I’ve written a bit about SB 671 previously. It would allow public officials and employees, including legislators, to accept gifts from groups dependent on their official actions even in circumstances that make the gifts appear to be payoffs for past or future actions.

What I overlooked is an even more dangerous aspect. The bill would also permit state officials and employees to solicit gifts of unlimited value from entities they regulate or have some authority over, even in circumstances where the gifts appear to be payoffs for future or prior official action. These gifts would be legal as long as they are in the form of an invitation or ticket to a fundraising event for a charitable or nonprofit entity, and are given by (or laundered through) such an entity.

Okay, I admit that this is a pretty jaded view, but I think it’s an accurate description of how creative lobbyists or officials/employees/legislators could take advantage of the proposed bill.

To be fair, this kind of scenario was probably far from the minds of legislators as they drafted this bill. But, as I said during testimony during yesterday’s hearing before the House Judiciary Committee, the proposed House draft doesn’t open up a loophole, it creates a six lane bypass highway around long-standing restrictions on gifts designed to prevent conflicts and protect the public interest.

What became quite clear in the course of yesterday’s hearing is that legislators are angry and frustrated by what they see as a new and stricter interpretation of the gifts provision by the State Ethics Commission that puts previously accepted practices off limits in ways that seem to restrict legislators in the performance of the routine duties that go with the office.

Ethic Commission Executive Director Les Kondo, who has only been on the job a few months, tried to assure committee members that the commission has not changed its interpretation of the law.

“That is a misperception,” Kondo said. “It’s not new guidance.”

But Majority Leader Blake Oshiro was obviously frustrated by Kondo’s statement.

According to the Star-Advertiser:

“We’ve not touched this gift law for 39 years,” Oshiro said. “All of a sudden I’m getting a flurry of inquiries from members asking, Should I go, should I not go?”

Legislators say they are now unsure whether they can accept invitations to community events that have previously been routine. One House member told me they are under the impression that even volunteer support for a charitable organization or assistance in fundraising will be seen by the Ethics Commission as a violation of the ethics law.

Earlier this year, the commission advised legislators that accepting free tickets from lobbyists to a $200 per person fundraiser for the Hawaii Institute for Public Affairs would violate the ethics law’s restriction on gifts.

According to testimony by Bill Kaneko, HIPA president and CEO, the commission advised against accepting fundraiser tickets even if they came directly from the nonprofit organization rather than from a “sponsor.”

“We disagree with the Commission’s ruling that an invitation to a nonprofit event either by a table sponsor or the nonprofit itself would reward or influence the legislator in the performance of his or her duties, or give preferential treatment to a lawmaker,” Kaneko said in his written testimony.

While certainly not a “worst case” situation, the HIPA case does illustrate the problems faced in interpreting the gift law.

In addition to his position with HIPA, Keneko is also a registered lobbyist this year for four companies, including Aina Koa Pono LLC, an alternative energy company; Keahole Point Fish LLC, a fish farming company; drug giant Pfizer, Inc., and local guidebook company, Wizard Publications.

Kaneko was also at the helm of Governor Abercrombie’s gubernatorial campaign, played a key role in the transition team, and continues as a key advisor to the governor.

The HIPA fundraiser was held February 24 at the Hilton Hawaiian Village Coral Ballroom. Dinner co-chair and HIPA chairman Pete Thompson, a familiar face in local philanthropy and the primary broker who sold the state over a billion dollars in so-called auction rate securities, a deal that was the subject of a special Senate investigation. The other co-chair was HIPA director Barbara Tanabe, whose public relations firm worked on Abercrombie’s campaign.

The HIPA board of directors is a who’s who of local business and political leaders.

Kondo’s advice to the legislature regarding the HIPA fundraising dinner was described by Jim Dooley, writing in Hawaii Reporter.

In a Feb. 10 letter to Tsutsui, Kondo wrote that “the acceptance of these invitations would likely be prohibited by the ethics code.”

He called the value of the tickets “substantial” and said the “donors are lobbyists, whose interests are subject to official action by the Legislature.”

“While the dinner appears to be a worthy event, we do not have information as to how attendance by legislators at the dinner would benefit the state or benefit legislators in the performance of their official duties,” Kondo’s Feb. 10 letter continued.

Two things seem clear to me.

First, the gift provision of our current ethics law, contained in a single, run-on sentence, does not draw a “bright line” between permitted and impermissible gifts. I don’t think anyone is really happy with this situation.

Second, the attempt to use SB 671 to remedy the situation will create an ethical disaster zone where the predatory will operate with impunity.

I hope legislators see that this is not an area of the law that should be tinkered with on a piecemeal basis or with a “quick fix.” A broader review of the state ethics law is overdue, especially in light of changing norms in Congress and across the country, where restrictions on lobbyists and disclosure requirements are far more robust than our aging statute.