Bills are quickly being introduced and its time to start looking for those likely to be on the public interest agenda.
The State Ethics Commission’s package of bills has been introduced. There’s a bill to strengthen conflict of interest provisions by extending them to certain relatives not presently included.
There’s a bill prohibiting nepotism.
Nepotism. No legislator or employee shall name, appoint, or hire to public office or employment any relative who is the legislator’s or employee’s spouse, parent, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, grandparent, grandchild, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepparent, 10 stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister.”
There’s a bill to clarify financial disclosure requirements for members of state task forces, and to require public disclosures by members of major boards and commissions. Another bill would eliminate the requirement that violations of the lobbying law be determined to be “willful” before any penalties can be imposed.
These should at least get public hearings. Will they? Unknown, for now. Their treatment might tell us more about the new leadership in House and Senate.
There are more modest proposals from Campaign Spending Commission.
Amends the campaign finance law by: (1) defining “matching payment period”; (2) correcting statutory references; (3) changing report filing deadlines; (4) specifying noncandidate committee reporting requirements for contributions made; (5) requiring the identification of the candidate supported or opposed by an independent expenditure; and (6) increasing the amount of allowable expenditures made by a publicly financed candidate for the office of prosecuting attorney.
You can check the packages of bills from various interest groups by going to the “reports & lists” section of the capitol website, then selecting “measure by package” from the list at the left.
Discover more from i L i n d
Subscribe to get the latest posts sent to your email.
In this general vein, I wonder if the local diocese of the Roman Catholic church is registered as a lobbyist and will report its expenditures for yestersay’s “Red Mass,” including the breakfast they hosted for public officials beforehand. This event is most assuredly one designed to influence legislators.
Similarly, will the event/breakfast show up on legislators’ gift disclosures? It was surely calculated to influence their official actions.
What’s good for the cooked goose is good for the flailing gander.
Inquiring mind(s) want to know.
You are seeking disclosure about something that was completely open and public. You can attend the Red Mass and see who is there. What on earth are you complaining about?
I should add that there is no requirement for the politicians to disclose how much they put in the plate that was passed around at the mass. You can be pretty sure that any breakfast offered was more than repaid at the time of mass. I see zero intent to influence the politicians through food. The only plea being made is that they use their minds and hearts to serve others in the spirit of Christianity. That message cannot be banned by anyone no matter how hard they try.
The State Ethics Commission enforces the State’s Lobbyists Law, set forth in HRS Chapter 97, which regulates lobbying at the state level. A non-profit or church would be subject to that law, which the State Ethics Commission has already pointed out. This would include the registration of a lobbyist and the filing of lobbying expenditure reports, assuming the law’s requirements are met. These entities are treated the same way as for-profit companies.
The ethics law (HRS chapter 84) banning certain gifts may also be applicable–this is HRS s. 84-11, the “Gifts” law. This law is violated if it reasonably appears that a gift is given to influence officials.
HRS s. 84-11.5 may also be applicable. This law deals with the disclosure of gifts, and is entitled “Reporting of gifts”.
In light of the remarks above by Ohiaforest3400, I think it is interesting how complex things can get if lobbying is combined with offering things of value. Two chapters of the HRS become involved–both chapters 84 and 97–two distinct sets of laws.
This is why the State Ethics Commission needs an increase in budget, and the hiring of additional staff. The workload of the Commission, as it has always been, far outstrips its resources. This can lead to the staff or the Commission having to make snap decisions despite the complexities of the law. This serves, obviously, no good purpose, and can be counterproductive.
It is important to introduce ethics bills that enhance the substantive law. It is just as important to give the State Ethics Commission more resources, and I believe this session the Commission is asking for more resources. This effort should be supported. For too long a time, the State Ethics Commission has been given short shrift.
All of this aside, do new rules/laws enhance? I think enforcement of existing regs could be more helpful.
Hugh, From my experience with the State Ethics Commission as its director and general counsel from 1986 to 2010, one needs to continually enforce the laws one has, which I did predominantly, while enacting new laws that would be a sensible part of the laws of any governmental ethics law code or laws to regulate lobbying. Unfortunately, we were not given a perfect set of laws, if that is ever the case in regard to any set of laws.
