Category Archives: Legislature

Rep. Choy’s bill would let legislators take jobs at the University of Hawaii

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One of the many bills that was unanimously approved in the House and sent to the Senate this week would allow Legislators to simultaneously hold positions at the University of Hawaii.

If approved, it would apparently make it possible for sitting legislators to apply for positions at UH at the same time voting on the budget and other bills affecting the university.

Of course, we’re wondering who is hoping to push their way into a UH job. But, in general, it’s staring to sound more and more like someone wants UH to be the new Bishop Estate, doesn’t it?

HB1556 was introduced by Rep. Isaac Choy, a Manoa Democrat, who chairs the House Committee on Higher Education.

According to House Standing Committee Report No.37-16:

The purpose of this measure is to prohibit the University of Hawaii from adopting or maintaining a policy that precludes a person from working at the University in a non-executive or non-managerial position solely because that person is a legislator or other official elected to a non-statewide public office within the State. This measure does not apply if the duties and schedule related to public office unreasonably conflict with the University position.

HB1566 passed the House this week, and was sent to the Senate. It has a double referral to the Committee on Higher Education and the Arts, and Judiciary and Labor.

The bill, which would reverse a longstanding policy, was opposed by the University of Hawaii and by the Attorney General.

The AG testified it would create “potential conflicts of interest or potentially inconsistent responsibilities that are implicit in the dual employment apparently intended by the bill.”

For example, a University of Hawaii professor would have inherently inconsistent responsibilities when, as a legislator, she considered the University’s budget, laws governing the University’s authority and power, or the Legislature’s decision to fund the University of Hawaii Professional Assembly collective bargaining agreement. In addition, we question how a full-time University professor could teach courses or otherwise serve in that role if he served as a legislator at the same time.

The doctrine of incompatible offices serves an important purpose that protects elected officials and the public from potential conflicts of interest and ensures that each public job receives the attention it requires for the execution of the assigned duties. For these reasons we ask that the bill be deferred.

According to the university administration testimony:

The University of Hawai‘i Board of Regents Policy 9.205 restricts employees of the University of Hawai‘i from political campaigning for themselves and employment as elected officials while also being a University of Hawai‘i employee. The intent of the policy is to reduce any appearance of conflict in interests and the public perception of conflicts of interest. Being a legislator, county council member, etc., are inherently political positions and the University has previously been criticized in its hiring practices – including by legislators who now seek employment consideration via this measure.

Senate bills hit judges in retaliation for court ruling on Hawaiian Homes funding

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Following an 8-day trial last summer, First Circuit Judge Jeannette Castagnetti issued a long written ruling in November 2015 which found the state had violated the Hawaii Constitution by failing to provide “sufficient funds” for the administrative and operational budget of the Department of Hawaiian Home Lands.

Echoing a 2012 Hawaii Supreme Court decision, Castagnetti pointed to chronic underfunding of the department, and directed that more than $28 million needs to be appropriated for the current year in order to meet the constitutional requirement. That’s some $18 more than the agency is slated to receive.

The Supreme Court had determined that the Legislature had flunked the constitutional funding test required by a 1978 constitutional amendment, and now Castagnetti had put a dollar figure on the funding shortfall.

Legislative leaders were apparently astounded and angry that a court would have the audacity to hold them accountable for refusing to fulfill their constitutional obligation to native Hawaiians.

Their response was two-fold. They agreed to put up $50,000 ($25,000 each from House and Senate) to hire former Attorney General Mark Bennett to go to court supporting the state’s request that the judge reconsider her ruling.

And they apparently decided to put pressure on the Judiciary by pushing a set of bills directly attacking the political independence of the courts by requiring the election of judges and, separately, requiring the Senate to sign off before any judge could be reappointed to a subsequent term in office.

My column in Civil Beat today traces the ties between the issue of proper funding of the Department of Hawaiian Home Lands and the bills regarding selection of judges (“Ian Lind: Lawmakers Return To The Bad Old Days Of Backroom Deals“).

I wrote:

These bills were apparently meant to threaten the independence of the Judiciary, just as legislative leaders seemed to feel threatened by what they saw as the courts’ intrusion into their primary mission of controlling the state’s purse strings.

The Senate took the lead, and the bills went to public hearing. But the leadership never copped to the intent of their measures, whether as bargaining chip or punishment of the Judiciary for trying to bring the Legislature into compliance with the constitutional mandate to provide sufficient funds to Hawaiian Homes so that the department can service its beneficiaries.

By the way, the request for reconsideration was largely denied in an oral ruling by Judge Castagnetti on February 29, 2016, which makes very good reading.

Meanwhile, at least one of the judicial selection bills is poised to pass the Senate.

Check out the Civil Beat column if you have a chance.

Senate moving bill to grab veto power on reappointment of judges and justices

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The state Senate is poised to pass a bill for a constitutional amendment requiring Senate consent before any judge or Supreme Court justice could be reappointed at the expiration of their term in office.

