Category Archives: lobbyists

Next Monday (June 1) is the “new” deadline for lobbyist disclosures

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Governor David Ige’s adinistration and the Hawaii State Legislature have been considering exactly how to restart and redirect Hawaii’s economic recovery.

Whatever decisions are made, there are likely to be winners and losers.

Do you suppose Hawaii’s professional lobbyists have been standing down during this health crisis, since they recognize their special interests, or those of their clients, are far less important than the overall public interest at times like this?

Nah.

Seriously, I doubt lobbyists have curtailed their efforts during the crisis. After all, there are lots of behind the scenes discussions, and are likely to be relatively hasty decisions made that involve an awful lot of public money. That spells opportunities for some of those special interests.

Our problem right now is that we know even less than usual about what lobbyists have been up over the past few months.

Next Monday, June 1, is the deadline for registered lobbyists, and organizations that employ lobbyists, to disclose what they’ve been spending to influence public policy.

It’s the normal due date for disclosure reports covering lobbying activities during March and April. In a normal year, this would include all but the final few days of the legislative session.

This year, it is also the deadline to report lobbying expenditures during the earlier January-February period, because the State Ethics Commission voted to extend the usual March 31 disclosure deadline, first to April 30, and then again to June 1.

It appears the delay in the disclosure of money spent by lobbyists and their clients to influence public policy decisions is another of the less-than-obvious impacts of the coronavirus.

At the commission’s regular meeting on March 27, 2020, the five members voted unanimously to approve an order resetting the disclosure deadline. The order states that the commission found “good cause” to extend the reporting deadline “[g]iven the threats posed by COVID-19, and given the directives from many employers for employees to work remotely….”

However, no further details concerning the basis of the “good cause” determination appear in either the meeting minutes or in the meeting materials that were available with the meeting notice and agenda.

Neither is there any discussion of the authority for the commission’s action. Lobbyist reporting deadlines are set by statute, and the relevant statute–Chapter 97 HRS–requires disclosures for the period from January 1 through February 28 to be submitted by March 31.

The law requires these reports to disclose the amounts spent on items related to lobbying, including preparation of lobbying materials, advertising, gifts, entertainment and events, receptions, meals, food & beverages, and compensation to lobbyists.

While Governor David Ige did suspend a number of laws, including the state’s sunshine law, in a suplemental emergency proclamation issued on March 16, 2020, However, neither the state ethics law (Chapter 84 HRS) nor the lobbyist law (Chapter 97 HRS) were among the statutes that were temporarily suspended.

In the normal scheme of things, boards and commissions have to operate within the constraints of the law. It would be useful for the commission to provide a more complete public explanation of the legal basis for overriding the deadline provided by law.

Currently, the most recent lobbyist disclosure reports were for the period May 1, 2019 through December 31,2019. The following organizations disclosed lobbying expenditures during the period.

In case you’re wondering about the company at the top of the spending list, CoreCivic. It’s a private prison operator formerly known as Corrections Corporation of America.

Ethical and legal boundaries

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Here’s one of the comments received in response to Saturday’s post:

UPON reading and re-reading the anonymous and unverified comment, I am left asking what the difference is between a “fundraiser” and “political party”?

Is it illegal for a private businessman/citizen to host a party and invite politicos and political groupies?

When does social networking become a crime?

If campaign contributions weren’t made what’s the deal?

In other words, is it a crime if some wealthy person wants to hold a party and invite politicos?

Paragraph two is where the anonymous commentator loses me and contradicts.

If the “political party” were hosted by a prominent businessman, why would that person need the hotel venue, food, and alcohol to be paid for by lobbyists?

But don’t get me wrong. I see the danger of these secret “shindigs” and most likely your anonymous commentator is telling the truth. In this day and age when Hawaii has a huge federal law enforcement presence, local politicos better be careful.

Sounds like a fun party at the Pagoda, wish I could have been there.

Well, I’ll try tackling that from two sides.

Begin with the state’s ethics code. Here’s the provision relating to gifts.

§84-11 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.

So a party–entertainment and/or hospitality–is covered by the ethics code.

An ethics commission “quick guide on gifts” provides further discussion.