Further, many of the laws I managed to get enacted furthered enforcement of the Commission’s laws. For example, I was able to get enacted a six-year statute of limitations, where there was only an arguably vague one-year statute before. I was also able to get enacted a law that made our hearings public, fines for violations, a Whistleblower law to protect witnesses and to encourage the raising of complaints, and others to allow for more transparency in the form of an extra reporting period for lobbying expenditures, and a very helpful gifts disclosure law. I won’t go on, but I managed to get about 38 laws enacted–all beneficial to making ethics laws and lobbying laws more effective (including fines for lobbying law violations). These were aside from increasing our budget (part of law) greatly over the years from its meager amount when I became director.
New laws are needed to bar conduct that is inappropriate, and to provide better tools for enforcement. I can say that while I was the director, the laws were enforced to a degree way beyond the resources I had. This was done by my working basically 24/7, which also increases one’s knowledge of what one is doing exponentially. Because of confidentiality laws, much of the enforcement work could not be seen by the public. There were times, for example, that when we simply started an investigation, a state employee would leave for the mainland, probably to avoid publicity and a stain on one’s record.
I am not sure where you see non-enforcement or that is a result of my comment, but when it exists, it is due to lack of resources. I should note that I always prioritized important cases. And, generally in every enforcement case, though the public may not have known what was going on, the state employees or others close to the problem did (often as witnesses)–we thus had an effect on discouraging similar conduct.
“. . . Whistleblower law to protect witnesses and to encourage the raising of complaints. . . ” I think this information should be very prominently displayed on the commission’s website along with information on how to file a complaint. As it is, I see nothing that explains how to make a complaint.
Natalie, I agree. The Whistleblower law is not part of the State Ethics Code, but in another chapter of the HRS. However, I believe there should be information about the law on the Commission’s website. The law protects state employees (and others) who make complaints to the State Ethics Commission. The law applies to both public and private sector employees. I also agree that there should be information on the website about how to file a complaint. There should also be information on the website on how to request an advisory opinion, which can be requested by anyone subject to the laws the Commission enforces, but the public should know, too, how the advisory opinion process works. You should make your views known to the Commission by sending the Commission a letter. This kind of public input is what makes the Commission better.
Interesting post, Ohiaforest3400. I was wondering why it took two years for the Ethics Commission to act on the Church’s affiliated lobbying organization but I could never get anyone to ask the question.
Possibly related thought – makes me wonder: How do the commissioners respond to cases that may involve entities or institution and industries they themselves are affiliated with? Shouldn’t there be a system of public disclosure at the time the complaint is RECEIVED and requiring them to step aside immediately? And to process such complaints on an expedited basis?I was wondering if immediate investigation and, perhaps, appointing an experienced and truly neutral THIRD party ? Wouldn’t this give the commission the look of “above the benchmark” ethics in their own backyard. Just some thoughts, here.
Nice to hear the Campaign Spending Commission even exists anymore. They have a strange silent profile during the last few election cycles. What changed over there?
“Shouldn’t there be a system of public disclosure at the time the complaint is RECEIVED . . . ? If this were the case, imagine the damage that could be done by someone who filed a complaint just to be vindictive.
In addition, remember that the commissions (state and county) are made up of people from various backgrounds. I think it would be extremely unlikely that any one case would apply to all of the commissioners.
The Commission’s enforcement process is confidential (at least as to what the Commission and its staff can say) to a certain point, to avoid vindictive complaints as well as similar complaints that are filed during election time to smear opponents, from becoming public fodder. However, anyone filing a complaint has a First Amendment right to make his or her complaint public, but no comments from the Commission generally lessens any unwarranted impact. Of course, there may be complaints that appear substantiated with attached evidence and so forth, which the media or others (like Common Cause) may wish to take up on their own.
The problems that Jerry refers to may have more to do with having an ethics office (which is a legal office) run by a lay Commission.
