Category Archives: lobbyists

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.

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.

From Civil Beat: Illegal Lobbying Machine Was Hidden in Plain Sight

As promised, here’s the column I did for Civil Beat on the 30th anniversary of the scandal that rocked the State Judiciary in 1985. I couldn’t make it available at the time to those who don’t subscribe to Civil Beat, but that restriction is lifted three months following publication.

Ian Lind: Illegal Lobbying Machine Was Hidden in Plain Sight

Civil Beat, July 15, 2015 · By Ian Lind

It seems appropriate to note, for the record, that it was 30 years ago this month — July 1985 — when critical questions were first raised publicly about an extraordinary political machine that had been organized and powered by key officials of the state court system, utilizing diverse personnel and resources of the judiciary in extensive but improper lobbying and campaign activities.

I posed those first questions in a July 3, 1985, report written while I was serving as executive director of the local office of the public interest lobbying group Common Cause. The brief report was the result of an investigation over several months prompted by questions our office had received during the 1985 legislative session. The report described, in broad brush, a routine agency lobbying effort in support of its budget requests that had developed into something completely different and more dangerous.

The externals of the court’s lobbying had been known and praised as modern, efficient and effective. And the courts benefited from the results, which could be seen in expanding budgets, new buildings, additional personnel and the latest equipment statewide. But what perhaps wasn’t so apparent was how the machine was fueled and held together.

In 1985, Ian Lind was executive director of Common Cause/Hawaii when he produced a report alleging corruption and violations of the state’s ethics laws by a lobbying group associated with the state judiciary.
As I wrote at that time: “While state law does not prohibit public workers from participating in politics, the creation of an agency-based political machine goes far beyond the simple participation of individual government employees in political affairs. It is reasonable, then, to ask whether it is proper for any state agency to move from routine lobbying into wholesale political action?”

The political group — which was only nominally independent of the courts — was initially known as Hui o’Kokua and, later, Employees for Good Government Service, or EGGS.

At its center was the late Tom “Fat Boy” Okuda, who came up through the ranks until he was the judiciary’s deputy administrative director and, at the time, acting director.

Like many lobbyists, the colorful Okuda often delivered gifts of food to legislative offices while making his rounds at the Capitol.

Okuda turned this “local style” lobbying into an art and, in the process, established himself as a major lobbyist, and the judiciary as a political force to be reckoned. This was accomplished by turning court clerks, secretaries, probation officers, deputy sheriffs and others into campaign volunteers, and court kitchens into production lines where salad, stew and sushi for many candidate’s campaign fundraisers were prepared.

Okuda eventually oversaw an extensive underground food operation, with plate lunches delivered on a daily basis to members and staff of key legislative committees during the crunch times of the session when work extends late into the evening.

Recruiting the ‘Volunteers’

A former Senate Judiciary staff member told me at the time that while the budget conference committee was meeting, someone would call the committee office every afternoon to get a head count of those working late and, a bit later, the food would appear.

“There was lots of food,” this person said, “and lots of leftovers.”

Some meals appeared to have been donated by plate lunch restaurants, while others — stew or chicken, rice, and salad — were reportedly cooked in court offices.

The “volunteers” who prepared these meals were recruited through sign-up sheets circulated by supervisors in various court offices. Several court workers told me they had been told in no uncertain terms that those who “volunteered” to help would be rewarded, while those who failed to participate would find themselves in dead-end jobs, or worse.

“I volunteered, but I resented it,” one court employee told me. Her sentiment was echoed by many others.

“There have been reports of peer pressure, implied threats of lack of advancement in employment, and subtle suggestions of being reassigned to unpleasant tasks at work for lack of participation,” a subsequent investigation found. “Conversely, there have been reports of promotions of some EGGS’ activists to positions of power within the Judiciary in return for involvement in political activities.”

Several court workers told me they had been told in no uncertain terms that those who “volunteered” to help would be rewarded, while those who failed to participate would find themselves in dead-end jobs, or worse.
And the same food production lines were made available for campaign fundraisers, where court personnel would — on request — provide food, tend bar and handle all the general arrangements for campaign events of favored candidates of both parties.

By mid-1985, EGGS had prepared food for the campaign fundraisers of at least 17 lawmakers, according to my count at the time.

One senator told me that when he had first been elected, Okuda came by to talk and to deliver the message, “if you ever need help, just give me a call.”

And there were many ways Okuda could offer to help. He could arrange groups of court employees to campaign, doing everything from sign waving and going door to door for candidates to reviewing voter lists and sending out personalized “friend-to-friend” postcards pitching the candidate of the day.

