My Hawaii Monitor column this week over at Civil Beat is a product of my curiosity about how lobbyist registration and regulation are being done on the neighbor islands.
I was surprised to find that on Kauai, it isn’t done at all.
This despite what seems to be a clear requirement in the State Constitution to include lobbyist restrictions and registration within the county code of ethics.
Anyway, you might want to check it out: “Hawaii Monitor: Kauai’s Free Range Lobbyists.”
Discover more from i L i n d
Subscribe to get the latest posts sent to your email.
Ian, Your Honolulu Civil Beat article on the Kauai Board of Ethics and its apparent failure to regulate lobbying at the county level since apparently 1978 was excellent.
While I served as the executive director of the State Ethics Commission from (1986 to 2010), I was aware of the many problems with the four county ethics boards, though they were not part of my jurisdiction, and tried to help as much as possible when called by these boards for assistance.
Ian, you have always been at the forefront of bringing lobbying regulation to the attention of the public. You did this for the State Ethics Commission around 1993, with your expose of HECO and its apparent lobbying compliance problems. This, I think, was the first time the public became aware of lobbying regulation in a good, conspicuous fashion. I hope you continue what seems to be your singular efforts, in terms of lobbying, to get the county boards up to speed (as well as addressing HSEC issues), as the case may be. As a caveat to the last comment, it should be noted that as to the Honolulu County Ethics Board, since Chuck Totto was appointment around 1999 as executive director, the Honolulu Ethics Board is doing very well, and Chuck is doing an admirable job. (Another caveat–I am not implying that the HSEC is somehow per se superior to any of these boards.)
As for some history, the second ethics board in the country as far as I can tell was the Honolulu County Board of Ethics, which was created around 1965. The third was the Big Island’s County Board of Ethics, established around 1967. Both preceded the establishment of the Hawaii State Ethics Commission by the Legislature. The HSEC was created by law passed in 1967, and began operations on the law’s effective date of January 1, 1968. I am not sure when Maui and Kauai established their county ethics boards, but they were in place when I became executive director in 1986. (The first governmental ethics board was created for the City of New York in the early 1960’s). When the HSEC was being formed in the late sixties, the head attorney for the NYC ethics board was invited to Hawaii to offer guidance. Hawaii, though the youngest state in the union, was the first to have a “dedicated” state ethics commission, as far as I can tell.
Because two county ethics boards preceded the establishment of the State Ethics Commission, this is probably why when the state Constitution was amended in 1978 (there was a 1968 constitutional convention I believe, that at least established the state ethics commission at the time as a constitutional entity), having just one ethics commission for the state was basically probably not feasible, given the prior existence of at least two county ethics boards. In fact, it was the establishment of the Honolulu County Ethics Board that led to the creation of the HSEC. Mary George (not sure when she became a state senator) basically asked the question, if there was a Honolulu County Ethics Board (upon which she served I believe in the mid- to late sixties), did not the state need one?
Further, on the topic of statewide ethics boards as opposed to separate state and county ones, while there are state ethics boards with jurisdiction over all the counties of a particular state (e.g., Ohio and Maryland), I think the general model of having a state ethics commission and county ethics commissions is predominant. There is the notion here that a state’s intrusion into county affairs is not particularly welcomed. And, of course, state government can be quite large, necessitating a state’s own agency at the state governmental level.
Since the time I became the executive director of the HSEC in 1986, I have noticed some important differences between the HSEC and the county ethics boards that I think deserve exploring. As you have noted, the largest problem seems to be with the lack of lobbying enforcement.
The county ethics boards of the Big Island, Maui, and Kauai have always lacked their own staff, and have depended on the respective offices of the corporation council when needed.
Without a “dedicated” staff, it seems that only the most critical work of a county ethics board will be addressed.
As for the Honolulu County Ethics Board, it has been in very good hands since Chuck Totto was appointed, full time I believe, around 1999. Before then, the executive director of the Honolulu County Ethics Board was only a part-time position, though a “dedicated” hire.
