Category Archives: Ethics

Surprised by an SPJ Award

When I saw a Facebook post by another journalist commenting on awards from the Society of Professional Journalists annual contest, I went looking for the results posted on the SPJ Hawaii website. And I was surprised to see this:

2015 Excellence in Journalism Awards
June 24, 2016
Manoa Grand Ballroom


The 2015 Excellence in Journalism contest was judged, for the most part, by the Colorado chapter of the Society of Professional Journalists, with the exception of the Overall Magazine Layout, which was judged by Star-Advertiser managing editors Betty Shimabuuro and Mike Rovner.

All Media A101 Column Writing or Blog/News

First Place: Ian Lind “Ian Lind” Civil Beat Category Comment: “The winning entries all share the commonality of readability, and interesting insights into the history and culture of Hawaii, it’s people and its politics.”

Finalist: Ben Lowenthal “The State of Aloha” Maui News

Finalist: Neal Milner “Neal Milner” Civil Beat

After digesting the news, aided by a glass of wine or two, I checked in with Civil Beat Editor Patti Epler and got a list of my columns that were submitted.

It’s a pretty good selection, I have to say.

So here they are, the winning columns. And remember that the paywall has come down, so they are free for the reading.

Ian Lind: War Crimes on Kauai?
Since when did collecting taxes become pillaging and a war crime?

Ian Lind: Will Ruling In Council Case Derail Honolulu Ethics Enforcement?
The city Ethics Commission has released few details about why it dismissed charges against current and former council members, but the decisions could set dangerous precedents.

Ian Lind: Has UH Adequately Addressed Cancer Center’s Sticky Issues?
Former director Michele Carbone was often an expert defense witness in asbestos cases and sought UH grants from a frequently sued company. Conflict of interest?

Ian Lind: Dear Joe, If You’re Concerned About Ethics Problems Look in the Mirror
The Hawaii House Speaker is off-target in his criticism of the Ethics Commission for doing its job.

Ian Lind: Kahoolawe 40 Years Later
Protests over using the island as a military bombing range galvanized the modern Hawaiian movement.

Not quite missing in action

Yes, I missed getting a post online yesterday. Lots of reasons, no excuses.

I got dropped off downtown early in the day and spent several hours in the Circuit Court documents room, going through some case files.

When I was done, I headed for the bus and just forgot to finish the job.

One of the cases I checked on was the Hawaii State Teachers Association’s lawsuit against the State Ethics Commission over the commission’s guidelines prohibiting teachers from accepting free travel when serving as chaperones during educational trips for students.

Last week, Judge Rhonda Nishimura voided a commission advisory opinion and related memorandum issued in August 2015 spelling out its interpretation of the ethics code as applied to these educational trips.

Despite some key arguments made on behalf of the HSTA by attorney (and Congressional candidate) Colleen Hanabusa, the ethics commission declined to give any ground or to soften their position. I’ll get back to additional details of the arguments in a later post.

So after hearing oral arguments, Nishimura ruled the commission’s travel guidelines affect a broad section of the public and are not limited to a specific case or situation, are forward looking, and therefore must be adopted as agency rules, with opportunities for public input guaranteed by state law.

One key point was buried in the arguments. Hanabusa pointed out that the same issues underlying the disagreement over teacher travel and education trips are also involved in applying the gift provisions of the ethics code to legislators and other public officials.

One part of the what is at issue is the ethics commission’s interpretation of this part of the law, which provides:

Gifts. No legislator or employee shall solicit, accept, or receive, directly or indirectly, any gift, whether in the form of money, service, loan, travel, entertainment, hospitality, thing, or promise, or in any other form, under circumstances in which it can reasonably be inferred that the gift is intended to influence the legislator or employee in the performance of the legislator’s or employee’s official duties or is intended as a reward for any official action on the legislator’s or employee’s part.

HSTA repeatedly questioned how the ethics commission decides what is a “reasonable inference.”

It’s the same provision at issue, whether applied to teachers or to lobbyists and legislators.

This is dangerous territory, because prior ethics opinions about gifts to legislators have been grumbled about at the State Capitol but not directly challenged. It’s a rare elected official who wants to publicly be seen on the wrong side of ethics.

This is clearly tricky territory, especially because the ethics commission is bound by the ethics laws, which are passed by the Legislature and can be amended by them as well.

If the commission holds to its prior position, and the teachers case is ultimately pushed to rulemaking, it will necessarily open the door to challenges to the way gifts to legislators have been treated by the commission. Lobbyists and legislators may be anxious to renew that debate. I’m not sure the public wants to risk loosening of existing restrictions.

