The Hawaii State Ethics Commission is advising lobbyists that new administrative rules which recently went into effect generally prohibit gifts from lobbyists and their clients to legislators or legislative staff.

The updated rules are available on the commission website.

In a letter to registered lobbyists dated December 7, the commission made its position clear: “As a general rule, legislators and legislative staff may not accept “gifts of aloha” (or items under $25), meals, or any other items of value from lobbyists or their clients.”

In addition to the gift provisions, the commission says the rules contain a new chapter which “provides greater clarity on lobbyist registration and reporting requirements.”

For example, the new rules require that time spent waiting to testify at legislative hearings must be counted and reported as time spent lobbying if the person waiting
“(A) Is being compensated to lobby during that waiting time and is not performing other work unrelated to the lobbying; (B) Spends that time preparing, reviewing, or strategizing on the testimony; or (C) Spends that time otherwise lobbying.”

In the past, this was considered a gray area which led to underreported of lobbyist activities.

Similarly, the rules now spell out in more detail the lobbying expenditures that are required to be reported.

Such expenditures include, but are not limited to:

(1) Drafting and providing testimony;

(2) Discussing actual or potential legislation or rules with any official
in the legislative or executive branch who is or may be involved in
legislation or rulemaking;

(3) Discussing lobbying strategy;

(4) Research or polling when the primary purpose of the research or
polling is to use in lobbying activities;

(5) Advertising;

(6) Monitoring the status of proposed legislation or proposed administrative rules, when the primary purpose of the monitoring is to engage in lobbying;

(7) An event organized for the purpose o f providing interaction between members of the legislature or an agency and an individual or organization that is engaged in lobbying, or intends to engage in lobbying, where the topics of the lobbying effort are discussed;

(8) Time spent waiting to testify at a hearing, when the individual who is waiting:

(A) Is being compensated to lobby during that waiting time and is not perfonning other work unrelated to the lobbying;

(B) Spends that time preparing, reviewing, or strategizing on the testimony; or

(C) Spends that time otherwise lobbying.

An “Impact Statement” prepared as part of the rulemaking process provides additional comments and examples which provide additional guidance in understanding key provisions, including those relating to gifts, fair treatment, conflicts of interests, and lobbying.

The path to the new rules began in February 2015, when the commission ruled free trips given teachers by private educational travel companies are “impermissible gifts” that violate the state ethics code, and that the practice of allowing teachers to plan and participate in such trips in exchange for the free travel and other benefits should be stopped.

The ruling essentially put a stop to any new school trips, which are popular with parents and students, and are believed to offer significant educational benefits to the students who participate. The ruling prompted a storm of controversy and opposition.

The Hawaii State Teachers Association brought an administrative challenge to the ruling and, when that failed, took the matter to court. The union was represented by Colleen Hanabusa, the former member of Congress and Hawaii State Senate President who had run unsuccessfully in 2014 for the open U.S. Senate seat formerly held by Sen. Dan Inouye, who died in 2012.

Then in June 2016, Circuit Court Judge Rhonda Nishimura sided with the teachers’ union and voided the ethics commission’s action. Further, she agreed with HSTA that the commission’s past practice of issuing broad guidance for interpreting the state ethics law needs to be done through the rulemaking process governed by the state’s Administrative Procedures Act.

Here’s an excerpt from what I wrote at the time:

So after hearing oral arguments, Nishimura ruled the commission’s travel guidelines affect a broad section of the public and are not limited to a specific case or situation, are forward looking, and therefore must be adopted as agency rules, with opportunities for public input guaranteed by state law.

One key point was buried in the arguments. Hanabusa pointed out that the same issues underlying the disagreement over teacher travel and education trips are also involved in applying the gift provisions of the ethics code to legislators and other public officials.

That set in motion a process of drafting complex administrative rules, holding hearings on the draft rules, and then adopting the rules in final form. The process played out over more than four years, resulting in the rules that have now taken effect.

See:

“No More Free Trips for Hawaii Public School Teachers,” Honolulu Civil Beat, February 20, 2015.

“Ian Lind: Untangling the Ethics of Educational Travel“, Civil Beat, June 3, 2015)

Hawaii State Teachers Association, “Petition for Declaratory Order or Alternatively for a Contested Case,” August 26, 2015.

“Judge says ethics guidelines must be adopted as rules to be valid,” iLind.net, June 18, 2016.