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Relations between the Legislature and the State Ethics Commission have rarely been warm and fuzzy, and for the past several years have been downright chilly.
The source of the tension is no mystery. The Ethics Commission administers and enforces the state’s ethics and lobbyist laws to assure the highest standards of ethical conduct. And several times since 2011, its rulings have further restricted the ability of legislators to accept gifts from lobbyists and the organizations they represent. For example, legislators can no longer accept tickets to high-priced charity events and other kinds of freebies that once were considered fair game.
But now a former legislator has been appointed to the Ethics Commission.
Rey Graulty had already had a long career in public service before being appointed by Gov. David Ige to a four-year term.
Graulty served two terms in the state House in the early 1980s, and was elected to the Senate in 1992. He was named state insurance commissioner by then-Gov. Ben Cayetano in 1997, and appointed a Circuit Court judge in 1999. He retired from the court in 2009.
If legislators were hoping that having a former colleague sitting on the commission might bring a little relief from the progressive tightening of ethics restrictions, Graulty wasted little time in shutting down such speculation.
“I don’t think it’s a matter of guidance. I think we all know the law. It’s a matter of enforcement.” — Rey Graulty, new Ethics Commission member
In comments during his first meeting as a commissioner, Graulty signaled that he’ll use whatever insider knowledge he has to better target ethics enforcement on key transactions between lobbyists and legislators.
His comments came during a discussion Tuesday following a staff review of several hundred annual gift disclosures filed at the end of June by employees, legislators and other public officials. Commissioners were considering whether it would be effective to send out a broad ethics advisory reminding legislators of the gift laws, and noting some questionable gifts that were included in the most recent disclosure reports.
“Warning letters are great,” Graulty said, “but from my experience, you just put them in a file.”
“I don’t think it’s a matter of guidance. I think we all know the law,” he said. “It’s a matter of enforcement. Why did you do this? Why did you not do that?”
The former chairman of the Senate Judiciary Committee advised focusing on the most important relationships.
“What I’m concerned about is the person using their discretionary authority as a result of being gifted,” Graulty said.
For example, two Department of Transportation employees reported that their entry fees for the Palama Settlement Golf Tournament in April 2015 were paid for by the Hawaii Government Employees Association, the state’s largest union.
“Suppose the entry fee went to the chairman of the Labor Committee. That would be something that should be a high priority concern,” Graulty said.
“Lobbyists don’t give gifts to all 76 legislators,” Graulty said. “They focus on certain ones, for certain reasons. And we need to be akamai on why they’re giving gifts, and why they’re getting gifts.”
“If they’re being done to influence a person’s discretionary authority, then we need to enforce it,” he said.
The state ethics code prohibits any legislator or other state employee from soliciting or accepting any gift when “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.”
A separate part of the law requires disclosure of gifts from a single source valued at more than $200, whether individually or cumulatively over the course of a year. This sometimes causes confusion when those covered by the law mistakenly assume that a gift is legal as long as its value is below the $200 reporting threshold.
Graulty targeted this common misconception, making clear that, in his view, it’s the relationship between the gift giver and the recipient that’s most important.
“It’s not so much the amount, but who is giving to whom,” he said. “It’s not the amount, it’s what is behind the gift.”
There were several other issues regarding legislative gifts that drew the attention of commission staff. While it didn’t identify any prohibited gifts, some appeared to require further information and clarification.
For example, questions were raised about gifts legislators receive from other legislators, or gifts legislators give to staff. Most common were meals, and most of those were of nominal value.
But commission Executive Director Les Kondo questioned the source of funds used.
“I don’t know if they are pulling money out of their own pockets, buying lunch, or dinner, or whatever for other legislators,” Kondo said. “But if they’re taking it out of their legislative allowance, that was one of the things we addressed in guidance last year about use of the allowance.”
“Lobbyists don’t give gifts to all 76 legislators. They focus on certain ones, for certain reasons. And we need to be akamai on why they’re giving gifts, and why they’re getting gifts.” — Rey Graulty
Last summer, the commission adopted guidelines clarifying how legislators’ office allowances may be used. All expenses must be reasonably related to a legislator’s official duties, the commission explained.
Among the expenses the commission said were not related to official duties, and therefore prohibited by the ethics code, were food and drinks for legislators or legislative staff, “except for meetings at which the legislator and/or staff is required/expected to attend.”
Assigning dollar values to certain gifts also seemed to pose problems for legislators, according to commission staff. For example, some legislators reported gift baskets given by the state’s Office of Aerospace Development to be worth about $30, while commission staff estimated their value at $85.
Commission staff said they may seek additional information regarding these gifts, including who gave them and now they were valued.
The commission may also seek additional information about the $348.03 of wine purchased by an executive assistant of Hawaii County Mayor Billy Kenoi, which was reportedly given to certain legislators as gifts.
Here, again, Kondo said more information would be needed to assess whether the gifts were proper.
“I don’t know how many bottles, I don’t know the value, but I certainly don’t see anything that’s been reported (as gifts),” Kondo said.
The value of any one bottle of wine did not appear to exceed the $200 reporting threshold, and so perhaps did not have to be publicly disclosed.
“But it may have been something they shouldn’t have accepted,” Kondo said. “We can follow up by going to the county to see where those items went, and do some investigations there.”
Graulty also called attention to gifts given over the years by Street Bikers United, an organization that has lobbied actively against helmet laws or other regulation of motorcycle riders. The group does not currently have a registered lobbyist, but its gift baskets were reported by several legislators.
“They’ve been giving gifts for years to the Transportation Committee, and no other committee,” Graulty said. “That should raise some eyebrows. Why those gifts? How do they affect decision making?”
The commission discussion didn’t reveal any big scandals, but it suggested the commission may, in the future, be delving deeper into the way gifts are used to curry favor and influence official decisions. And Graulty, drawing on his own legislative experience, appears likely to contribute significantly to that effort.