Lawmakers were upset. A Senate research office produced a contrary opinion. The House Speaker and Senate President asked the attorney general to give a third opinion.
UPDATED Yet Kondo is unperturbed. Kondo reiterated1 his decision in a PowerPoint presentation to commissioners at their Wednesday meeting. The panel gave him its full support.
“To me, the elements are very straight forward, very clear. I don’t think anyone is arguing about our application of the elements of the statute to the situation,” Kondo said, referring to the state’s Conflict of Interest statute. “What everyone is beefing about — not everyone — what some people are arguing about is the definition of employee.”
The relevant part of the law says an employee cannot assist a person or business for a fee or other compensation to secure passage of a bill in which he or she has participated as an employee.
The controversy started with a May 26 memo from Kondo to members of a state Mortgage Foreclosure Task Force, warning members that they may have violated ethics laws. It basically said that task force members are state employees and therefore should refrain from lobbying on task force-related issues before the Legislature.
Kondo said he views the foreclosure task force as a state entity because it was created by law and charged with coming up with recommended legislation.
“I feel like there’s very limited application, there’s a work-around from the Legislature,” Kondo said. “A small handful of people — literally a small handful of people — are impacted or affected by the guidance, that no longer can testify … So I’m still not 100 percent understanding the big brouhaha that the guidance has caused, but it has caused a big deal with the Legislature as well as the members of the various task forces.”
An earlier version of this story incorrectly said Kondo’s comments were his first public remarks since the controversy began. But he actually spoke to task force members at the group’s public meeting in August. ↩
The position upset some senators, who argued that the ruling would have a negative impact on the Legislature’s ability to recruit experts for task forces as well as working groups. A July 15 opinion from the Senate Majority Research Office disagreed with Kondo’s interpretation of the law.
The Senate memo concluded: “The Ethics Commission has misinterpreted the plain language of the Ethics Code to include task force members in the definition of an ’employee’ … These interpretations and actions by the Ethics Commission violate public policy and usurp the power of the Legislature to convene these types of task forces.”
Kondo said on Wednesday, he’s “not persuaded” by the Senate Majority Research Office’s letter.
“The guidance we’ve given is correct,” he said.
The Attorney General is expected to weigh in on the matter, too. In an Aug. 30 letter, Senate President Shan Tsutsui and House Speaker Calvin Say requested an opinion from Attorney General David Louie.
Part of their letter says: “If individuals from the private sector who participate in these panels are now to be considered ’employees’ of the state for the purposes of the Ethics Code, we are concerned with the chilling effect on both the Legislature’s ability to gather information and on the constitutional right of these private individuals (and their actual employers) to petition the government.”
A spokesman for the attorney general’s office told Civil Beat it’s aiming to respond by Monday to Tsutsui and Say’s request for an opinion. But he said the office is still deciding whether or not it will be an official published opinion. If not, the letter would be subject to attorney-client privilege.
Some highlights from Kondo’s presentation to the commission on Wednesday:
Task force members can lobby on behalf of the task force
Task force members’ employers can lobby on task force matters
Task force members can lobby for free on task force-related issues and for pay on other matters
Members are only employees while task force members
Doesn’t apply if member resigns from task force
Doesn’t apply once task force dissolved
Legislature can expressly exempt task force by including such language as: For purposes of Chapter 84, members are not employees
Commission member Les Knudsen said he hopes to set a precedence if and when an AG opinion comes through.
“I hope when this is finalized, that we’ll have a set of criteria, precedent to refer to and nip this in the butt,” Knudsen said to Kondo. “If we don’t hear back, is this a closed issue?”
“Yes,” Kondo replied. “From my personal view point. Clearly, the commission can always change course.”
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