The Honolulu Charter Commission is scheduled to take up a proposal this week that could undermine the Honolulu Ethics Commission’s enforcement of conflict-of-interest provisions of the charter.

Proposal No. 153, introduced by commission member Donna Ikeda, is described as a way to clarify the charter’s conflict-of-interest provisions prohibiting city employees and officials from soliciting or accepting gifts under certain conditions.

But the “clarification” amounts to a wholesale rewriting of the charter in a way that likely will make it far harder in the future to enforce gift and conflict-of-interest restrictions, an especially troublesome issue when gifts are from lobbyists.

Several local lawmakers and government officials have been accused of violating various ethics laws related to gifts in recent months.

Two former Honolulu City Council members recently paid fines to settle allegations they didn’t disclose improper gifts from lobbyists.

Flickr: JD Hancock

Ikeda’s proposal is scheduled to be considered at the Charter Commission’s meeting Thursday.

The proposal comes in the wake of ethics investigations that resulted in two former City Council members agreeing to pay fines. They paid in order to settle allegations they accepted and then failed to disclose improper gifts received from lobbyists.

In September 2014, former council member Romy Cachola agreed to pay a $50,000 fine, the largest in commission history. The commission’s lengthy opinion in the matter cited dozens of improper gifts to the councilman from lobbyists for interest groups backing the rail project or involved in other land matters.

The aggressive pursuit of investigations into similar allegations against other council members by the Honolulu Ethics Commission’s executive director may have led to his recent temporary suspension by the commission. Ostensibly, his suspension was for administrative actions that have not been publicly disclosed.

Buried In The Agenda

The conflict-of-interest proposal is the last item on the commission’s agenda. It will follow several topics that seem likely to draw considerable public attention, including changes to the city’s planning process to address climate change; a proposal that could be seen as undermining a Hawaii Supreme Court ruling that overturned a variance for a new oceanfront high-rise tower to replace the Diamond Head wing of the Moana Surfrider hotel; and new term limits for the city prosecutor and neighborhood board members.

Given these other issues competing for the time and attention of both the commission and the public, it’s very possible that the importance of the proposed changes to conflict-of-interest provisions could be largely overlooked.

The City Charter, like the state ethics law, prohibits city employees and officials from soliciting or accepting any gift, directly or indirectly, “under circumstances in which it can reasonably be inferred that the gift is intended to influence the officer or employee in the performance of such person’s official duties.”

Ikeda, in a two-sentence statement in support of the proposal, wrote: “This language is overly broad and when it is used in conjunction with the definition of a lobbyist, can and has been used by the Ethics Commission to determine that ANY gift from a lobbyist, regardless of its value, is a violation of law.”

Ikeda instead proposes what she terms “a clear standard of conduct,” which would prohibit only those gifts “which are intended to influence the officer or employee in the performance of such person’s official duties,” and which would benefit the official, their family, or individuals or organizations with which they have “some past, present or future connection.”

What’s wrong with this picture?

First, Ikeda’s proposal is far from clear and narrowly drawn. For example, the reference to having “some past, present or future connection” with an individual or organization is about as broad a brush as one could imagine.

Then there’s the difficulty of proving the intent behind a gift, or any other action for that matter.

State law currently requires violations of the lobbyist law to be shown to be “willful” before any enforcement action can be taken, a standard virtually the same as requiring proof of “intent.”

A 2014 review of the state’s lobbyist law by an independent study group pointed out the problem this poses.

The study group found this willfulness standard  “is virtually impossible to prove,” and is “an unnecessarily high bar” that “allows lobbyists to avoid penalties,” although the finding did not lead to a recommendation backed by all members.

With a restricted budget and heavy workload, it’s unlikely the city Ethics Commission would have the resources to investigate and prove intent behind a specific gift.

Appearances Count

There is a good reason why the conflict-of-interest provision is broadly worded. In this area of public ethics, it is widely accepted that preventing actual, potential, or perceived conflicts of interest is equally important, to maintain public confidence in the inner workings of government.

This is recognized in the declaration of policy that introduces this section of the City Charter: “Elected and appointed officers and employees shall demonstrate by their example the highest standards of ethical conduct, to the end that the public may justifiably have trust and confidence in the integrity of government.”

And, after all, the city charter’s conflict-of-interest provision is not establishing a criminal law, where proof of intent is necessary to protect individual rights and overcome the legal presumption of innocence.

Maintaining ethical standards and public trust is something very different.

Honolulu is by no means an outlier in relying on the broadly phrased prohibition on any gifts that “can reasonably be inferred” to be intended to influence or reward official action.

It’s a standard used by the state ethics code and those of many other organizations and government jurisdictions. It relies on the good judgment of the Ethics Commission to apply the broad standard to the facts of specific situations, and it serves to remind public officers and employees that they should avoid apparent, or potential, as well as actual conflicts.

It also should be obvious that Ikeda’s proposal to rewrite the conflict-of-interest provisions in a manner more favorable to paid lobbyists will put the commission in a difficult position.

Commission chairman David Rae, who retired last year after more than 25 years with the James Campbell Company and its predecessor, the Campbell Estate, was one of the pro-rail lobbyists identified as providing the gifts of food and entertainment that got the former council members in so much trouble.

And several other commission members also are current or former lobbyists, or are with organizations that employ lobbyists.

Supporting a proposal that appears to put the interests of lobbyists above the interests of the public in assuring the highest ethical standards likely will prove awkward at best.

In this case, at least, there’s an obvious alternative: If Donna Ikeda thinks the Ethics Commission has gone too far in restricting gifts from lobbyists through its interpretation of the charter, her first step should be taking her argument to the commission, not attempting to rewrite the charter. And there she will need much more than two sentences if she expects to make a persuasive case.

About the Author

  • Ian Lind
    Ian Lind is an award-winning investigative reporter and columnist who has been blogging daily for 15 years. He has also worked as a newsletter publisher, public interest advocate and lobbyist for Common Cause in Hawaii, peace educator, and legislative staffer. Lind is a lifelong resident of the islands. Read his blog here. Opinions are the author's own and do not necessarily reflect Civil Beat's views.