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.