Category Archives: lobbyists

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 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 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 (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; Memorandum from James M. Cole, Deputy Attorney General, to All United States Attorneys, re Guidance Regarding Marijuana Enforcement (Aug. 29, 2013), available at (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”).

More back and forth on executive branch lobbying

Civil Beat ran an editorial yesterday favoring extending Hawaii’s lobbyist law to cover lobbying of officials in the executive departments, from the governor’s office on down (“Extend Hawaii Lobbying Laws to the Executive Branch“).

One of my recent CB columns tackled this subject and called for more regulation in this area in light of the state’s lawsuit alleging that improper political influence had kept state funds flowing to a software contractor despite the company failing to perform (“Ian Lind: Lawsuit Exposes Blind Spot in Hawaii Lobbyist Law“).

The editorial board echoed my analysis of the allegations contained in the state’s lawsuit against the contractor, Cyber Inc.

The company hired Hawaii’s leading lobbyist, John Radcliffe, to press the Abercrombie administration for help in overcoming objections within the DOT to its utter failure under the terms of its contract. Radcliffe’s efforts paid off: Abercrombie’s staff moved one critic out of the DOT entirely, placing him at another state agency. He was replaced with an appointee with no experience in IT or financial management, who allegedly deferred to the governor’s chief of staff, Bruce Coppa, on key decisions.

Months later, Coppa went to work for Radcliffe’s firm, and Ciber wound up pocketing $8 million in fees, courtesy of Hawaii taxpayers.

Few of the details regarding Ciber’s lobbying on this matter are known — how much it spent, who else was involved in the work, how much the lobbyists were paid — because such details didn’t have to be disclosed. The lobbyists representing Ciber didn’t even have to register over their work with the administration.

And it was all perfectly legal.

Civil Beat went on to call for Gov. Ige’s administration to take the lead to ammend and strengthen the lobbyist law to cover these kinds of situations.

The editorial drew a surprisingly sharp comment from former state representative Jim Shon.

Jim Shon · Director at Hawai‘i Educational Policy Center

Please read the actual law. It explicitly applies to the executive branch.

Jim Shon · Director at Hawai‘i Educational Policy Center

Here is the law. (6) “Lobbyist” means any individual who for pay or other consideration engages in lobbying in excess of five hours in any month of any reporting period described in section 97-3 or spends more than $750 lobbying during any reporting period described in section 97-3.
(7) “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.
Like · Reply · 2 · Sep 18, 2015 9:22am

After a round of consultations, Civil Beat responded to Shon with the following:

Todd Simmons · Opinion Editor at Civil Beat
Aloha, Jim, Patricia & David. Thanks for your comments. While the law appears to regulate lobbying of the executive branch, that appearance is negated by the law’s definition of “administrative action,” which was narrowly constructed to apply only to lobbying pertaining to administrative rule making. It does not pertain to non-legislative lobbying and the significant other functions and actions of the executive branch. This is where we argue that reform should take place. As you know, Ian Lind wrote about this in his Civil Beat column last week,…/ian-lind-lawsuit-exposes…/, and for deeper explanation, you might check out his earlier blog post, as well: ://…/lawsuit-alleges-inappropriate…/. Mahalo!
Like · Reply · 1 · 22 hrs

But Shon wasn’t prepared to concede to this reading of the law.

Jim Shon · Director at Hawai‘i Educational Policy Center
Beg to differ. I was told by the Ethics C. That if I were to submit testimony or have discussions with ANY executive department, on any matter, that I should register as a lobbyist if I was paid X amt and spent X amt of time.

I don’t know what went on in Shon’s conversation with the ethics commission, but the statute clearly supports the position taken by Civil Beat and in my own writing on this.

In addition, guidelines issued by the ethics commission clearly support the view that the current law only regulates the small portion of executive branch lobbying that involves influencing the adoption or amendment of agency rules.

Here’s the lead section of the commission’s Lobbyist Registration and Reporting Manual, available on the commission’s website.

The manual asks: “What is lobbying?”

And here’s their answer.

Chapter 97, Hawaii Revised Statutes (“HRS”), is entitled the “Lobbyists” law, and sets forth provisions governing (1) lobbying on matters before the state Legislature and (2) lobbying with respect to rules under consideration by administrative agencies. The Hawaii State Ethics Commission is charged with the responsibility of administering and enforcing the Lobbyists law. Chapter 97 defines “lobbying” as “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 any legislative or administrative action or a ballot issue.” “Legislative action” is defined as the sponsorship, drafting, introduction, consideration, modification, enactment, or defeat of any bill, resolution, amendment, report, nomination, appointment, or any other matter pending or proposed in the legislature. “Administrative action” is defined as the proposal, drafting, consideration, amendment, enactment, or defeat by any “administrative agency” of any rule, regulation, or other action governed by section 91-3, HRS. Section 91-3 describes procedures for the adoption, amendment, or repeal of administrative rules. An “administrative agency” is defined as a commission, board, agency, or other body, or official in the state government that is not a part of the legislative or judicial branch.

There’s really no confusion there. The lobbyist law covers lobbying with respect to rules and not the range of procurement or contracting issues that have been highlighted by the Ciber lawsuit.

In challenging the Civil Beat editorial, Jim Shon had this advice: “Please read the actual law.”

Yes, I couldn’t agree more. But, in the end, reading the actual law doesn’t support his view.

Lawsuit alleges “inappropriate political influence,” but the lobbyist law doesn’t apply

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?