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Ian Lind • Online daily from Kaaawa, Hawaii

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More on residency requirements for appointees

January 22nd, 2015 · 5 Comments

It turns out that the residency requirement goes back a long way, in various forms.

I’m not sure when the residency provision was made part of the State Constitution, but it could have come with Statehood. I was able to find the “Manual on Constitutional Provisions” prepared for the 1950 Constitutional Convention, which lays out the qualifications for serving in various offices in states across the country. At that time, it seems, residency requirements were the norm. The rundown of requirements in the different states at that time begins on page 162.

And both the 1968 and 1978 Constitutional Conventions appear to have left that particular provision in place, although with amendments.

And the residency requirements appears to have spread out broadly from the Hawaii constitution into various laws and rules, some of which have been successfully challenged in court over time.

The constitutional provision that derailed the Labor Department nominee doesn’t only impact department heads, but the heads of other offices as well.

And a reader emailed me to suggest that residency requirements are still imposed on certain board and commission appointments, as well as certain professional and vocational licenses, which certainly deserves a closer look to confirm (which I won’t attempt today).

I did try to check on the challenges to residency requirements, which seem to site either the right to travel between the states, and the right to equal treatment. In either case, to survive the challenges, the restrictions must either stem from a compelling state interest, or be “rationally related” to a legitimate government interest, depending on the level of legal scrutiny required.

The 1977, then Gov. George Ariyoshi backed a new law imposing a 1-year residency requirement for all public employment. Ariyoshi viewed it as a necessary move to slow population growth. It was immediately challenged in federal court and found to be unconstitutional. The case is Nehring v. Ariyoshi. Click on the link to read the decision.

A 1977 article in the Hastings Constitutional Law Quarterly described the legal issues in Hawaii at that time regarding residency (“Selected Constitutional Issues Related to Growth Management in the State of Hawaii“).

But that wasn’t the end of it. In 2005, the Hawaii Chapter of the ACLU had to go to court again “to stop enforcement of Section 78- 1(c) of the Hawaii Revised Statutes, which barred out-of-state residents from applying for government jobs.”

The court again struck down the law as unconstitutional (Walsh v City and County of Honolulu).

So what is the government interest, whether “compelling” or not, that justifies residency requirements for department heads nominated by the governor and confirmed by the Senate? Can someone articulate it?

→ 5 CommentsTags: Consumer issues · Court · Labor · Legislature · Politics

Feline-assisted blogging?

January 22nd, 2015 · 2 Comments

Feline-assisted blogging. Could it become a staple of the social media world?

Ask Mr. Romeo. He has been taking a new and more aggressive approach to participating in my blogging. He used to be content to sit in my lap while I work on the laptop that sits on the table in front of me.

The routine went something like this. Romeo first claws my leg, sometimes gently, sometimes not. Then he rolls over on his side and begins to grab and kick my foot as if it were a catnip-filled cat toy. I put an end to that as quick as possible. Then he jumps up, turns around once, and melts in my lap.

Recently he’s added a new twist. If he’s not totally happy with the lap, he takes the next step. He hops up on the table, circles over to the right side of the keyboard, and melts, this time with his neck extended and and resting on my right hand. And he immediately starts purring loudly, just so that I will feel guilty about the disturbance caused by continued typing.

Some mornings I give up and try the “fill the food dish again and hope for the best” strategy. Other mornings I wait for a few minutes and then transfer him to the ground.

But it’s very hard to get upset when he’s happiest with full contact.


→ 2 CommentsTags: Blogs · Cats

Throwback Thursday: On board the SS President Cleveland

January 22nd, 2015 · No Comments

It was May 1955. My parents made me “dress up” in a coat and tie, which was not one of my favorite activities, then whisked us off to say goodbye to one of our neighbors, Mrs. Ethel Hogg.

I don’t remember the Hoggs (pronounced with a long ‘O’, like Hoe-Gah), but I remember about them. He was a photographer, and maintained a darkroom in a narrow room on the side of their garage. He used a large format camera, at least that’s the one I can remember, and produced wonderful photos. I have several 810 photos of our house in Kahala as it looked in the early 1950s. And I remember that they had lived in India, and acquired a taste for hot foods, spicy curries, and mango chutney, which we heard about as long as they lived next door. But now they were moving. Back to England? I don’t remember.

Were they an influence on my mother’s mango chutney recipe? Now I have to wonder about that.

That’s me in the photo, on the right, sitting next to my dad. On the other side of the table, my sister Bonnie sits next to my mother. Mrs. Hogg decked out in lots of flower lei. The rest of the people? A mystery, as far as I’m concerned.

Oh…now I don’t own a coat and tie. If I’m invited to an event that requires them, I simply decline, citing my inability to comply with the wardrobe demands. It has worked for decades.

May 1955

→ No CommentsTags: History · Photographs

Does residency requirement limit talent pool for state officials?

