Thirty-five years ago, Hawaii voters approved an amendment to the State Constitution strengthening the regulation of ethics, and requiring state and county ethics codes to meet certain minimum standards, including the registration and regulation of lobbyists.

But Kauai County apparently never got the message. Kauai still has no system for regulating lobbyists, and county officials seem blissfully unaware they have been ignoring a key constitutional provision for decades.

The ethics amendment was a product of the 1978 Constitutional Convention. In those post-Watergate years, the public was in a reform mood. WIth no shortage of news accounts of lobbyists using lavish gifts to gain undue influence with legislators, stronger lobbyist laws were being adopted across the country. With passage of the 1978 amendment, though, regulation of lobbyists became a constitutional requirement in Hawaii and it seemed the public had gained a new layer of protections. Big sigh of relief.

The ethics amendment called for the state and each of the counties to set up their own separate ethics commissions, with members chosen for their “independence and impartiality” and prohibited from taking an active part in any political campaign.

In addition, the amendment provided:

“Each code of ethics shall include, but not be limited to, provisions on gifts, confidential information, use of position, contracts with government agencies, post-employment, financial disclosure and lobbyist registration and restriction.”

The use of the term “shall” indicates these provisions are mandatory rather than discretionary.

Getting something like this into the constitution is the “gold standard” for reformers. The constitution trumps state and county laws, which have to conform to constitutional requirements.

The Legislature acted almost immediately to establish a State Ethics Commission with power to enforce the new ethics code, and the counties eventually followed.

Except for Kauai, which has just never gotten around to implementing any form of lobbyist regulation.

The county charter says nothing about lobbyists. A search of the county website turns up only a few mentions of the word “lobbyist,” but nothing in the way of regulations.

Paula Morikami, who heads the office which administers the county’s boards and commissions, including the Board of Ethics, confirmed the absence of any county regulation of lobbyists.

“The State of Hawaii has lobbyist guidelines, and people file with the state,” she said Tuesday.

But the state lobbyist law (Chapter 97 HRS) applies only to lobbyists trying to influence the Legislature and doesn’t apply to those lobbying Kauai County government. These are two completely different things.

A county website touting the council’s “transparency initiatives” refers readers to the State Ethics Commission “for a list of the County of Kaua‘i’s registered lobbyists at the State level, agency lobbying contracts, State of Hawai‘i Registered Lobbyists, etc.,” continuing the confusion between state and county responsibilities.

Two veteran Kauai lawmakers also said they were unaware of the requirement spelled out in the state constitution.

“I’m totally ignorant of that,” said county council member and former Kauai mayor, JoAnn Yukimura.

Gary Hooser, another council member who previously served in the state Senate, was equally unaware of the constitutional requirement.

“No one has ever brought it to my attention,” Hooser said, adding that “it’s one of a number of things the county was required to do that they haven’t done.”

Both council members said they would investigate and, if appropriate, introduce legislation to correct the situation.

It’s not clear how Kauai’s failure to regulate lobbyists has stayed off the public radar for so long.

Chuck Totto, director of the Honolulu Ethics Commission, said he was “really surprised” to learn of Kauai’s lack of lobbyist regulation, as was Les Kondo, executive director of the State Ethics Commission.

Both said they have little or no contact with any of the neighbor island ethics boards, and there is no coordination and little communication between them.

“I would have thought it would be more efficient to have just one ethics office with jurisdiction over all state and county employees,” Kondo said, just as the Office of Information Practices administers the sunshine law and public records law at both the state and county levels. “You could at least have one rule that applies to everybody.”

But the constitution’s requirement that the state and counties maintain separate ethics commissions makes any consolidation impossible without another constitutional amendment, something Kondo doesn’t believe will happen.

In the end, I’m afraid this is just another example of how hard-won reforms can fall by the wayside. Passing a law, or even getting a reform written into the constitution, is a start. But none of these provisions are self-enforcing. They don’t happen automatically. That takes continued public awareness and pressure from watchdogs willing to hold officials to account.

Are things likely to change on Kauai? I’m not holding my breath, but I’m always glad to be surprised.

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