Supporters of outdoor recreation yesterday filed an ethics complaint against House Finance Chair Sylvia Luke, alleging the lawmaker faces a conflict of interest because of her private employment as a personal injury attorney. But the state ethics law, on its face, doesn’t appear apply to Luke’s legislative actions.
At issue is SB1007, a bill that would provide access to areas the state has deemed too dangerous for public use. It is intended to provide immunity to the state in the event people are injured, but there are disagreements over how to best accomplish this. The bill was reported out of Luke’s committee with amendments that force it to a House-Senate conference committee.
The Star-Advertiser has an Associated Press story on the lawsuit today in its “breaking news” section.
The complaint alleges that Luke’s position as an attorney with the firm Cronin Fried Sekiya Kekina and Fairbanks created a conflict of interest when she considered a bill that could affect the state’s exposure to personal injury lawsuits.
The firm’s website lists “recreational accidents” as an area of expertise. When its investigators take a case involving such an injury, “improperly marked hiking or dirt bike trails” are among the features they look for, the site states.
To story fails to provide any more information to help readers assess the allegations in the complaint.
I haven’t found a copy of the complaint itself. But even a quick reference to the conflict of interest provisions of Chapter 84 HRS, the state ethics law, would have suggested the complaint, as described in the media, lacks legal basis.
Here’s the first part of the conflict of interest section:
§84-14 Conflicts of interests. (a) No employee shall take any official action directly affecting:
(1) A business or other undertaking in which the employee has a substantial financial interest; or
(2) A private undertaking in which the employee is engaged as legal counsel, advisor, consultant, representative, or other agency capacity.
The key here is that these prohibitions apply to specifically to “employees.”
Does that mean it also applies to legislators as well?
The definition in the statute makes clear that legislators are excluded.
“Employee” means any nominated, appointed, or elected officer or employee of the State, including members of boards, commissions, and committees, and employees under contract to the State or of the constitutional convention, but excluding legislators, delegates to the constitutional convention, justices and judges.
Only two conflict of interest provisions in the law apply to legislators.
(c) No legislator or employee shall assist any person or business or act in a representative capacity before any state or county agency for a contingent compensation in any transaction involving the State.
(d) No legislator or employee shall assist any person or business or act in a representative capacity for a fee or other compensation to secure passage of a bill or to obtain a contract, claim, or other transaction or proposal in which the legislator or employee has participated or will participate as a legislator or employee, nor shall the legislator or employee assist any person or business or act in a representative capacity for a fee or other compensation on such bill, contract, claim, or other transaction or proposal before the legislature or agency of which the legislator or employee is an employee or legislator.
Nothing like that appears to be alleged here. In this case, it seems, there are no conflict of interest standards in the ethics law that a legislator could violate in this kind of situation.
To his credit, Andrew Pereira of KITV reported the ethics complaint “faces an uphill climb.” That’s a bit of an understatement, I think.
As for the ethics complaint against Luke, it likely faces an uphill climb. Hawaii lawmakers are granted immunity for official actions taken while in office, which is codified in state statute as well as the Constitution.
According to Article III, Section 7, of the Hawaii Constitution, “No member of the legislature shall be held to answer before any other tribunal for any statement made or action taken in the exercise of the member’s legislative functions.”
This is one of those situations where a legally questionable ethics complaint is being used as a political weapon to undermine an adversary. It makes news, and incomplete reporting on the legal nuts and bolts of the issue will unfortunately leave many readers thinking to themselves that Rep. Luke probably has a conflict. That’s unfortunate.
Even as a political tactic, it likely will prove counterproductive for those lobbying for SB1007.