The first question is whether you can accept a gift. The State Ethics Commission looks at three factors:

1. Donor. Who is offering the gift to you? What is that person’s relationship to you? If you are directly regulating someone – that is, if you decide whether someone gets a permit, or funding, or a citation – then you generally should not accept anything from that person, regardless of its value. If the person giving the gift is a long-time personal friend who never does business with your state agency, that’s probably okay. This is usually the first question we ask – if the donor relationship creates a problem, we usually don’t even look at the second two factors.

2. Value. How much is the gift worth? Is someone giving you a pencil worth a few cents or a round of golf worth $100? The public should trust you to do your job with integrity; this trust may be lost if people see you taking lavish trips, eating fancy meals, or otherwise enjoying expensive things that are paid for by someone else.

3. State purpose. How will the State benefit if you accept the gift?

Further, the following section of the state ethics law (Section 84-11.5) requires gifts to be public disclosed in an annual report if (a) the gifts from a single source received during the year have an aggregate value “in excess of $200,” (b) the donor of the gifts has “interests that may be affected by official action or lack of action by the legislator or employee,” and (c) the gift or gifts is not otherwise exempt.

In the hypothetical situation described on Saturday, donors included lobbyists, interest groups and organizations that hire lobbyists, as well as those doing business with the state. For that reason, as their “quick guide” advises, “you generally should not accept anything fro that person, regardless of its value.”

I’ve heard elected officials defend taking gifts from lobbyists, saying “I’ve known him/her forever.” I don’t think that’s a defense that will fly.

Then there’s the “fair treatment” provision of the ethics law. Here’s the first part of that provision.

§84-13 Fair treatment. (a) No legislator or employee shall use or attempt to use the legislator’s or employee’s official position to secure or grant unwarranted privileges, exemptions, advantages, contracts, or treatment, for oneself or others; including but not limited to the following:

(1) Seeking other employment or contract for services for oneself by the use or attempted use of the legislator’s or employee’s office or position;

(2) Accepting, receiving, or soliciting compensation or other consideration for the performance of the legislator’s or employee’s official duties or responsibilities except as provided by law….

When you’re invited to a party because you’re a legislator, it could be construed as using your official position to secure unwarranted privileges or treatment not available to the rest of us. Alternately, it might be seen as accepting a gift of hospitality. In either case, it will likely be seen as a problem.

Notice that these ethics provisions apply to public officials and employees, not to those who might organize such events. And laws regulating lobbyists, as well as our campaign spending laws, raise different concerns.

As you can see, it looks like I’ll have to return several times to answer the questions posed in that comment.

Anonymous allegation of illegal lobbying, fundraising

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The Honolulu Star-Advertiser reported today on the DUI arrest of Jon Yoshimura, a former journalist who served on the Honolulu City Council as well as briefly in the state senate.

Police arrested the 60-year-old at 1:10 a.m. Thursday at or near 762 Kapiolani Blvd., the location of Yanagi Sushi.

He was charged with operating a vehicle under the influence of an intoxicant and posted $500. An intoxicant can be either alcohol or drugs.

The news story brought a quick comment here from an anonymous source.

I am printing a slightly edited version of this anonymous comment although it is wholly unverified at this time, in the hopes that others will be able to definitely refute it or add supporting details.

I’ll repeat that for emphasis: The following is unverified. Treat it as fiction unless further information becomes available to confirm any of it.

Staradvertiser not reporting that Jon Yoshimura drunk driving arrest due to leaving illegal legislative opening session political party held regularly at the Pagoda Hotel penthouse of a prominent local businessman. [paragraph slightly edited to remove name]

The food, venue costs, alcohol, etc. are illegal and unreported in-kind contributions from lobbyists to Sen. president Kouchi, the Mayor, etc. and staffed by state dept. of transportation employees. These illegal parties and fundraisers are held during session and throughout the year and well known by capitol staff and lobbyists. Many fundraisers for local politicians there are done without filing notices to campaign spending commission so as not to report the illegal in-kind contributions of venue, food, alcohol, and secret political deals are made with lobbyists there.

I doubt that “lobbyists” generally would participate or fund such gatherings, especially if these gatherings are “well known by capitol staff and lobbyists.” Keeping that many secrets out of the news would be difficult.

On the other hand, early in my career I ran head-on into a similar well-known but unacknowledged lobbying machine centered in the State Judiciary, with court personnel and sheriff’s deputies preparing food and “volunteering” to staff fundraisers for legislators and other public officials. At that time in the mid-1980s, fear of retaliation had kept judiciary employees and capitol staffers silent for years.

