Category Archives: lobbyists

Questions about medical marijuana, lobbyists, and lawyers

12 Replies

Executive branch lobbying is going to become a more visible issue over the next few months as the state sets up the system of licensed medical marijuana dispensaries.

There will be two stages. Stage one, rule making. Stage two, competition for licenses.

Here’s a basic description from a story in Pacific Business News a couple of months back, based on an interview with one interested contender.

The Hawaii state Department of Health must finalize rules by January, licensees will be announced in April, and they’ll be authorized to open dispensaries just three months later in July. He is gathering a team of experts including a lawyer, potential growers, a doctor consultant, and a lobbyist to prepare as well as he can before the application form is made public in January.

The existing lobbyist law (

Chapter 97 HRS

) requires paid lobbyists attempting to influence the content of those rules to register with the State Ethics Commission and disclose their activities as long as they meet some minimal thresholds in time or money spent lobbying.

But here’s the thing. Current law does not appear to cover any attempts to influence the granting of licenses, which is likely to involve pretty intense competition. Tracking the insider influences, and deterring unethical or illegal influences, at the licensing stage will be considerably harder as a result.

And there’s another wrinkle that was recently called to my attention. The person quoted by PBN is assembling a team that includes a lawyer and other professionals.

Well, I’m told that Hawaii lawyers have been advised against getting involved in the marijuana issue because while the licenses are being issued under state law, marijuana is still illegal under federal law. And the standards of the Hawaii courts prohibit attorneys from being involved in illegal activities. It’s a huge gray area subject to lots of interpretation.

Perhaps some of the lawyers or lobbyists out there might be able to update us on the current interpretations of Hawaii’s rules for lawyers that impact this issue.

The Washington State Bar Association recently issued an opinion summarizing the status of the issue of conflicts between state legalization and federal prohibitions. Here’s an excerpt:

• The Washington Governor and Attorney General have testified about the care that will be taken to implement I-502 in a way that will not conflict with federal priorities. See, e.g., Written Testimony of Washington Governor Jay Inslee and Washington Attorney General Bob Ferguson (Sep. 10, 2013), available at http://www.governor.wa.gov/sites/default/files/documents/testimony_20130910.pdf. In addition, one of the principal reasons for the adoption of the CPPA was to provide additional state-level regulation that was not present under prior Washington medical marijuana law. [n.5]

• The federal government has issued several public statements over the years to the effect that, while reserving ultimate federal authority, it does not wish to impede retail sales of medical or recreational marijuana pursuant to a state regulatory system unless the sales implicate other federal concerns such as money-laundering, sales to minors, sales outside of the state regulatory system and the like. See, e.g., Memorandum from David W. Ogden, Deputy Attorney General, to Selected United States Attorneys, re Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana (Oct. 19, 2009), available at http://www.justice.gov/sites/default/files/opa/legacy/2009/10/19/medical-marijuana.pdf (underlining in original); Memorandum from James M. Cole, Deputy Attorney General, to United States Attorneys, re Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use (June 29, 2011) (underlining in original), available at http://www.justice.gov/oip/docs/dag-guidance-2011-for-medical-marijuana-use.pdf; Memorandum from James M. Cole, Deputy Attorney General, to All United States Attorneys, re Guidance Regarding Marijuana Enforcement (Aug. 29, 2013), available at http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf (underlining in original) (“Cole Memorandum”).

And a presentation by the Washington State’s chief disciplinary counsel at a 2014 American Bar Association conference collected a number of references, and is a good review for those seeking more details (“The Changing Marijuana Landscape and What that Means for the Legal Community”).

More back and forth on executive branch lobbying

4 Replies

Civil Beat ran an editorial yesterday favoring extending Hawaii’s lobbyist law to cover lobbying of officials in the executive departments, from the governor’s office on down (“Extend Hawaii Lobbying Laws to the Executive Branch“).

One of my recent CB columns tackled this subject and called for more regulation in this area in light of the state’s lawsuit alleging that improper political influence had kept state funds flowing to a software contractor despite the company failing to perform (“Ian Lind: Lawsuit Exposes Blind Spot in Hawaii Lobbyist Law“).

The editorial board echoed my analysis of the allegations contained in the state’s lawsuit against the contractor, Cyber Inc.

