Hawaii Monitor: Is It Time for a Review of Political Gift-Giving?
State ethics laws have been in place for 35 years but they're still hard to figure out.
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It’s been 35 years since voters amended the state constitution to say our public officials should have “the highest standards of ethical conduct,” and requiring the state and counties to establish codes of ethics.
This seems like plenty long enough to work out the kinks in the law and get used to how it works.
So why does it seem like you need to be a lawyer, or pay one, to figure out just how to stay on the right side of Hawaii’s ethics laws?
Take the case of gifts. Over the years, we’ve seen lots of examples of special interest groups or their representatives currying favor of public officials with expensive gifts in order to get favorable executive or legislative action.
Gifts to legislators that have made the news and caused controversy in the past have included tickets to high-priced social events or football games, off-island travel, lavish meals, invitations to play golf, go fishing, and even tangible gifts like cameras, electronic equipment, and cash.
These are the kinds of thing that feed public cynicism and distrust of the Legislature and politics in general if left unchecked.
Luckily, the State Ethics Commission says those kinds of gifts are off-limits, citing a provision of the ethics code that flatly prohibits any public official or employee, including a member of the legislature, from soliciting or accepting a gift “under circumstances in which it can reasonably be inferred that the gift is intended to influence the legislator or employee in the performance of the legislator’s or employee’s official duties or is intended as a reward for any official action on the legislator’s or employee’s part.”
But what if your job is trying to influence legislation? That’s the position of lobbyists who advocate on behalf of companies, nonprofit groups, community, professional, or business associations, unions, developers, and all the other interest groups that take part in the political process.
Although the public tends to have a jaded or cynical view of lobbyists and their role in the legislative process, they are both essential and constitutionally protected by the First Amendment’s right to petition the government for “redress of grievances.”
By definition, lobbyists are professionals at influencing legislation or other official action. That’s what they are paid to do. So are all gifts from lobbyists to legislators or public officials illegal?
Not necessarily, according to Les Kondo, executive director of the State Ethics Commission. The Legislature has never passed a total ban on gifts from lobbyists, although some other states have them, and the commission’s interpretation of the law provides considerable wiggle room.
“Generally speaking, it’s true that each cent spent by lobbyists is for the purpose of trying to influence or reward public officials,” said Les Kondo, executive director of the State Ethics Commission.
“Lobbyists don’t invite you and I to lunch,” Kondo said with a laugh.
“The statute implies you can’t even take a one-cent meal from a lobbyist,” Kondo said. “But the language in the statute is relatively ambiguous.”
In interpreting the ethics law, the commission has felt a reasonable person wouldn’t presume small gifts were intended to buy votes, while those of significant value may be a different story.
As a result, the commission has advised that “Gifts of Aloha” worth less than $25 are generally okay for officials to accept. These would include small gifts of nominal value, such as a flower lei, a box of cookies, pastries or candy to share with office staff, or small promotional items like a calendar, pen, coffee mug, or refrigerator magnet.
Kondo said the commission also recognizes the value placed on food and sharing meals in our local culture.
“We like to do business with food, whether coffee or over lunch, people like to eat,” Kondo said. “It’s part of how people like to do business in the state.”
Legislators are invited to a lot of events involving meals or “food and drink,” including breakfasts, lunches, and dinners, receptions, pupus, “meet & greet” events, and fundraisers, not only during the annual legislative session but year round.
To make things simpler, the commission now advises legislators they can accept invitations to such events as long as the fair market value is less than $25.
“What the commission has tried to do is establish a bright line to provide some help to legislators with respect to the type of food and drink they can accept,” Kondo said.
But that doesn’t mean any gift under $25 is okay, Kondo said. A gift card worth $24.99 still wouldn’t be allowed, he said.
And there’s a big “gray area” where judgment calls still have to be made.
For example, gifts of travel, including air fares, accommodations, and meals, can be accepted if there is a legitimate “state benefit,” and a reasonable relationship between the trip being offered and the legislator or employee’s job.
But whether a particular trip is legitimately job related, or a prohibited junket, is a judgment call the commission must make.
And what about those groups, or their lobbyists, that build ongoing relationships with legislators and key staff through repeated and ongoing gifts of food like a box of manapua or a few plate lunches. Each individual gift might be minor, but the pattern of gifts appears to leave other individuals and community groups at a distinct competitive disadvantage getting their voices heard if they don’t have the money for gifts of their own.
And while the ethics laws have provisions requiring disclosure of certain gifts, the requirements are ineffective, leaving the public without any clear notion of just how this culture of gifting, and the obligations it weaves, impacts the policy process and the high standards of conduct our ethics code is intended to assure.
I imagine no one is too happy with the situation. Some legislators feel the ethics commission has gone too far in restricting gifts and other former perks. Others see certain restrictions, such as limits on business meals that might cost over $25, as unreasonable obstructions to just getting work done in a businesslike manner.
Meanwhile, some legislators refuse all gifts, while others report each and every pen, pencil, refrigerator magnet, or cookie whether from a constituent or a lobbyist. And I would guess many voters likely think that a “level playing field” should mean no gifts at all for legislators and public officials.
Legislators have been pretty gun-shy about touching ethics reforms in recent years, but this is an area that would benefit from a major review and makeover.