Souki backs Caldwell for Honolulu Mayor

Here’s an interesting fundraiser invite. It looks like a fundraiser for House Speak Joe Souki, but it’s really just an attempt to use Souki’s endorsement, and his political clout, to add to Caldwell’s campaign war chest.

Souki was being referred to as the “host” for this event, which was held last night.

Souki-Caldwell

It’s interesting to note that it would be illegal for Souki’s campaign to direct use any of its campaign funds to support Caldwell. But apparently raising funds for another candidate is okay.

Here’s the relevant section of the campaign law:

§11-382 Prohibited uses of campaign funds. Campaign funds shall not be
(1) To support the campaigns of candidates other than the candidate with which they are directly associated;

But an endorsement and hosting arrangement like this appears to be outside of the prohibition.

I did check the fundraiser notices, and it is registered as a Caldwell fundraiser, with a suggested price of $500 to $1,000 per person.

The notice was filed at 10:16 a.m. on the day of the fundraiser, according to the timestamped copy posted online.

Which raises a question–if the intent of the law is to provide a public notice of a fundraising event, its location, person in charge, etc., then why aren’t they required to be posted well in advance of the event itself?

For example, why not require filing within five days of the time the first notices are sent out? The current deadline, which is no later than the start of the event or the closing time of the Campaign Spending Commission office, is for all practical purposes a retroactive disclosure, as it seems that most notices are filed less than 24 hours in advance.

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.

Bus rapid transit surfacing again

Former Gov. Ben Cayetano is using his Facebook posts to tout the use of a Bus Rapid Transit system to move passengers from the Middle Street terminus of a truncated rail system to downtown Honolulu and beyond.

Cayetano has been a fan of BRT for years, and he proposed a flexible bus system as an alternative to rail during his unsuccessful 2012 campaign for Honolulu mayor.

During the campaign, Civil Beat fact checked Cayetano’s claim that that bus rapid transit systems were “sweeping the country.” CB concluded the claim was “Mostly True.”

And its interesting to look at another Civil Beat article from 2012, “Bus Rapid Transit: The Devil’s in the Details, But What Are They?

The regrettable thing is that Honolulu was far down the path to a BRT system under a plan put in place by by the city during the administration of Mayor Jeremy Harris. But it was immediately dismantled by his successor, Mufi Hannemann, who chose instead to bet the house on the elevated rail system the city is currently building.

It’s interesting, in retrospect, to skim the 2006 final evaluation report on the Honolulu Bus Rapid Transit project, in light of the financial meltdown of Hannemann’s rail project.

Another visit with our Kahala Morning Dogs

This is the time of year when the sun comes up early and I’m able to get good pictures of the dogs that we walk with on the beach each morning.

So here’s another set of pictures of our regulars, along with one newcomer, Koko, a cute little Dachshund that lives down at the far end of the beach.

In any case, this is for you dog people out there!

Kahala Morning Dogs: Another look

Judge says ethics guidelines must be adopted as rules to be valid

I’m trying to figure out the actual meaning of yesterday’s court ruling which struck down a set of ethics guidelines for public school teachers involvement in educational trips.

The ruling came in lawsuit brought by the Hawaii State Teachers Association appealing a decision by the State Ethics Commission.

The educational travel guidelines, adopted last year by the State Ethics Commission, said several provisions of the ethics code conflict with the past practice of teachers accepting free travel and other benefits from private travel companies in exchange for the teachers planning the trips, recruiting participants, and serving as chaperones. As a result, the commission held that trips could not proceed until or unless they were brought into compliance with the ethics laws.

According to the Honolulu Star-Advertiser:

Judge Rhonda Nishimura repealed the Ethics Commission’s Aug. 4, 2015, memo and Aug. 19, 2015, advisory opinion today after hearing oral arguments. She said because the advice applies to a broader group, the process is subject to official rulemaking under law, which involves the public.

“So for the state Ethics Commission to issue such an advisory opinion and guidance memo that has a broader application than just a particular teacher or particular trip, does require that the entities involved engage in rulemaking,” Nishimura said.

The basis for the ruling appears to be that the commission’s “guidance” was actually a rule of general application which should have been adopted pursuant to the Hawaii Administrative Procedures Act, Chapter 91 HRS.

HSTA, represented by attorney Colleen Hanabusa, had previously made this argument directly to the commission, which rejected it. HSTA then appealed the commission’s ruling to the Circuit Court.

HSTA questioned the ethics commission’s application of the gift provisions of the ethics law, which prohibit soliciting or accepting any gifts “under circumstances where it can reasonably be inferred that the gift is given to influence the employees in the performance of the employees’ official duties or is intended as a reward for official action on the employees’ part.”

From HSTA’s “petition for a declaratory order or alternatively for a contested case“:

Clearly the dispositive language the EC has relied upon is “reasonably be inferred that the gift is intended to influence.” HRS §84-11. The question is without rules how does the EC and/or its staff arrive at the conclusion that the provision of the free trip is to influence by inference the teacher to take the trip. It fails to first acknowledge that the teacher does not decide who will take the trip, the parents do. The EC refuses to give weight to, although it does concede, that the teachers conduct lessons and act as chaperones on the trip. However, no matter how “unique and valuable the educational experience” may be, the EC has determined it would violate public confidence.

Then:

Where the dispute arises is in the question of whether it can “reasonably inferred” that it [the gift] was intended to influence. Rules are mandated under HAPA to ensure that these terms are not arbitrarily and capriciously defined and acted upon by the agency personnel. This is what HSTA contends has occurred here.

Just when is it reasonable to infer that a specific gift is intended to improperly influence a public employee or official? That’s what HSTA thinks should be addressed via consideration of a rule, with the protections provided for public participation in the process.

So what does yesterday’s court ruling mean in practice?

First, it rescinds the commission’s adoption of the educational travel guidelines.

Second, it establishes that the commission must go through the rule making process if it wants to adopt these guidelines.

Third, it raises questions about other applications of the same gift provisions as applied to legislators and other government officials.

It does not, however, appear that the court ruled that the commission’s interpretation of the gift law is wrong, only that it was not properly adopted as a rule of general applicability. So it doesn’t seem to prevent the commission from enforcing the same interpretation of the gift provisions in specific situations where a violation of the ethics code is alleged. Hopefully this will soon be clarified.

And I would think it is highly likely the commission will appeal the court ruling in an attempt to preserve its own authority to interpret and apply the ethics laws.

See also:

Ethics ruling stops student trips, at least for now (ilind.net 2/21/2015)

No More Free Trips for Hawaii Public School Teachers (Civil Beat, 2/20/2015)

Ethics ruling on free trips for teacher-chaperones deserves better media coverage (4/27/2015)

Ian Lind: Untangling the Ethics of Educational Travel (Civil Beat 6/3/2015)