The Star-Advertiser has run a couple of stories this week triggered by the state’s lawsuit against Ciber Inc., a contractor that had been hired to create a new computerized accounting system for the Department of Transportation.
The lawsuit alleges that Ciber was unable to provide a working system, was unable to meet benchmark tests and federal requirements, and instead used political muscle to keep the dollars flowing despite growing criticism of their failure to get a working system up and running.
See “Firm fraudulent, state says,” (Sept 3), and “Ciber cites ‘lies’ in state lawsuit” (Sept 5).
From today’s Star-Advertiser story:
The lawsuit filed Wednesday also alleges Ciber “used lobbyists and exercised inappropriate political influence” to press the state to continue making payments to the company, and to undermine state transportation officials who were trying to enforce the terms of the contract.
Ciber hired Capitol Consultants of Hawaii LLP, which includes lobbyists John Radcliffe and George “Red” Morris, to help make its case to Gov. Neil Abercrombie’s administration that the state should continue with its contract.
According to the lawsuit, DOT officials including Deputy Director Jade Butay briefed Abercrombie Chief of Staff Bruce Coppa on Ciber’s alleged contract performance failures, but Ciber continued to submit new invoices seeking additional payments from the state.
After Radcliffe began lobbying for Ciber, Butay was transferred out of the transportation department and Audrey Hidano was assigned to the department by the governor’s office to oversee the Ciber project, according to the lawsuit.
The lawsuit alleges Hidano repeatedly told transportation staff “that the governor’s office wanted Ciber to remain on the project despite its performance failures,” and Hidano repeatedly communicated with Coppa about the Ciber project from late 2013 to late 2014.
Ciber continued to receive payments under the contract until August 2014, and Coppa joined the Capitol Consultants lobbying firm as a consultant after the Abercrombie administration ended in 2014, according to the lawsuit.
So I took a quick spin through the lobbying reports filed with the State Ethics Commission. According to the commission’s records, Ciber hired Capital Consultants’ principals, “Red” Morris and John Radcliffe, sometime after the 2013 legislative session ended, and through the 2014 session.
During the course of the year, each of them was paid a total of $5,864 in lobbying fees.
Not as much as one would expect, given the allegations of undue political influence now being made by the state.
But here’s the catch.
Hawaii’s lobbyist law doesn’t regulate the kind of lobbying alleged in the lawsuit, because it was aimed at influencing the governor’s office and the state administration rather than members of the legislature or their staff.
That’s right. At first glance, the law appears to cover executive branch lobbying. Here’s the definition of lobbying from Chapter 97 HRS, the lobbyist law.
“Lobbying” means communicating directly or through an agent, or soliciting others to communicate, with any official in the legislative or executive branch, for the purpose of attempting to influence legislative or administrative action or a ballot issue. [emphasis added]
Unfortunately, though, that’s not the end of the issue.
The key term is “administrative action.” It sounds like it should cover contract administration and broader contracting issues such as those raised by the Ciber case.
However, the definition was dramatically narrowed to leave the appearance of controlling lobbying of executive branch officials while essentially eliminating the reality.
“Administrative action” means the proposal, drafting, consideration, amendment, enactment, or defeat by any administrative agency of any rule, regulation, or other action governed by section 91-3.
So the only non-legislative lobbying that’s regulated by state law involves rule making governed by the Hawaii Administrative Procedures Act.
So what does that end up meaning in the current case?
First, neither Ciber nor the lobbyists have to register with the Ethics Commission before lobbying the governor or anyone else in the executive branch.
Second, Ciber is not required to publicly disclose what it spent on lobbying, or what was paid to its lobbyists for influencing the Abercrombie administration.
Third, the lobbyists are not required to report what they spent, if anything, on activities including wining and dining state officials. They don’t have to complete the form stating whether more than $25 per day was spent lobbying any public official, or disclose the name of the official.
And they aren’t bound by additional restrictions that apply to other lobbyists.
For example:
§97-5 Restricted activities. No lobbyist shall accept or agree to accept any payment in any way contingent upon the defeat, enactment, or outcome of any proposed legislative or administrative action.
