A bill to strengthen Hawaii’s lobbying law cleared a big hurdle this week, but not before the House Judiciary Committee diluted a key part.
That’s not to say all is lost. Even in its current form, the state Ethics Commission will have an easier time fining lobbyists who fail to file required reports.
When legislators decriminalized the lobbying law in 2001, they left in a part that says lobbyists can only be found guilty if the commission shows they broke the law deliberately. The commission wants to delete the word “willfully” to ease its burden of proof.
There are two places in the law where “willfully” applies: failing to file any required statement or report; and filing a statement or report containing false information or a critical omission of any fact.
As the law currently stands, the commission has to determine that someone committed either offense “willfully” in order to assess a fine up to $500. Ethics Executive Director Les Kondo said this is almost impossible to do.
“To illustrate the absurdity of the state of mind requirement: a person could spend thousands of dollars on lobbying activities, all of which must be reported, not file any expenditure or other lobbyist report, and avoid an administrative penalty simply because the person professed ignorance of his legal reporting requirements,” Kondo said in his testimony. “And, that same person could continue not reporting the thousands of dollars spent on lobbying activities each year as long as he maintained his ignorance of the lobbyists law. That situation is inconsistent with the statutory purpose and renders the State Ethics Commission virtually toothless to enforce the reporting requirements of the lobbyists law.”
Judiciary Chair Karl Rhoads decided instead of deleting “willfully” for the part about filing a statement or report containing false information, the committee should change it to “negligently.”
Finding someone negligent may be easier than proving someone willfully broke the law, but it still goes back to Kondo’s concern over someone’s state of mind.
He objected to Rhoads’ suggestion during the committee hearing on the bill Tuesday, but the amendment was made anyway after he left.
Kondo was unaware the law had been changed Wednesday, and declined to comment on it until the revised version of the bill was posted on the Legislature’s website. The updated draft still wasn’t posted Thursday, which is unusual.
The committee heard several bills Tuesday, including the one concerning the lobbying law. Rhoads accepted testimony on each bill and then apparently went back and added amendments at the end. Nothing illegal with the process, but other committees hear the testimony and make any amendments one by one. It seemed to catch Kondo off guard, and he wasn’t the only one.
Jeff Portnoy, an attorney representing a group of media outlets, had a similar experience at the same hearing. He testified on a bill to make the shield law permanent and left, only to learn later that the committee went back and amended the bill after hearing testimony on all the other bills.
The lobbying bill was also referred to the House Finance Committee for vetting, but no hearing has been scheduled yet.
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