Having served the Commission for over 28 years in the past, my view is that a lay Commission is not workable. The work of the Commission deals with statutory law and case law (judge-made law), which is hard enough for attorneys to deal with, and certainly attorneys often disagree as to the law. Further, the ethics laws and lobbying laws that the Commission enforces are an area of legal expertise, which takes years to understand, and the learning process never ends, and these areas of law are relatively new. Commissioners have no independent ability to interpret these laws, and the other laws they will have to interpret in the process. (The Office of Information Practices is a similar office, yet is headed by a director only–this is inconsistent to my mind.) Each year, the Commission generally gets a new Commissioner, who is unfamiliar with the law. Most Commissioners, in my experience, are not interested in any general orientation about the laws (or law in general), and may as well have trouble with other applicable law, such as the Sunshine law, or the concept of legislative immunity that the attorneys in the office must understand. These are just a few of the areas of law that one must be aware of. Others include the law of evidence, and in most cases, the attorneys in the office have to read and understand the law applicable to other agencies to do their work. The process can be good if there are bright and industrious and open-minded Commissioners, but they still have to basically rely on the staff attorneys, and cannot make independent judgments.
Imagine if the Attorney General (or our U.S. Attorney) could not make decisions without presenting them to a lay commission. Likewise for our prosecutor or public defender. It is a model that simply does not work. Again, the Commission is a legal office, and the work its attorneys do is no different from the work that other attorneys do. The office should be headed by a director who is a lawyer, with a sufficient legal staff. The work of the Commission is basically prosecutorial in nature. Having to clear legal decisions through a lay board is fraught with problems.
I can certainly appreciate the difficulty of understanding laws and the fact that they change regularly. I guess I need to learn more about the actual workings of the commission and how they compare with similar departments or agencies.
What do you see as the priorities for creating “good government,” Dan? Based on our discussions, cost, importance and ease of implementation, it seems to me one of the first things to take care of is making sure that people know about these offices (the ones you recommended as putting under one “good government” head) exist and how to use them. An example would be posting information about the Whistleblower law on the Ethics Commission’s website.
Natalie, I suppose the first thing that needs to be done at the moment, so to speak, is to try and understand, as you suggest, what the various agencies are supposed to do, and what maybe they can do on their websites to better inform us of their duties, priorities, or things that hamper them, from their point of view, such as workload, resources, lack of appropriate laws, etc.
I suppose the next thing would be to have some kind of frank discussion as a group of interested people as to whether the agencies are doing what they are supposed to do, and, if not, why not. Is there a lack of proper laws, a lack of staff, or a lack of budget (resources), and are there internal problems or structural problems that seem to get in the way of efficiency or carrying out the missions of the various offices.
I can attest to the fact that at least the State Ethics Commission is far more complex than anyone could probably imagine. Its functions alone are complex. The laws that apply to the workings of the Commission as well as the laws the Commission administers are complex and often vague. The way legislation has been patched together makes it near impossible for an ordinary attorney, I believe, to sit down and figure out simply all the laws that even apply to the State Ethics Commission and guide its work.
I believe I worked at the State Ethics Commission quite diligently for over 28 years, but even then realized there was so much more to figure out in terms of the kind of laws the Commission should have, and where lines are to be drawn. Again, it is still a relatively new area of law.
It should be kept in mind, at least in my opinion, that the State Ethics Commission is actually two agencies in one, since it administers two totally unrelated laws: (1) ethics laws for state officials and employees (HRS chapter 84), and (2) the Lobbyists law that regulates lobbying at the state level (HRS chapter 97).
Administrative agencies also have rules that have the force and effect of law to help spell out, so to speak, how an agency is to function in light of its statutes.
Since the agencies can only do what their laws allow them to do, and since they are legal creatures, it is difficult for the public, not trained or experienced in law, to determine if agencies are functioning properly. It is a challenge as well for lawyers, who often disagree about even basic things. At the core, the workings of these agencies is legal interpretation.
Also, why some agencies like the State Ethics Commission and the Campaign Spending Commission are headed by lay boards while the Office of Information Practices (OIP) is not appears to make no sense. All three agencies seems to do the same thing basically–issue advisory opinions about their laws and enforce their laws, though letters I have seen from the OIP around 2010 say that the OIP will not enforce its laws due to the lack of resources. I don’t know if this is still the case.
Again, it seems there has to be initially a gathering of interested and open-minded people to frankly discuss these agencies, with the basic question of whether these agencies are functioning properly, and, if not, why not.
Perhaps we can discuss if those of us who are interested can meet and begin to discuss the basics of these agencies and where to go from there. I think your idea of asking agencies to explain more about their functions, etc., on their websites is a very good idea, and seems to be something that can be done sooner than later.