The company hired Hawaii’s leading lobbyist, John Radcliffe, to press the Abercrombie administration for help in overcoming objections within the DOT to its utter failure under the terms of its contract. Radcliffe’s efforts paid off: Abercrombie’s staff moved one critic out of the DOT entirely, placing him at another state agency. He was replaced with an appointee with no experience in IT or financial management, who allegedly deferred to the governor’s chief of staff, Bruce Coppa, on key decisions.

Months later, Coppa went to work for Radcliffe’s firm, and Ciber wound up pocketing $8 million in fees, courtesy of Hawaii taxpayers.

Few of the details regarding Ciber’s lobbying on this matter are known — how much it spent, who else was involved in the work, how much the lobbyists were paid — because such details didn’t have to be disclosed. The lobbyists representing Ciber didn’t even have to register over their work with the administration.

And it was all perfectly legal.

Civil Beat went on to call for Gov. Ige’s administration to take the lead to ammend and strengthen the lobbyist law to cover these kinds of situations.

The editorial drew a surprisingly sharp comment from former state representative Jim Shon.

Jim Shon · Director at Hawai‘i Educational Policy Center

Please read the actual law. It explicitly applies to the executive branch.

Jim Shon · Director at Hawai‘i Educational Policy Center

Here is the law. (6) “Lobbyist” means any individual who for pay or other consideration engages in lobbying in excess of five hours in any month of any reporting period described in section 97-3 or spends more than $750 lobbying during any reporting period described in section 97-3.
(7) “Lobbying” means communicating directly or through an agent, or soliciting others to communicate, with any official in the legislative OR EXECUTIVE BRANCH, for the purpose of attempting to influence legislative or administrative action or a ballot issue.
Like · Reply · 2 · Sep 18, 2015 9:22am

After a round of consultations, Civil Beat responded to Shon with the following:

Todd Simmons · Opinion Editor at Civil Beat
Aloha, Jim, Patricia & David. Thanks for your comments. While the law appears to regulate lobbying of the executive branch, that appearance is negated by the law’s definition of “administrative action,” which was narrowly constructed to apply only to lobbying pertaining to administrative rule making. It does not pertain to non-legislative lobbying and the significant other functions and actions of the executive branch. This is where we argue that reform should take place. As you know, Ian Lind wrote about this in his Civil Beat column last week, http://www.civilbeat.com/…/ian-lind-lawsuit-exposes…/, and for deeper explanation, you might check out his earlier blog post, as well: ://www.ilind.net/…/lawsuit-alleges-inappropriate…/. Mahalo!
Like · Reply · 1 · 22 hrs

But Shon wasn’t prepared to concede to this reading of the law.

Jim Shon · Director at Hawai‘i Educational Policy Center
Beg to differ. I was told by the Ethics C. That if I were to submit testimony or have discussions with ANY executive department, on any matter, that I should register as a lobbyist if I was paid X amt and spent X amt of time.

I don’t know what went on in Shon’s conversation with the ethics commission, but the statute clearly supports the position taken by Civil Beat and in my own writing on this.

In addition, guidelines issued by the ethics commission clearly support the view that the current law only regulates the small portion of executive branch lobbying that involves influencing the adoption or amendment of agency rules.

Here’s the lead section of the commission’s Lobbyist Registration and Reporting Manual, available on the commission’s website.

The manual asks: “What is lobbying?”

And here’s their answer.

Chapter 97, Hawaii Revised Statutes (“HRS”), is entitled the “Lobbyists” law, and sets forth provisions governing (1) lobbying on matters before the state Legislature and (2) lobbying with respect to rules under consideration by administrative agencies. The Hawaii State Ethics Commission is charged with the responsibility of administering and enforcing the Lobbyists law. Chapter 97 defines “lobbying” as “communicating directly or through an agent, or soliciting others to communicate with any official in the legislative or executive branch, for the purpose of attempting to influence any legislative or administrative action or a ballot issue.” “Legislative action” is defined as the sponsorship, drafting, introduction, consideration, modification, enactment, or defeat of any bill, resolution, amendment, report, nomination, appointment, or any other matter pending or proposed in the legislature. “Administrative action” is defined as the proposal, drafting, consideration, amendment, enactment, or defeat by any “administrative agency” of any rule, regulation, or other action governed by section 91-3, HRS. Section 91-3 describes procedures for the adoption, amendment, or repeal of administrative rules. An “administrative agency” is defined as a commission, board, agency, or other body, or official in the state government that is not a part of the legislative or judicial branch.