Judge says ethics guidelines must be adopted as rules to be valid

I’m trying to figure out the actual meaning of yesterday’s court ruling which struck down a set of ethics guidelines for public school teachers involvement in educational trips.

The ruling came in lawsuit brought by the Hawaii State Teachers Association appealing a decision by the State Ethics Commission.

The educational travel guidelines, adopted last year by the State Ethics Commission, said several provisions of the ethics code conflict with the past practice of teachers accepting free travel and other benefits from private travel companies in exchange for the teachers planning the trips, recruiting participants, and serving as chaperones. As a result, the commission held that trips could not proceed until or unless they were brought into compliance with the ethics laws.

According to the Honolulu Star-Advertiser:

Judge Rhonda Nishimura repealed the Ethics Commission’s Aug. 4, 2015, memo and Aug. 19, 2015, advisory opinion today after hearing oral arguments. She said because the advice applies to a broader group, the process is subject to official rulemaking under law, which involves the public.

“So for the state Ethics Commission to issue such an advisory opinion and guidance memo that has a broader application than just a particular teacher or particular trip, does require that the entities involved engage in rulemaking,” Nishimura said.

The basis for the ruling appears to be that the commission’s “guidance” was actually a rule of general application which should have been adopted pursuant to the Hawaii Administrative Procedures Act, Chapter 91 HRS.

HSTA, represented by attorney Colleen Hanabusa, had previously made this argument directly to the commission, which rejected it. HSTA then appealed the commission’s ruling to the Circuit Court.

HSTA questioned the ethics commission’s application of the gift provisions of the ethics law, which prohibit soliciting or accepting any gifts “under circumstances where it can reasonably be inferred that the gift is given to influence the employees in the performance of the employees’ official duties or is intended as a reward for official action on the employees’ part.”

From HSTA’s “petition for a declaratory order or alternatively for a contested case“:

Clearly the dispositive language the EC has relied upon is “reasonably be inferred that the gift is intended to influence.” HRS §84-11. The question is without rules how does the EC and/or its staff arrive at the conclusion that the provision of the free trip is to influence by inference the teacher to take the trip. It fails to first acknowledge that the teacher does not decide who will take the trip, the parents do. The EC refuses to give weight to, although it does concede, that the teachers conduct lessons and act as chaperones on the trip. However, no matter how “unique and valuable the educational experience” may be, the EC has determined it would violate public confidence.

Then:

Where the dispute arises is in the question of whether it can “reasonably inferred” that it [the gift] was intended to influence. Rules are mandated under HAPA to ensure that these terms are not arbitrarily and capriciously defined and acted upon by the agency personnel. This is what HSTA contends has occurred here.

Just when is it reasonable to infer that a specific gift is intended to improperly influence a public employee or official? That’s what HSTA thinks should be addressed via consideration of a rule, with the protections provided for public participation in the process.

So what does yesterday’s court ruling mean in practice?

First, it rescinds the commission’s adoption of the educational travel guidelines.

Second, it establishes that the commission must go through the rule making process if it wants to adopt these guidelines.

Third, it raises questions about other applications of the same gift provisions as applied to legislators and other government officials.

It does not, however, appear that the court ruled that the commission’s interpretation of the gift law is wrong, only that it was not properly adopted as a rule of general applicability. So it doesn’t seem to prevent the commission from enforcing the same interpretation of the gift provisions in specific situations where a violation of the ethics code is alleged. Hopefully this will soon be clarified.

And I would think it is highly likely the commission will appeal the court ruling in an attempt to preserve its own authority to interpret and apply the ethics laws.

See also:

Ethics ruling stops student trips, at least for now (ilind.net 2/21/2015)

No More Free Trips for Hawaii Public School Teachers (Civil Beat, 2/20/2015)

Ethics ruling on free trips for teacher-chaperones deserves better media coverage (4/27/2015)

Ian Lind: Untangling the Ethics of Educational Travel (Civil Beat 6/3/2015)

Sunlight Foundation looks at unregistered lobbyists

If you’re at all concerned about the regulation of lobbyists and lobbying, you will want to check out this article from the Sunlight Foundation, “What is shadow lobbying? How influence peddlers shape policy in the dark“).

The basic premise, backed up by some data and anecdotal evidence, is that lobbyist registration and disclosure requirements have loopholes that are being exploited by many to avoid disclosure. The article is focused on the national level, but I’m sure if we dig down a bit, we’ll find applies to state and local lobbying in Hawaii as well.

Both the article and its rich set of references are worth careful reading.