That operation hid in plain sight for years, so I can’t dismiss this allegation out of hand, although I admit that it surprises me.

You might get a chuckle out of John Pritchett’s cartoon that appeared in Honolulu Weekly back in 2001.

Ethics, Campaign Spending bills set for Friday hearing in House JUD

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I received a request to give a little visibility to a hearing of the House Judiciary Committee scheduled for Friday, February 1, at 2 p.m. (Room 325). On the agenda are three bills put forward by the State Ethics Commission, as well as a couple by the Campaign Spending Commission as part of their respective legislative packages.

I give these higher priority because they’ve already been vetted by the commissions, and deserve a closer look than bills submitted by legislators that have not already had similar scrutiny.

These three bills are part of the Ethics Commission package:

HB 171
Status
RELATING TO LOBBYISTS.
Removes statutory remnants from when violations of the lobbyist law resulted in criminal penalties. Allows the state ethics commission to assess an administrative fine pursuant to a settlement agreement.
Referral: JUD, FIN

HB 170
Status
RELATING TO ETHICS.
Restores statutory protection for legislators when carrying out a legislative function. Clarifies public disclosure requirements for task force members.
Referral: JUD

HB 169
Status
RELATING TO THE STATE ETHICS CODE.
Clarifies the State Ethics Code by clarifying provisions regarding gift disclosure statements, retention of financial disclosure statements, and ethics training.
Referral: JUD

And from the Campaign Spending Commission:

HB 164
Status
RELATING TO ELECTIONEERING COMMUNICATIONS.
Amends the definition of “disclosure date” in section 11-341(d), HRS, to mean the date when the electioneering communication is publicly distributed. Expands the definition of “electioneering communication” in section 11-341(d), HRS, to apply to advertisements sent by any mail rate and those that are expenditures of an organization. Repeals section 11-341(e), HRS.
Referral: JUD

HB 162
Status
RELATING TO VIOLATIONS OF CAMPAIGN FINANCE LAW.
Increases the fine that may be assessed, for campaign spending law violations, against a noncandidate committee making only independent expenditures and that has received at least 1 contribution of more than $10,000, or spent more than $10,000 in an election period. Allows the Campaign Spending Commission to order that payment of a fine assessed against a noncandidate committee, or any portion thereof, be paid from the personal funds of an officer of the noncandidate committee.
Referral: JUD, FIN

There are, of course, other bills that will be heard at the same time.

• HB 1280, lowering the voting age to 16.

• HB1381, extending the period during which former legislators and executive appointees who were confirmed by the Senate are not allowed to serve as lobbyists to two years (24 months) after they leave government service.

• HB 627, a grandly terrible bill with two provisions (thanks to Natalie, a.k.a. Bike Mom, for calling specific attention to this one). One provision would allow the Campaign Spending Commission to fine a candidate’s campaign or a political action committee $1,000 if they use a photograph of a person in campaign materials without their authorization. And to track such matters, it would assign an arbitrary $1 value to any photograph and require that it be treated as an in-kind campaign contribution that would have to be tracked by the campaign. If the person donated another $100, their contributions (including the photo) would have to be publicly disclosed.

It sounds a lot like one of the bill’s sponsors, or one of their friends, faced an opponent whose campaign used one of those implied endorsement photos without permission. Typically, it’s the kind of error that costs the candidate using the photo and, therefore, is pretty much self-correcting. It’s never good for a candidate to appear to be ginning up fake endorsements. But I guess if you’ve got legislative power, any little thing that gets your attention seems like a reason to draft new legislation. For the rest of us, though, it just seems silly.

And the bill has an additional provision that’s even worse. It provides that if an independent committee campaigns in a candidate’s favor, without having any connection to the candidate, then the candidate must include the value of the independent expenditures in their own campaign reports. And if the expenditures are against a candidate, the value would have to be divided up and reported by each of their opponents. Again, since independent committees are prohibited from coordinating with campaigns, it’s hard to figure how they would be able to report those expenditures.

It just goes to show that there are a whole lot of ideas stuffed into bills each legislative session, and some of them deserve to be quickly killed.

Testimony can be submitted online (for or against each bill).

WEB: For testimony less than 20MB in size, transmit from http://www.capitol.hawaii.gov/submittestimony.aspx.