There’s really no confusion there. The lobbyist law covers lobbying with respect to rules and not the range of procurement or contracting issues that have been highlighted by the Ciber lawsuit.

In challenging the Civil Beat editorial, Jim Shon had this advice: “Please read the actual law.”

Yes, I couldn’t agree more. But, in the end, reading the actual law doesn’t support his view.

Lawsuit alleges “inappropriate political influence,” but the lobbyist law doesn’t apply

10 Replies

The Star-Advertiser has run a couple of stories this week triggered by the state’s lawsuit against Ciber Inc., a contractor that had been hired to create a new computerized accounting system for the Department of Transportation.

The lawsuit alleges that Ciber was unable to provide a working system, was unable to meet benchmark tests and federal requirements, and instead used political muscle to keep the dollars flowing despite growing criticism of their failure to get a working system up and running.

See “Firm fraudulent, state says,” (Sept 3), and “Ciber cites ‘lies’ in state lawsuit” (Sept 5).

From today’s Star-Advertiser story:

The lawsuit filed Wednesday also alleges Ciber “used lobbyists and exercised inappropriate political influence” to press the state to continue making payments to the company, and to undermine state transportation officials who were trying to enforce the terms of the contract.

Ciber hired Capitol Consultants of Hawaii LLP, which includes lobbyists John Radcliffe and George “Red” Morris, to help make its case to Gov. Neil Abercrombie’s administration that the state should continue with its contract.

According to the lawsuit, DOT officials including Deputy Director Jade Butay briefed Abercrombie Chief of Staff Bruce Coppa on Ciber’s alleged contract performance failures, but Ciber continued to submit new invoices seeking additional payments from the state.

After Radcliffe began lobbying for Ciber, Butay was transferred out of the transportation department and Audrey Hidano was assigned to the department by the governor’s office to oversee the Ciber project, according to the lawsuit.

The lawsuit alleges Hidano repeatedly told transportation staff “that the governor’s office wanted Ciber to remain on the project despite its performance failures,” and Hidano repeatedly communicated with Coppa about the Ciber project from late 2013 to late 2014.

Ciber continued to receive payments under the contract until August 2014, and Coppa joined the Capitol Consultants lobbying firm as a consultant after the Abercrombie administration ended in 2014, according to the lawsuit.

So I took a quick spin through the lobbying reports filed with the State Ethics Commission. According to the commission’s records, Ciber hired Capital Consultants’ principals, “Red” Morris and John Radcliffe, sometime after the 2013 legislative session ended, and through the 2014 session.

During the course of the year, each of them was paid a total of $5,864 in lobbying fees.

Not as much as one would expect, given the allegations of undue political influence now being made by the state.

But here’s the catch.

Hawaii’s lobbyist law doesn’t regulate the kind of lobbying alleged in the lawsuit, because it was aimed at influencing the governor’s office and the state administration rather than members of the legislature or their staff.

That’s right. At first glance, the law appears to cover executive branch lobbying. Here’s the definition of lobbying from Chapter 97 HRS, the lobbyist law.

“Lobbying” means communicating directly or through an agent, or soliciting others to communicate, with any official in the legislative or executive branch, for the purpose of attempting to influence legislative or administrative action or a ballot issue. [emphasis added]

Unfortunately, though, that’s not the end of the issue.

The key term is “administrative action.” It sounds like it should cover contract administration and broader contracting issues such as those raised by the Ciber case.

However, the definition was dramatically narrowed to leave the appearance of controlling lobbying of executive branch officials while essentially eliminating the reality.

“Administrative action” means the proposal, drafting, consideration, amendment, enactment, or defeat by any administrative agency of any rule, regulation, or other action governed by section 91-3.

So the only non-legislative lobbying that’s regulated by state law involves rule making governed by the Hawaii Administrative Procedures Act.

So what does that end up meaning in the current case?

