A controversial decision last year by the State Ethics Commission restricting educational trips planned, organized, and led by public school teachers has spawned a pair of identical bills that could dangerously weaken the state ethics law.
The measures are an explicit response to the commission’s Advisory Opinion No. 2015‑1, issued last August. In that opinion, the commission ruled that the ethics law “prohibits the teachers from accepting free travel and other benefits from the tour companies” when the trips are planned, organized, and controlled by the teachers.
The commission repeatedly stated that its opinion did not prohibit student educational trips or bar teachers from serving as chaperones on these trips, but called for changes in the way travel is currently organized and arranged to avoid ethical violations.
The opinion effectively blocked a number of future trips already being planned, setting the commission on a collision course with the state’s more than 13,000 teachers and their union, the Hawaii State Teachers Association.
HSTA hired former Congresswoman Colleen Hanabusa to lead its legal challenge. In December, the commission turned down an HSTA demand that it either reverse its position on teacher travel or convene a contested case proceeding.
House Bill 1571, introduced by Rep. Isaac Choy, and a companion, Senate Bill 2600, introduced by senators Michelle Kidani, Donovan Dela Cruz, Clarence Nishihara, and Maile Shimabukuro, are a frontal assault on key provisions of the ethics law and would have ramifications far beyond the narrow issue of the proper role of teachers in organizing student travel.
The House bill has a double referral to the Judiciary and Finance committees, while the Senate bill has not yet received a committee referral.
Since the ethics code was adopted in 1972, its very first provision has remained unchanged: “This chapter shall be liberally construed to promote high standards of ethical conduct in state government.”
This means simply that if there are instances where the plain language of the law or its application are ambiguous, then it should be applied in a manner consistent with its overall legislative goal, “to promote high standards of ethical conduct in state government.”
These bills would simply repeal this guidance and eliminate the law’s existing strong presumption in favor of high ethical standards.
Next, the bills would gut the provision regulating gifts, which prohibits state legislators or employees from accepting any gifts “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.”
The approach of the current law recognizes that the public confidence in the integrity of government is undermined if gifts appear to be linked to efforts to influence a public official’s actions or as a reward for those actions, whether or not that intent can be proven.
If a gift doesn’t pass this reasonable “smell test,” then it shouldn’t be solicited or accepted. That seems pretty simple.
But these bills would throw out all consideration of the circumstances of a gift and instead “require a finding of actual intent to influence the recipient of the gift” before it would be considered a violation of the ethics code.
This would effectively legalize gifts that appear to compromise the public interest unless the Ethics Commission is able to somehow prove each and every one was actually intended to improperly influence or reward official decisions. The effect would be to make any enforcement of the prohibition on questionable gifts much more difficult.
The bills then propose that the House speaker and Senate president would each select one appointee to the five-member commission. Each would be chosen from a list of two nominees approved by the Judicial Council. Currently, the governor appoints all members of the commission from a list of nominees by the Judicial Council.
That doesn’t sound unreasonable. But the justification provided sounds as if these legislative appointees are expected to be more responsive to the sensitivities of legislative leaders than the current crop of appointees.
According to the bill’s statement of legislative intent, “the ability of the state ethics commission to provide oversight and guidance on matters of governmental ethics would be greatly enhanced if commission members had a better understanding of the roles and responsibilities of public officials and employees who are subject to the commission’s decisions and advice.”
However it’s being packaged, this smacks of an effort to limit the independence of the commission by increasing appointees’ “understanding” of the Legislature.
Despite obvious continuing tensions between the Ethics Commission and both the Department of Education and the teachers’ union, comments in recent months during the commission’s public meetings seemed to indicate that there is an emerging broad agreement on the kinds of changes that need to be made in the way educational trips are organized in order to comply with the ethics law.
Those changes need to be put on a fast track so that student travel can return to normal. In the meantime, these sweeping bills need to be killed quickly before they do irreparable damage to the state’s ethics laws.