Category Archives: Legislature

Not quite missing in action

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Yes, I missed getting a post online yesterday. Lots of reasons, no excuses.

I got dropped off downtown early in the day and spent several hours in the Circuit Court documents room, going through some case files.

When I was done, I headed for the bus and just forgot to finish the job.

One of the cases I checked on was the Hawaii State Teachers Association’s lawsuit against the State Ethics Commission over the commission’s guidelines prohibiting teachers from accepting free travel when serving as chaperones during educational trips for students.

Last week, Judge Rhonda Nishimura voided a commission advisory opinion and related memorandum issued in August 2015 spelling out its interpretation of the ethics code as applied to these educational trips.

Despite some key arguments made on behalf of the HSTA by attorney (and Congressional candidate) Colleen Hanabusa, the ethics commission declined to give any ground or to soften their position. I’ll get back to additional details of the arguments in a later post.

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.

One part of the what is at issue is the ethics commission’s interpretation of this part of the law, which provides:

Gifts. No legislator or employee shall solicit, accept, or receive, directly or indirectly, any gift, whether in the form of money, service, loan, travel, entertainment, hospitality, thing, or promise, or in any other form, under circumstances in which it can reasonably be inferred that the gift is intended to influence the legislator or employee in the performance of the legislator’s or employee’s official duties or is intended as a reward for any official action on the legislator’s or employee’s part.

HSTA repeatedly questioned how the ethics commission decides what is a “reasonable inference.”

It’s the same provision at issue, whether applied to teachers or to lobbyists and legislators.

This is dangerous territory, because prior ethics opinions about gifts to legislators have been grumbled about at the State Capitol but not directly challenged. It’s a rare elected official who wants to publicly be seen on the wrong side of ethics.

This is clearly tricky territory, especially because the ethics commission is bound by the ethics laws, which are passed by the Legislature and can be amended by them as well.

If the commission holds to its prior position, and the teachers case is ultimately pushed to rulemaking, it will necessarily open the door to challenges to the way gifts to legislators have been treated by the commission. Lobbyists and legislators may be anxious to renew that debate. I’m not sure the public wants to risk loosening of existing restrictions.

In defense of legislative decorum

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In my Civil Beat column last week, I took a slightly different position than usual, speaking out in support of the members of our legislature (“Ian Lind: Legislators, And The Political Process, Deserve More Respect“).

I was reacting to C-B columnist and retired UH Political Science professor, Neal Milner, who had criticized legislators for declining to speak “on the record” about internal legislative factions and political dynamics.

Milner accused legislators of “hiding out in the dark,” and said they were “too frightened to explain publicly to the voters how the Legislature really works.”

I took issue with that characterization, pointing out that there are many good reasons for not going public with all the inside gossip.

I would encourage you to read the whole column, and if you’re not a Civil Beat subscriber, find a friend who will share the column with you. Better yet, consider subscribing to Civil Beat. It’s no longer as expensive as it used to be.

Here’s one section of the column.

Simple good manners are one good reason that legislators might not want to offer up blunt and candid assessments of their colleagues for public consumption.

Working together in a setting as complex as a legislative body requires overcoming personal differences in order to build and maintain working relationships. People work together by finding areas of agreement and, for the sake of getting things done, overlooking their differences, at least temporarily.

In other areas of everyday life, we have things that we might say privately, among family or trusted friends, that we would never share publicly. This puts a limit on transparency that isn’t based on fear. It’s based on our common sense approach to getting along with others in the world.

The Legislature isn’t any different, just more complicated.

Eagle was spot-on when he described the Legislature as “organized chaos.”

I’ve often commented on the amazing complexity of the Legislature and what it takes to get things done. There are 76 legislators elected from their own single-member districts.

Back in their home districts, each is on his or her own. They seek office for different reasons, with different goals. Some believe in causes, some just in themselves. Some squeak in by a few votes, others are elected by broad margins.

They come from diverse backgrounds, and vary greatly in education, experience and innate abilities. All are almost by definition ambitious.

They’re divided by political party, by age, gender, ethnicity, state of origin, by the special interests of their districts and their islands, by ideology and by profession. Somehow they get themselves organized and select leaders through a baroque process of political barter and negotiation.

And only then do they start on the policymaking process of sorting through thousands of ideas, reducing them to bills and, somewhat miraculously, finding ways to reach agreement on at least some of them while in the pressure-cooker atmosphere of a 60-working day session.

The legislative process depends on harnessing all those competing egos and interests so that they can work together toward at least some minimal version of a common interest. Throw in the pressures introduced by lobbyists, constituents and community groups, special interests, and those pesky reporters, not to mention personal or family demands, and it’s amazing that the process works at all.

Sunlight Foundation looks at unregistered lobbyists

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If you’re at all concerned about the regulation of lobbyists and lobbying, you will want to check out this article from the Sunlight Foundation, “What is shadow lobbying? How influence peddlers shape policy in the dark“).

