Category Archives: lobbyists

Improving laws on campaign and lobbyist disclosure

There are two new reports from the National Institute on Money in State Politics that assess how well California does in regulating campaign spending and lobbying disclosures.

Here’s how they describe the two reports.

California state and local governments have instituted many effective disclosure policies when it comes to money in politics. But two new reports that look at the accessibility, completeness, and timeliness of providing that information to the general public find that California state and local governments have room for improvement.

In ”Best Practices for Local Campaign Finance Disclosure in California,” we looked at the rules and their actual implementation in five cities and two counties in California. Overall, it appears that local governments are doing well but can do more to expand transparency when it comes to money in politics.

In ”Improving Disclosure & Transparency: A Review of California’s Political Disclosure System,” we reviewed California’s political disclosure system for campaign finances and lobbying expenses. As with the local governments, we found that California has thorough political campaign disclosure laws. However, the systems that are used to share that information with the public can be enhanced, and the report identifies practices in other states that might help.

I found the section on lobbying disclosure laws, part of the second report, very interesting. It first reviews California’s laws regulating lobbying and requiring public disclosure of spending. In many respects, California’s definition of lobbying and what it requires to be made public is much better than Hawaii’s lobbyist law, but the report goes further by suggesting additional improvements. It would be great to see a bill drafted to bring Hawaii’s law up to the recommended California standard, and then see how Hawaii’s lawmakers would respond.

In any case, these are both excellent reports that suggest what a “state of the art” system for campaign and lobbying disclosures would look like.

Would sex between a legislator and lobbyist trigger the gift provisions of the ethics law?

A Missouri legislator has been getting a lot of media attention for introducing a bill that would require a lobbyist who has sex with a legislator or staff member to include the act on the lobbyist’s required gift disclosure form.

According to a report in the Kansas City Star:

From the bill: “For purposes of subdivision (2) of this subsection, the term ‘gift’ shall include sexual relations between a registered lobbyist and a member of the general assembly or his or her staff. Relations between married persons or between persons who entered into a relationship prior to the registration of the lobbyist, the election of the member to the general assembly, or the employment of the staff person shall not be reportable under this subdivision. The reporting of sexual relations for purposes of this subdivision shall not require a dollar valuation.”

It’s really not an off-the-wall bit of legislation.

I suspect this could be, at least in part, a reaction to a February 2015 opinion by North Carolina’s State Ethics Commission, which ruled that consensual sexual relationships between a lobbyist and a legislator do not constitute a reportable gift under the state’s ethics law.

According to the commission opinion:

Section 120C-303(a)(1) of the Lobbying Law restricts a registered lobbyist from giving a gift to a designated individual unless a gift ban exception applies. “Gift” is defined as “[a]nything of monetary value given or received without valuable consideration….” G.S. 138A-3(15). A lobbyist must report certain “reportable expenditures,” defined to include gifts and “things of value” greater than $10 per day given to a designated individual or immediate family member.

Consensual sexual relationships do not have monetary value and therefore are not reportable as gifts or “reportable expenditures made for lobbying” for purposes of the Lobbying Law’s expenditure reporting provisions. See G.S. 120C-402 and G.S. 120C-403.2

The commission did note, however, that providing paid prostitution services could be considered a gift, “depending on the particular facts.”

The prompts me to wonder how the Hawaii State Ethics Commission would view the same issue. I’m aware of several situations here in the past where a lobbyist allegedly engaged in sex with a legislator, or paid for someone else to have sex with the lawmaker. But the issue has never reached the commission, as far as I know.

Hawaii’s gift statute seems to be a bit broader than the North Carolina law, and may get around the problem of placing a dollar value on consensual sex.

Section 84-11 HRS provides:

§84-11 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.

That’s a definition that seems extremely broad, applying to a range of types of gifts, including services, entertainment, hospitality, “or in any other form,” in addition to simpler things like money, travel, etc.

Would the commission include sex? I think there’s a good chance they would, but of course that’s just a prediction, not a reality.

Should Hawaii clarify the gift law in the same way this Missouri legislator is proposing?

Why did the city ethics commission dismiss all ethics charges against three council members?

My Civil Beat column this week takes a deeper look at the decision by the Honolulu Ethics Commission to dismiss all charges against three current and former city council members accused of taking illegal gifts from lobbyists and failing to disclose the resulting conflict of interest when voting on bills involving matters those lobbyists and their clients were concerned about (“Ian Lind: Will Ruling In Council Case Derail Honolulu Ethics Enforcement?“).

The three council members–budget chair Ann Kobayashi, zoning and planning chair Ikaika Anderson, and former council member (now state senator) Donavan Dela Cruz didn’t deny being wined and dined by key lobbyists over a period of years, but through their attorney they disputed how much they actually ate and drank, and how the meals paid for by lobbyists should be valued when determining whether the ethics laws were violated.

The dismissal was a surprise, since the commission’s staff had worked on the case for over a year, developed over 1,000 pages of documentary evidence, and identified a long list of times each of the three had allegedly violated ethics laws.

Here’s a short summary of the result: They beat the rap on technicalities and a good attorney to exploit them.

The good attorney is Colleen Hanabusa, former Senate President, Congresswoman, and now on the board of directors of the Honolulu Authority for Rapid Transit (which is managing the train project).

An interesting match-up, since the ethics charges, if upheld, could have resulted in a series of rail-related council votes to be declared null and void. That would have created quite a mess.

