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.
§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?