Dear Joe,

I just finished reading your April 27, 2015, letter to the State Ethics Commission complaining that the commission and its staff have issued “inexplicable” rulings that have limited your ability to freely accept gifts from lobbyists and others seeking to influence the outcome of your legislative decisions and actions.

You used some strong words. For example, you accuse the commission of engaging in a “disreputable practice” by toughening its stances in ways that have raised the ethical bar for public employees and public officials such as yourself. And you suggest the commission “disavow” all ethics opinions and guidance issued since 2010 and roll back the clock to an earlier era.

Your letter is on the commission’s agenda and will be considered at its meeting Wednesday.

Ethics Commission meeting

The Hawaii State Ethics Commission is scheduled to talk about its executive director, Les Kondo, far left, at its meeting on Wednesday.

Nathan Eagle/Civil Beat

Before I evaluate your views on the commission’s work, I should explain why this open letter addresses you using the diminutive, “Joe,” rather than the formal way your letter was signed, “Joseph M. Souki, Speaker of the House of Representatives.”

I adopted the informal tone in order to remind other readers that despite your title as Speaker of the House, your letter represents simply the personal view of one of Hawaii’s 76 elected legislators. There’s nothing wrong with expressing your personal opinion, although in this case I disagree with your point of view.

But you had ample opportunity during the recently completed legislative session to package your concerns as a resolution which, if passed, would have expressed the sentiment of the House. You apparently chose not to do that, which is fine. But it means that your personal letter is just that, a personal position that does not carry the weight of the House.

If you want to sleep comfortably at night, it’s simple. Don’t criticize the Ethics Commisison for doing its job. Just don’t accept gifts from anyone who might be reasonably seen as trying to influence or reward you.

Now back to the substance of your complaint.

First, you fault the commission for justifying its more restrictive recent applications of the state ethics code by reference to “liberal construction” of the law, meaning that the objective and purpose of the law are considered when determining what the language of the statute means.

You argue that this “does not promote either ethics or the rule of law.”

But take a look at the ethics code, which is found in Chapter 84, Hawaii Revised Statutes. And right there at the top, in the very first section:

“§84-1 Construction. This chapter shall be liberally construed to promote high standards of ethical conduct in state government.”

The Ethics Commission didn’t write that. It was made part of the ethics law from the start by the Legislature. And when the commission applies the law liberally “to promote high standards of ethical conduct,” it’s doing its job as the law requires.

Here’s where I get a bit confused by your letter.

You argue that the commission should ignore the law’s requirement for liberal construction and, whenever confronted with any ambiguity in applying the law, petition the Legislature to pass new laws to tidy up the legal landscape.

But there’s a big problem with this idea. In case you haven’t noticed, neither the House, nor the Legislature as a whole, has been supportive of new ethics legislation.

Speaker Souki speaks to reporters

House Speaker Joe Souki faults the Ethics Commission for “liberal construction” when it comes to interpreting the ethics code, but that is what the law prescribes.

Nathan Eagle/Civil Beat

In fact, year after year, the Ethics Commission has submitted a package of legislation covering a wide range of topics. Recent bills sought to extend mandatory ethics training, eliminate nepotism in state hiring, increase lobbyist disclosure, tighten conflict of interest provisions, establish meaningful penalties for violations, and so on. Most bills have been allowed to die without hearings. Not one of the bills included in the commission’s annual legislative package has been passed in the past few years.

On the other hand, if you think the ethics law should not be liberally construed to promote high ethical standards, you can easily have a bill drafted to amend the law to that effect. But I suspect few legislators, yourself included, have much appetite for leading a public charge against high ethical standards.

As was noted in the 1978 amendment to the Hawaii State Constitution creating state and county ethics commissions and ethics codes, the people of the state “believe that public officers and employees must exhibit the highest standards of ethical conduct….”

I think that’s still the case, perhaps now more than ever.

Then there’s your argument against the commission’s position on gifts. You argue that since the ethics law does’t require public disclosure of gifts until their cumulative value from a single source is more than than $200, then officials like yourself should be free to accept any gift as long as its worth less than two hundred bucks.

That should be “clear to anyone familiar with the structure of the Ethics Code,” your letter states.

Not so fast.

There are two gift provisions in the ethics law. The first prohibits any legislator or employee from soliciting, accepting or receiving any gift “under circumstances in which it can reasonably be inferred that the gift is intended to influence the legislator or employee,” or intended to reward them for any official action.

You had ample opportunity during the recently completed legislative session to package your concerns as a resolution which, if passed, would have expressed the sentiment of the House.

There’s no clear dollar amount that would make any gift absolutely safe to solicit or accept. As the law is written, even a gift of relatively nominal value is prohibited if it reasonably appears to be intended to influence or reward a legislator or employee.

The second, separate provision provides for disclosure of any gifts from a single source if their cumulative value is more than $200.

There’s really no conflict between the two provisions. You shouldn’t accept any gift that might be reasonably inferred to be intended to influence or reward. And any other gifts that you solicit or receive must be disclosed once their value exceeds the $200 threshold.

You’re right in one sense. It would be easier if there were a bright line separating prohibited gifts from legal gifts, but that pesky “reasonable inference” standard is a common part of most state ethics laws. Sometimes it’s not the amount, but the totality of circumstances surrounding a gift, that make all the difference. And, yes, that does mean you and other legislators must consider whether each gift is proper, and whether other reasonable people would agree.

If you want to sleep comfortably at night, it’s simple. Don’t criticize the Ethics Commisison for doing its job. Just don’t accept gifts from anyone who might be reasonably seen as trying to influence or reward you.

Another approach would be to ban all gifts from lobbyists or others with matters pending before the Legislature. What do you think?

Ethical decisions are rarely cut and dried. The commission struggles to apply the law it’s been given by the legislature, with all of its ambiguity and uncertainty. And as conditions change, the way the law is applied must change as well. While I can’t say I agree with every detail of every commission ruling, there’s no denying that its members are trying their best to assure high ethical standards throughout state government. And, I’m betting that’s really what voters want.

And if you’re still bothered by the uncertainty, then try to change the law. You are, after all, the Speaker of the House, and legislation is your profession. And you might also want to take a closer look at the commission’s proposed legislation next year, and lend your support.

Sincerely yours,

Ian Lind

Columnist and political observer

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