The basic premise, backed up by some data and anecdotal evidence, is that lobbyist registration and disclosure requirements have loopholes that are being exploited by many to avoid disclosure. The article is focused on the national level, but I’m sure if we dig down a bit, we’ll find applies to state and local lobbying in Hawaii as well.

Both the article and its rich set of references are worth careful reading.

Shadow lobbying refers to someone who performs advocacy to influence public policy, like meeting legislators or their staff, without registering as a lobbyist — and it’s a big problem for anyone who cares about transparency in Washington. (For further reading on this topic, you can’t do better than to read Lee Fang’s 2014 investigation of shadow lobbying at The Nation.)

At the Congressional level, lobbyists are supposed to register if they spend 20% of their time lobbying for a client, or make two or more contacts with legislators, their staff, or certain executive agency officials.

The article refers to this 20% criteria as “reasonably easy to get around.”

The same seems to be true of Hawaii’s lobbying law, which defines a lobbyist as someone who is paid and spends at least a certain amount of time and/or money lobbying.

It’s widely recognized that Hawaii’s lobbyist law is a mess. The State Ethics Commission has publicly discussed the problems of enforcing the law’s requirements on several occasions. Unfortunately, SB3024, which would have provided funding for a task force to review the lobbyist provisions, appears to have died in conference.

In any case, thanks to the Sunlight Foundation for their excellent review of the issues.

Good reporting on Senate President Kouchi’s financial ties to developer

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Just back from the mainland, and digging through the backlog of email and newspapers.

I enjoyed Kevin Dayton’s story in Sunday’s Star-Adveriser, which raised questions about possible conflict of interest in Senate President Ron Kouchi’s financial ties to developer Kevin Showe, part-owner of thousands of acres of Big Island land being proposed for a state purchase or land swap in SB3071.

Dayton traces Kouchi’s ties with Showe through the Senate president’s financial disclosure statements.

Dayton reports:

Kouchi’s annual disclosure form filed with the Hawaii State Ethics Commission shows he was a shareholder in a real estate company called Leahi LLC from 2011 to 2015, and Kouchi’s 2016 ethics filing values that investment at between $100,000 and $150,000.

Leahi LLC lists Showe Land & Marine LLC and Kauai Development Manager LLC as its members, and Kevin Showe is listed as member and manager for both of those companies.

Leahi was involved with a group that was formed to purchase the site of the former Kyo-ya Restaurant at 2057 Kalakaua Ave. in Waikiki, which was sold to Japanese investors last year for $30.5 million. Kouchi said the $100,000 to $150,000 in value listed on his ethics filing this year represented his share of the proceeds from that sale.

In addition, Kouchi reported being paid between $175,000 and $350,000 as community relations director for Showe Land & Marine since his election to the Senate in 2010, according to my own count.

Kouchi lost a bid for Kauai County mayor in 2002. He was elected to the county council in 2006, but narrowly missed reelection in 2008. In 2010, he was appointed to the State Senate by then Gov. Linda Lingle, and elected in his own right in that year’s General Election.

During his 2008 run for the council seat, Kouchi’s campaign material said he had worked for Showe’s company beginning in 2005. At that time, Showe was a partner in the Kauai Lagoons project, what was expected at the time to be a $1 billion resort development.

The proposed project is a multi-faceted resort featuring 520 acres of
residential oceanfront property, a Jack Nicklaus Signature Golf Course,
breathtaking coastline views, full-service spa, restaurant, and a 38-acre
freshwater lagoon with marina.

Kauai Lagoons is a collaboration with Marriott Vacation Club
International (MVCI) — a subsidiary of Marriott International, Inc. (NYSE:
MAR) — an affiliate of The Ritz-Carlton Hotel Company, LLC, and Kauai
Development LLC.

An estimated 750 homes will be developed, including Ritz-Carlton
managed, private ownership condominiums and townhomes; bungalows and
condominiums managed by Grand Residences by Marriott; Ritz-Carlton Club
deeded, fractional ownership residences; Marriott Vacation Club timeshare
villas; and estate home lots.

The Kauai Lagoons development project became one of Hawaii’s casualties of the recession, and is now getting off the ground under new ownership.

I don’t know how Kouchi managed that apparent conflict of interest as he served on the county council while also representing Showe’s interests in the development. That’s another bit of political history that needs to be sorted out.

Dayton reports that Kouchi facilitated at least a couple of meetings to discuss the possible Big Island land deal.

Kouchi said he set up a meeting between the late Sen. Gil Kahele and Showe shortly after Kahele (D, Hilo) took office in 2011 to allow Kahele to make a pitch for the deal, and attended a meeting last year between Kahele and state Board of Land and Natural Resources Chairwoman Suzanne Case to discuss the Kapua lands.

Exactly who stands to benefit isn’t clear, since the state seems to have a legitimate interest in protecting the area from development, while Showe and his partners will obviously stand to benefit from a sale or land swap.