Okuda at some point along the way gave himself the title of “High Sheriff” and took administrative control of the Sheriff’s Office.

He then used his authority to mobilize sheriff’s deputies in his political machine.

A nod here to then-Rep. Fred Hemmings, who began lobbing his own pointed allegations of misconduct in the Sheriff’s Office. We were at opposite ends of the political spectrum, but we both independently found ourselves very publicly at odds with the judiciary’s political shenanigans.

A subsequent investigation by a “blue ribbon” panel appointed by then-Chief Justice Herman Lum found many of Hemming’s critiques to be on point, and also found deputy sheriffs had been assigned to drive legislators to various functions, provide massages to legislators, and to provide parking and other services at functions “connected with raising money for EGGS …”

The various judiciary offices were also expected to turn out volunteers to run food booths at the state farm fair and at Honolulu Stadium, with proceeds going to fund the judiciary’s political activities. Court workers were also asked to buy tickets for raffles and other internal fundraisers for EGGS, apparently in violation of basic ethical standards.

Some of these things you just couldn’t make up.

Wearing his unauthorized title of “High Sheriff,” or “Chief Sheriff,” Okuda “distributed Deputy Sheriff’s badges to numerous legislators, business persons, close friends and others whose connections to the Sheriff’s Office are either tenuous or nonexistent,” the blue ribbon panel’s investigation found.

Key legislators, including chairs of committees that handled the judiciary budget, were given badges that allowed them free parking at the airport and other state properties, as well as the right to carry firearms. Okuda argued that distributing badges to legislators made them more aware of issues impacting the Sheriff’s Office, a view soundly rejected by subsequent investigations. Whether it accomplished that isn’t clear, but it did create deep and long lasting personal loyalty that led many legislators to stand by Okuda throughout the evolving scandal and beyond.

Disappearing Acts

And there was another bit of magic Okuda could produce for the favored few. He could make traffic citations disappear.

Legislators, business people, influential insiders and their family and friends were directed to Okuda when they were ticketed and wanted to avoid going to court or paying fines. It was widely believed that businesses that contributed food or supplies for the judiciary’s lobbying and campaign activities were able to have traffic citations given to their own employees or customers dismissed with Okuda’s assistance.

At the Legislature, it was more routinized. At one time, legislators’ tickets were simply delivered to the House Clerk, who in turn sent them to Okuda for dismissal.

The blue ribbon panel later reported: “Legislators have had their tickets ‘dismissed’ when legislative immunity does not apply. Tickets have been dismissed or discounted for many other people who have no legitimate reason for requesting an administrative dismissal.”

Okuda was ultimately convicted of 13 misdemeanor counts for fixing tickets, including a total of 3,400 from 1982 to 1986. He died in 2001 at age 73.

While the range of improper, unethical, and illegal activity alleged in the Common Cause report, and later confirmed by independent investigations, was breathtaking, this was no ordinary conspiracy hidden in the shadows or behind closed doors along the corridors of power.

The heroes of this whole affair were the regular workers who came forward and told their stories, despite the same kinds of threats and intimidation that kept elected officials on the sidelines.
This was, instead, an open and widely known conspiracy, directed by the judiciary’s deputy director and stretching over at least a decade, something that hundreds of judiciary employees must have known or participated in, while others, including legislators and other elected officials and candidates, benefited from, while the news media watched but failed to see.

In late October 1985, nearly four months after the scandal broke into the open, I noted the overwhelming silence in the political community. With the exception of Hemmings, most elected officials of both parties had avoided addressing the allegations.

“These are powerful people in a powerful agency with powerful friends,” I said at the time.

But two things did happen. First, the judiciary instituted its own internal reforms, despite the lack of support from elected officials. For this the courts should be given public credit, since at the time, and for years to follow, they paid a political price.

There was a backlash from legislators loyal to Okuda, who punished the judiciary with results that have lasted for decades, refusing to fund judicial raises and reversing the favor that prior court budgets had enjoyed.

As a result, the 2007 State Commission on Salaries reported that Hawaii judges were the lowest paid in the country, ranking No. 51 among the 50 states and District of Columbia. Worse, even after their recommended salary increases, Hawaii’s judges still remained at the very bottom of the salary heap.

That turns out to have been the lingering legacy of Fat Boy Okuda, who said everything that he did had been for the good of the judiciary.

