When the chair of the House Finance Committee dropped key provisions of a bill intended to further limit the legal liability of the state and counties for injuries occurring on public property as long as signs warning of dangerous conditions are property posted, some supporters of the measure responded by accusing Rep. Sylvia Luke of violating the conflict of interest provisions of the state ethics law.
The bill’s backers believe it will open more public lands for “extreme” recreational activities that carry more than usual risk, such as rock climbing, paragliding, hiking, and mountain biking.
In a complaint filed with the State Ethics Commission, more than 20 extreme sport enthusiasts charged that Luke was improperly influenced by her private employment as an attorney in a firm specializing in personal injury cases, including those involving injuries on public land, as well as her membership in a professional association made up of personal injury lawyers.
If the bill passes, and the state and counties can’t be held liable, then Luke’s firm, and other personal injury lawyers, could take a financial hit. And that, they say, backs up their conflict of interest allegations.
Under the terms of the 2003 law, signs warning of natural dangers on improved public lands such as parks and publicly maintained hiking trails are presumed sufficient to protect the state from legal liability for any injuries. But that law will “sunset,” or be automatically repealed, as of June 30, 2014, unless the legislature acts now to extend it or make it permanent.
In addition, supporters of the bill say the existing law has to be broadened in the wake of a lawsuit filed after two visitors died in a fall while trying to descend to the bottom of a waterfall on a “volunteer trail,” perhaps a pig trail, even though it was not part of the publicly maintained trail system. The state was found liable and, along with its insurance carrier, ended up paying over $15 million to settle the case.
The attorney general proposed language aimed at absolving the state and counties from liability for such “volunteer trails,” and generally extending the protection against legal liability to any dangers, natural or unnatural, whether on improved land or in unimproved areas, as long as warning signs are properly posted.
The only opposition to the proposed changes came from Bob Toyofuku, lobbyist for the Hawaii Association for Justice, the professional association representing personal injury attorneys.
“The issue raised in this measure is the extent to which government should expend resources to discover and monitor ‘voluntary trails’ created by members of the public on government lands that are independent of official trails created and/or maintained or monitored by the movement or part of the statewide trail and access system,” Toyofuku testified. “The competing factors are the burden to government to find and maintain voluntary trails which may be located in remote locations versus the public safety benefit of safely maintaining trails and/or warning of hazardous conditions.”
The amendments proposed by the attorney general were approved by the House Judiciary Committee over Toyofuku’s objections, but the bill then ran into a stone wall when Luke stripped out most of the amendments. When the bill emerged from the finance committee, it simply deleted the “sunset” provision in order to continue the liability protections in the existing 2003 law. None of the additional provisions were included.
But did Luke’s actions violate state law? Was she required to recuse herself because of a conflict of interest as some of the bill’s supporters argue? Or is this simply a conflicting assessment of the proposed legislation, part of the normal flow of politics?
I think the conflict charges are dubious, at best, at least in any legal sense.
The primary conflict of interest provisions of state law prohibit state employees from taking any official action affecting a business in which they have a “substantial” financial interest, or affecting a “private undertaking” they represent as “legal counsel, advisor, consultant, representative, or other agency capacity.”
But the law specifically exempts legislators from the definition of “employee.” The statute defines an employee as “any nominated, appointed, or elected officer or employee of the State, including members of boards, commissions, and committees, and employees under contract to the State or of the constitutional convention, but excluding legislators, delegates to the constitutional convention, justices and judges.”
Similarly, while the “fair treatment” provision of the ethics law bars any legislator or employee from using their official positions “to secure or grant unwarranted privileges, exemptions, advantages, contracts, or treatment, for oneself or others,” a legislative exemption is again included.
It reads: “Nothing herein shall be construed to prohibit a legislator from introducing bills and resolutions, serving on committees or from making statements or taking action in the exercise of the legislator’s legislative functions.”
These aren’t just self-interested exemptions that legislators have granted themselves, although at first glance it might look that way.
The ethics commission has previously cited two considerations. First, Hawaii has a part-time legislature, leaving open the likelihood that legislators will need to hold outside employment to make ends meet. As a result, the commission has stated, “because of the broad range of issues considered by the Legislature, it would be very difficult to impose the same conflicts-of-interests restrictions upon legislators that applied to full-time state employees and officials.”
Most importantly, though, the legislative exemptions follow from the separation of powers between the executive, judicial, and legislative branches of government as spelled out in the State Constitution, and mirror the “speech or debate clause” of the U.S. Constitution.
As the State Ethics Commission explained in its very first ethics opinion issued in March 1968, the State Constitution “provides that a member of the legislature cannot be held to answer before any tribunal other than the legislature for action taken in the exercise of his legislative functions.” For this reason, most issues of conflict of interest are subject primarily to the rules of the House and Senate, respectively.
According to House Rule 60.5, a “conflict of interest” means that the legislation affects the member’s direct personal, familial, or financial interest “except if the member, or the member’s relative, is part of a class of people affected by the legislation.”
Most states appear to have similar provisions, according to a state-by-state list of conflict of interest definitions compiled by the National Conference of State Legislatures.
As applied in this instance, it would appear that Luke is “part of a class of people affected by the legislation,” and it’s a very large class. It would include all of the personal injury lawyers who might conceivably benefit by keeping the state’s deep pockets available in cases involving victims hurt while on public lands, as well as all the potential victims of future accidents.
As of Tuesday afternoon, no conference committee negotiations on SB 1007 have been scheduled. Luke is not among the House conferees assigned to the bill. Agreement has to be reached and any pending bills have to be filed or “decked” in their final form by the end of Thursday in order to be voted on this session.
By the way, for those who want to dig deeper into prior ethics opinions, the State Ethics Commission now has an online database containing all 768 prior opinions. Each entry includes the type of opinion, the date issued, a few key words, and a link to the text of the opinion. The data can be searched online, or downloaded to your computer.
It’s another big step in making ethics records more readily accessible to the public. Hopefully, access to these opinions applying the ethics law to specific factual situations will benefit discussions such as this in the future.
Read Ian Lind’s blog at iLind.net.