Category Archives: Sunshine

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.

Star-Advertiser legal challenge gets E&P attention

An appeal by the Honolulu Star-Advertiser to the Hawaii Supreme Court seeking to require judges to go through the required legal steps before sealing court records from public view was featured yesterday in Editor & Publisher (“Honolulu Star-Advertiser Fights to Keep Court Records Open to the Public”).

E&P linked to a January 23, 2016 S-A story, which explained the background of the issue (“Petition says judge violated 2 constitutions“).

The Honolulu Star-Advertiser on Friday asked the Hawaii Supreme Court to bar a lower court judge from sealing any more documents in a high-profile sex assault case and other criminal proceedings without following required procedures detailed in a recent high court ruling.

In its petition to the justices, the newspaper argued that Hawaii island District Judge Barbara Takase blatantly violated the 2014 ruling and the state and U.S. constitutions last week when she sealed previously public documents in the case against Ethan Ferguson, a state Department of Land and Natural Resources law enforcement officer.

E&P quoted Star-Advertiser editor Frank Bridgewater.

Bridgewater said he’s hoping the time and money the Star-Advertiser has spent (the process will cost several thousand dollars) will prevent judges from improperly sealing court records in the future.

“It’s important we take the lead on this,” Bridgewater said. “We have to. No one else will. No one else will know this is happening…We owe it to ourselves, our readers and the general public to keep an eye on these things.”

Here are several documents filed in the case, which spell out the legal arguments.

Petition for Writ of Prohibition and Writ of Mandamus, filed on behalf of Oahu Publications, dba Honolulu Star-Advertiser.

Reply filed by Attorney General Doug Chin on behalf of Judge Barbara Takase.

Reply in Support of Petition, filed on behalf of Oahu Publications.

Speaking of the Star-Advertiser, Torstar Corporation reported its 2015 financial results last month. The company is publisher of the Toronto Star and owner of a 19% stake in Black Press, the private company that owns Oahu Publications, which in turn owns the Star-Advertiser.

According to the Torstar announcement: “Black Press is a privately held company that publishes more than 150 titles in print and online in Canada and the U.S. and has operations in British Columbia, Alberta, Washington, California, Hawaii and Ohio.”

Torstar reported:

“Our share of Black Press’ net income was $3.0 million in 2015 ($4.0 million in 2014), representing Black Press’ results through November 30, 2015. Black Press has a February fiscal year end and therefore does not have coterminous quarter-ends with us.

That would put the total net income of Black Press for the period at $15.8 million. Since the company is privately held, there aren’t any shareholders to scream about such a small return on the company’s total operations involving all those newspapers across Canada and the U.S.

And David Black, owner of Black Press, has a reputation for keeping the tax bit on his companies profits low by constantly plowing revenues back into the operations and further expansion.

The Torstar reporting offers just about the only bit of public insight into the finances of the Black publishing empire.

Sunshine could have kept Kenoi out of trouble

My Civil Beat column this week takes another look at the role that Hawaii’s lukewarm application of the state’s public records law played in the mess Hawaii County Mayor Billy Kenoi finds himself in (“Ian Lind: Kenoi Had Good Reason To Think He Could Misuse Funds“).

I know that others blame some character flaw in Kenoi himself, but those kinds of flaws are a dime a dozen in the population and among those in elective office.

But if the public’s right to know were actually being enforced, then Kenoi would never have assumed that his indiscretions would remain out of sight and out of mind.

My point was relatively simple. If public officials were accustomed to operating in a climate of transparency and openness, Kenoi would never have started putting personal expenses on his purchasing card account. Sunshine would most likely have kept him out of trouble.

But in our current political environment, far too many requests for disclosure of government records are met with veiled hostility and behind-the-scenes resistance from agency employees, who understand that their elected bosses are not champions of transparency.

Elected officials often pay lip service to openness, but in practice are loath to let the press and the public in on their secrets. Under those circumstances, the mayor thought he was safe from public scrutiny. And he was, for years.

And the way these things work is that getting away with the risky once or twice encourages the behavior to continue and usually to escalate.

If Kenoi had been encouraged to stay on the right side of that thin edge of ethics by the understanding that his spending records wouldn’t stay secret for long, he might have made different choices, and would now be looking at a run for higher office instead of a high-profile criminal trial.

One important point didn’t make it into the column. The Uniform Information Practices Act, which governs disclosure of government records to the public, requires the disclosure of “Government purchasing information, including all bid results, except to the extent prohibited by section 92F-13.” See section Section 93F-12(3).

And since none of those exceptions appear to apply to the pCard records, it would not appear that there were valid grounds to avoid disclosure for years, as was the case here.

In any case, check out the column if you have a chance.

Another telling story on state road conditions

Well, here we go again.

The Star-Advertiser Marcel Honoré has a good follow-up to his earlier stories on the poor condition of local roads (“Report on roads left by wayside“).