The news media, especially Honolulu’s two competing newspapers at the time, did a tremendous job covering the scandal and moving the story forward. They threw lots of reporting power into the different threads of the story, which ultimately proved very important.

And, finally, the heroes of this whole affair were the regular workers who came forward and told their stories, despite the same kinds of threats and intimidation that kept elected officials on the sidelines. While they didn’t want their names made public because of the threats of retaliation, they shared details such as sign-up sheets distributed by court supervisors, that investigators could follow up on.

We were the scribes who compiled and shared their stories. They were the whistleblowers who took the personal risks, and never were in a position to be publicly thanked. I wish they could have been given the credit that was certainly due.

Note: You can read more about this scandal in newspaper clippings about Common Cause during 1985 and 1986, available online here.

Old cassette tape yields 1985 speech on the Judiciary lobbying scandal

Last summer, I wrote a long post here describing the political machine that was built up within the State Judiciary back in the 1980s, and came crashing down in a major public scandal beginning mid-1985 and continuing over the next couple of years.

Recently I came across an old cassette tape containing a recording of a talk I gave in the fall of 1985. I don’t recall the specific occasion, or who made up the audience. But I think the recording provides a good window into how the situation looked at that time.

I was able to make a digital copy of the recording, which runs about 25 minutes. It’s not a professional job, and cuts off during a question and answer period, but I’m sharing it anyway.

Now I just have to hope that this link to the audio file works.

Click here to listen to this 1985 presentation.

I also reprised the Judiciary scandal in one of my Civil Beat columns around the same time (“Ian Lind: Illegal Lobbying Machine Was Hidden in Plain Sight”). I couldn’t share it then, due to the terms of my contract with CB. But I’ll share a copy of the full column here tomorrow.

Regulating executive branch lobbying

For what it’s worth, here is the testimony I submitted yesterday afternoon to the Senate Committee on Judiciary and Labor in support of SB653, “Relating to Lobbyists.”

Testimony to the Senate Committee on Judiciary and Labor

Senator Gilbert S.C. Keith-Agaran, Chair
Senator Maile S.L. Shimabukuro, Vice Chair

Thursday, February 25, 2016 9 a.m.

Conference Room 016

Submitted by Ian Lind in support of SB653 “Relating to Lobbyists”

Thank you for this opportunity to strongly support SB 653, which would extend to the executive branch the same lobbying registration and disclosure requirements that already apply to lobbying here at the Legislature.

I am a former executive director of Common Cause in Hawaii, later worked as an investigative reporter for one of Honolulu’s daily newspapers, and continue as an observer of and public analyst of our ethics and lobbying laws in practice.

The definitions in the current lobbyist law give the impression that it covers executive branch lobbying, but the fine print restricts its application to formal rule making proceedings under Chapter 91.

The bill does not impose any additional restrictions or burdens beyond those in the existing lobbying law, but simply recognizes that the public has a real and legitimate interest in knowing who is spending time and money to influence the decisions of the state administration and its executive departments and agencies.

In a column published in Civil Beat in September 2015, I described what is really a case study in why the lobbying law needs to apply to the executive as well as legislative branches of government.

The column focused on the lawsuit filed by the state against Ciber Inc., a large information technology firm, accusing the company of misrepresenting its capabilities when competing for a contract to design and implement a new accounting system for the Department of Transportation, and then fraudulently billing the state even as the new system failed test after test, and fell farther and farther behind schedule.

The lawsuit alleged that the company hired the state’s largest lobbying firm as part of a strategy of “using inappropriate political influence to muzzle its critics at DOT and pressure DOT into paying still more fees for a worthless system.”

Here’s the point:

What did Ciber spend lobbying the governor’s chief of staff? We don’t know, because that lobbying wasn’t subject to public disclosure.

Neither registration nor public disclosure are required of lobbyists influencing decisions by the governor or executive departments. We don’t know what lobbyists are paid, or what is spent on their efforts.

And while state law prohibits hiring and paying lobbyists contingent on a successful outcome to their lobbying, that doesn’t apply to executive branch lobbying because, in the eyes of the law, it isn’t really lobbying.

I have attached a copy of the full Civil Beat column.

SB653 will not add to the administrative burden of departments and agencies, and does not represent a new types of regulation beyond those that lobbyists are already accustomed to dealing with.

But this bill would create a huge new window for the public into the workings of the executive branch, dramatically increase the ability to understand how policy decisions are being made, and serve as a deterrent against the exercise of undue or improper influence.

I urge you to extend the reach of the current lobbyist law by passing SB653. ###