I was able to get copies of Hanabusa’s motion for summary judgement filed on behalf of the council members, which made for interesting and occasionally startling reading.

If you have a chance, track down today’s column. It’s a good read.

Election for Hawaiian convention delegates proceeds without campaign, ethics laws

My Civil Beat column this week took a different look at the upcoming election for delegates to a Native Hawaiian political convention who will then “decide whether or not to create a document or constitution for a nation and its governance.”

I’m registered to vote in this election, so started looking at the process, which led to the column, “Native Hawaiian Election Throws Out All the Rules.”

What I realized is that none of the laws that apply to state and local elections will apply to this privately conducted election. There will be no campaign contribution limits, no pre-election disclosures of contributors, no restrictions on corporate money, no financial disclosure by candidates, no ethics rules, no limits on conflict of interest, no restrictions on or disclosure of lobbying activity once delegates are election, and so on.

This free for all won’t necessarily lead to corruption and unethical behavior, but it seems to me that’s the likely outcome once special interest groups figure out that there’s a lot at stake in the convention process, and that there are at this point no rules to protect the public interest.

So if you have access to Civil Beat, do check it out.

And speaking of Civil Beat, they announced some changes this week including a new managing editor, Bob Ortega, who has an extensive and varied background, including years as an investigative reporter.

In other news, you may have seen that we are now providing space on our site for public service announcements by nonprofit organizations that need some help getting the word out about events or activities. Currently, the American Lung Association in Hawaii and Family Promises of Hawaii are getting an assist for their fundraising efforts. If you represent a nonprofit that wants to inform the public about an event, drop us a note at news@civilbeat.com. Some restrictions apply.

Another new thing you might notice in coming weeks: advertising on some stories. We’re joining a network of national news organizations that is designed for media outlets from all over the country to share content and, yes, generate revenue. That comes from ads running on content that is widely published by all the organizations in the network. So if we decide to pick up a story from the network, it will come with an ad on it.

Questions about medical marijuana, lobbyists, and lawyers

Executive branch lobbying is going to become a more visible issue over the next few months as the state sets up the system of licensed medical marijuana dispensaries.

There will be two stages. Stage one, rule making. Stage two, competition for licenses.

Here’s a basic description from a story in Pacific Business News a couple of months back, based on an interview with one interested contender.

The Hawaii state Department of Health must finalize rules by January, licensees will be announced in April, and they’ll be authorized to open dispensaries just three months later in July. He is gathering a team of experts including a lawyer, potential growers, a doctor consultant, and a lobbyist to prepare as well as he can before the application form is made public in January.

The existing lobbyist law (

Chapter 97 HRS

) requires paid lobbyists attempting to influence the content of those rules to register with the State Ethics Commission and disclose their activities as long as they meet some minimal thresholds in time or money spent lobbying.

But here’s the thing. Current law does not appear to cover any attempts to influence the granting of licenses, which is likely to involve pretty intense competition. Tracking the insider influences, and deterring unethical or illegal influences, at the licensing stage will be considerably harder as a result.

And there’s another wrinkle that was recently called to my attention. The person quoted by PBN is assembling a team that includes a lawyer and other professionals.

Well, I’m told that Hawaii lawyers have been advised against getting involved in the marijuana issue because while the licenses are being issued under state law, marijuana is still illegal under federal law. And the standards of the Hawaii courts prohibit attorneys from being involved in illegal activities. It’s a huge gray area subject to lots of interpretation.

Perhaps some of the lawyers or lobbyists out there might be able to update us on the current interpretations of Hawaii’s rules for lawyers that impact this issue.

The Washington State Bar Association recently issued an opinion summarizing the status of the issue of conflicts between state legalization and federal prohibitions. Here’s an excerpt:

• The Washington Governor and Attorney General have testified about the care that will be taken to implement I-502 in a way that will not conflict with federal priorities. See, e.g., Written Testimony of Washington Governor Jay Inslee and Washington Attorney General Bob Ferguson (Sep. 10, 2013), available at http://www.governor.wa.gov/sites/default/files/documents/testimony_20130910.pdf. In addition, one of the principal reasons for the adoption of the CPPA was to provide additional state-level regulation that was not present under prior Washington medical marijuana law. [n.5]

• The federal government has issued several public statements over the years to the effect that, while reserving ultimate federal authority, it does not wish to impede retail sales of medical or recreational marijuana pursuant to a state regulatory system unless the sales implicate other federal concerns such as money-laundering, sales to minors, sales outside of the state regulatory system and the like. See, e.g., Memorandum from David W. Ogden, Deputy Attorney General, to Selected United States Attorneys, re Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana (Oct. 19, 2009), available at http://www.justice.gov/sites/default/files/opa/legacy/2009/10/19/medical-marijuana.pdf (underlining in original); Memorandum from James M. Cole, Deputy Attorney General, to United States Attorneys, re Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use (June 29, 2011) (underlining in original), available at http://www.justice.gov/oip/docs/dag-guidance-2011-for-medical-marijuana-use.pdf; Memorandum from James M. Cole, Deputy Attorney General, to All United States Attorneys, re Guidance Regarding Marijuana Enforcement (Aug. 29, 2013), available at http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf (underlining in original) (“Cole Memorandum”).

And a presentation by the Washington State’s chief disciplinary counsel at a 2014 American Bar Association conference collected a number of references, and is a good review for those seeking more details (“The Changing Marijuana Landscape and What that Means for the Legal Community”).