Bills are moving in both the House and Senate that would remove members of a wide range of appointed committees, task forces, advisory boards and panels from the reach of the state’s ethics laws.

HB 2455 and SB 2240 would create a broad exception from conflict of interest provisions and other parts of the ethics laws for members of advisory groups.

The bills would remove limitations on soliciting or accepting gifts related to their official duties, eliminate all disclosure of those gifts, and even avoid public disclosure of potential conflicts.

The exemptions would apply to:

…members of groups convened by a statute or resolution, an executive order or proclamation, or the invitation of the legislature, or the governor or another state officer, solely for the purpose of providing advice or comments to, or formulating recommendations for, the legislature, the governor, or a state department, agency, or officer.”

The bill is in response to the application of the state ethics law to members of the Mortgage Foreclosure Task Force set up by the legislature in 2010.

Specifically, the Commission advised that the State Ethics Code prohibits a member of the task force from being paid to represent a non-governmental organization, such as a business, a trade organization, or another group, on matters in which the task force participated or would participate. For example, if the task force recommended legislation, then a member of the task force could not be paid to privately lobby on that legislation, either as an employee lobbying on the legislation that was recommended by the task force, or as a lobbyist paid to lobby on behalf of a company, a trade organization, or another group on legislation that was recommended by the task force.

Lobbyists and legislators have criticized this interpretation of the ethics law as overly restrictive, prompting these bill (and others).

I was also critical of the commission’s views when the issue first arose last summer.

Here’s some of what I wrote at that time:

So, I asked, isn’t it illogical to allow official actions to be taken by task force members despite their conflicts, but then prohibit them from subsequent lobbying at the legislature, where they have could not take any official action and where their influence would be diluted by the many other competing interests?

Alternatively, shouldn’t the lobbying restriction only apply to the matters not subject to the exemption, that is, any matters dealing directly and specifically with the company that the member/lobbyist has a financial interest in, as opposed to matters that apply to a number of companies in an industry or a class of companies?

In addition, Kondo’s opinion fails to acknowledge that lobbying entails a First Amendment right “to petition the Government for a redress of grievances.”

While lobbyist rights can be limited for compelling reasons, such as deterring corruption by requiring full disclosure, these limits have to be a carefully drawn as possible and only for good reason.

So far, at least, the Kondo and the commission haven’t made a compelling case, in my personal view at least.

But instead of providing a limited exemption for task force members, these bills overcorrect by creating a total exemption.

These bills as drafted go far beyond reversing this particular application of the conflict of interest provisions. It would exempt members of these advisory bodies from the entire ethics law, including gift provisions (they would be allowed to solicit gifts from special interests aimed at influencing their official advice or recommendations), gift disclosure requirements (no need for them to let the public know who has given them gifts), and even disclosure of conflicts.

According to the ethics commission testimony:

There are approximately two dozen state boards or commissions that exist to provide advice or recommendations. These appear to include, among many others, the Tax Review Commission, The University of Hawaii Regents Candidate Advisory Council, the Correctional Industries Advisory Committee, and the Civil Defense Advisory Council. The recommendations provided by these bodies can have significant weight and impact on the ultimate decision maker. The members of these bodies take significant state action. The Commission is concerned that, as currently written, this bill may arguably exempt members of these boards and commissions from the State Ethics Code.

But even the commission failed to walk legislators through all the potential pitfalls that would be created by such a total exemption from ethics.

Put another way, it would allow completely unethical actions by members of advisory committees, selling votes, etc. I don’t think that’s what supporters of these measures have in mind, but that’s what a total exemption would mean.

The committee reports and the amended committee drafts are not yet available, so I can’t say whether these problems have been remedied.

But these bills should definitely go on the “danger” list. And the immediate danger is that the House and Senate drafts will be identical, and further discussion and opportunities for review and amendment will be limited.