The House Judiciary Committee yesterday deferred action on HB2457, which would have removed restrictions on solicitation or receipt of gifts from charitable organizations, effectively killing the measure for the time being. It isn’t known whether the Senate will try to move its companion bill, SB2719.
But the Ethics Commission has noted a number of other ethics-related bills. Here’s their list, which appears on the agenda for their upcoming meeting.
. H.B. No. 2002, Making Appropriations to Provide for the Expenses of the Legislature, the Auditor, the Legislative Reference Bureau, the Ombudsman, and the Ethics Commission.
ii. Bills Introduced by the Hawaii State Ethics Commission: H.B. No. 250 and S.B. No. 992, Relating to the Employment of Attorneys; H.B. No. 251 and S.B. No. 993, Relating to Mandatory Ethics Training; H.B. No. 252 and S.B. No. 994, Relating to Nepotism; and H.B. No. 253 and S.B. No. 995, Relating to Violations of the Lobbyists Law.
iii. Bills Exempting Task Forces from the State Ethics Code: H.B. No. 1864 and S.B. No. 2183, Relating to the State Ethics Code; H.B. No. 2175, Relating to Ethics; H.B. No. 2455 and S.B. No. 2717, Relating to State Code of Ethics; S.B. No. 2240, Relating to the State Code of Ethics.
iv. Bills Amending the Gifts Law: S.B. No. 2680, Relating to Standards of Conduct; H.B. No. 2457 and S.B. No. 2719, Relating to Limited Exemption Under State Ethics Code Regarding Charitable Events; S.B. No. 671, Relating to Ethics.
v. Bills Amending the Financial Disclosure Law: H.B. No. 2263 and S.B. No. 2548, Relating to the Code of Ethics; S.B. No. 2555, Relating to Financial Disclosures; S.B. No. 2559, Relating to Public Disclosure of Financial Interests Statements; S.B. No. 2562 Relating to the Ethics Code.
vi. Other Bills of Interest: S.B. No. 2558, Relating to Standards of Conduct; S.B. No. 2684, Relating to Lobbyists; S.B. No. 2954, Relating to Ethics; H.B. No. 1730, Relating to the Land Use Commission; S.B. No. 2115 and H.B. No. 2010, Relating to Charter Schools.
I haven’t had a chance to check each of those bills, but any comments would be appreciated.
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Ian, After having served 28-plus years at the State Ethics Commission in the past, I have never known the legislature to weaken the ethics or lobbying laws during a session preceding an election. This is usually the time (including the prior legislative session) for the State Ethics Commission to use an upcoming election to pass reform legislation. When I was the director of the Commission, the Commission got about 37 bills passed into law over the years, such as the gifts (1992-ish) disclosure law (can you imagine?), Whistleblower law (late eighties for the public and private sectors), fines for all under the Commission’s jurisdiction (passed in 2006–the Commission started in 1968), open and public contested-case hearings in charge cases (1995)(closed prior to then), etc. Many of these passed because legislators wanted to campaign with a few ethics reforms in their back pockets, often in response to prior scandals. Passing reform bills at this point requires the work of the Commission, good government groups, good people, the public (letters to the editor, etc.), and the media–especially in editorials. Now is the time to focus on nepotism, pushing up the time of the filing of financial disclosure filings, dealing with “clients” unduly “cloaked” by those forms, lowering the gifts disclosure threshold to $5 (no typo)(leis, etc., can be reasonable), other reform legislation–including making charges filed by the public and their disposition and rationale for disposition public, legislation requiring members of the public (including corporations) to disclose gifts to public officials and state employees (limiting the gifts as to amount where appropriate, and criminal penalties for not reporting or giving over the threshold. Just as there should be clear laws regarding accepting gifts for legislators and other state employees, there should be laws as well that parallel these that relate to members of the public, including corporations–having to disclose gifts, whether these folks and entities meet the requirements of professional lobbyists or not, and give gifts to state officials and employees. I believe a number of other states have such laws, which I believe from past experience also eliminates a Federal tax problem or loophole or policy concern. Also, the budget of the Commission might be doubled as a starter towards having a realistic Commission with a realistic budget and staff (not less–believe it or not– than the salary of previous UH football coaches), and the Commission should have funds to hire the best attorneys under contract, such as the AG is apparently able to do, despite having around 150 attorneys, I am told. Having outside counsel in enforcement cases would provide needed experience and expertise for the Commission in matters of litigation and enforcement, and would avoid conflicts. Time to get real.