January 21st, 2015 · 7 Comments

Interesting story today on the Hawaii State Constitution’s residency requirement for state department heads that forced Gov. Ige to withdraw his nomination of Elizabeth Kim to the top post in the Department of Labor (“Would-be labor chief rendered ineligible by state Constitution“).

According to the Star-Advertise:

Article V, Section 6, of the Constitution, which discusses “executive and administrative offices and departments,” states that any officer appointed by the governor to lead a state department or office “shall have been a resident of this (s)tate for at least one year immediately preceding that person’s appointment.”

State officials could not find any previous case in which the section came into play and affected a nomination, McCartney said.

It seems quite unfortunate in this case, since Kim appears to have considerable experience which, by the way, Hawaii sorely needs.

So what’s the purpose of the 1-year residency requirement, beyond our small-town attitudes?

I never considered that this could be why we have such a difficult time finding those with broad professional education and technical experience in their fields for top spots. Not that I think it would be easy to snag top notch talent for relatively short-term political appointments, but in jobs like running the state’s prison system, we’ve been hurt by the lack of a pool of talent to draw on.

What if we applied to residency rule in entertainment, for example? Only performers who have been resident for at least a year allowed to perform in publicly-owned venues? It wouldn’t make sense and we wouldn’t stand for it. So why do we so arbitrarily rule out those with substantial national experience to serve on as department heads and sit in the governor’s cabinet? Do we shoot ourselves in the foot this way?

When I have time, I’ll try to dig back in the Con Con records to look at the debates that must have taken place.

→ 7 CommentsTags: General

Challenge to television stations license renewals attracts support

January 20th, 2015 · 7 Comments

Opposition to the FCC’s renewal of the broadcast licenses for three Hawaii broadcast channels–KGMB, KHNL, and KFVE–appears to be gaining steam.

Media Council Hawaii, formerly known as the Honolulu Community-Media Council, filed a formal petition with the Federal Communications Commission on January 2, 2015. The council is represented by attorneys from the Institute for Public Representation in Washington, D.C.

Media Council Hawaii argues the combination of the three broadcast stations has harmed the public by reducing competition and diversity in news.

Because Raycom’s Hawaii News Now produces identical local news programs for the two network affiliates, produces a substantially similar local news program broadcast on KFVE, and has a partnership with Honolulu’s sole daily newspaper, there is little competition and diversity in local news. As a result, fewer issues are covered, very little time is devoted to state and local political races and issues, enterprise reporting has declined, and residents of Honolulu are not getting the information they need.

And the Media Council’s efforts have drawn support from public interest groups like Common Cause, as well as organized labor, including the Hawaii State AFL-CIO, SAG-AFTRA (Screen Actors Guild – American Federation of Television and Radio Artists), and UNITE HERE Local 5.

The council’s latest move follows its unsuccessful attempt to block the operational merger between the three stations that began back in 2009.

The FCC denied that earlier petition on somewhat of a technicality in 2011. The FCC took the position that the operating agreements that allowed the new “Hawaii News Now” to produce the news broadcasts on all three channels did not require an application to the FCC, while the applicable rules against certain kinds of media consolidation were arguably not triggered in the absence of an application. Applying the rule would have been “problematic,” the FCC said.

This is one of the statements in the FCC’s 2011 ruling which seemed to invite the current challenge.

…we conclude that the instant transactions did not violate Section 310 of the Act, because Raycom has not acquired control of a new license under applicable Commission and staff precedent. We also conclude that the exchange of network affiliations and other assets did not violate the duopoly rule, notwithstanding that at the time of execution of the agreements, it gave Raycom control over two of the top four stations in the Honolulu, HI market. Under the duopoly rule, one party may “own … two television stations licensed in the same Designated Market Area (DMA) … only [if] at the time of application to acquire … the station, at least one of the stations is not ranked among the top four stations in the DMA….” Because no application was involved in these transactions, and none was required, the applicability of the duopoly rule to these circumstances is problematic and finding a violation of that rule in this case would be similarly problematic. As we discuss below, however, we do believe that further action on our part is warranted with respect to this and analogous cases. And, as noted below, our decision here does not preclude us from considering in the context of licensing proceedings whether the actions taken by the licensees in this case, or analogous actions by other licensees, are consistent with the public interest.

And here’s another statement from the same document:

In the absence of an application or a rule violation, we will not
evaluate the impact of the instant agreements on competition and diversity in the Honolulu market.
However, consideration of the impact such agreements have on competition and diversity may be relevant
in determining whether license renewal for one or either of the stations that are the subject of the
transaction would be consistent with the public interest, a finding required under Section 309(k)(1)(A) of
the Act. As noted above, our decision here is not intended to prejudge this issue within the context of a
license renewal proceeding.

It will be quite interesting to see how this plays out.

In the meantime, Media Council Hawaii is interested in explaining the issues to community organizations. To arrange a presentation, contact Chris Conybeare, the council’s chair, via email (conybeare@msn.com).

→ 7 CommentsTags: Business · Labor · Media · Politics