Public employees and state lawmakers could be breaking the law when they receive certain gifts. They have to stop and think: Is he trying to influence me with this lei? Is she trying to reward me with this pizza?
If the answer is yes to either question, better think twice about giving that person anything in the way of appreciation. It’s a controversial rule, particularly in Hawaii where gifts of aloha are part of the culture.
Has the aloha spirit gone too far? Or is it the victim in a game of influence?
The Hawaii State Ethics Commission has for years wrestled with how to make sure people abide by the gifts law. It’s finally come to the point that commissioners on Wednesday realized they need to do a comprehensive review of the statute and all the advisory opinions surrounding it.
Ethics Executive Director Les Kondo wants people to factor in things like the cumulative value of the gifts, the frequency of the gift-giving, who the gift is for and who it’s from. The threshold is whether one can “reasonably infer” that the gift is intended to “influence” or “reward.”
The commission has offered general guidelines for public officials to follow, such as not accepting tickets to events over $25. But so many subjective exceptions have been carved out that the law has become a maze to navigate.
The law and opinions are riddled with inconsistencies, making it a mess to enforce and follow.
Donuts? No. Hot dogs? No. Pizza? No. Roses? Sure.
Kondo, who took office in January 2011, has taken a ton of heat since he started clamping down on “thank you” gifts like food and flowers.
Certain “gifts of aloha,” such as lei, have received a green light from the commission. Lei can cost twice as much as a lunch, but the meal could get a thumbs down.
Kondo said he has struggled with the issue. Almost by definition, he said, any gift that’s given as a “thank you” is a reward, making the statute conflict with advisory opinions that say otherwise.
He brought the issue before the commissioners last week because he wanted to make sure they were all on the same page in terms of how his office has been applying the law. Turns out they weren’t.
Commissioner Edward Broglio said he wants to take money out of the equation. The decision should be based solely on the relationship, he said.
As an example, Broglio said, it doesn’t make sense that a contractor could give manapua to a small government agency to say thanks, but not to a larger department with twice as many employees because the cumulative value would be too high. A dozen manapua for $20, that’s OK. But 100 manapua for $150? We can’t have that.
Ethics Chair Maria Sullivan said the commission needs to revise its opinion about gifts under $25. The other commissioners seemed to agree, but since it was Sullivan’s last meeting Wednesday, and two new members are expected to come on board in July, the future is uncertain.
Broglio said he wanted Kondo to give the commission a deadline, like October, to review the gift law and related advisory opinions and come up with a new position.
Kondo said it’s a good idea to get it done before the legislative session starts in January but the new commissioners should have some time to get their feet wet first.
The gifts law is of most concern to state legislators. They are the constant target of lobbyists, nonprofits, special interest groups, businesses and others who all want them to act in their favor.
Sen. Les Ihara told Civil Beat that there’s broad concern among lawmakers that the $25 rule is arbitrary. Some say it’s too low. Others say it’s too high.
“Once you open the door and allow gifts, then it becomes where do you draw the line and being consistent,” he said.
It’s serious business. Violating the state ethics code can bring steep fines, not to mention unflattering headlines.
Lawmakers have tried to dilute the gifts rule, but haven’t been able to pass a bill. They’ve even gone over Kondo’s head to try to sway the commission chair.
It’s an ambitious goal for the commissioners to revise the gifts rule by January, given the complex and controversial nature of the law. For now, they’ve decided to maintain the status quo, but advise people that changes are coming.
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