However, one part-time person is hardly enough. For example, in 1992, I asked Caroline Stapleton, executive director of the Honolulu County Ethics Board at the time, about lobbying enforcement in her office, while she was standing with her Board’s Chair (Jane Fellmeth) at a COGEL ethics conference. Ms. Stapleton informed me that she had no time for lobbying regulation. I assumed she meant that, despite Article XIV (which I mentioned to her and the Chair at the time out of curiosity as to lobbying at the city level) her other duties in enforcing the county’s ethics provisions took up all of her time. Later in the day, the Chair, Jane Fellmeth, informed me she was very concerned with the issue of the Honolulu County Ethics Board not enforcing lobbying regulation, if that was one of its duties.
While I was the executive director of the HSEC, all four county ethics boards through their lawyers often called me for my views on their laws and “hypothetically” regarding cases under consideration–in terms of how the HSEC applied its law in like situations. Of course, as to cases, I was never told of specific facts or names, to maintain confidentiality. Since our laws were all quite similar, I was happy to help, and discuss various scenarios.
Thus, I have seen many of the problems with all the county boards in the State, and I have been called upon to help, too, by visiting with most of these boards. In the early nineties, Mayor Inouye asked me to come to the Big Island to address ethics and describe how the HSEC functioned, for the benefit of those serving at the time on the Big Island’s Board of Ethics, and for the benefit of other top county officials. Similarly, I made a number of trips to Kauai in the mid-nineties, to meet with the members of the Kauai Board of Ethics, at least three times. I never met with the Maui Board of Ethics, but often took calls from its deputy corporation counsel attorneys. I was invited in the mid-nineties to meet with journalists on Maui specifically to discuss the Maui Board of Ethics.
As I said, prior to Chuck Totto’s appointment to the Honolulu County Ethics Board, I was called quite frequently for general advice. In fact, I was asked to attend one of the Board’s meetings in the early nineties to assist in explaining a troublesome area of law.
To summarize, while Chuck Totto has been the executive director, the Honolulu County Ethics Board is doing well, while major problems may exist with the other county ethics boards.
Ian, an area you may also wish to explore is the different way ethics board members are appointed at the county level, I believe, for all four counties. I think in all four counties the mayors may appoint the ethics board members, with the advice and consent of the respective councils.
However, Article XIV (1978) of the State Constitution requires that ethics commissioners “shall be selected in a manner which assures their independence and impartiality”.
For this reason, for the HSEC, prospective commissioners must first apply to the Judicial Council (a board attached to the State Supreme Court–and not to be confused with the Judicial Selection Commission, which nominates state judges). The HSEC does not have jurisdiction over state judges, as they have their own constitutionally created ethics board for judges–I think called the Commission on Judicial Conduct. Thus, application by prospective HSEC commissioners to the Judicial Council fosters independence. After looking over applicants, the Judicial Council sends two names to the Governor. The Governor selects one of the two names to be the HSEC commissioner for the open slot. For the sake of independence, there is no Senate confirmation.
The idea is to get those outside of the jurisdiction of the HSEC to do the selecting. I do believe this process is inherently better than having commissioners solely selected by the chief executive of the State or counties–the governor or mayors. I see no problems with the HSEC process per se, and this certainly does not mean that a mayor makes bad appointments. But Article XIV demands a mandated independent process, and I don’t think mayors making ethics board appointments squares with Article XIV. Otherwise, the language in Article XIV as to appointment would not be necessary or included in Article XIV. The language in Article XIV was meant to change the normal way of making board appointments to foster the independence of ethics boards.
So, while the Honolulu Ethics Board is doing well, there may still be serious problems with the other county ethics boards. It has always been my view, often communicated by me, that the county ethics boards should have their own staff, and a budget commensurate with the duties given to the boards.
Ian, because of your long involvement in the area of ethics, I hope you will turn your attention as well to the county ethics boards, as you have been doing with the HSEC. Thanks.