text of this final version of the measure, but here’s how it was described by the Garden Island newspaper.

A lobbyist, according to a draft version of the bill, is defined as any individual who is paid to engage or is engaged in lobbying or lobbying activities on a particular county government issue or action for more than five hours in any month or spends more than $750 during the county’s six-month financial disclosure period.

The ordinance, however, would exempt individuals who represent themselves; federal, state or county employees acting within their official duties; media companies; attorneys in an advisory capacity; and certain experts and consultants.

The proposed bill also included amendments expanding the amount of financial information that must be disclosed, including how much is spent on print, electronic, broadcast or other media advertisements, and changed the registration deadline date from Jan. 31, 2014 to Jan. 31, 2015.

It would also exempt 501(c)(3) nonprofit employees from registering as lobbyists but require them to submit financial disclosure forms.

Members of county advisory committees or tasks forces would also be barred from lobbying on topics being considered by those boards.

The county Office of Boards and Commission, which will maintain all the financial and registration records, must also post the forms on a department-maintained website within 10 business days of it being received by the Board of Ethics.

Council chair Jay Furfaro said the bill will “help us be compliant with the other counties….”

While I’m glad to see the county finally take this step, the chairman’s comment sort of underplays the matter. The problem isn’t that Kauai wasn’t keeping up with the other counties. The problem is that the State Constitution includes a requirement that each of the counties establish an ethics commission that, among other things, regulates lobbyists. Kauai simply failed to comply for decades.

3 responses to “Kauai poised to finally require lobbyist registration and disclosure

  1. Since I arrived here in 1966, Kauai has been known for doing it on its own terms.

  2. Ian, thanks for the post, and pursuing the issue. As you note, it is a constitutional requirement (at least since 1978) that the “five” ethics commissions or boards in Hawaii regulate both (1) an “ethics code of conduct” for their government officials and employees, and (2) also regulate lobbying. See Article XIV of Hawaii’s State Constitution.

    The State’s lobbyists law for lobbying at the state level was passed in 1975 as a statute, and given to the Office of the Legislative Auditor to regulate. A few years later, then-director of the State Ethics Commission Gary Slovin managed to have lobbying regulation transferred from the Auditor’s Office to the State Ethics Commission, which, for those who may not know, is attached to the Auditor’s office for “administrative purposes only”. It should be noted that since the Auditor’s Office is in the legislative branch of government, the State Ethics Commission is also in the legislative branch of government, and thus is a legislative agency, since it is attached to the Auditor’s Office. The other four county ethics boards are attached to their respective offices of corporation counsel, and are thus in the executive branches of county government. The appointment process for commissioners at the State Ethics Commission and the four county ethics boards is also different, just to set forth some basic information that might not be known to your readers.

    In 1978, all five ethics agencies in the State were constitutionally required to enforce an ethics code and a lobbyists law. The five ethics commissions or boards set forth in the state constitution were one for the state, and one each for each county. While I was director of the State Ethics Commission, as much as I could, I raised the issue with other county ethics offices the requirement to regulate lobbying–I did not do this as a matter of criticism, but was interested in how each agency worked, but did point out the constitutional requirement about lobbying if it seemed not to be known. These conversations took place mostly when I was called by these offices for help with “hypothetical” cases.

    It seems that not much was not done about lobbying for the most part because of a lack of interest, or the huge workload of dealing with issuing advisory opinions and enforcing an ethics code. For example, in 1992, I was standing with the then-Chair (Jane Fellmeth) and then-director (Carolyn Stapleton), of the Honolulu Ethics Board, and asked if their agency was handling lobbying–I had gotten the impression that most county agencies were not, either at all, or in any meaningful way. The then-director of the Honolulu Ethics Board responded to me by saying “I don’t have time for that”. I have not asked, but assume that with Mr. Totto’s arrival at the Honolulu Ethics Board after Stapleton’s departure that lobbying regulation is now being carried out in a meaningful way at the Honolulu Ethics Board.