Shadow lobbying refers to someone who performs advocacy to influence public policy, like meeting legislators or their staff, without registering as a lobbyist — and it’s a big problem for anyone who cares about transparency in Washington. (For further reading on this topic, you can’t do better than to read Lee Fang’s 2014 investigation of shadow lobbying at The Nation.)

At the Congressional level, lobbyists are supposed to register if they spend 20% of their time lobbying for a client, or make two or more contacts with legislators, their staff, or certain executive agency officials.

The article refers to this 20% criteria as “reasonably easy to get around.”

The same seems to be true of Hawaii’s lobbying law, which defines a lobbyist as someone who is paid and spends at least a certain amount of time and/or money lobbying.

It’s widely recognized that Hawaii’s lobbyist law is a mess. The State Ethics Commission has publicly discussed the problems of enforcing the law’s requirements on several occasions. Unfortunately, SB3024, which would have provided funding for a task force to review the lobbyist provisions, appears to have died in conference.

In any case, thanks to the Sunlight Foundation for their excellent review of the issues.

Good reporting on Senate President Kouchi’s financial ties to developer

Just back from the mainland, and digging through the backlog of email and newspapers.

I enjoyed Kevin Dayton’s story in Sunday’s Star-Adveriser, which raised questions about possible conflict of interest in Senate President Ron Kouchi’s financial ties to developer Kevin Showe, part-owner of thousands of acres of Big Island land being proposed for a state purchase or land swap in SB3071.

Dayton traces Kouchi’s ties with Showe through the Senate president’s financial disclosure statements.

Dayton reports:

Kouchi’s annual disclosure form filed with the Hawaii State Ethics Commission shows he was a shareholder in a real estate company called Leahi LLC from 2011 to 2015, and Kouchi’s 2016 ethics filing values that investment at between $100,000 and $150,000.

Leahi LLC lists Showe Land & Marine LLC and Kauai Development Manager LLC as its members, and Kevin Showe is listed as member and manager for both of those companies.

Leahi was involved with a group that was formed to purchase the site of the former Kyo-ya Restaurant at 2057 Kalakaua Ave. in Waikiki, which was sold to Japanese investors last year for $30.5 million. Kouchi said the $100,000 to $150,000 in value listed on his ethics filing this year represented his share of the proceeds from that sale.

In addition, Kouchi reported being paid between $175,000 and $350,000 as community relations director for Showe Land & Marine since his election to the Senate in 2010, according to my own count.

Kouchi lost a bid for Kauai County mayor in 2002. He was elected to the county council in 2006, but narrowly missed reelection in 2008. In 2010, he was appointed to the State Senate by then Gov. Linda Lingle, and elected in his own right in that year’s General Election.

During his 2008 run for the council seat, Kouchi’s campaign material said he had worked for Showe’s company beginning in 2005. At that time, Showe was a partner in the Kauai Lagoons project, what was expected at the time to be a $1 billion resort development.

The proposed project is a multi-faceted resort featuring 520 acres of
residential oceanfront property, a Jack Nicklaus Signature Golf Course,
breathtaking coastline views, full-service spa, restaurant, and a 38-acre
freshwater lagoon with marina.

Kauai Lagoons is a collaboration with Marriott Vacation Club
International (MVCI) — a subsidiary of Marriott International, Inc. (NYSE:
MAR) — an affiliate of The Ritz-Carlton Hotel Company, LLC, and Kauai
Development LLC.

An estimated 750 homes will be developed, including Ritz-Carlton
managed, private ownership condominiums and townhomes; bungalows and
condominiums managed by Grand Residences by Marriott; Ritz-Carlton Club
deeded, fractional ownership residences; Marriott Vacation Club timeshare
villas; and estate home lots.

The Kauai Lagoons development project became one of Hawaii’s casualties of the recession, and is now getting off the ground under new ownership.

I don’t know how Kouchi managed that apparent conflict of interest as he served on the county council while also representing Showe’s interests in the development. That’s another bit of political history that needs to be sorted out.

Dayton reports that Kouchi facilitated at least a couple of meetings to discuss the possible Big Island land deal.

Kouchi said he set up a meeting between the late Sen. Gil Kahele and Showe shortly after Kahele (D, Hilo) took office in 2011 to allow Kahele to make a pitch for the deal, and attended a meeting last year between Kahele and state Board of Land and Natural Resources Chairwoman Suzanne Case to discuss the Kapua lands.

Exactly who stands to benefit isn’t clear, since the state seems to have a legitimate interest in protecting the area from development, while Showe and his partners will obviously stand to benefit from a sale or land swap.