First, neither Ciber nor the lobbyists have to register with the Ethics Commission before lobbying the governor or anyone else in the executive branch.

Second, Ciber is not required to publicly disclose what it spent on lobbying, or what was paid to its lobbyists for influencing the Abercrombie administration.

Third, the lobbyists are not required to report what they spent, if anything, on activities including wining and dining state officials. They don’t have to complete the form stating whether more than $25 per day was spent lobbying any public official, or disclose the name of the official.

And they aren’t bound by additional restrictions that apply to other lobbyists.

For example:

§97-5 Restricted activities. No lobbyist shall accept or agree to accept any payment in any way contingent upon the defeat, enactment, or outcome of any proposed legislative or administrative action.

But when it comes to lobbying the governor, his staff, or department heads, all’s fair because it doesn’t count as lobbying and isn’t regulated by the state’s lobbyist law.

There have been bills in recent years that would have extended the lobbyist law to cover a much broader range of executive branch lobbying, but they went nowhere.

Do you suppose this multi-million dollar scandal might encourage the Ige administration to throw its weight behind such a proposal?

A few items of note (Maui lobbying, homelessness, blog ads, and a hacker attack)

3 Replies

A few brief items for this morning.

• In a column published in the Maui News this week, and reprinted on the Maui County website, County Council Chair Mike White suggests that Maui’s lobbyist law is not being enforced.

The law, which dates from 1981, requires any person who is compensated for lobbying either the administration or the council must first register with the Board of Ethics “setting forth the name, mailing address, business telephone number, and subject matter of the lobbyist.”

However, White points to a constituent’s experience which suggests the law is not being followed.

In practice, however, the laudable principles laid out in the County Code and the Board of Ethics’ rules are apparently being disregarded, as recently brought to my attention by a member of the public.

This constituent sought to review the current list of lobbyists and was rebuffed by the county administration, until filing a formal request for public records under the Uniform Information Practices Act, the state’s public records law. Once documentation was provided, the list was so short it seemed obvious the registration requirement isn’t being enforced.

It will be interesting to see whether White’s comments, and his position as council chair, will gain any traction on this issue.

• And a reader here raised this question: ” Its weird that you cover the DOE student travel story…and then this ad for one of the companies comes on to your blog. How do the ads worK?”

Well, these ads are served up by Google, which uses some kind of contextual algorithm to “target” ads for the content of the site, and/or the interests of the person visiting the site. At least that’s how I understand the process. It’s not something that I have any direct control over.

• And closer to home, my hosting service notified me on Sunday that I’ve been under attack.

This is a notification that we have been forced to make some changes to your account due to a large volume of continual brute force attempts on your WordPress logins (upwards of 15,000+/day). While we do have security modules in place to block access after a certain volume of failed logins, these brute force attempts have been distributed over hundreds of constantly changing IPs, and the rate is such that the security modules and firewall cannot block all the attempts, leading to poor performance on the server.

So now there’s a two-level log-in procedure, which is being closely watched to see if it discourages these hacking attempts.

• Following Governor Ige’s announcement of the appointment of a “Leadership Team on Homelessness,” Larry Geller (DisappearedNews.com) added some telling comments.

First, he notes the firing of the state’s “homeless czar,” which was not mentioned in the governor’s press release.

Director of the state Department of Human Services Rachel Wong gave homeless czar Colin Kippen four days notice today—his last day at work will be July 31.

Throughout his tenure Kippen was never given a budget to carry out his responsibilities.

And Geller notes that the new “Leadership Team” is “composed entirely of politicians rather than housing or social service experts.”

According to the governor’s press release:

“The underlying issues that lead to homelessness, such as lack of affordable housing, cannot be resolved quickly,” said Gov. Ige. “Meanwhile, we cannot wait for a comprehensive, long-term solution. There are measures we can take and will take, immediately.”

The question is whether, once again, these short-term measures pirate all available resources so that those long term solutions to underlying issues are again ignored?

As Geller notes: “The news release does not mention Housing First, the evidence-based program that has worked so successfully elsewhere on the Mainland. It appears that the focus may be on finding ‘short-term’ solutions, which may mean forcible relocation of individuals and families from Kakaako and other encampments to other temporary locations.”