I should also add that with respect to the gifts law in the State Ethics Code, it is only one-sentence long, and uses an extremely subjective test–whether it is “reasonable” to “infer” that a gift is given (by a donor) to “influence official action” by a legislator, state official, or state employee. While I was with the Commission, the Commission and staff spent, really, thousands of probably better-spent hours getting all the facts about a particular gift and analyzing its relationship to the official actions of the recipient–this is extraordinarily cumbersome and ultimately quite inexact. A one-sentence gifts law with such a subjective test just does not work based on my experience–it leads to inevitable contradictory interpretations by the Commission (gifts are infinite and the context is infinite–ranging from a purely personal gift to a gift that predominantly benefits the state and not the state official), and leaves no functionally clear guidance for those subject to the law, other than not to accept any gifts–but the law does not bar all gifts. I believe there is a wide range of interpretations possible in terms of what the Legislature meant when it wrote the law, and “legislative intent” drives statutory interpretation. The gifts law does not even distinguish between pure presents and gifts where there can be a substantial state purpose. The “substantial state purpose” had to be created by the Commission in interpreting the gifts law. The Commission, and certainly as commissioners come and go, have always had a difficult time coming to terms with the gifts law. One Commissioner in the 80’s (a great Commissioner–one of the best) would often say about a gifts question something like, “I wish they wouldn’t have asked and just taken the gift” out of frustration in dealing with the law. The law should be re-written to be clear in terms of whatever it is going to prohibit. A bad law leads to antagonism towards the Commission (and thus its other laws as well), but the bottom line is that no one can really tell with any degree of reasonable certainty what the law allows or prohibits. The same exact law with the same exact wording was struck down in a county in New York (I think in the 70’s) by a judge as being unconstitutional for being too vague–I think the case is People v. Moore. That decision is not binding in Hawaii, but shows pretty much how problematic Hawaii’s law is. A good-faith effort should be made to re-write the law–this would not be an easy task given the variety of gifts and all the various jobs state officials and employees perform, and should probably be done in the off-session with participation by all those with an interest in creating a workable and desirable gifts law.
Why is it that Les doesn’t have this “over-thinking” problem? If a person/organization has business before the legislature it is reasonable to infer that any gift is meant to influence official action. That includes even just giving access. It doesn’t say you have to prove corrupt intent beyond a reasonable doubt. It doesn’t have to be outright bribery. It doesn’t say “buy the vote of.” It can be nothing but more than scheduling a hearing or even allowing them into your office for a chat.
If you ordinarily would not be giving the legislator a gift- like if you were their personal friend and it’s their birthday- it’s reasonable to infer it’s done to influence them in an “official act”- in other words any action they may take in their capacity as an official. Simple.
I respect your years of dedication and service Dan but I think the problem is that the commission has been bending over backward for years to try NOT to find violations and now that someone has “cut through the crap” and all this irrelevant “I’m outraged you would even think I’d sell my vote for $50” business (how much do you charge?) legislators who have been getting away with murder for years don’t like that their perks are being taken away… “perks” being patently illegal under that one sentence.
Andy, I respect your views, but I think we are talking about different things. The State Ethics Commission is a “quasi-judicial” body whose only power is to interpret and apply the laws in existence under its jurisdiction. To boot, it is probably not understood that neither the executive director nor the Commission is the final arbiter of the interpretation of the State Ethics Code. The Commission’s decisions can be appealed to circuit court and then to the State Supreme Court. In the 70’s, the Commission took two very reasonable enforcement actions in two cases. The cases were ultimately appealed to the State Supreme Court, which ruled the Commission’s interpretation of its statutes were wrong in both cases. So, the ultimate interpretation of the State Ethics Code lies with the State Supreme Court, and perhaps federal court if a federal constitutional issue is involved. As I alluded to above but will provide more information here, in People v. Moore, 377 N.Y.S.2d 1005 (Dec. 12, 1975), the Fulton County Court ruled that a gifts law the same as ours was unconstitutional with regard to the acceptance of gifts. The summary to the case states that the portion of the gifts law “prohibiting acceptance of gift [sic] having value of $25 or more under circumstances in which it could reasonably be inferred or expected that the gift was intended to influence him was vague and violated due process and equal protection clauses of both the state and the United States….” The court upheld the law as to the “solicitation” of gifts. This is a New York ruling at a county level, and of course not binding on the Commission. But judges and lawyers look to the rulings of other jurisdictions to see if they are persuasive or not regarding similar laws. It is not the Commission’s role to determine the