Honoré reports on a 2008 federally funded study that reviewed the conditions of our roads and made a series of recommendations. It was done by a research center at Michigan State University and submitted to the state Department of Transportation.

Among other things, the report found DOT was at that point using an Excel spreadsheet to track pavement maintenance issues. “Outdated software,” the report called it.

And although the state says it has now purchased new software, it isn’t expected to go into service until sometime next year.

And, once again, the Ige’s administration’s actions appear to have been directly contrary to his pledges of increased transparency.

Honoré reported:

The Honolulu Star-Advertiser obtained the report from the Federal Highway Administration after requests to get it from state officials earlier this month went unanswered.

Does “unanswered” mean the department didn’t respond to the request, or did they say it could not be located? It sounds like the former, but is a bit ambiguous. And if they simply failed to respond at all to the document request, it certainly runs counter to Gov. Ige’s stated commitment to increased openness.

Honoré did turn up some other zingers.

For example, he quotes Larry Galehouse, director of research center that wrote the report:

In 2008 DOT staff on Oahu “told us that pavement preservation treatments had not been used on Interstate highways due to the perceived risks of trying treatments for the first time,” Galehouse’s report stated.

Ah. You can’t try anything “new,” even techniques that have been used for decades elsewhere, because they are new to us.

That’s “head in the sand” provincialism that ends up costing taxpayers a lot as it plays out across the state’s many departments and agencies.

In any case, this is an example of why a subscription to the Star-Advertiser is more than worthwhile. There’s more than enough good reporting to be found, whatever other shortcomings the newspaper may have. So find one of those discount offers and get yourselves over the paywall!

Legislature again considering bill to make consumer complaints secret

Rep. Isaac Choy is at it again, this time with a bill that would amend the state’s public records law to totally remove complaints about those holding state professional and vocational licenses from the public record.

Choy’s bill, HB 1565, is scheduled to be heard by the House Committee on Consumer Protection and Commerce on Monday afternoon, February 1, at 2 p.m.

State law currently provides that “record of complaints” about “an individual’s fitness to be granted or to retain a license” is a public record, “including all dispositions.”

Choy’s bill would simply delete this provision from the law, making all information about consumer complaints, including their existence, state secrets.

So what complaints are we talking about?

The state’s Professional and Vocational Licensing office lists the following categories of licensed professionals and activities.

Barbering and Cosmetology
Dentist and Dental Hygienist
Electrician and Plumber
Elevator Mechanic
Engineer, Architect, Surveyor and Landscape Architect
Massage Therapy
Medical and Osteopathy (MD, DO, EMT-Basic, EMT-Paramedic, Physician Assistant, and Podiatrist)
Motor Vehicle Industry
Motor Vehicle Repair
Naturopathic Medicine
Pest Control
Pharmacy and Pharmacist
Physical Therapy
Private Detective and Guard
Real Estate
Speech Pathology and Audiology

Activity Desk
Athletic Trainers
Behavior Analysts
Cemetery and Pre-Need Funeral Authority
Collection Agency
Condominium Property Regimes
Dispensing Optician
Employment Agency
Hearing Aid Dealer and Fitter
Marriage and Family Therapist
Mental Health Counselor
Mixed Martial Arts Contests
Nurse Aide
Nursing Home Administrator
Occupational Therapist
Port Pilot
Real Estate Appraiser
Respiratory Therapist
Social Worker
Time Share
Travel Agency
Uniform Athlete Agents

You get the idea. Complaints filed against licensees provide an early warning to consumers of possible problems, and are one of the most important types of information used to protect consumers.

These are people who affect many different parts of our lives. Avoiding the occasional “bad apple” is often very important to individual consumers. And tracking how complaints are handled gives us a chance to evaluate how well the government agencies are going their jobs of protecting the public.

Losing access to such information would mark a return to the dark ages, back when consumers had no rights.

Choy has been on this secrecy kick for years, and has repeatedly sought to block the public from information about complaints filed against the service providers we rely on.

I wrote about Choy’s role in passage of a similar (but less sweeping) bill back in 2010 (“Bill to limit consumer’s rights makes last-minute stealth move“).

Here’s what I wrote at that time. The 2010 bill would only have allowed the public to know about a complaint if the complaint were finally upheld by state regulators. Choy’s current bill would block disclosure of any and all information about consumer complaints, even if multiple complaints were found to be valid.

Under current law, information concerning “an individual’s fitness to be granted or to retain a license” is considered private and confidential, except for records of complaints resulting in disciplinary action, and the “record of complaints including all dispositions.”

This bill, in its current form, would strip the “record of complaints” from the public record.

The problem here is that complaints take months, sometimes years to be investigated, so someone can rack up a long list of complaints before the first disciplinary action is finally taken. And a short list of complaints that result in actual disciplinary action may mask a much longer list of outstanding consumer complaints. Under the terms of this bill, the public would be left to fend for themselves without access to this key bit of consumer background.

Testimony on HB1565 can be submitted online. The system requires you to register and create an account in order to submit online testimony. Click here for the instructions for this simple process.