Reappointments are currently done by the Judicial Selection Commission, which was established as the center of a merit-based selection process that is designed to keep political influences at bay.

Critics say the proposed constitutional amendment would politicize the reappointment process by providing a way for elected officials to punish or reward sitting judges and justices for their prior judicial decisions.

SB2420 was introduced by Sen. Gil Keith-Agaran along with two other bills that would have provided for the election of judges.

SB2420 was passed unamended by Keith-Agaran’s Committee on Judiciary and Labor by a 4-1 vote, with Sen. Laura Thielen the lone “no” vote. The election bills both died in committee.

The three measures are widely seen by observers as a political message being sent to the Judiciary, and likely at the Supreme Court in particular, accompanied by the threatened loss of judicial independence.

And one interesting thing to note is that no one in the Senate is taking responsibility for the implicit message. No one has stepped forward to say what decisions of the court have drawn the wrath of the Senate, or at least the Senate leadership, which presumably has backed the bills. No one has identified problems in the current reappointment process that might have prompted the bills. Instead, we’re apparently back to back room discussions in which unknown senators use the judicial selection process as a bargaining chip in furtherance of their unstated political goals.

From Standing Committee Report No. 2725 on SB2420 described the testimony it received on the bill.

Your Committee received testimony in support of this measure from one individual. Your Committee received testimony in opposition to this measure from the Judiciary; Office of the Public Defender; Hawaii State Bar Association; West Hawaii Bar Association; Kauai Bar Association; Hawai‘i County Bar Association; Hawai‘i Women Lawyers; American Judicature Society; Hawaii Government Employees Association, AFSCME Local 152, AFL-CIO; William S. Richardson School of Law Student Bar Association; and twenty-eight individuals.

The single individual who offered testimony in favor of the bill was by Javier Mendez-Alvarez, who submitted an email indicating support without a single word of explanation or comment. An online search shows that Mendez-Alvarez has submitted similar testimony on bills on a variety of topics over the past several years.

So with such overwhelming opposition, why is this bill still alive?

Who should have to answer that question?

Regulating executive branch lobbying

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For what it’s worth, here is the testimony I submitted yesterday afternoon to the Senate Committee on Judiciary and Labor in support of SB653, “Relating to Lobbyists.”

Testimony to the Senate Committee on Judiciary and Labor

Senator Gilbert S.C. Keith-Agaran, Chair
Senator Maile S.L. Shimabukuro, Vice Chair

Thursday, February 25, 2016 9 a.m.

Conference Room 016

Submitted by Ian Lind in support of SB653 “Relating to Lobbyists”

Thank you for this opportunity to strongly support SB 653, which would extend to the executive branch the same lobbying registration and disclosure requirements that already apply to lobbying here at the Legislature.

I am a former executive director of Common Cause in Hawaii, later worked as an investigative reporter for one of Honolulu’s daily newspapers, and continue as an observer of and public analyst of our ethics and lobbying laws in practice.

The definitions in the current lobbyist law give the impression that it covers executive branch lobbying, but the fine print restricts its application to formal rule making proceedings under Chapter 91.

The bill does not impose any additional restrictions or burdens beyond those in the existing lobbying law, but simply recognizes that the public has a real and legitimate interest in knowing who is spending time and money to influence the decisions of the state administration and its executive departments and agencies.

In a column published in Civil Beat in September 2015, I described what is really a case study in why the lobbying law needs to apply to the executive as well as legislative branches of government.

The column focused on the lawsuit filed by the state against Ciber Inc., a large information technology firm, accusing the company of misrepresenting its capabilities when competing for a contract to design and implement a new accounting system for the Department of Transportation, and then fraudulently billing the state even as the new system failed test after test, and fell farther and farther behind schedule.

The lawsuit alleged that the company hired the state’s largest lobbying firm as part of a strategy of “using inappropriate political influence to muzzle its critics at DOT and pressure DOT into paying still more fees for a worthless system.”

Here’s the point:

What did Ciber spend lobbying the governor’s chief of staff? We don’t know, because that lobbying wasn’t subject to public disclosure.

Neither registration nor public disclosure are required of lobbyists influencing decisions by the governor or executive departments. We don’t know what lobbyists are paid, or what is spent on their efforts.

And while state law prohibits hiring and paying lobbyists contingent on a successful outcome to their lobbying, that doesn’t apply to executive branch lobbying because, in the eyes of the law, it isn’t really lobbying.

I have attached a copy of the full Civil Beat column.

SB653 will not add to the administrative burden of departments and agencies, and does not represent a new types of regulation beyond those that lobbyists are already accustomed to dealing with.

But this bill would create a huge new window for the public into the workings of the executive branch, dramatically increase the ability to understand how policy decisions are being made, and serve as a deterrent against the exercise of undue or improper influence.

I urge you to extend the reach of the current lobbyist law by passing SB653. ###