But when it comes to lobbying the governor, his staff, or department heads, all’s fair because it doesn’t count as lobbying and isn’t regulated by the state’s lobbyist law.
There have been bills in recent years that would have extended the lobbyist law to cover a much broader range of executive branch lobbying, but they went nowhere.
Do you suppose this multi-million dollar scandal might encourage the Ige administration to throw its weight behind such a proposal?
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If what you say is true, then why is AG Doug Chin pursuing this lawsuit? It would be rather disappointing that the state’s highest law enforcement officer (with 12 years experience as a city prosecutor) doesn’t have the correct understanding of the laws that govern lobbying.
I’m not sure that I understand your point.
The lobbying in this instance wasn’t covered by the lobbyist law, and the lawsuit has nothing to do with the lobbyist law. No misunderstandings involved.
Hmmm. I thought that the thrust of your post was to show how existing state statutes regulating lobbyists exposed a deficiency in the lawsuit against Ciber, which alleged (in part) that the defendant “used lobbyists and exercised inappropriate political influence.” Unless you meant that the AG will have to look for other legal grounds to prove the above allegation.
I didn’t take it to mean that any loopholes in lobbyist laws meant that Ciber was legally off the hook. Just that the state’s lawsuit might have to be amended as far as charges of “inappropriate political influence” go.
The deficiency is in the lobbyist law. Its disclosure requirements don’t apply to those lobbying the governor or the executive departments. So the public knows nothing about this level of lobbying except through glimpses provided by this kind of lawsuit.
I see. Thanks for clearing that up.
I agree that this is something that should be pursued in the next legislative session,….although I suspect that the hot topic (pardon the pun) for the public and media will be funding for air conditioning in the public school classrooms.
Nah, the hot topic will be HEI/Next Era/public co-op.
By next session, weather will have cooled down. People will forget, and like homelessness, the politicians will waha, but they will find a way to run from those issues when the time comes because they have no plausible answers.
HEI? Now that’s where the BS and grandstanding will coalesce, as we won’t see that failure till the pols. are retired and collecting their High Threes.
The HECO/NextEra merger could very well be a hot-button topic….but until the PUC completes its proceedings, it’s hard to pin down exactly how this will play out next legislative session.
In the meantime, don’t be so sure that people will readily forget about air-conditioning (or lack thereof) in the public schools. I can tell you right now: HSTA president Rosenlee and his team have this issue at the VERY TOP of their priority list, and they are not going to let lawmakers cast this aside without teachers, students, and parents making a big stink. Also, you may not be aware of it, but there are reports that El Niño could continue well into the spring of 2016, meaning that our normal winter weather patterns might be disrupted. If lawmakers are banking on people to move on from this issue, they may be in for a rather rude awakening when they get an earful from bus loads of students and teachers at the state capitol.
It’s precisely because the PUC is not expected to decide till June 2016, that the Next Era/public co-op issue will be a hot topic next January.
Nothing will be done about AC because they can’t do anything without raising billions in taxes, which won’t happen because it would end the politicians’ careers to tell the hard truth.
Same reason homelessness will never be solved. If you think otherwise, you will have to argue with history – plus believe that our spineless legislators will solve something no one else has solved. I’m not going to bet on that.
If you think Rosenlee will get more than promises and a few bones from the Lege, you’re kidding yourself. All the money committees have to say is, “Cory, you want AC for the students, or raises for your teachers?” and that’ll be the end of it.
The public rarely sees the inner workings of DOT. We’ll see what happens with Ciber. A few years ago when legislators held televised hearings looking at all the DOT fiscal scandals it was eye opening. An archaic feudal Shogunate run by self serving administrators and thick with favors and contractor perks. Donna Mercado Kim had a field day putting them on the stand! The samurai culture has a strong tradition in DOT. Clinging to incompetence and obscuring mistakes from the public is routine .
In this case with Ciber its hard to say who is at fault. DOT has an unwillingness to admit mistakes or look forward to the future despite EPA fines and collosal screwups like the zipper lane .
I wonder if there was less of a gender gap at DOT if the strongman model would finally retire. In this case the iron fisted Bruce Coppa ordering questionable or worse policy decisions onto the DOT with everyone in the department kowtowing to the Alpha male.