Wednesday, March 23, 2011
Judiciary chair cuts off Ethics Commission testimony in hearing on SB671, the proposed gutting of Hawaii’s gift law
by Larry Geller
SB671, in its current form, would allow unlimited free meals, golf club tickets, junkets and boondoggles for any Hawaii state employee or state legislator from a wide variety of non-profit corporations. Public opposition (including a newspaper editorial) has been universal, except, of course for the organizations salivating at the chance to buy influence.
And why wouldn’t they? The bill is not limited to charitable fundraisers—in fact, as Les Kondo, Executive Director of the Hawaii State Ethics Commission, was trying to explain, the bill apply to any non-profit, including chambers of commerce, service providers, unions, country clubs, state contractors and vendors, and a host of other organizations.
State employees who regulate these businesses would be eligible for what amounts to legalized bribery.
As you will see in the video, the chair of the Judiciary Committee did not want to hear the testimony.
It’s routine for state departments or agencies most concerned with proposed legislation to be allowed to testify at the beginning of a hearing. For this bill, that’s the Ethics Commission.
I have attended numerous legislative hearings and have not, to my recollection, ever heard a state representative cut off and his or her testimony refused. Nor did the chair apply a time limit to subsequent testimony. For example, I also testified, and was not cut off at two minutes, but was allowed to complete my testimony. Clearly, the chair just didn’t want to hear Mr. Kondo speak. I was going through some adjectives to fairly describe the situation but couldn’t settle on one. Watch the video and you decide.
Judging from the committees questions later in the hearing, it might have been a wiser course to hear what Mr. Kondo had to say.
Let me interject a comment here. I was surprised at the questions from several House members simply because they demonstrated an ignorance of the current law. The questioning was not so much about the proposed bill but about what they are currently allowed to accept in the way of gifts. That they were asking and arguing in public was troublesome—each of us is responsible for knowing the law. We can follow it or choose not to. The Ethics Commission does not make the law, they assist legislators and government employees in understanding the law if necessary, and handle complaints. I thought of it this way: I know the jaywalking law, and I can jaywalk if I like, but I know it’s against the law. Legislators demonstrated, at yesterday’s hearing, that they simply didn’t understand this long-standing law. Since corporations use gifts and free meals as a way to buy influence, this is bothersome.
The next video illustrates this ignorance. In this clip, Rep. Blake Oshiro questions Kondo extensively, mostly, in line with similar questions by other committee members, about what is now allowed or not allowed. Oshiro is the author of the language in the current draft of the bill, and responsible for expanding its scope from 501(c)(3) charities to any kind of tax-exempt business. He is also an attorney, and should already be thoroughly familiar with this important law.
At the 15:30 minute point in the heated exchange he erroneously states that “suddenly, there is a flurry of activity in the form of bills“ on the gift law issue. In fact, no bill was introduced covering this issue. A bill with unrelated language, SB671 was only scheduled for a hearing by Senator Hee so that it could be discarded and replaced by a rather bad draft by Senator Galuteria attempting to blow the lid off of gift giving to legislators. That questionable draft was cut down to the final Senate version and then morphed by Oshiro into its current form. Not a single bill was introduced and heard on this subject.
More likely, a recent opinion by the Ethics Commission stating that legislators could not accept $200 tickets to a Hawaii Institute for Public Affairs (HIPA) fundraiser.spooked them, since some had perhaps already accepted gifts similar to that already. The Ethics Commission opinion was nothing new and did not change the existing law, but clearly Oshiro is not happy with the existing law.
Here’s the video.
Oshiro is in a precarious position, although it probably does not amount to a conflict of interest. He is an attorney with Alston Hunt Floyd and Ing, as is HIPA’s president and CEO. Given that relationship, Oshiro, in particular, should be alert to the possibility of improper influence by HIPA on state legislators. Instead, he’s effectively pushing for a red carpet to be spread out for state legislators and state workers to accept expensive gifts, junkets and boondoggles from organizations such as HIPA..
Decision making on the bill is scheduled for Thursday.
For more on the March 22 hearing, see the excellent article on Civil Beat, Bill to Ease Gift-Giving to Lawmakers, State Employees Finds New Life (3/22/2011), and David Shapiro’s Legislators fight for the right to freeload (cont’d) (VolcanicAsh, 3/23/2011). A snip from the latter:
Oshiro’s main motivation for loosening the rules seems to be that he’s tired of fielding calls from ethically challenged colleagues whining that they can’t have their freebies. Poor babies.
Wow. Un.Be.Lievable. These worms. They did the same thing to Kauaiʻs ethics guy, Rolf Bieber and eventually had the Mayor refuse to allow him to continue. Reason: he laid out the rules. Plain and simple like Les Kondo is doing. Kondo is dignified and appears to remain strong in the face of some gnarly freeloaders. Who is the fat guy? The Chair, that so badly interrupted Kondo? He sure doesnʻt want his freebies snatched up.
I agree Gil was "having a bad day." Part of the reason his day was so bad, was because he was charged, by the House leadership, with passing this lousy bill and he felt uncomfortable. Good for him for understanding he should feel uncomfortable. And better for Les Kondo, Common Cause, the LWV, ADA and, you, Larry, for making him feel that way. Keep up the pressure. I coulda, and shoulda, been there as well. I did not expect them to handle the bill in this way.
I know Gil is adamant about the two minute limit on testimony. While he may be flexible on routine bills, he doers enforce it for controversial bills for which there is a lot of testimony. I can understand that for lay testimony, but would think it would be waved for official testimony like that from the Ethics Commission. It is hard to complain the Commission has not been "providing bright lines" as to which behavior is allowed, which is not, and then shut down the Commission's ED when he is providing testimony to that effect. Kondo's testimony was not long-winded fluff, but was logically organized and on-point.
IN Gil's defense, the intention was, clearly, to draw answers from Kondo through questions from members. BUT, in the interest of efficiency-- if not of "fairness""-- it was appropriate that Kondo be allowed to make a comprehensive over-view of his arguments before being draw into the cross examination format employed by Rep. Boshiro.
Thanks for the video. My respect for Kondo has only increased from watching. He is unflappable. Well, he "flapped" when faced with the unusual attempt of Chair Keith-Agaron to shut him down.
While Blake Oshiro was NOT "unflappable" and was clearly feeling some stress, I thought his questions were reasonable. It is appropriate to ask what is the true value of a free ticket to a fundraiser dinner like the HIPA event. Is it the value of the meal or the face value of the ticket? Kondo wants to say the Commission's standard has remained consistent, but Blake's cite of the 1996 opinion on the spaghetti meal shows that is not clear.
My understanding that the legislators had been using the 1996 logic to guide them in deciding when it is acceptable to accept such a free ticket.
As I wrote elsewhere, the legislators are badly mishandling this issue. It has the potential to create a very STRONG impression they have lost any semblance of ethical standards. I might be with them if the debate were to focus narrowly upon the particulars of the HIPA dinner, provided it were HIPA who provided the free tickets. But by repeatedly re-writing the bill so broadly, their behavior suggests they have no sense of proportionality on the ethical questions involved.