constitutionality of its statutes, but since rulings are subject to appeal, the Commission has to be cognizant as to how a court might rule, and open-minded when state officials and employees say they can’t tell, given the nature of the law, what is acceptable. This is not “over-thinking” as you put it–it is why the State pays for the Commission to have five lawyers to advise it, and concepts such as “due process” and “equal protection” require an awful lot of thinking. If all of this is so easy, then why with regard to the “Taste of Ag” event (if that is the right name) wind up with Mr. Kondo giving advice, then the Chair of the Commission and another Commissioner meets with certain legislators (and the Chair follows up with a letter), and the meeting is described by some as “throwing the executive director under the bus”, and then the Commission meets and allows attendance if legislators pay, with one Commissioner even dissenting from that. I don’t think that scenario is what you would call “simple” after the Commission has been around since 1968. I am just saying that in my view, given how laws are interpreted by courts (I have been a licensed lawyer in Hawaii for over 30 years–and dealt with the gifts law for over 28 years on a daily basis–not saying this makes me right but should not be summarily dismissed either), the gifts law is very problematic as a “law” interpreted by the Commission. I joined the Commission in October of 1981–the gifts law had been interpreted before I joined the Commission for years, and those decisions were supposed to stand as precedent until overturned by the Commission. When I joined the Commission, as far as I can tell, there was virtually no enforcement of gifts given to legislators by the Commission. My view would be to re-write the gifts law, and not win the battle and loose the war. Aside from that, the Commission has approved in the past expensive gifts that I thought clearly violated the gifts law and left me in a state of utter disbelief, while then at the same time barring gifts that were nowhere as problematic, in my view. Bouncing between such extremes shows how problematic the law is. The public does not see all of the Commission’s rulings on gifts, by the way. Unless one has dealt with the myriad of the kinds of gifts that can come up, I am not sure one can understand how difficult it is to make consistent decisions, either lenient or strict. It is easy to say “off with their heads” and maybe impose what one would like the law to be, rather than what it is. It is easy to say that all gifts are given to influence, but then the law would simply have prohibited all gifts. There’s the rub.
It is a sticky wicket, indeed. A cursory review of states’ gift laws reflect this conundrum. http://www.ncsl.org/legislatures-elections/ethics/50-state-table-gift-laws-restrictions-prohibit.aspx
No state has an absolute ban on all gifts. Some are more lax than Hawaii’s like Alabama which allows gifts of less than $100. Or Indiana’s, where gifts can be given to a public official or public employee for the public official’s or public employee’s wedding or twenty-fifth or fiftieth wedding anniversary.
All states have ambiguous language when defining a gift. Delaware’s is typical where a gift cannot be accepted if it has: “(4) Any adverse effect on the confidence of the public in the integrity of the government of the State.” Try and define the “confidence of the public.”
At a minimum, we should require the reporting of all gifts. Yes, all gifts of any value. Some legislators already do this and it’s not like it’s thousands of items. Second, we ought to look at the gifts given to the governor or mayors. “Influence” increases exponentially at that level. For that matter, at the federal level, look at the president. My hunch is when the prime minister of Japan visits, he doesn’t hand out Hello Kitty pens as a gift to the president.
Charles, Well said and informative. As you say, it is a conundrum, and if it weren’t, there would not be so many divergent views and lots of vague language from one end of the country to the other. I have said for decades that the area of gifts in governmental ethics is a nightmare. This is complicated by the diversity of duties of governmental officials and employees. The president is not the same as a legislator or congressman and these positions are not the same as, say, a government inspector–all of these positions function with widely divergent duties and under widely divergent legal parameters. As for the U.S. President, the last time I heard, the U.S. President and Vice President can keep any gift they receive, so long as the gift is disclosed. Unwanted gifts probably go to charities, etc. I believe that there has to be a fairly easily workable gifts law. Under the current situation, too much time is spent trying to figure out whether in a particular case there is a “reasonable” “inference” to “influence”. That is why states adopt simple monetary thresholds or complete bans with or without limited exceptions–maybe not perfect (it is well understood that many situations cannot be completely fixed by laws alone), but workable. Gifts under the present law suck too much time and energy out of the Commission, and I fear that because of that, more serious problems that require imagination and in-depth investigation and research by the staff just get put on the back burner, maybe to ultimately expire due to the long passage of time, while the Commission deals with the latest gift crisis of the day–trying to calibrate all of the factors surrounding the gift. This heavy chore leads to snap decision-making by the Commission, which often leads to gross inconsistencies and do-overs. A more concrete law avoids all of this, and can be as strict as the people of Hawaii want it to be.