I have a huge learning curve to get over. In any case, I usually attend the Honolulu City Council meetings. The next full council meeting on the 30th should include at least two resolutions appointing people to the Honolulu Ethics Commission and its related appeals board. Perhaps we could have a brief introductory meeting there.
By the way, I had a matter that I took to the OIP in 2010. They were very helpful, and their letters to me did not mention a lack of resources. I vaguely remember a phone conversation I had with them in which I was a little disappointed with the response, but I don’t remember if that centered on limitations due to the law or staffing.
Natalie, January 30 sounds fine for a brief introductory meeting.
As to the OIP, I have a letter from them dated February 4, 2010, that reads in bold: “Please note that because of a recent Hawaii Supreme Court case and staff constraints, OIP is currently issuing advisory opinions rather than determinations in response to UIPA appeals. See Announcement on OIP’s website for a full discussion.
This language was common in letters to many, though it may have been limited to certain issues–I don’t know.
My experiences as the former director of the State Ethics Commission and as a private person with the OIP have been mixed in the last ten ten years or so. I often thought that advice given was done off the top of the head, so to speak, rather than based on a reading of their laws, and one decision involving me personally seemed to be incredibly bizarre and legally untenable. I hope the new director is doing a good job.
“January 30 sounds fine . . . ” Great! I’ll see you (and anyone else who’s interested) then.
Yes Natalie, a good point and I was sort of thinking out loud. I should have thought longer before presenting it. But I was trying to think of a way to keep commissioners and the E. commission staff from letting things from lying around and not being investigated for up to two years. To me, regardless of workload that is too long. It invites questions, to wit: Why? The fact is, there just doesn’t seem to me to be a good reason for the instance I referred to. But maybe I should yield to people like Mr. Mollway for suggestions on methods to keep things from being “forgotten” in the shuffle.
Jerry, Your ideas are pretty much on the money, and no need to defer. I did introduce a bill that would make all charges public that are filed by the public–that was done to ensure public confidence in the work of the Commission. The bill would also have required the Commission to make public how the Commission disposed of a case and why. At the time, I debated back and forth Natalie’s concerns about vindictive charges. So I think I introduced the bill once, which went nowhere at the legislature, and then decided to think of the matter some more. Such a bill was likely, too, to generate all manner of complaint for the sake of publicity.
But the office has to have credibility. When I was with the Commission, charges from the public were given a priority and handled as quickly as possible. I kept the person who filed the charge informed of the progress as part of conducting a confidential investigation. This avoided a notion that the case was being ducked or avoided.
The two-year delay with respect to the charge you mention does indeed seem suspicious. It is not a case that to me seems hard to resolve fairly quickly, one way or the other. (Note–I was not there at the time the charge was filed.) You are absolutely in the right by asking for an explanation.
My suggestion that a lay commission is not workable might eliminate the delay as to a charge, but that in no way negates considerations of what has happened in the case that concerns you.
And, my idea for eliminating a lay commission is based on my 28-plus years in dealing with a lay commission. Though the Commission at any one time has five commissioners, I worked with about 40 commissioners in total, as they came and went. The model just does not work.
Thanks, Dan, nice to have a different perspective. My own is that state and county agencies are too reactive and seldom proactive.
Hugh, it seems to me that one does not get points for being proactive, and maybe the opposite. There has to be accountability at the top, with a vigilant citizenry, media, etc.
You can prevent direct nepotism. But how do you prevent indirect nepotism? — You hire my auntie, I hire your brother and so on — well, I guess I shouldn’t complain about getting a start.
Bill, Hawaii has no nepotism law per se. The ethics laws do prevent nepotism to the extent a spouse or dependent child is hired, through the ethics conflicts of interests law.
As for two parties engaging in hiring favors, this would be a quid pro quo, which is prohibited by the State Ethics Code–though the law that would do this may not apply to legislators anymore, who exempted themselves from the “Fair treatment” law during the last legislative session. This law is HRS section 84-13, which would prohibit a quid pro quo. These hiring favors, of course, can be hard to prove unless someone blows the whistle. This law the legislators excluded themselves from was an important ethics law for legislators, who are not subject to a conflicts of interests law enforced by the State Ethics Commission. HRS section 84-13 was the only way the Commission could bar legislators from hiring relatives simply because they were relatives.