    I was asked, while director of the State Ethics Commission, to visit the Kauai Ethics Board often, which I did–and at the time it had very devoted commissioners but no “dedicated” staff, so was doing all of the work itself. We discussed all their Board’s duties. Years before, then-Mayor of the Big Island, Lorraine Inouye, had invited me to meet with the ethics board of the Big Island, along with her top staff to discuss the work of the Big Island’s ethics board and ethics in general for most of a day. This was in the late eighties I believe. The Big Island’s ethics board had no “dedicated” staff at the time (and still may not), but used deputy corporation counsel. The Big Island Ethics Board took its mission seriously at that time, and, speaking historically, may have been the third ethics board in the United States–the first being an ethics board for the City of New York, which formed around the early sixties, and was the model for the State Ethics Commission. The second, I believe, was the Honolulu Ethics Board, created around 1965.

    I was never asked to meet with the Maui Ethics Board, but their deputy corporation counsel were often in touch, to compare notes with me about their laws and and those of the State Ethics Commission in a hypothetical way–this happened as well with all the county ethics boards–our laws are near-identical, or were then. As for Maui, its Society of Professional Journalists did invite me to meet with them for most of a day to discuss ethics, and it turned out to be a very good meeting.

    Some of the various “commissions” (whose members frequently changed in the course of a year) of the State Ethics Commission I worked for (the make-up of the Commission was always changing–and could often drastically change), when the issue of testifying on behalf of county ethics agencies would arise, did not think it proper to send me to testify on ethics bills to share information and experience before the various county councils. Thus, my role was as a resource in discussing “hypothetical” cases. I did casually ask often though, how each office handled financial disclosures and lobbying, to understand how our State as a whole was carrying out the mandate of Article XIV. As for myself, I made every attempt to follow its mandates, and to note what was not mandated or required.

    I was always amazed that the constitutional mandate regarding lobbying seemed to have been so glossed over for so many years without seeming to bother hardly anyone. The State Ethics Commission at the time I was director (and associate director for four years before then), did not have a lot of staff or resources–we only had two attorneys from 1968 to about September of 1986 (though a legal assistant from the end of 1981), but we still made room (for over eight years, 1978 to beyond the middle of 1986, with two attorneys and our other staff) for lobbying, as it was a requirement, and that was our job. Since lobbying is what I call for the most part a “disclosure” law, all that is initially required to be done to get lobbying off the ground is to write the law and then the forms that would be required to be filed, and then send out memos or flyers to the councils and departments about the requirements to let lobbyists know. Enforcement could then follow. When I became director of the State Ethics Commission, our office asked legislators to have stacks of a double-sided flyer describing the State’s lobbying law available in their offices for those who visited their offices–all legislators accommodated us. It does not take much to get the word out.

    Thanks Ian for pursuing these issues. Also, for further consideration perhaps, it should be noted that some states, such as Ohio and Maryland I believe, have a state ethics commission that has jurisdiction over the state’s county ethics boards or the counties themselves, which are required to develop a meaningful ethics code for the particular county, with ongoing approval and oversight by the ethics commission of the state. One might wonder whether having a number of ethics boards in one state, all independent of each other, might lead to gross disparities in many areas and lack of enforcement–something that we have in fact had here in Hawaii from the start, and it continues, though ethics agencies have been in Hawaii for almost half a century.

    Perhaps there are other models to consider for handling ethics and lobbying issues in a state–one obvious one would be to create a separate agency for handling lobbying alone (I think this is still the case in New York)–as is done for certain areas here in Hawaii like open records (the OIP–does not even have a citizen’s board), and the Campaign Spending Commission. Any current arrangement of agencies should not be deemed to be set in stone, and while I was director of the State Ethics Commission, bills arose to move (to other branches of government) and/or combine “good government” agencies.

    The handling of ethics and lobbying in a state is much too important to not seek out the best approach, or “best practices”.

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